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MAINE,
tions

Sir

HENRY SUMNER.
at

Disserta-

on Early Law and Custom.


Oxford.
:

Chiefly selected

from Lectures delivered

SuMNER Maine.
1883.

New York

By Sir Hf.nrv Henry Holt dv: Co.,

Svo, pp. 402.

DISSERTATIONS ON EARLY LAW AND CUSTOM. Chiefly selected from Lectures delivered at Oxford.

By

Sir
l\:

Henry Sumner Maine.


Co., 18S3. 8vo, pp. 402.

New York: Henry

Holt

LAW.
Holt

Dissertations

on

Early

Law and Custom.

Chiefly selected from

Lectures delivered at Oxford.

By Sir Henry Sumner M.^ine.

New

York: Henry

&

Co., 1883.

8vo, pp. 402.

CUSTOMS.
tom.

Dissertations on Early

Chiefly selected

Law and Cusfrom Lectures delivered at

Oxford.

By Sir Henry Sumner Maine.

New

York: Henry Holt

&

Co., 1883.

Svo, pp. 402.

EAELY LAW AND CUSTOM

nV

TIIK SAM/'J
Its

AUTHOR.
tlio

ANCIENT LAW.
Idt-as.

Connoctioris with
its

Kurly

History of Socicly, and


8vo,
$:3
r().

liclatiou to

Modern

LECTUUKS ON THE EARLY HISTORY OF


INSTITUTIONS.
8vo, f;3.50.

VILLAGE CO.MMUNITIES
WEST,
to

IN

THE EAST AND

liich

arc

added other Lectukes,


8vo, $3.50.

Adduessi:s and Essays.

DISSERTATIONS ON CUSTOM. Chiefly


delivered at Oxford.

EARLY LAW AND


selected

from

Lectures

8vo, $3.50.

BY rUE LATE JOHN


Pliilosophy of Positive Law.
Abridiied from
students.
larger

AUSTIN.
or,

LECTURES ON JURISPRUDENCE;
By
work

The
John

tlie late

Auslin. of the Inner Temple, Barrister-at-La\v,


tlie

for the use of

By Robert Campbell,
8vo, $2.50.

of Liucolji's

Inn, Bairisler-at-Law.

DISSERTATIONS
OH

EAIILY

LAW AND
CIIIEKI.Y

CUST03I

SKLECTED FKOM

LECTUMES DELIVEHEB AT OXFORD

Sir

henry SU:MXER MAINE


ETC.

K. C.S.I. LL.D. F.R.S. AUTHOR OF "A.NCIEST LAW" " VILLAGE-COMMUMTIKS "

^.

^
NEW YORK

M
I

/"

HENRY HOLT AND COMPANY


1883

AUTHOJi'S EDITION.

CONTENTS.
CHArTKft
I.

The Sacred Laws


Religion and

or the Hindus

....
.

PAGB
1

II.

Law

i>r.

III.

Ancestor-Worship
Aj?^CESTOR-"SVoRSHir

i52

IV.
V,

and Inheritance

78
]2-'3

RotIl Succession and the Salic Law

VL The
'

Kino, in his relation to Farly Civil Justice

IGO
102
2.!2

Vn.

Thboribs of Primitive Society

A'^

-.

Vin.
IX.

East European House Communities

The Decay
England

of

Feudal Property in France and


291

X.

Classifications of Property

,\^T)

XL

Classifications of Legal Rules

....

.362

LM)EX

....

393

PEEFACE.
Two
COURSES of
lectures, delivered

by the Author
Corpus

while he had the honour of holding the

Professorship of Jurisprudence in the University of

Oxford, have been already published with the


'

titles

Village- Communities in

the East and AVest,' and

'

The Early History of

Institutions.'

The

substance^

of the present volume was originall}'- contained in


lectures

which formed part of various other courses

given

l)y

him

at

Oxford

l)ut

in

some

cases the

form has been materially

altered.

The Author continues


investi2:ation

in these

pages the line of


in

which he has followed


to
a

former works.
of
existing
or very

He endeavours
institutions

connect
]nrt

portion

with

of the

primitive of
tlie

ancient usajres of mankind, and


ciated

ideas asso-

with these usages.


ht*lp

Ill

his first four chapters

he attempts, with the

of the invaluable series

[()]

I'RKl'ACK.

of

'

Saon'd l^ooks of the

l"';ist.'

trMnslattvl

under the

suj>eriiit('iiltMi('i'

of I'roi'essor
tliat

Max

Miiller, to

throw

souie lii;ht

on

close im[)lieation

of early law
iiujuirer

with ancient religion which

meets the

on

the threshold of the legal systems of several societies

which have contributed greatly


sation.

to

modern

civili-

In the chapters which follow, he treats of

another influence which has acted strongly on early


law, the authority of the King,
tions of the
])erty

In the later por-

book he examines

certain forms of prolegal conceptions

and tenure, and certain

and

legal classifications,

which have survived to our day,

but w^hich appear to have had their origin in remote


antiquity.
his

In a few words at the commencement of

Seventh Chapter, the writer has explained his

reasons for prefixing to his later chapters a discussion


of

some

'

Theories of Primitive Society.'


Y., VI., IX., and

The substance of Chapters


has already appeared in the
'

XL

Fortnightly Review,'
'

and the bulk of Chapter YIII. in the

Nineteenth

Century

'

and the Author has to express his thanks

to the proprietors of those periodicals for their per-

mission to republish his contributions.

EARLY LAW AND CUSTOM.


CHAPTER

I.

THE SACRED LAWS OF THE HINDUS.

The study

of the sacred languages of India, which

has given to the world the modern science of Philo-

logy and the modern theory of Race, began virtually


in the study of sacred

Indian law.

Sir

William

Jones, who, though he was not absolutely the earliest


of Anglo-Indian Sanscritists, was the first to teach
the

West

that there

was

in the East such a lanffuaffe


it,

as Sanscrit,

and a literature preserved in

does not

appear during his Oriental studies in England to have


suspected the existence of the treasure he was destined
to disinter.

He

seems rather to have sought the key

to

Eastern knowledge in two spoken and highly-

cultivated languages

Arabic

and Persian,

But he

accepted a Judgeship in a Court of Justice newly established in Bengal, under an

Act of Parliament which


questions of inheritance

reserved to native litigants the application of their

own

laws and usages in

all

THE SACUKD LAWS OF


;

TIIK

HINDUS.

ciiAP.

I.

and contract

and, from
all

:i

nnicli earlier period, it

had

been the practice of

the Indian Courts to attach

to tlieniselves Moolvics

and Pundits

that

is,

native
for the

professors of

Mahonimedan and Hindu law


on the

purpose of advising tluMu

legal rules, of

which

these experts represented themselves to be the depositaries.

The

corres})ondence of Sir William Jones re-

peatedly expresses his suspicions (perhaps not always


quite just) of the fidelity and honesty of the native

advisers of the tribunals.

'

can no longer bear,' he

writes in September 1785,

'

to be at the

mercy of our
and
it

Pundits,

who

deal out

Hindu law

as they please,

make

it

at reasonable rates

when they cannot

find

ready-made.'

He

therefore formed a determination to

acquaint himself personally with the sources of the law

from which they pretended to draw their opinions.

With Arabic he was already familiar, and he


required no assistance in his studies of

therefore

Mahommedan

law

but for the purpose of mastering the virtually


lans^uao-e

unknown

in
it

which the Hindu law was


necessary to visit during his

contained, he found

vacations several of the decaying and decayed seats of learning in which knowledge of
fessed,
it

was

still

pro-

and he organised a

staff of

Hindu

scholars to

aid

him

in his Sanscrit studies,

and to record their

results.

The plan for improving the administration


him was one
for the preparation of a Digest

of

Anglo-Indian justice which finally commended

itself to

CHAP.

I.

TQE SACKED LAWS OF THE HINDUS.

ill

Eno-lisli of

Hindu and Mahommedan

law, which

should need no Pundits or Moolvies for its interpretation.

Much

to their honour, the Indian

Government
his Council,

of

tlie

day, formed of

Lord Cornwallis and

accepted his offer to preside over the undertaking, and


liis

staff of native experts,

considerably increased, was

taken into the Government service.

On his monument

by Flaxman,
Oxford, he
literates,
ill

in the chapel of University College at

sits

surrounded by his company of native

amid conventional Indian foliage, bareheaded,


air.

the open
It

was in

fact

from these native Hindu teachers that

Sir
all

William Jones learned, and the learned and curious


over the

West were gradually

informed, that in a
British

part of the world just coming under the

sceptre there existed an ancient language, the elder


sister of

the classical languages so honoured in the


series of

West, a

poems which might not unjustly be

compared to the Homeric epics and the Attic drama,


and laws twice as old as the legislation of Solon and
the Twelve Tables of Rome.
It is

impossible

now
as she

now

that India has


;

become more commonplace

has got nearer

now

that, here at all events, she is

associated with frontier wars, budgets, opium, and

grey shirtings

to reproduce the keen throb of intel-

lectual interest

which the

literary portion of these

discoveries sent through Europe.

But

Sir

William

Jones was even more of a jurist than a scholar, and

THE SACKED LAWS OF THE HINDUS.


siirj)riseil
liis

ciiAl'.

I.

notliing seems to have

and interested him

more than the assurance of

teaeliers that, in the

ancient hinguai;e he \vas learning, there survived legal

writings asserted to be of sacred origin, of vast antiquity,

and of universal obligation among Hindus.

The

oldest of

them was said to have been dictated by

Manu,

a divine being

who had been mysteriously


;

asso-

ciated with the creation of all things

and

it

was de-

scribed as the acknowledged

basis of all

Hindu law and


The book

Hindu
to

institutions, the fountain of all civil obligation

more than a hundred millions of men.

was actually extant, and the translation of it which he


gave to the world, with the
title
'

Institutes of

Hindu

Law, or the Ordinances of Menu, according to the


Gloss of Culluca,' was the first-fruits of his labours on
the Digest which he
fact, to

had planned.
it

He

seems, in

have regarded

as standing to this projected

Difjest

much

in

the

same

relation

as the

Roman

Institutes to the celebrated Digest of the

Emperor

Justinian.
It does not

seem to
Sir

me

possible to doubt that the

account which
of

William Jones gave op the Book


to his

Manu

in his Preface

translation

was a
to

rationalised version of the statements

made

him

by
to

his native teachers,

who seem

all to

have belonged

one particular school of Hindu learning, accusin especial

tomed to hold Manu

honour.

Sir

William

Jones considered this personage, who, in the treatise

CHAP.

I.

THE SACRED LAWS OF THE HINDUS.


'

called after him, sits

reclining

on his arm, with

his

attention fixed

on one

object, the

supreme God,' as

a real

individual

human

being,

and the personal


Sir

author of the legislation attributed to him.

William Jones compares him to the Cretan Minos

and the Egyptian Men, partly on account of the consonance of names.

As

have just

stated,

he sees an

analogy in this law-book to the Institutes of the

Roman

Justinian, but he assigns to

it

the prodigious

date of 1,280 years before Christ. In the light of newer

knowledge, which nevertheless might not have existed


but for Jones, we can see that these statements of his
require correction.
is
it

There

is

no doubt

that, if

Manu

to be

compared to a book known

to

Englishmen,

should have been to a book a good deal more

famihar to them

than the

Roman

Institutes,
it

the

book of Leviticus.
a

For Manu, though


is

contains

good deal of law,

essentially a

book
;

of ritual,

of

priestly

duty and religious observance

and

to this

combination of law with religion the whole family of

Hindu

writings, to

which the book of Manu belongs,


characteristics
It is

owe some remarkable


desirous of dwellinir.

on which

am

not at the same time to


is

be supposed that the combination

peculiar to the
literally

Hindus.

There

is

no system of recorded law,


it first

from China to Peru, which, when


notice,
ritual
is

emerges into

not seen to be entangled with religious

and observance.

The law of the Romans has

TIIK

SACKED LAWS OF
to
In^ tli;it

TlIK

HINDUS.

CHAP.

I.

bocu

(lioni:;lit

in -wliicli the civil

and Tontifi-

cA

jurispriulenco wciv earliest and

most completely

disentangled.
tlu'

Yet the meagre extant fragments of


are

Twelve Tables of ]\ome contain rules which


:

j)lainly religious or ritualistic

Thou Thou

shalt not square a funeral pile

with an adze.

Lot not

women

tear their cheeks at a funeral.

shalt not jnit gold

on a corpse.
('

We
the

are told

by Cicero

De

Legibus,'

2, 25,

G4)

that several of these rules contained in the Tenth of

Roman

Tables were taken from Greek originals.

He

attributes the

Greek rules to Solon, and explains

that they limited the costliness of the ancient ritual

of funerals.

The opinions of
effects

Sir

William Jones produced great

both in the East and in the West.


I

One

result

which followed from them


very imequal to

must pass by with


importance.

notice

its practical

The Anglo-

Indian Courts accepted from the school of Sanscritists

which he founded the assertion of his Brahmanical


advisers, th^t-the sacred laws beginning in the extant

book of

Manu were acknowledged by


The impression

all

Hindus

to

be binding on them.

in the

mind

of

the English judicial officers


infer

an im]3ression

shared, I

from

its

language, by the English Parliament

manifestly was that the sacerdotal

Hindu law

corre-

sponded nearly to the English

Common Law, and

was

at least the substructure of all the rules of life followed

'

CHAP.

r.

THE SACRED LAWS OF THE HINDUS.


It is

hy Hindus.

only just beginning to be perceived

that this opinion had a very slender foundation, for


it is

probable that at the end of the last century large

masses of the Hindu population had not so nnich as


heard of Manu,^ and
legal

knew
to

little

or nothing: of the

rules

supposed

rest

ultimately

on

his
it

authority.
is

The

original range of operation

which

possible to allow to the sacerd,otal laws has been

much narrowed by very


years ago, on

recent investigation.
I

Some
West
after

my

return from India,

stated in a

book on

'

Village Communities in the East and

(pp. 52, 53) the opinion

which

had formed
judicial

personal
'

inquiry

among Indian
'

officers.

The

conclusion,' I said,
to

arrived at

by the persons
is,

who seem

me

of highest authority

first,

that
"*

the codified law


originally a

Manu and
smaller

his glossators

embraced
rules,
t

much
;

body of usage than had

been imagined

and next, that the customary

reduced to writing, have been very greatly altered by

Brahmanical expositors, constantly in


in tenor.

spirit,

sometimes
to consist
'

Indian law

may in fact be affirmed

of a very great

number of

local bodies of usage,

and

of one set of customs, reduced to writing, pretending


to a diviner authority than the rest, exercising con-

sequently a great influence over them, and tending,


'

A high authority
Manu

informs

me

that there are few,

if

any, re-

ferences to
treatises.

in the Sanscrit literature other than the legal

These last quote a ' Manu,' but the writings quoted under that name are not those now extant.

S
if

Tin:

SACRED LAWS OF
;il)s()rl)

TIIK

HINDUS.

CHAP.

I.

not clu'ckt'd, to
li;is

tluMu.'

Since tbon,

my conin India

clusion
("

Inrn greatly fortiiiod by more systematic


oi'

examination
a

the

plienomena.
the

Tlicre

is

])rovinee,

tlie

l*unjab,

country of the Five


seat

Kivers,

wliicli

was the

earliest

of the

Aryan

Hindus on

their descent

from their original home


institutions of

into the Indian plains.


this province

The laws and

have quite lately been the subject of an


inquiry
C.
('

exhaustive

official

Punjab

Customary
1881).

Law,'

edited

by

L.

Tupper,

Calcutta,

Among
to

several results of great interest


is

which seem

me

to have been reached, one

Punjab the
in

we have in the Hindu institutions very much in the state


that

which they were before the Brahmanical expositors

took them in hand.

The

traces of the religious ideas

which profoundly influenced the development of what


is

known

as the

Hindu law

are here extremely slight


legal

and few things can be more mstructive to the


archaeologist

than the comparison of the Punjab

rules with those

worked out

in Brahmanical schools

far to the south-east.


X

This Punjab Hindu law exclose resemblances to

hibits in fact

some singularly

the most ancient

Roman

law.

There

is

also evidence

that the stream of

Hinduism which

at

some time or

another flowed over the southern peninsula of India

was extremely
'

superficial.^

The southern Hindu has

Nelson,

Much attention is deserved by the two works of Mr. J. H. A View of the Hindu Law as administered hy the High

CHAP.

I.

THE SACRED LAWS OF THE HINDUS.

always been regarded as a lax Hindu


seems to
be,

but the truth

not that he negligently violates the

Hindu

sacerdotal law, but that neither he nor his

forefathers et'er

knew it in anything
Sanscritists,

like its integrity.

Some other
the theories
preface.

views, which are not

now

accepted
in

by the most learned


first

had their origin


Sir

propounded in

William Jones's
of Manu's

The probable

antiquity

law-

book was much exaggerated.

Its true date is

un-

known

in Indian literary history there are almost


:

no trustworthy dates
relativel}'"

but

it is

now

believed to be

modern

almost
is

the most modern

of a

large family of Sanscrit writings

more or

less treating

of law.
applied
sally

This opinion

the result of a test first


Mliller,
a-s

by

Professor

Max

and now univerconclusive.


is

accepted

by

Sanscritists
is

The
one of

law-book of

Manu

in verse,

and Yerse

the expedients for lessening the burden which the

memory
very

has to bear
used.

when writing
is

is

unknown

or

little

But there
object.

another expedient
is

which serves the same


Proverb.

This

Aphorism or

Even now, in our own country, much of


is

popular wisdom

preserved either in old rhymes


;

or in old proverbs

and

it

is

well ascertained that

ticularly the

Court of Madras, and The Scientific Study of the Hindu Law, parThere may be a question whether the practical fii-st.

evils pointed out in these

books are

now

remediable, or,
:

if

they are
their

remediable, by
existence I

what methods they should be removed but of do not think there can be any reasonable doubt.

in

TllK SACUKI)

LAWS OF

TllK

HINDUS.

cn.\p.

r,

(hiriiii;' tlio

MiddU'

A_l;;('s

mucli of law and not a


proi'essions,

little

<if

nuHlicinc

was preserved among

not

necessarily cUrkly,

by

tliesc

two agencies.

great

deal of old Clcnnan law compressed into

maxims has
and some-

been preserved, and

it is

probable that the Latin legal

maxims

well

known

to English lawyers,

times spoken of as the quintessence of wisdom, were


really jiids to recollection.

As

to Verse, the ordinary

medical

practitioner

once carried

his professional

knowledge with him


the school of Salerno

in the versified Latin rules of

that

curious body of medical


'

precepts which begins with the grim warning,


fra

con-

vim mortis non

est

medicamen

in hortis.^

In Sir

AVilliam Jones's day, an abridgment of


'

Lord Coke's

Reports

'

in verse
if

was

in existence

and he gravely

remarks that,

the verse had been smoother and the

law more accurate, every student might have been


advised to use
it.

Now, the

Sanscrit law-books are

sometimes in aphoristic prose, sometimes in verse,

sometimes in a mixture of both


established

and the canon

by Max

Miiller is that, in India at all

events, books of aphorisms are older than books of

verse

and the clue being once found, many more


disclose

proofs

themselves
is

that

Manu, which
and

is

wholly in verse,
law-books
2

much more
as

recent than the

Hindu

(such

Apastamba

Gautama,^
ii.

Apastamba and Gautama

are translated in vol.

of

Max

Miiller's

Sacred Books of the East, Vasislitha in

vol. Lx.,

Baud-

CHAP.

I.

THE SACRED LAWS OF THE HINDUS.

11

which are wholly in aphoristic prose), and even more

modem

than books (like Vishnu and Vasishtha')


verse.
'

which are partly in prose and partly in


the whole of Vedic (that
ture,'
is
'

In

Hindu
is

scriptural) litera-

says

Max

Miiller,

there

no work written,
and the con-

like

Manu,

in the regular epic sloka,


is

tinuous employment of this metre

a characteristic
therefore, in

mark

of post-Vedic writings.'

Manu,

spite of its great

modern

reputation, belongs to the


is it

Hindu Apocrypha.
the book
in
its

Nor

believed that

we have
(preface

original form.

Dr. Jolly

to Vishnu) speaks of the 'abundant evidence 'for


its

havintr undergone modifications

and entire trans-

formations in successive periods.

The

result of all this literary investigation


is,

and

discussion
attributed

that no book has had so


it

many

dates

to

as

the

book of Manu.
B.C.,

Sir

W.
1000
at

Jones placed
B.C.,

its

age at 1280

Schlegel at

Elphinstone at 900
fifth

B.C.,

Monier Williams

about the
than 200
Burnell

century

B.C.,

Max

Miiller at not earlier


late Dr.

B.C.

But the high authority of the


and

is

now cited
a.d.,

for so late an age of the original


it

book

as

400

has even been attributed in

hayana in the same volume, and his most important chapters in West and Biihler's Digest uf Uindu Law. This writer Ls regarded by learned Hindus as an extremely old authority, but the extant text is in a very untrustworthy condition, as may be seen from Dr. Vishnu is translated by Jolly in vol. v. Biihler's Introduction.
of the Sacred Books.
*

Ibid.

12
its

TIIK

SACRED LA\YS OF
I'itlier

TIIK

HINDUS.

cnAr.

I.

present form

to tlic cleventli or tlie four-

teenth centnry of our era.

(See Nelson,
'^7.)

'

Scientific

Study of Hindu Law,'

p.

It is as

though

it

were thought doubtful whether a particular work

were composed at the fabulous date of the Taking


of Troy, or at the historical date of the Battle of

Bannockbnrn.

The book

itself,

however, purports

to be coeval with the creation of the world,

and

suppose that a

Hindu holding the opinions now


bound
to claim for
it

considered orthodox would be

an indefinitely high antiquity.

At

the same time,


is

its

audacious pretension to be of divine origin

out-

done in some of the writings


for the so-called

now shown

to be older,

Code of Vishnu professes

to

have

been dictated by one of the Persons of the Hindu


Trinity to the Goddess of the Earth.

When
nise the
origin.

this sacred legal literature of the


its entirety, it is

Hindus

is

surveyed in

impossible not to recog-

plausibility

of the

modern
still

theories of its

No

one
is

treatise,

and

less the

aggregate

of treatises,

the production of an individual

man

or

of an individual mind.

The

literature

is

the gradual

growth of schools of learned Brahmans, which are


still

found in India.

They

are companies or cor-

porations of

men

devoted to sacred learning.


is

Per-

haps the nearest analogy to their work


in the labours of the Benedictines.

to be

found

But the com-

parison must not be pushed too

far.

The conception

CHAP.

I.

THE SACRED LAWS OF THE

IIIXDUS.

13
to

of a celibate order appears to have been


the early Hindus.

unknown

Each school was

either in its

beginning an actual family,

or, if originally it

was a

mere collection of voluntary pupils


of a teacher,
it

sitting at the feet

tended to shape

itself

upon the model

of the family, as the only known form of permanent


association.

The

distinction between one school and

another probably consisted in the particular set of


authorities (as
it

would now
it

be, the particular stand;

ard books) which

followed

and, as

it

went on

from generation to generation,

it

was recruited partly


])y

by voluntary adherence and partly


descent.

hereditary

The double process

-is

clearly reflected in

the text of one of our oldest authorities, Apastamba.

The student desirous of being


learning
is

initiated into sacred

to

go to a

man

'in

whose family
it,

it

is
is

hereditary,

who

himself possesses

and who
i.
i.

devout in following the law' (Apastamba,


11).

1.

On

the other hand, the pupil

is

directed to

consider the teachers of his teacher as his ancestors

(Apastamba,

i.

i.

7.

12).

This view of the relation

of teacher and pupil has


India.

by no means died out


regard
'

in

The Hindus

still

a school consisting

of a succession of teachers and pupils as a spiritual

family' (Dr. Biihler,

loc.

cit.)

And

according to

the letter of the law recognised

by the Indian Courts,


practice,

though not perhaps according to the actual


teacher and pupil
still

inherit from one another, just

14
as

Tin: SACHKl)

LAWS OF

TIIK

HINDUS.

CUAP.

I.

thcv

>li<l

ill

ilio

remote days of Apastamba, who


failure of
inlierits,
sliall

lays

down

that,

on

the nearer kmsnien,

'the spiritual teacher


spiritual teaeher
a

and

in failure of the
llie

pu})il

take

deceased's

wealth, and use


benefit, or he

it

for religious

works
it
'

for the deceased's


(ii. vi.

may

himself enjoy
tliis

14, 3).

There are analogies to

sacredness and strict-

ness of literary relations in the literary history of

two
the

societies

with

little

or no intellectual likeness to

Hindus.

Mr.

Grote's

theory of the

Homeric
it

poetry, taken in a

mass

(ii.

176-178),

is

that

was

the aggregate production, not of one man, but of a


geivi

or clan of Homerida?, of

whom Homer
progenitor,

was the
'

name- giving ancestor,


or semi-divine

real or supposed, the

divine

eponymus or

in

whose

name and glory

the mdividuality of every


'

member

of the ge7is was merged.'

Homer

is

no individual,

but the divine or heroic father of the Homerids, the


ideas of worship

and ancestry, coalescing,

as they constill

stantly did, in the Grecian mind.'

A
'

nearer

analogy

is

one which, like

many

others, occurs in the

ancient legal literature of the Irish.


age,'

Literary fosterHistory'-

wrote in a former work ('Early


'

of

Institutions,' p. 242),

was an

institution nearly con-

nected with the existence of the Brehon law schools,

and

it

consisted of the various relations established

between the Brehon teacher and the pupils he received


into his house for instruction in the

Brehon

lore.

CHAP.

I.

THE SACRED LAWS OF THE HINDUS.


it

15

However

may

surprise ns

that

tlie

connection

between Schoolmaster and Pupil was regarded as


peculiarly sacred

by the ancient
fatherhood,

Irish

and

as closely
tracts

resembling natural
leave
laid

the

Brehon

no room

for

doubt on the point.


it

It is expressly

down ^

that

created the
;

same Patria

Potestas

as actual

paternity

and the

literary foster-father,

though he teaches gratuitously, has a claim through


life

upon portions of the property of the literary

foster-

son.

Thus the Brehon with

his pupils constituted,

not a school in our sense, but a true family.


the ordinary foster-father

While

was bound by the law to

give education of some kind to his foster-children


to the sons of Chiefs instruction in
ridinfi;,

shooting

with the bow,

swimming, and chess-playing, and

instruction to their daughters in sewing, cutting out,

and eml)roidery

the

Brehon trained

his

foster- sons

in learning of the highest dignity,' the

lore of the
it

chief literary profession.

He

took payment, but


It

was the law which


his status,

settled it for him.

was part of

and not the result of a bargain.'

On

the whole, few literary theories of

modern

mintage have more to recommend them than that

which Professor

Max

Miiller first scave of the larjre

^ The literary foster-father has the power of pronouncing judgment and proof and witness upon the foster-puj)!!, as has the father upon the son, and the Church upon her tenant of ecclesias-

tical

lands {Ancient Laics uf Ireland,

ii.

349).

16
,

THE SACRKD LAWS OF

TIIF,

IIIXDUS.

ciiAP.

i.

extant body of

Hindu

sacerdotal

legal

writings.

Tliey wt>re gradually evolved


real or
ings,'
artiticial,
'

by

l>rabnianic families,
writ-

The great number of these


letter, first

he says in his

printed in Morley's
l)y

Digest," 'is to be accounted

for

the fact

that

there
all

was not one body of Kalpa- Sutras binding on


families,

Brahmanic
had
their

but that different old fami-

lies
still

own Kalpa- Sutras.


libraries,

These works are


yet there
lost.
is

very frequent in our

no

doubt that many of them have been

Sutras are

quoted whicli do not exist in Europe, and the loss of

some

is

acknowledged by the Brahmans themselves.'

As

regards the

Manava Dharma

Shastra, the

Manu
Hindu
fre-

translated

by

Sir

William Jones and asserted by his


all

native teachers to be the basis of


law,
it is

sacred

a late redaction of the legal doctrine of the


a

Manavas,

gens or clan called

after a

Manu

quently mentioned in Sanscrit


tioned

literature,

but men-

by the writer of the extant book


from himself.
If the old
is

as

somebody
ever comit

different

Manu

posed a law-book

(which

doubtful),

would

certainly not have been

composed in the metre of the

extant code.

The theory upon which

these schools of learned

men worked, from


Now

the ancient, perhaps very ancient,


to the late

Apastamba and Gautama


^

Manu and

the

to be read at p. 1 of the Introduction to

Apastamba, in

vol.

ii.

of the Sacred Books.

CHAP.

r.

THE SACRED LAWS OF THE HIXDUS.


perhaps
still

17
per-

still

later Narada, is

held

by some

sons of earnest religious convictions, but in time buried


it

now
fun-

affected every
is,

walk of thought.
that
a sacred
exist, all

The

damental assumption
literature being
is

or inspired

once believed to

knowledge
it

contained in
is,

it.

The Hindu way of putting


is

was,

and

not simply that the Scripture


is

true, but that

everything which

true

is

contained in the Scripture.

From very
tation or

early times, the

Hindu doctors appear

to

have been conscious of


application

difficulties

in the interpre-

of their theory.

Sometimes

books of authority contradicted one another.


times

Somereceived

they

fiiiled

to

supply a basis

for

doctrines or for immemorial religious practice.

One
the

of the earliest of expedients was to suppose the loss of

passages in
'

the

most ancient portion


ask,'

of
'

Scriptures.

If

you

says

Apastamba,

why

the decision of the

Aryas presupposes the existence

of a A'edic passage, then I answer. All precepts were


originally tauglit in the Brahmanas, but these texts

have been

lost.

Their former existence may, however,


It is

be inferred

from usage.

not,

however,

per-

missible to infer the

former existence of a Vedic


is

passage where pleasure

obtained by following the

custom
Hell
'

he

who

follows

such usage becomes

fit

for

(i. iv.

12. 10).

With
still

the aid of such expedients,

of which several are

in use
;

among learned Hindus,


to be observed that

the theory has survived

and
c

it is

IS

TIIK SACi;r.l)

LAWS OF

TllK

III.\1>U.S.

ouAi-.

i.

sucli a tlioory, linuly

licit! diiriiii;' the,

iiiCaiicy

of syste-

matic

tlioiin-lit.

tends to work itself into fact.

As

the lunnan

mind advances, accumnlating observation


rv'Hection,

and

acciimiilatiiiu'

nascent philosophy and

da\vnin<" science are

read into the sacred literature,

while they are

at

the same time limited

by the

rnlino"

ideas of its priestly authors.


literature gi'ows

J>ut as the

mass of

this

through the additions made to


it

it

by

successive expositors,

gradually specialises

itself,

and

subjects, at first

mixed together under vague


become
separated

general

conceptions,

from

one
the

another and isolated.

In the history of
specialisation
is

Law

most important early


separates

that

which

what

man ought

to

do from what he

ought to hww.
ture,

A
the

great part of the religious litera-

includino-

Creation of the Universe, the

structure of Heaven, Hell, and the

World or Worlds,
last head,
first

and the nature of the Gods,

falls

under the

what

man ought

to

know.

Law-books

appear as a subdivision of the

first

branch, what a
this

man

should do.

Thus the most ancient books of


manuals of conduct
lead a perfect
life.

class are short

for

an Aryan

Hindu who would

They contain
more about the

much more ritual than


crime, a great deal

law, a great deal

impurity caused by touching impure things than about

more about penances than about


are intended to guide the faithful

punishments.

They

Hindu of

the three higher castes from birth to death,

CHAP.

I.

THE SACRED LAWS OE THE


full

HI.VDUS.

19
as
a

and give him

directions for living first


ne,rt

student of holy books,


Ave

as a householder (or. as

should say, a citizen), and finally


to be the proper lot of every

for

that

is

assumed

man

in old age

as a religious ascetic or a hermit.'

This remarkable distribution of

life

runs throuoh

"

the whole series of sacred legal writings, and only

disappears

when they become mere law-books.


castes,

The
and

Brahman
three

alone teaches, but the entire youth of the

higher

Brahmans,
feet to

Kshatriyas,

Yaisyas,

come and
;

sit at his
is

be instructed in

sacred learning

it

rot even certain from some

passages whether the lowest and most despised of


castes, the Sudras, are

always excluded.

This
to

is

the

period of Studentship.
the instructed
civil
affairs.

When
then the
it

it

comes

an end,

Hindu returns

to his family

and

to

He
is

is

Householder.
is

But,
these

when

old age

beginning,

assumed
and

in

books (whatever

may have

been the actual practice)


life

that he withdraws from active


as

closes his

days

a Hermit or Ascetic, following a code of


is

self-denial
It is of
life

which

prescribed for

him

in full detail.

course to the second of these periods, that of

as a

Householder, that we must look for whatever light the


sacred laws of the

Hindus may throw upon the ancient


his novitiate,

'

The Student, who had completed

might at any
that in-

time become an Ascetic, but the regular course of


dicated in the text.

life is

20
history of

Tin-:

SACKKI)

laws or
lii-'-I

tiik

iii.xnrs.

chai'.

i.

l;nv.
:is

'I'lic

ol
ili,.

tlicin,
ti'iu;

Sttulciitslii]),
ol" tlic

is

ivmarkublc.
of the
race,

disclosinn-

secret

liold

sarr^'^d litci-adin' dii

1:u'l;('

portions of the
it

Hindu
of

and of the
tlie

rcsjU't't

paid hy

to

tlie

teaclicrs of
tlie

the race,
yoiin<;-

l)rahinans.
is

For
;ni

tlie

education

llimhi

not merely
it is

('duration

in llic lioly

texts and doctrines;

a training in reverence, almost

amounting
ture and
its

to abject servility,

bestowed on the

litera-

professors in about equal proportions and


a sj^stem of rules adapted with extreme

inculcated
skill to

by

immature minds.
is

The

third period, liowever,

that of Asceticism,

the one which on the whole

seems most unintelligible to the modern reader of


these books, and
it

merits some special attention before

this chapter is closed.

The duty
for

of adopting the
it,

ascetic

life,

and the rules

following
discussed
'

referred

to

in

all

the law tracts, are

at

much

length,

by Manu
it is

in the sixth chapter.


'

Having thus
through

remained,'
let the

written,

in the order of Householders,


is,

twice-born

man

(" twice-born," that

the study of the A'^edas),

who

has before completed

his studentship, dwell in a forest, his faith being firm

and his organs wholly subdued.


a family perceives his muscles

When

the father of

become

flaccid

and

his

hair grey, and sees the child of his child, let

him then
repair

take refuge in a forest.


in towns,

Abandoning

all

food eaten

and

all

his household utensils, let

him

to the lonely wood,

committing the care of his wife

CHAP.

I.

THE SACRED LAWS OF THE HLVDUS.


accompanied by
. .

21

to his sons, or
to attend

her, if she choose

him

Let him be constantly engaged


.
.
.

in reading the Vedas, patient of all extremities

Let him bear a reproachful speech with patience


let

him

not,

on account of

this frail

and feverish
Witli

body, engage in hostility with any one living.

an angry
abused, let

man

let

him not

in his turn be
;

angry

him speak mildly

nor

let
.
'.

him
.

utter a

Avord referring to vain illusory things

Delighted

with meditating on the Supreme


in

Spirit, sitting hxe<l

such meditation, without needing anything earthly,

without any companion but his

own

soul,

let
.

him
.
.

live in this world, seeking the bliss of the

next

gourd, a wooden bowl, an earthen dish, or a basket


of reeds, has
fit

made

Manu, son of the

Self-existent,

declared
to God.'
It is

vessels to receive the food of

men

devoted

still

comparatively

common

practice
'

in

India fur the a^ed

Hindu

to retire into

religion,'

and the law,

as administered in

by the British tribunals,


and ceased
There

makes provision

many

places for the case of a


religious hfe,

Hindu wlio has embraced a


to participate in
is

any kind of secular business.


surprising in
tlie

notliLug

by

itself

custom, consider-

ing the tremendous series of experiences which the

devout believer in Hinduism


ing

is

led to expect as await-

him
is

at the

moment

of his death.

Nevertheless,

there

reason for thinking that the withdrawal of the

22
iv^V'l

TiiK sA(

i;i:i)

laws of

tiik

iii.vdus.

cuAr.

i.

iVom aciivity

is

moiv

aiiciciit

iIkui

lIiu

lliiitlii

thoolon-ical syskMu,
it.

ami has existed iiulependeiitly


in

ul

as a scVulai"

|)i\u't icf.

many

early societies.
l)y

The

i'atria I\)tcstas, wliicli is


hiu'

witnessed to

the ancient

or enstom of so

many

connnunilics, was fonndcd

on power qnite
the power
archal
fails,

as mncli as

on

j)arenta<^e

and when

there are

many

signs that the patri-

authority

departs.
is

In the

Hindu law of

Succession, death

not by any means necessarily


;

the occasion of inheritance

the contingency quite as

commonly contemplated
life
;

is

"withdrawal from secular

the householder quitting his family and dividing

his substance
liable

among

his children

nay,

being even

(though

this is a violently disputed point) to

be forced into

retirement

by

his sons.

There

is

some evidence, moreover, that,


ciations of
a

when

the larger asso-

Hindu

kindred, the Joint Families, were in

more ancient

state

than that in which we see them,

they recognised three classes of persons as entirely


helpless

and therefore dependent on the group


children, the

at

large

the

unmarried daughters and

widows, and the old men.

The

'

seniors

'

not in-

fre({uently mentioned in the Irish Brehon law, and

stated to be persons for

whom

the sept

must make
some

provision, are

no doubt aged men.

There
period of

is

reason, in fact, to believe that at

human history a revolution

took place in the

status of aged men, not perhaps unlike that

which

is

CHAP.

I.

THE SACRED LAWS

01'

THE

IIIXDUS.

23

still

proceeding in the case of women.

There

is

aljundant testimony that tribes, long pressed hard

by

enemies or generally in
atically

straits for subsistence,

system-

put their members to death when too old for

labour or arms.

The

place from

which a wild Slavonic


is

race compelled their old


still

men

to leap into the sea

shown.

And

the fiercer savage has often in

many

parts of the world

made food

of them.

Nevertheless,

the ancient records of

many

communities, especially
old age

those

of

Aryan

speech,

show us

invested

with the highest authority and dignity.

]Mr.

Free-

man

(in his

'

Comparative
list

Politics,' pp. 72,

73) has

given a long

of honorific names belonging to

classes or institutions,
set
old.

which indicate the value once


on the judgment of the

by advancing

societies

Among them are,


(Ambassadors),

Senate, yepovaCa (the Spartan

Senate), Siy/xoyepoi^Te? (its


/Sets

Homeric equivalent),
and Sheikh

irpecr-

Ealdorman, Elder, Presbyter,


;

^lonseigneur.

Seigneur, Sire, Sir,


witli the

and

Mr. Freeman closes

Old

Man of the
and

Mountain.

So great a number of

titles, civil

ecclesiasticaJ,

are evidence of a very strong sentiment,

and suggest

that this exaltation of old age

was a

definite sta^e in

the ascent to civilisation.

There

is

a story of a

New

Zealand chief who,

([uestioned as to the fortunes of a fellow-tribesman

long ago well

gave us so

known to the enquirer, answered, He mnch good advice that we put him
'

24

THE

e.ACrvKD

I,A\VS

OF TIIH HINDUS.

chap.

l.

inorcifiillv U^ dcnlli.'
('oinl)iiit's
t(

The

ri'|)ly,

if

it

was ever

^iveii,

the

two

^i^'^vs

wliivli hiwljiiroiis

men

!ip])car

liavc takoii at diiicreiit times of the aged.

At

first

they are useless, burdensome, and importunate, and

they fare accordingly.


sense of the value of

Pmt

at a Liter period a

new

wisdom and counsel


Their lom:;
life

raises

them
to be

to the hio'hest honour.

comes

recognised as one Avay of preserving experience.


faculty
brute,

The
tlie

of speech,

which separates

man from
from

and the

art of writing,
is

by which the

society

capable of
society

civilisation

distinguished

the

condemned

to

permanent barbarism, are simply


is

methods by which experience


have more of

enlarged, compared,
is

and transmitted, and by which mankind


to
it

enabled
single

than
tlie

is

contained
life is

in

separate lives.

Yet

individual

always the

original source of experience,

and

at

some time or

other

it

must have been perceived that the more the


life

individual

was prolonged, the larger was

its

contribution to the general stock.

This seems the

best explanation of the vast authority which, in the

infancy of civilisation, was assigned to assemblies of

aged men, independently of their physical power or


military

prowess.

It

probably sprang up among

communities which had no writings to learn from,

and who were conscious that the importance of the


arts

which were necessary


all

for their

very existence

was out of

proportion to the average shortness of

CHAP.

I.

TUE SACRED LAWS OF THE HINDUS.

25

life.

Almost everywhere

in the

advancing portions

of the ancient world

we

find that the old, generally

organised in assemblies, had a large share


public powers, and there
in the
is

of the

a survival of these ideas

minimum limit of age which

has been

made

the

condition of a seat in the artificial Second Chambers

which have been constructed over most of the


ised

civil-

West

as supposed counterparts of the English

House of Lords.
assemblies,
to

But these modern Second Chambers

reverse to a great extent the functions of the ancient

known, from

their

names and otherwise,

have originally consisted of old men.


-is

The Second
in^

Chamber

nowadays assumed

to have a veto

the
;

legislation of the

Chamber which has the


what

initiative

but the ancient Senates, in their primitive condition


at
all

events,

decided beforehand

measures

should be submitted to the Popular Assembly, and


if

they legislated themselves, their enactments had

reference to special departments of State,


religion

such

as

and

finance.

On

the whole, they were rather

administrative than legislative bodies.

The nearest
law--

analogy to the very important control over the

making power which they once

possessed,
real

must be
effective

sought in the indefinite but most

and

authority which an English Cabinet enjoys through


its

virtual

monopoly of the

initiative in legislation.

26

RELlcaON AND LAW.

CHAPTER

TI.

EELTGION AND LAW.

The most

ancient of the books containino: the sacred

Liws of the Hindus ajDpear to

me

to

throw

little

light

on the absolute origin of law.


behind them
it

Some system

of actual

observance, some system of custom or usage,


lie
;

must

and

it is

a very plausible conjecture

that

was not unlike the existing veiy imperfectly Hindus in the


is,

sacerdotalised customary law of the

Punjab.

But what they do show

if

not the

beginning of law, the beginning of lawyers.


enable us to see

They

how law was


by

first

regarded, as a
;

definite subject of thought,

a special learned class

and

this class consisted of

lawyers

who were

first

of

all priests.

There are signs of the ancient identity of

the two professions in the earliest recorded usages of


several races, Celts,
for

Romans, and Greeks.


understand the
ancient

Nobody,

example, will

Roman
many

lawyer, with that obstinate adherence of his to texts

which has characterised


centuries,

his profession during so

and that method of stating

his facts in

CHAP.

II.

RELIGION AND LAW.

27

inflexible formulas

which has only just died out in

this country, unless it is realised that the jurisconsult

sprang from the pontiff or


]\Iiddle

priest.

All through the


a priest

Ages the lawyer who was avowedly

lield his

own
;

against the lawyer


is

who

professed to be

layman

and ours

the only country in which,

owing

to the peculiar turn of


that,

our legal history,

it is

difficult to see

on the whole, the canonist exer-

cised as

much

influence on the course of legal developIf tlie

ment

as the legist or civilian.


its

Roman Empire
to
it

had merely transmitted

administrative system to
a

Western Europe, and

if it

had not bequeathed

coherent body of codified secular law making considerable approach to completeness,


it is

very doubtful

whether the general law of the West would not even

now

reflect a particular set

of religious ideas as dis-

tinctly as the

Hindu law

reflects the sacerdotal con-

ceptions of the Brahmans.


It is necessary, first of all, to

observe

how

the

priestly character of the

Brahmanical authors of the

law-books

afl^ected their

view of conduct, a word which


in

must be used
by

at the outset
is

preference to

'

law.'

Shortly, this view

intimately affected throughout

their belief as to the lot

which awaits human


will

beings after death.


various
experiences,

This

lot

be

made up

of
to

some of which correspond

direct reward or

punishment in Heaven or

Hell, as

conceived by the Western religions.

But the Hindu

28

KKI.IliloN

\M>

I.

AW.

CUM-.

II.

belief eonoirnin^" tlif


tlie l?ul<lliist belief
(JitVrr
iVoiii llic

|o.^i]iuiii()iis
liitli
]ia.<

state of

man, and
from
it,

iiiaiiiK' .^jinini;-

most wiilcK

(litl'nscd
S()h1:>

Western
fills

hclieJs

in

tlujt

the 'rraiismiirration of
rewai'd and

as lar^e a
ii^

.space as direct

punislinient,
in all their

and

that
re-

ivwards and pnnisliments


Cfarded, n<^t
It is

forms

are,

as eternal, hut

as essentially transitory.

beside

my

purpose,

should observe, to considei"

what may
of
tlie

liave

been the most ancient faith or faiths


still

Hindus, and

more how

far the reliiriou!-'


thei)-

ideas reflected in the


existing; religious
I

books before us represent

doctrine.

In the works of which

have been speaking, the early manuals of law, belief

has reached a definite stage, which

may

be examined

by

itself

and which seems

to

me extremely instructive.
times, appears to

Hindu theology, from very remote

have regarded the universe as having been destroyed


anl

again created, and as destined to be destroyed


aixain

and

created

but

during:

the enormous in-

tcrvals

between these destructions and creations the


is

aggregate of existence

conceived as indestructible

and
of

as incapable of increase or diminution. in particular, is


is

The sum

life,

always constant. This essence,

life

or soul,

regarded as running in a continuous


all

stream through

animate, perhaps

we might
is

say
re-

through
turning

all

organic,
itself

nature

but

it

always

on

never

ending,

still

beginning.

This stream of

life is

divided into portions or parcels,

cn\r.

ir.

RELIGION AXD LAW.


in external

29
forms,

which are temporarily detained

but which are constantly passing from one form to


another without losing their identity.
lioly sages,

Men, animals,

and the gods themselves, are not essentially

different

from one another.


all,

The same
does

life

or soul

pervades them
another.

clothing itself in one form after


itself

Existence
stages
still

not

end,

but

its

successive

are

terminable

and

transitory.
dies, his
;

When
spirit

man

contaminated by impurity

passes through a series of purgatories

from
with
jQnds
Avill

the last

of these

it

escapes

to

clothe

itself
it

one animal shape

after another,

and

at last

embodiment
probably be

in
frail

human

frame, which at first

or sickly.

But, after a second birth

through the stvidy of the Scriptures, the virtuous at


death pass straight into Heaven, where their stock of
virtue will keep

them

for

long ages

but
it

it

will

gradually wear out, until some remnant of

carries

them back

to earth, to reappear
'

among

the prosperous

and the powerful.


their

Men

of

all

castes, if

they

fulfil

assigned duties, enjoy in Heaven the highest


bliss.

imperishable

Afterwards,

when

man who
in a

has fulfilled his duties returns to this world, he obtains

by virtue of a 'remainder of merit birth

distinguished family, beauty of form, beauty of complexion,

strength,

aptitude

for

learning,

wisdom,

wealth, and the gift of fulfilling the laws of his caste


ftr

order.

Therefore in both worlds

he

dwells

1)0

HKl.KilON

AMI

l.WV.

oiiap.

il.

Ijappiness, rollini^ likf

:i

wIkmI iVoin one world to


i.

tlic

otluT* (ApMstninltM,
<;o(ls

11.

"2.

:n<l

l\).

Kvcn the

in

llriivcn,

who

arc look(Ml

upon

as not miicli

moro than tnon of extraordinary


exhaust
ne.*>8.
'

virtue, will in tinic

tlieir store

of merit and pass out of l)losscd-

It

is

l)v

favour
'

of

the

Bralimans,'

says

Vishnu (xix.
Tlie

"22).

that the

gods reside in Heaven.'


above passage from
tliese

Wheel mentioned
is

in the

AjKistaiuha

a favourite

image with

writers.

They

figure existence as a vvdieel spinning

round. with

Religious pictures, representing the circle of


its

life

various compartments, with

Heaven

at the top

and

Hell at

the bottom, and with human and animal ex-

istence at the sides, are

common

in the East

but

though they are not unknown to Hindus, they are

more frequently found among Buddhists, V who must


have borrowed the symbol of the Wheel from an
older Hinduism, and
special
spiritual

who appear
is

to attach to

it

significance.

In

the

Buddhistic
cir-

Wheel-pictures,

Buddha

depicted outside the

cumference, in the attitude of benediction.

He

only

has escaped from the weary cycle of existence, and


stands alone in Nirvana, apart from gods and men.

The assumption of such


alted

a possibility

would doubtless

be regarded by orthodox Hindus as atheistic.


religious feeling takes with tliem the

Ex-

form of

meditation on Brahma, the Atman, the Infinite, the

See Note

A at the end of this chapter,

'

Wheel-pictures.'

CHAP.

ir.

RELIGION AND LAW.

ol

Self-Existent, the 'immortal and spotless,'

who
all

'lies

enveloped in matter and


creatures,'
streets.'

is

the dwelling of
city,

living

who

is,

'

like a

divided into many-

Here and there they express themselves on


language of

this topic in
I

much

sublimity.

shall

have occasion to explain in the next

chapter that one particular religious sj^stem of the


greatest antiquity

which

is

shadowed forth
beliefs

in these
I

books stands quite apart from the


been examining.
It is

which

have

very probable that these beliefs

were themselves compounded of divers more ancient


parts,

and that

direct

reward or punishment, and

in-

direct

reward or punishment by transmigration, did

not originally belong to the same body of doctrine.

Heaven and Hell and the Transmigration of Souls


are,

however,

all

referred
briefly

to in the oldest of the

law

treatises,

though

and

slightly.

In the more

recent

writings
as

(some of them, however, not so


these subjects occupy a great space,

modern

Manu)

and have been vastly amplified by gloomy and fantastic

imagination.
is

Heaven, as

is

not unusual in
;

religious systems,
Hells, or, as they

but faintly sketclied

but

tlie

would more properly be


minuteness

called, the

Purgatories (since they are essentially transient), are


described

with the utmost

of

detail.

They

are

twenty-two

in

number, each applying a


It

new

variety of physical or moral pain.

would be

a mistake, I think, to suppose that they were created

IV2

UKLK.K'N

AM) LAW.
cfl'oiM,

chap.

ii.

liV

sinirli'

iiiiaLri'iMtivc

like

tlic

circles

of

l)anto*
soparattHl

InlVrno.
^Trades

llu-y

rather

bcloiii;-

to

\vi(ldy

of the (onoo])tion
ril)tit ii)ii

of

j)iiiiisliin('iit.

Surli places of ret


INirufatories,

as the

wciil y-lirst of tliese


in

Avhorc

souls

wander

sword-leaved

Ibivsts

tlie

nineteenth, where they stray over rough


;

and uneven roads


^tinkiiii^ clav. are

the iifteenth. where they sink in

proliably
;

much

older than the

first,

"r place of darkness

the fourth, or place of howling;

or the places of Inn-ning, parching, and pressing together,

which stand tenth, eleventh, and twelfth.


seem to

These

last

me

not older than the

infliction of

regular (but originally very cruel) criminal punish-

ments by

civil rulers

possessing organised authority.

The
as

torture chambers of princes have very strongly

influenced the conception of

posthumous punishment,

may

be seen by comparing what remains of some of

them
berg

for example, of that in the free city of Nurema picture in

with

which some painter of the

fourteenth century gives form to the popular ideas

concerning Purgatory and Hell.

The sojourn
of punishment
its

of the sinful soul in each of these places


as I

is,

have

said,

always terminable, but

length

is

expressed in language suited to astronomiIf,

cal

magnitudes.

for

example, a Brahman be

slain,

as

many

as

are the pellets of dust


soil

which

his blood
soil

makes on the
of India

that

is

to say,

on the bumt-up

so

many

are the periods of a

thousand years

CHAP. n.

RELIGION AXD LAW.

33
xi.

the slayer

must pass

in Hell
is

(Manu,

208).

The

duration of punishment

imagined by the Bud;

dhists with even greater extravagance


all

and indeed on

these subjects they seem to have outdone the doc-

trine of the

Hindus.

The

frightful

Buddhist pictures

of torments in hell are tolerably well


are mostly of Chinese origin,
rate (but

known.

They

and probably exagge-

do not more than exaggerate) the criminal

justice administered from time

immemorial
its

in the great

organised Chinese Empire and


in

dependent kingdoms,

which the highest importance seems always to have


effects of
is,

been attached to the deterrent

punishment.

The

series

of Purgatories

however, at last
life

worked through, and the soul or portion of


emereres to ben-in a course of transmio-ration

which

may

bring

it

again to humanity.

have already

stated

my

opinion that the purgation of sin or imtransmigration,


in hell,

purity by

and

its

purgation

by

punishment

did not originally belong to the

same system of

religious

thought.

But

in
;

these

Hindu law-books they

are

blended together

and

the sinful spirit, released from purgatorial pains, has


still

to pass through a succession of animal or vegeit is

table forms before

again clothed with a

human
as

body.

It

is

hard not to smile at the grotesque


writers

particularity of detail with which such

Vishnu and Manu depict


'

the. transmigration of souls.

Criminals in the highest degree enter the bodies

84
of
the
all

KKI.ltiltiN

AM) KAW.
MoiMal
siiuici's

ciIAP.

IT.

plants

siu'ci'ssivcK'.

enter

)>o.lifs
tlic

of

worms

or

iiisccls.

Minor oH'endcrs
in
\\\r.

enter
(lej^nv

Ixxlies of birds.
tlir

Criminals

fourth

rnter

hodies of a(|natic

animals.

Those

who
enter
XI. IV.

ha<l
tlir
1').

eoniinitted a crime affeeting

loss of caste
'

hodies of

am])hil)ious

animals

(A^islmn,

These general statements arc followed

h}'

a prodigious

number of

others,

mentioning the

class

of creature into which particular sinners enter.


is

There
but

perhaps
look

natural fitness in
arbitrary

some of them,
or

others

like

assertions

wild

guesses.

One who has appropriated


becomes a
rat.

a broad passage

becomes a serpent living in holes.


stolen grain

One who has

water becomes a water-fowl.

One who has stolen But what is to be said


of the cattle-

of the transformation of the stealer of silk into a partridge


;

of the thief of linen into a frog

stealer into

an iguana

may

venture at the same

time to suggest that what seems to us most difficult


to understand in these beliefs once appeared simple

and natural.

It has

been observed that savages look


into another

upon the transmutation of one creature


as almost

an easy, everyday process.

Primitive men,
animals,

living constantly in the presence of wdld

preying on them and preyed upon by them, do not

seem to have been struck by the immense superiority


of the

man

to

the

brute.

They appear

to have

been

impressed

by the

difference

between living

CEAP.

II.

RELIGIOX AND LAW.

30

tilings

and everything

else,

but to have considered

the forms of animate being as separated from one

another by a very slight barrier.

Some very

interest-

ing inferences have recently been drawn from this

savage characteristic

and

it

has been pointed out

how
tales

in those survivals of a very ancient world, fairy

and myths, one creature

is

constantly changing
its

into another,

and slipping back into


child's
:

original shape.
is

The most popular


of metamorphosis

book of our day

a story

but that story of Wonderland


its
;

owes

its

popularity to

faithfully

following the

operations of a
that

dream

and one must here remark


is

much

of the material of ancient superstition


of.

literally

such stuff as dreams are made


these

But

Hindu law-books have wrought up

the

ancient belief into a moral and theological philosophy

of the greatest precision and amplitude.


principle
is

Their special

that man's acts and experiences in one

form of being determine the next.


in a future existence

Whether he

will

become a

plant, a reptile, a bird,

woman, a Brahman,

or a semi-divine sage, depends

on himself
deeds have

He

goes out of the world what his


;

own
dis-

made him

and the impossibility of


is

sociating the past from the future

declared

by these

writers in language of

much

solemnity.

If a

man

departs modified by voluntary sinfulness or involuntary impurity, and


if

he has not expelled the taint

by due penance, he

will

become one of the lowest

D 2

36
iMvnlun-s
if

RKI.KJION

AM)

\.\W.

cii\r.

II.

ho

(li<>s

puri-r

tli;ni lie

was born,

lie

may
Is

n^arh the

hiijlirst

stai;c o( liuinaiiity or bccoino

indi.s-

tinsjui8haV>le

from divinity.
l>y it>

Tho

-wliolc

tlicory

saved from con(om|>t


cravinirs,

i)owcr ofsatisfyini^ moral

and

l>v ilic n]i]>aniitly

complete explanation
balance of good and

which
evil

it

oilers of tlu' iineiiual

in this

world.
l)efore

I'hc

last

King of Burmali

liad

IxTn a

monk

he ascended the throne, and he

remained

to his death

an eminent Buddhist theologian.


military,

An

Englishman was lecturing him on the

scientilic.

and commercial superiority of the English

to the

Burmese, not without some intention of hinting

that this pre-eminence

was due to the purer faith of


politely assented,
all

his

countrymen.

The king

but added,

There

is

no doubt that you must

have been very

virtuous Buddhists in some former state of existence.'


AVith these explanations,

some

features of those

writings which are at

first

sight very perplexing be-

come comparatively intelligible. Thus, they are chiefly


called law-books because they

stated

contum rides of conduct with the utmost precision. But what happens
the rule ?
jurist.

to a

man if he disobeys
or. as

This

is is

the principal

question to the

modem

"What
is,

the punish?

ment,

the technical phrase


in the

the Sanction

Understood

modern

sense, it is hardly noticed


It
is

in the oldest of
inflicted in

these books.

in fact

to

be

another state of existence, and therefore,


be asserted, no directions can be given

though

it

may

CHAP. n.

KELIGION AND LAW.

0/

about

it.

Thus

the pkice which in a

modern law-

book

is

taken by the Sanction

that

is,

by the various

penal consequences of refusing to obey a law


in these writings

is

taken

by Penances.

You

are to punish

yourself here, lest a worse thing happen to you else-

where.

These penances are

set forth in the

most unftiith.'

compromising language and in apparent good


In one place, the penitent
is

told to mutilate himself


till

and to walk on
dead.

in a particular direction
is

he drops

In another he
fire,

to

throw himself three times

into the

or to go into battle and expose himself

as a target to the

enemy.

For one great crime he

is

to extend liimself

on a red-hot iron bed, or to enter


fire

hollow iron image, and, having lighted a


sides, to

on both

burn himself to death.

For the comparatively

venial offence of drinking forbidden liquor a


is

Brahman

to have boiling

spirit

poured down his throat.

Other penances are extraordinary from the length and


intricacy of the self-inflictions

which they suppose.


effi-

The old books

hint a doubt here and there as to the


:

cacy of penance

what good can


;

it

do, they say, since

the evil deed itself remains


ritative opinion
is,

still,

they add, the autho-

that the penance should be per-

formed.
'

'

]\Ian in this world,' writes

Gautama

(xix. 2 )

is

polluted

by

a vile action, such as sacrificing for


to offer a sacrifice, eating forbidden
i.
i.

men unworthy
'

Apastamba,

15;

Gautama,

xxn.; Vishnu, xxxiv.

XXXV.

38
food, spcnkinLT

KKI.KiInN

ANK
iiol

I,

AW.

cilAi-,

II.

^vli:t

<)uu:lii

ti

lie

sjxikcii, neglectis

ing wliat

is

pn'seril)et], ])ra('tisiiiu

what

forbidden.
if
lie

Thev
lie

[i.t'.

soiiM' liraliiiiaii

aiitlmritics)
sticli

ai'c in <l(tiill
oi'
il"

hhall jH'rfoni'. a jx'iiaiicc lor

a decil

shall not
it, h('oiu.S(

do
t/ic

it.

Some

declare that he shall not do


not pcrisli.

(l,C(l

t<}i(iU

(But) the most

excellent o])inion

is

that he shall perform a jjeuance.'

This opinion

is

then supported by copious quotations

from the
that

llin<lu scriptures.

The remarkable thing


feel,

is,

no one of these writers seems to

what would

be our doubt, whether anybody could be got to pqr-

form the severer penances.

How
ties to

then does what

we should

call

Law

that

is,

law, civil or criminal, enforced

by sanctions or penalfirst

be inflicted in this world

make

its

appear-

ance in these books ?


the personage
is

It appears in connection

with

whom we call the King.


assumed

His authority

more or

less

to exist in the oldest of these

treatises, but, all

taken together, they suggest that

the alliance between the

King and the Brahmans was

very gradually formed.

The most

ancient of the

books give comparatively narrow place to the royal


authority, but the space allotted to the

King and

his

functions
tises

is

always increasing, until in the

latest treais

(such as Manu) the whole duty of a King

one of the subjects treated of at the greatest length

and with the greatest particularity.

It

may

be ob-

served that, with the increased importance attributed

CHAP.

ir.

RELIGION AND LAW.


is

39

to the King, there

a change in the sacerdotal view

of his relation to the law.

In what appear to

me

to

be the most ancient portions of these books, the King


is

only represented as the auxiliary of the spiritual

director.
'

He

is

to complete

and enforce penances.


(ii.

If

any

persons,'

says

Apastamba

v.

10. 13),

'

transgress the order of their spiritual director, he shall

take

them

before the King.

The King

shall consult

his domestic priest,

who

should be learned in the law

and in the art of governing.


pevform the proper penance,

He
if

shall order

them

to

they are Brahmans,

and reduce them to reason by

forcible

means, except

corporal punishment and servitude, but


castes, the

men

of other

King, after examining their actions,

may
two

punish even by death.'


III.

In a later treatise (Vishnu,

2) the duties of a King are


:

summed up
;

in

rules

he

is

to protect his people

he

is

to keep the

four castes, and the four orders of Student, Householder, Hermit, several duties
;

and Ascetic, in the practice of


or, in

their

other words, he

is

to enforce the

whole

social

and religious system as conceived by the

sacerdotal lawyers.

The

further progress of change

consists in the further exaltation of the personage

who

in the passage

from Apastamba

is

called the King's

domestic priest.
to contemplate

In the end, the law-books come

an ideal tribunal composed of the

Kins, with learned Brahmans as assessors.


writings clothe the

The

later
is

Kmg

with

riglit

divine.

He

10

RKLIGION A.M>

l.WV.

ciiai-.

ii.

Ibrincd o( otonml

):iiM

ides dr.iwii
t'Vcii
:i

iVoiii
li<'

llu'

siil^stimce

of the fjods.
tivatol

'

'riuMiu'li

cIiiM.
lie is

lutist

not

l)c

lii^fhtlv. iVoiii nil iilcn


is a

llinl

;i

mere mortal.
liiiinaii

Xn

lit'

jKtwi'rfiil (li\ inily

wlin
I*>nt

Ji])|K':irs in

sliapo

'

(^Maim.
personal

\ii.

iv.

N).

lie

lias

lost

in

actual

j)o\\it,

11c can only act with the


'

advice of his P.rahman assessors,

Jnst punishment

cannot he inllieted hy an ignorant and covetous King,


wlio has no wise and virtuous assistants,
dorstjiuding has not been improved, and
is

whose un-

whose heart

addicted to sensuality.

By

a King, -wholly pure,

faithful

to his promise, observant of the Scriptures,

with good assistants and sound understanding miiy


})nnishment be justly inflicted
'

(Manu,

vii.

xxx. 31).

From
tises

this point the

law

set forth in these trea-

becomes true
in

civil law,

enforced

by

penalties

imposed

this

world by the Court

itself.

The

Brahmans themselves no doubt from


claim a considerable benefit of clergy.

first
'

to last

Corporal

punishment,'

it

is

written,
;

'

must not be

resorted to

in the case of a

Brahman

he at most can have his


or be branded.'

crime proclaimed, or be banished,

At

the same time the abstract doctrine of j^unish-

ments or penal sanctions found


seq.)

might

satisfy the

Manu (vii. 17 ef English jurists who make the


Jeremy Bentham could
:
'

simction the principal ingredient in a law, so uncom-

promisingly

is

it

declared.

hardly complain of such language as this

Punish-

CHAP.

11.

RELIGION .\ND LAW.

41

ment governs all mankind pimiisliment alone prepunishment wakes when their guards serves them
; ;

are asleep

if

the

King punish not the


race of

guilty, the

stronger would oppress the weaker, like the fish in

the sea.

The whole
;

man

is

kept in order

by punishment

gods and demons, singers in heaven

and cruel

giants, birds

and serpents, are made capable


of
their

by

just

correction

several enjoyments'

(Manu,

loc. cit.).

The

full

consequences of juridical

doctrine like this do not, however, appear in such a

law-book

as the extant

Manu, which,

besides a great
rules,

deal of civil law, contains a

mass of sacerdotal

mostly, as
decay.

it

seems to me, in a state of dissolution and


still

later

treatise,

Narada,^

is

almost

wholly a simple law-book, and one of a very interesting kind.

The

ancient Brahmanical system has been


in all its parts

toned

down and tempered

by the good

sense and equity of the school of lawyers from


this

whom

book proceeded.

The

portions of

it

which deal

with Evidence appear to

me especially remarkable, not


on the whole extremely mo-

only for the legal doctrine, which (though the writer


believes in Ordeals)
is

dern, but for the elevation of moral tone displayed


in its language
ness,

on the subject of true and

false wit-

which should be

set off against the unveracity


'

attributed to the
^

modern Hindu.
'

No

relatives,

no

The

'

Institutes of Nai-ada
Jolly.

bave been translated into Englisli

by Dr. Julius

London

Triibner

&

Co., 1871.

'

lli

KKl,l(;i(^.\

AM> LAW.

CUAP.

ir,

iVicutls.

WO

tivasuri's,

l>c

tlu'y

vwv
I'liy

so great, arc able

\o

lu>ll

liim l)ark ^vlio

is

al)oiit to

dive into

tlie

tre-

mendous darkness of
suspense
\vlien
in

Hell.

ancestors arc

in

thou art

i-onie to

give evidence, and

ponder

their

mind,

"

Wilt thou deliver us from

Hell or preei})itate U8 into it? "

Truth
truth.

is

the soul
Strive to

of

man

evervthing depends upon


a
JK'tter self

aecpiire

by speaking the

truth.

Thy

whole

lifetime,

from the night in which thou wert born

up
in

to the night in

which thou wilt

die,

has been spent

vain

if

thou givest false evidence.


;

There

is

no

higher virtue than veracity

nor

is

there a greater

crime than falsehood.


therefore, especially

(Narada, pp. 42,

One must speak the truth, when asked to bear testimony The somewhat analo43, Jolly).

gous passage in

Manu

(viii.

112)
'

is

defaced

by the

often reprobated qualification,

In case of a promise
it is

made

for the preservation of a

Brahman,

no deadly

sin to take a light oath.'

The

difficulties

under which the student of the

so-

called Sacred

Laws of the Hindus has so long laboured

have been almost entirely caused by the transitional


character of the book which was first introduced to

European scholarship

as the original source of

Hindu
litera-

Law.
ture

If the

sample of this branch of Hindu

first

translated into a
it

Western language had been


as a

Xarada,

would have been regarded

law-book of

a familiar type,

and the traces of sacerdotal influence

CHAP. n.

RELIGIOX AND LAW.


it

43

which are to be found in


neglected.
accessible
If,

would probably have been

on the other hand, the book first made


would probably have been

had been Gautama, or Baudhayana, or


it

Apastamba,

set

down

at

once as a manual of practical religious conduct, the

Whole Duty
or accidental.

of a

Hindu

the law contained in

it

would probably have been considered adventitious

But Manu, which

Sir

William Jones

made famous
long as

in Europe, neither falls wholly

under the

one description nor wholly under the other.


it

And

so

stood by itself there was the greatest


its

diffi-

culty in determining
of law.
pp.
17,

place in the general history


('

A
18,

good many years ago


19), I
it

Ancient Law,'

showed the

hesitation I felt in

making use of
I can

for archaeological

purposes

but

now

see that I underrated the sacerdotal ele-

ment

in the structure of

Manu.

The whole of
it

the

literature to

which

it

belongs sprang,
;

would now
from some

appear,

from a double origin

in part

body of usage, not now easy


the recent investigation

to

determine (though
bodies
it),

of local

of Indian

custom has thrown some light upon


from the Hindu scriptural
cised
literature.

but chiefly
last exer-

The

by

far the

most important

influence.

Its crea-

tors, far

back in antiquity, did not start with any idea


Beoinriino^ with reli "ious

of makinir or statinc; law.

hymnology, devotional
theological speculation,

exercises, religious ritual,

and

some of

their

schools were

44

HKLUilO.N

AM) LAW.
statinu"
in
(Iclail

niAP.

ii.

brouirlit to l\)iuluct,

and to

what

a
if

ilcvDUt

man

slionld do.

what woidd
acts,
il'

h;i|)])cii

to
lit;

him

he

(lid it not.

and hv wliat

he hipscd.

could

restore himsrU' to upri^litness.

(Jradually there arose


inirpose
it

in these schools the conviction tliat, Ibr tlic

of

re:[ulatini;-

Conduct hy uniform

rules,

was

simpler course to act upon the rulers of

men

than on

men
The

themselves, and thus the Kin<^ was called in to

help the

be<iinnin;!:

no

lirahman and to be consecrated by him.


of this alliance with the Kiusf o was the

beijinniunf of true civil law.

Nothing

-svhich

thus happened seems to

me

to be

very unlike what would have happened in the legal


history
irained a

of AVestern

Europe,

if

the Canonists

had

complete ascendency over

Common Lawyers

and

Civilians.

The

s^'stem

which they would have

established might be expected to give great import-

ance to the purgation of crime by penances.


fact occurred
;

This in

the preference of the ecclesiastical sys-

tem with
its

its

penances over the secular system with

cruel punishments,

had much

to do, as

may

be

seen from the legendary stories, with the popularity of St.

Thomas

(Becket).

Then
sin,

it

would be probable

that, in the case of

graver

the ecclesiastical law-

yer would invoke the aid of the secular ruler to secure


the proper expiation
;

and

this again occurred in the

form of entrusting the severer punishments to the


secular arm.
Finally,
if

the sole advisers and instru-

CEAP.

II.

RELIGION AND LAW.

45

ments of the European King in the administration of


civil

and criminal justice had been


in the

ecclesiastics,

they

would have been driven


a

long run to construct

system of

civil

and criminal law with proper sanc-

tions enforced

by the Courts.

But the system would


parts with ecclesias-

have been deeply tinged in


tical

all its

ideas,

and though

it

would possibly have borrules

rowed some or many of


and

its

from older usage,

it

would have been very hard

to detect their sources

their precise original form.

Here we have one of the chief drawbacks on the


historical usefulness of the sacred

Hindu

laws.

In the

course of their growth they have probably absorbed

much customary law from without


earliest of

but even in the

them

it

probably has been changed in


it

transmission, while in the latest

may have
of

been

borrowed

from several

different bodies

usai]fe,

irreconcilable in the principles

from which they

start.
lite-

On

the whole, the most valuable portions of the

rature are those which throw light

on the derivation
reli-

of certain branches of law from a set of entirely

gious

beliefs.

One example

of this derivation will

be discussed in the next chapter.


I said that this ancient literature

threw

less lio-ht

on the

beffinnino- of

law than on the

besfinnino; of

lawyers.
the

But

it

is

of course to be understood that


it

men who

conceived and framed

were

much

more than lawyers.

All the world knows that they

H't

Kr.I.Hilii.N

AMI LAW.

ciiat.

ii.

wore also

in

some sense

]irirsts

but lln-y were

tuik'Ii

nioiv tlian priests.

Wiiat

we

liavc to \)r\\v^ lioiiie to

ourselves is the existenee in ancient


a
soil' iii>lnich'l class,
all

Indian society of
lia<l
:iii

of

a class wliicli
It

abso-

lute nionoj)olv of

Icarninij:;.

incliidnl

llic

only

lawyers, the onlv

j>ricsts,

the only professors, the sole

authorities on taste,

morality, and feeling, the sole

depositaries of whatever stood in the place of a science.

These books are one long assertion that the Brahmans


hold the keys of Hell and Death, but they also
that the

show

Brahmans aimed

at

commanding

a great deal
all their

more than the


eflorts

forces of the intellect,

and that

came to be directed towards

brinrj-ino;

under

their influence the


sort,

mighty of the earth of another

the conquering soldier and the hereditary king.


to

They were
a

become partners with prmces in


and
assessors.
'

their
and.

authority, their advisers

A
;

King
thus

Brahman deeply versed

in the Yedas, these


'

two
it

uphold the moral order of the world

is

written in one of the oldest of the books.


the alliance between
sealed,

Doubtless,

Brahman and
effects

Kino;
;

was often
amid the

and produced great


of early
that,

for,

obscurities

Indian history, the fact does

seem to emerge
first

although religions doubtless at

extended themselves by conversion, they were


over wide areas and again

established

overthrown
civil

much

less

by propagandism than by the


left

power.

On

the whole, the impression

on the mind by the

cnAi'.

II.

RELIGIOX AND LAW.


is,

47

study of these books

tlmt a

more awful tyranny


and
spiritual ascendaltogetlier a

never existed than this which proceeded from the

union of physical,
ency.

intellectual,
it

At

the same time

would be

mistake to regard the class whose ideas are reflected


in

the

literature
It is

as

self-indulgent

ecclesiastical

aristocracy.

not easy, I

must admit,

to describe

adequately the intensity of the

professional

pride

which shows

itself

in all parts

of their writings.
;

Everybody
give

is

to minister to

them

everybody

is

to

way

to

them

the respectful

salutations with

which they

are to be addressed are set forth with

the utmost minuteness.

They
'

are to be free of the


'

criminal law which they themselves prescribe.

Brahman,' writes Gautama,


to

must not be subjected corporal punishment, he must not be imprisoned,


fined,

he must not be

he must not be exiled, he must


Their
in

not be reviled or excluded (from society).'


arrogance perhaps reaches the highest point
passage of the law-book of Vishnu, where
that
'

it is

written
are

the

Gods

are invisible deities; the

Brahmans

visible deities.
is

in

The Brahmans sustain the world. It by favour of the Brahmans that the Gods reside Yet the life wdiich they chalk out for Heaven.'
is

themselves
a

certainly not a luxurious


It is

and scarcely
first to last

happy

life.

life

passed from

under the shadow of

terrible possibilities.
;

The Brahin maturity.

man

in

youth

is

to beg for his teacher

48
as

Itl'.l.Milo.N

AM)
lie

l-.\\V.

cilAl'.

II.

inarrii'*!

lu)usfli()lli'r.

is

lu'd^cd round witli

conntU'ss
consijxn

(luti<'s, )f wliicli tlic iiivtliiiitary

breadi

may

him

in

Min'ilMr world to millions of years of


:

(loLTradation

oi* |>;iin

in
It

oM
is

;il;'('.

lio

is

to Ix'come an
tliis

ascetic or a licrmii.

possibly to

combinaself-abase-

tion of self-assertion with self-denial

and

nuMit

that

the wonderfully stubborn vitality of the

main Ih'ahnianical ideas owes probably much of

may
its

be attributed.

As

have shown, the sacerdotal

le(jal

system, as a system,
its

present authority to

adoption by the Anglo-Indian Courts of Justice as


the

common law

of India
it,

but some of the points of


they do the whole Brah-

l>elief

which underlie

as

manical literature, make the most durable part of the

mental stock of every Hindu.

Some

of these ideas

are not wantinji either in religious or in moral eleva-

tion

but on the whole the evil has prevailed over AYe can find in this most ancient
still

the good.
ture the

litera-

germs of many superstitions

exercising
forces

])ernicious effect

of the

caste prejudice

which

the

wounded Sepoy

to die of fever rather than take

water from his low-caste fellow-soldier or his English officer


;

of that terror of pollution which, twenty-

five years since, led to the frightful

mutiny of the

mercenar}^ troops

of that rejection of meat and drink

which

still

limits the food supply of an over-populated


its

country,

and contributes to

periodical famines.

But in

close contact

with this frame of mind there

"III

CFA.P.

II.

RELIGION AND LAW.

40

is

nowadays

an

ever-growing

body of thought

stirring with the leaven of

Western knowledge and


;

Western

scientific

method

and the juxtaposition

of the two makes the government of India by the

English an undertaking without a parallel in


novelty and
insight,
difficulty,

its

and in the amount of caution,


its

and self-command demanded from

admi-

nistrators.

50

WUEEL-PICTURIiS.

iXOTES

AND ILLUSTRATIONS.
Note
A.

WUEEL-PICrURES.
Ik'DDiiisT wlieel-pictures are, as I have said, comtlindus, and have been fre-

moner than those of the


quently tigured.
liowever, supplied

Mr. Grant Duff's kindness has, with two Hindu pictures of the class, less perfect in outline than the Buddhist wheel-pictures, but manifestly following the same model. I am indebted to Professor Cowell for the following curious legendary account of the origin of the Buddhist pictures In the twenty-first story of the Northern Buddhist collection of legends called the" Divyavaddna," there is an account how Buddha's disciple, Maudgalyayana, used occasionally to visit heaven and hell, and when he returned to earth he would describe the different sights which he had seen. Buddha said to Ananda, " Maudgalyiiyana will not always be present, nor one like Maudgalyayana therefore a wheel must be made with five divisions and placed in the chamber of the gate." The mendicants heard that Buddha had given this order, but they did not know what sort of a wheel was to be made. Buddha said, " Five paths are to be made those in

me from Madras

'

WlIEEL-PICTUllES.

51

the hells, animals, pretas,^ gods and men. Of these the liells are to be made lowest; then the anhnals and pretas ; and above, the gods and men i.e. the four contments, viz., Piirvavideha, Aparagodani'ya, Uttarakiiru, and Jambudvipa. In the centre are to be made desire, hatred and stupid indiflPerence desire in the form of a dove, hatred in that of a snake, stupid indilference in that of a hog. And images of Buddha are to be made pointing out the circle of Nirvana. Beings are to be represented as being born in a supernatural way, as by the machinery of a water-wheel, foiling from one state and being produced another. All round is to be represented the twelve-fold circle of causation ^ in the resruhir and in the reverse order. Everything is to be represented as devoured by Transitoriness, and the two gathas are to be written there,

:''*

'

Begin,

come

out, be zealous in the doctrine of

Buddha,

of death as an elephant a hut of reeds. He who shall walk unfaltering in the Doctrine and Discipline,'* Leaving behind birth and mundane existence, shall make an end of pain.

Shake

off the

army

The mendicants carried out Buddha's words, and made the wheel with five divisions. The Brahmans and householders came and asked, " Sir, what is this engraved here ? " They reply, " Sirs, even we do not know." Buddha said, " Let a certain mendicant
'

be appointed to stand in the chamber of the gate, who shall show it to all the Brahmans and householders who come from time to time."
'

'

2 3 ^

Ghosts or goblins who suffer from perpetual hunger. The well-known three faults of Hindu philosophy. See Colebrooke's Essays (ed. 2), vol. i. pp. 453-455. Dharma and Yinaya.
*
'

E 2

ANCIiSTOK

WOlu-^llll'.

ciiAi'.

111.

CHAPTER

III.

ANCESTOU-WOUSIIIP.
1

HAVE

said tliat the rules of

life

contained in the

most ancient of the sacred law-books of the Hindus


live

strongly affected by two systems of religious be-

lief

which were probably

at

one time independent of

one another.

Although welded together by the Hindu


purgation of sin by post-

sacerdotal lawyers, the

humous punishment
o-ation of sin

in a series of hells,

and the pur-

by transmigration from body to body, are


same problem.

distinct solutions of the

The breach
the law-

of the rules set forth in the law-books

afflicts

breaker with a special taint, which,


cleansed from
it

unless

he be

by proper penances
severer

in his lifetime,

will cling to his spirit after death,

and can only then


expiations.

be purged away by far


separate views of the

Two
to

life after

death would appear

have contributed the theory of successive special Purgatories,

and the theory of Transmigration,

to

the
to-

maturer Hindu system which has joined them


gether.

But besides the

traces

of

this

two-fold

religious speculation, there is plain evidence of yet a

CHAP.

III.

ANCESTOK-WOKSinr.
still

53
standing

third,

and perhaps a

older religion,

quite

by

itself,

in these treatises.

This

is

the

Worship

of Ancestors, which has shaped the entire


of Inheritance.

Hindu law

The connection between Ancestoris

Worship and Inheritance


the Hindus.

not, however, peculiar to

The most

ancient law of a considerable

number of the communities which have contributed most to civilisation shows us the performance of some
part of this worship as a duty incumbent on expectant
heirs

and as the condition of

their succession.

This

rude and primitive belief has thus very strongly


influenced the branch of jurisprudence which, as link-

ing the generations each to each,

is

of the greatest

importance to

all

advancing
is

societies.

Ancestor- worship

not here to be understood in

the sense in which the expression has usually been

taken by scholars.

It is

not the cult of some long-

descended and generally fabulous ancestor, of some


Hero, the name-giving progenitor of a Race, a Nation, a Tribe, a
lus, or

House or

Family

an Ion, a
it

Komu-

an Eumolpus.

Nor, again, can

be visibly

connected with the superstitious reverence of savages


for their

Totem, even though

it

symbolise to them

the living creature from which they conceive themselves to

have sprung.

In the case before us the

ancestors sought to be propitiated

by

sacrifices
or,

and
at

prayers are ancestors


all

actually

remembered,

events,

capable of

being

remembered

by the

54
W(>r>hi|>pfr.
s1mj>

ANCKSToIt-WoKSIIll*.

ciiAi'.

in.

I*n>\imilv
1

in tiiiic is c.-sc'iiliiil to

lie

wor-

of

wliicli
t<t

-.uw s|)';ikiiii:;.

'IMirrc arc sii^iis tlinl,


iii.'iiiy

ncconliiii:-

tlu'

ciu'ly

i<lc;is

of
so

coiimnmitics
iVoiii

coiiiinnnitics.

lor i'\;mi]>l(',

Ini*

rcinoxcd

ono

anotluM*

;is

llic
o\'

Hindus
-loiiit

;iii(]

tlic Irisli

a iiiau living as

a nu'inlHT

Household or
sonio time

I'aiiiily
(Il^i^^

could at
life

most cxjHvt
ll^onerations

to see at

three

above him and three generations below

him.

In accordance with this expectation, the ancesare three


:

tors wor>liipiH(l
i!;randfather,

the father

first,

then the

and then the great-grandfather.

The

reverence paid to remoter ancestors, not personally

remembered,

may

be believed to be a later ofF-growth

of these ideas.

Their original character, and the nature

of the feelings associated with them,

may

be gathered

from the account of

its

own

ancestor-worship which
'

Canon Callaway (ajmd Tylor,


ii.

Primitive Culture,'
tribes.

106) attributes to a group of South African

Although they worship the many Amatongo (ancestral

spirits)

of their tribe,

making
the

great

fence

around them
all

for protection, yet their father is before

others
is

when they worship


a great treasure to

Amatongo.

Their
is

father

them even when he

dead

and those who have grown up, knew him

thoroughly, his gentleness and his bravery

Black people do not worship


ently

all

Amatongo
is

indiffer-

that

is, all

the dead of their tribe.

Speaking

generally, the head of each house

worshipped by

CHAP.

111.

ANCESTOR- WORSHIP.

55

the children of that house, for they do not


ancients

know

the

who

are dead.

But

their father,

whom they
in'

knew,

is

the liead

by

whom
why
says

they begin and end


best

their prayer, for they

knew him

We

do

not know, they say,


besides us
' :

he should regard others

he will regard us only.'

Manes- worship,'
ii.

Mr.

Tylor

('

Primitive

Culture,'

108),

'

is

one of the great branches of the


Its principles are

religion of

mankind.

not

difficult to

understand, for they plainly keep up the social relations


of the living world.
into a deity, goes

The dead

ancestor,

now

passed

on protecting his family and receiving


as of old.
tribe, still

from them
still

suit

and service

The dead

chief

watches over his

own

holds his authostill

rity,

by helping

friends

and harming enemies,

rewards the right and sharply punishes the wrong.'


Ancestor- worship, the worship of father, grandfather,

and great-grandfather, has among the Hindus


given in the law-books, and with special

a most elaborate liturgy and ritual, of which the outlines are


ful-

ness in the

Book of Vishnu.

In the eye of the ancient

Hindu
is

sacerdotal lawyer, the whole law of Inheritance


its
is

dependent on

accurate observance.

What

is

more remarkable

that the same close interdepend-

ence of ritual and inheritance exists in the eye of


the

modern Anglo-Indian Judge, who,

after

long ages,

strives to interpret the old

books and to apply their

doctrine to the case before him.

There are few more

')G

ANCKSToit-WoitSIIII'.

ciiAi'.

111.

riiriou8 iiKvtiiiirs of tlif

Past rmd Prcjiont than wlion


lliiili

an Knixlish
Calcutta,
Spiritual
tilt'

.IikIltc in

tlit-

Cmirt

(let

us say)
aiiioinit

oi'

carcl'iillv

wciiihs

the

exact,

of

r.tni

lit

drrivi-d

hy

a deceased

Hindu from
kinsman

sacritices of a
deiri'ce

descendant or collateral, and the

exact

of blessinij^ reflected on the


the;

who
All

has offered the sacred water and


tlie

sacred cake.

main

juridical conceptions of the

Roman law
law, but

of Succession are to be found in the


the terms expressing
nate, actio
(Jc

Hindu

them

{suits hceres, agnate, cog-

familid erciscundii, and so forth) mostly

translate into phrases taking their

meaning from the

liturgy

and

sacrificial

order

of

Hindu Ancestorunderstanding of

worship.
It

must be added,

for the full

the subject, that the

Hindu worship of ancestors does


Hindu law of
life

not merely affect the

Inheritance.

It

influences the everyday

of that vast majority of

the people of India

who

call

themselves in some sense

Hindus, and indeed in the eyes of most of them


their household divinities are of

more importance than


It is a

the whole

Hindu pantheon.

'

common

saying

among

us,'

says the author of an instructive treatise

on the 'Law of Inheritance' (Professor Eajkumar


Sarvadhikari)
neglecting
all
'

that

man may

be pardoned for
is

his

social duties,

but he

for ever

cursed

if

he

fails to

perform the funeral obsequies of

his parents,

and

to present

them with the

offerings

CUAP.

III.

ANCESTOR- WORSHIP.

57

due to them.'
shipped,
are

Ancestors, as divine beings to be worreferred


to

in

the Vedas, and

stand

name of Pitris, in the background among the Hindu gods but every day^ in the dwelling of a Hindu the shradda is offered to
rather obscurely, under the
;

father, grandfather,

and great-grandfather
special observances

and the

offering
lar

is

made with

on particu-

days and on particular occasions.


all is

The most
and the

solemn oblation of
rules for
it

made

at a funeral,

are already set forth in minute detail


i.

by

the oldest of our authorities (Gautama, xv.

30).
all

The

first-fruits
all

of the earth, the first portions at

meals,

anoipxcu and primiiice, are the special share


;

of these ancestral gods

the special blessing which

they confer

is

length of days and the unbroken con-

tinuity of the family.

M. Fustel de Coulanges was


to brino; into full
lio-ht,

the

first

modern writer
book
'

in his
little

brilliant

La

Cite Antique,' the hitherto

observed importance of the private or family worship


of the Greeks and

Romans.

Almost

all

attention

had been concentrated on the greater Gods of these


societies.

In their honour, temples were raised, oxen


altar,

were led to the

processions

moved along

the

streets, reliinous confraternities

were formed.

These

were Gods of Nations or Tribes, Gods born of primitive observation of


for her,
'

Nature and primitive reverence

Gods

sj)rung from wide- spreading emotional

Sarvadhikari,

Hindu Law of Inheritance,

pp.

83

et seq.

58
inovoinrnts.
livinl

ANCEST(>iJ-\V(ii;siiir

CHAP.

iir.

Wkc hioiiVMis
in
tliclr

;iii(l

('xKclc.

IJiit

tliey

far

away

<>wii

)I\ iii]iis.

and the real

rrtoctivc WDi'sliij) of ilu' LJdiiiaii

was

to (he Lares

and
tlu;

IVnatos.

Tljcir

day

or metal images stood in


in

lararium or jx'iutralia,

the innermost recesses of

the liouse, and represented forefathers


'arliost

who
it

in

the

days

liad

actually been buried in

before

the hearth.

At

llieir

head was the eldest of them,


This private worship, like the
its ritual, its

the Lar Familiaris.

public worsliip of the greater Gods, had


liturgy,

and

its

priesthood within the circle of the


it

family

and the intimacy with which


family relations
fills
'

mixed

itself

with

all

is

the staple of the striking

argument which

La
is

Cite Antique.'

Ancestor-worship

still

the practical religion of

much

the largest part of the

human

race.

We who

l)elong to

Western

civilisation

are but dimly con-

scious of this,

mainly on account of the Hebrew


societies.

element in the faith of Western


ancestors

Sacrifice to

was

certainly not

unknown

to the

Hebrews

either as a foreign practice or as a prohibited idolatry.


'

They joined themselves unto Baal-Peor,'


'

it is

written in Psalm cvi. 28,


dead.'

and

ate the sacrifices of the


: '

And

again in Deuteronomy xxvi, 14

Thou
have

shalt

say before the Lord thy

God ...

brought away the hallowed things out of

my

house

...

have not transgressed thy commandments,

neither have I forgotten

them ...

have not eaten

CHAi>.

m.

A>X"ESTOR-\VOKSIIII\

59
I

thereof in

my
the

mourning

nor have
;

taken away

ouo-ht thereof for


thereof
to

any unclean use

nor given ought

dead.'

But

it

has

been

generally

allowed that the

Hebrew

Scriptures
^
;

contain

few

allusions to this wide-spread practice


tact with
it

and any con-

which may be found in Christianity or


is

Mahommedanism

due to accidental causes.


as

wild Turkoman, though he passes

a fanatical

Mahommedan, may

occasionally worship at his an-

cestor's grave, as did his forefathers in the

extreme

East, and here and there a locally reverenced Christian


saint

may have

succeeded to the supposed miraculous

power of a

local heathen divinity

who, in his origin,

may have

been a deified ancestor.


all

But

all

sects of

Hindus, and

the multitudes affected

by Hinduism,

worship their ancestors.


2

The

ancient religion lately


of days as

The

Fifth

Commandment, which promises length

by honouring father and mother during their lifetime, may be compared with the very ancient Chinese liturgical odes in which the long duration of the family is described as See the s^jecial reward for honouring dead parents with sacrifice. the fine Chinese hymn, taken from the ritual of Ancestor-worship, and ti'anslated by Dr. Legge (Shih-King, Sacred Books of the East, With happy auspices and purifications vol. iii. pp. 348, 349). thou bringest the offerings and dost present them, in spring, summer, autumn, and winter, to the dukes and former kings. And they say, " We give to thee, we give to thee myriads of years, The spirits come and confer on thee many duration unlimited. Like the moon advancing to the full. Like the blessings. sun ascending the heavens. Like the everlasting southern hills. Never waning, never falling. Like the luxuriance of the fir and
the blessing earned
'
. . .

the cypress.

May

such be thy succeeding line

"

'

60
ri'vivivl
ly

ANCKSTdK-Woiisiiii'.

ciiAr. in.

Stafc aiitliorily in 'Japan at

tlio

ex])enso
\xi

of IJmlilliisiM. and
a

known

as Sliintoism, a[>pear.s to
;

form o( ancostor-worsliip
tlirtr

tlio

Clnncst' nniversally
willi

worsliiji

ancestors

and

tlicse,
tlic

anccstor-

worsliippiiiix

savairos,

make up

majoi'lty of the

human
The

rare.

C'hincse are the great

example of a commusj^stem

nity eariu^stly devoted

to this

of rehgious
its

boHef and observance.

The evidence
is

of

antiquity

and of
dant.

its

prevalence

among them
is

extremely abun-

Let mc quote what

probably the oldest and

the

newest testimony on the subject.

The most*

ancient

Chinese records are the earlier portions of

those famous collections in prose and verse, the Shu-

King and the Shih-King.


nology carries back the
the

A fairly trustworthy
earliest prose

chro-

documents in

Shu -King

to

the twenty-fourth century before

the Christian era, and the oldest liturgical odes of


the Shih-King are thought to be contemporaneous

with the eighteenth century


pieces in the

B.C.

The second of the


retiring

Shu-King speaks of Yao


and most ancient

from

government
cestor,'

'

in the temple of his accomplished anfirst

and the

hymn
'

in the

Shih-King, which celebrates a sacrifice to ancestors,


represents the practice as even then old.
set

Here are

our hand-drums and drums.

The drums resound


invites

harmonious
ancestor.

and loud, to delight our meritorious

The descendant of Thano;

him with

CHAP.

III.

AJS'CESTOR- WORSHIP.

61

the music that he

may
. .

soothe us with the realisation

of our thoughts
the former

From

of old, before our time,


to be mild

men

set us the

example how
to

and reverent from morning

night,

and to be

reverent in discharging the service.'

For the most recent evidence


ary information.^
'

I refer to a

paper

published in 1882, and manifestly based on mission-

Great (in China) are the expenses entailed by the

dead on the living. In no land can the loss of a kins-

man

be more severely

felt.

The body must be dressed


suit

in fine

new

clothes,

and another good


coffin is essential,

must be

burnt.

handsome

and the priests

must be

largely paid for funeral services at the house

of the deceased, and again for their services in ascertaining the lucky day for burial.
to the seventeenth
. .
.

From

the tenth

day

after death, the priests,

whether

Taoist or Buddhist, hold service in the house to protect

the living from the inroads of hosts of spirits


are supposed to
friend.
.
.

who
new

crowd

in, in

the

wake of

their

]Many families are permanently im-

poverished by the drain to which they are subjected,

and which

is

likely to recur again

and again.

To omit

them would be

to incur the anger of the spiteful dead, in a position to


inflicting
all

who

are

now
by

avenge tliemselves on
sickness

the living
^
'

manner of

and

Gumming

Ningpo and the Buddhist Temples,' by Constance Gordon {Century, September 1882).

62
suflVriiiir.

ANllUSToi; woiisnil'.

ciiAv. ni.

Tlio prii'sls pntcjid to

have

l;i(l

rcvc-

latitns I'nmi the spirit -world, sliowin^'

the iiiifortuuate
lie

dead
only
in

to
l>o

he tortun<l in l'iiru:atory,

and that

can

extricated hv
h<ius(',

.1

iVi-sli

course of costly services

llu-

Tiic price

lo he pnid is fixed at the

hif^hCvSt

sum

tlicv

think

it

possible to extract.

It

ends

in

the l;nuilv raising every possible coin, and even


jewels, to procure the necessary sum.'
I

scllinix their

Finallv,

will repeat

Mr. Tylor's reflections on the

whole of
('

this

marvellous system of belief and practice


ii.

Primitive Culture,'

108)

'Interesting problems

are opened

out to the

Western mind by the spectacle


for

of a great people

who

thousands of years have

been seeking the living among the dead.


is

Nowhere

the

connection

between parental authority and

conservatism more graphically shown.


of ancestors, begun during their
life, is

The worship
not interrupted
deities.

but intensified when death makes them


Chinese,
prostrate

The

bodily and mentally before the

memorial tablets which contain the souls of his ancestors, little thinks that

he

is all

the while proving to


filial

mankind how vast a power unlimited

obedience,

prohibiting change from ancestral institutions,


exert in stopping the advance of civilisation.

may
The

thought of the souls of the dead as sharing the glory

and happiness of their descendants


widely pervades the world
;

is

one which

but most such ideas


will

would seem vague and weak to the Chinese, who

CHAP.

m.

ANCESTOR-WORSHIP.

63

try hard for honours in his competitive examination

with the special motive of glorifying his dead ancestors,

and whose

titles

of rank will raise his deceased father


a grade above him, as

and grandfather

though

witli

us Zachary Macaulay or Copley the painter should

have viscounts' coronets


tombstones.

officially

placed on

their

As
is

so often happens,

what

is

jest to

one people

sober sense to another.

There are 300


see a joke in

millions of Chinese

who would hardly

Charles

Lamb,

reviling the stupid age that

would not

read him, and declaring that he would write for antiquity.'

The

relations of Ancestor- worship to other reli-

gions held in honoui' by those


to have varied

who

practise
to

it

appear

much from community

community,

and from time to time within the same community.


In China
it

seems to have more than held

its

ground

against the other


is

more famous
it,

faiths.

Confucianism

deeply implicated with

and the creeds of Buddlia


it,

and of Lao-Tze have assimilated


indifferently

and

their priests

perform

its

ceremonies.

Sir

Alfred

Lyall has amusingly described the liberties which the


Chinese Government takes with war-gods and rivergods, promoting and deposing

them by
it

acts of State

but

it

may

be doubted whether

would venture on

any serious interference with the service of the dead.

Among

the

Hindus, the ancestral deities are but

dimly seen

amid the Vedic gods, but

the

later

64

AXChlSTOR-WOUHinr.

CHAP.

111.

hiuvriKiUil law-Avritors

seem

coiiscioiis of a rivalry bc-

twiHMi tlu'in and tlu'so iircatcr divinities.


ancosti>r-wtu>hij) ^ivrn in
llif

Tlie ritual of

book of Vislinu begins


1),

with saorifiee to the j^ods


expressly says (in.
goils be
2()")),

(lxxiv,

and

Manu
to tlie
slirad-

'Let an

offcrinjr

made
for

at the beii;inning

and end of the

dhd

it

must not
he

besfin

and end with an


begins and ends

oflerinji;
it

to

ancestors,

who

with an

oblation to the Pitris quickly perishes with his pro-

geny.' Nevertheless, although the greater


like the greater divinities of the

Hindu gods,
though they

Greeks and Romans,

have their temples,

rites,

and

sacrifices,

have their special devotees, though they are honoured

by pilgrimages and
part,

festivals, in

which multitudes take

the worship offered every day

by Hindus

in

their private dwellings to their


is

immediate ancestors
is

perhaps more genuine, and


I

certainly far

more

continuous.
a

have already quoted the statement of

learned

contemporary native lawyer, that every

other ci-ime

may be

forgiven to his co-religionists, but

not the neglect of ancestral sacrifices.

On

the other

hand, the comparatively scanty

Roman

evidence con-

cerning the sacra privata would seem to show that

they dwindled in importance and popular respect.

In Cicero's time the charges for them were

still

heavy burden on Inberitances, but they seem to


have followed a course of change not unusual
else-

where, and the payments for them were in the nature

CHAP. ni.

ANCESTOR-WORSIIir.

G5

of fees or dues to the College of Pontiffs.


si^ns, too, that the

There are
losins; their

household gods were

divinity.

The Lares became hardly

distinguishable
origin,

from the Larvne

word of the same


meant

which

is

said to have at first

spirits not laid to rest

with

the proper
ofoblins

rites *

and indeed from the Lemures, mere


' '

who haunted tombs. The Lars and Lemurs,'


'

who moaned

with midnight plaint

at the Nativity,

are thus not improperly coupled together in Milton's


*

The ancestor-worshipping

peoples appear to have agreed in

thinking that the gravest consequences dej^ended on properly disposing of the bodies of the dead. But there was no such agree-

There is a Zeus that he be at least buried, so that dogs and birds eat not his body, and the prayer of the devout Zoroastrian that he be not, buried, and that dogs

ment

as to

what was the proper mode

of disposal.

startling contrast between the last prayer of

Ajax

to

and birds do eat


'

his remains.
iii.

Compare

Sophocles, Ajax, 826,

et seq.

30 (Sacred Books of the JSast, vol. iv.) " Maker of the material universe, Thou Holy One, if a man shall bury a corpse in the earth and if he shall not disinter it within the

with the Zend Avesta,

4,

second year, what


for
" it ]

is

Ahuva Mazda answered,


;

the penalty for it 1 What is the atonement " For that deed there is nothing

can pay, nothing can atone


trespass for
ao-ain,

which there
:

is

nothing can cleanse from it it no atonement for ever and ever.'"


;

is

And

" O Maker of the material world, Thou Holy at vi. 4, 44 One, whither shall we bring, where shall we lay, the bodies of the dead 1" Ahura Mazda answered, "On the highest summits, where
'

they

know

there are always coii:)se-eating dogs and corpse-eating


'

birds,
feeling,

holy Zarathrusta."

We

though not in

its full

strength

can sympathise with the Greek hardly ; but it would be


civilised nation

credible that a vigorous

and comparatively

once

followed the Zoroastrian usage, were it not for the stubborn survival of it among the Pai-sees, whose * Towei-s of Silence are among the
'

first

objects which Western India.

strike the eye of the traveller

on landing in

00
vcr>'.
I'lit

ANCKSTOK-WOKSllII'.

ciiAi-.

ill.

tli(niL:li
il

tliismosf

;iiicu'ii(

I'cliuioii
Niill

died, its

(ft\*<'tsn fi\

law rcinaiiKMl, and indeed


ol'
it

survive.
(/odes of

One
'

curious

relic

may

Ix'

found
is

in

(lie

the Christian I'nipcrors.


TliiiiiTs
'

Tliorc

a classification of

whicli divides tlioni into their kinds, and


'

then sulxlivides

things wliicli are not the property


lies

of anyhody' into Kes Sacra;, ]\es Sancta;, and


lieligiosa>.

Res Sacne are things consecrated to the


;

trreater

gods

Res Religiosn^ are expressly defined as

things dedicated to the spirits of the dead, the

Manes

and some part of the


last

Roman

rules relating to this

class of thijigs still

affects

our law of church-

yards.

But, further than this, there can be no doubt


is
still

that our law of Inheritance

partially shaped

by

the old worship of the Manes, though the exact

desfree in

which

it

has been influenced


all

is

not

now

ascertainable.

Almost

the English law

on the

subject of the descent of Personalty, a great deal of

Continental law on the same subject, and some part


of our law of Realty, has for
its

foundation the 118th

Novel,

or Xovella Constitutio, of Justinian.


is

This
of

Novel

the last revision of the older

Roman law

vSuccession after death,

which was formed by the fusion


Pra3tor's Edict
at their

of the rules of inheritance contained in the venerable

Twelve Tables with the Equity of the

two streams of law profoundly influenced


source, as

no reader of M, Fustel de Coulanges can

doubt, by the worship of ancestors.

Modem

investiirators

who have made

it

their

CDAP,

III.

A^'CEST01MV0RS1II^.

67

special business

to search for the earliest forms of

mental conceptions among the present ideas of savages

have based a theory of

tlie

origin of ancestor- worship


sleep

upon the phenomena of

and unconsciousness

as they present themselves to

men
'

not yet escaped,

or barely escaped, from savagery.


Sir
'

The

idol,'

writes

John Lubbock, usualty assumes the human form,


is

and idolatry
religion

closely connected with that

form of

which consists in the worship of ancestors.

We

have already seen

how

imperfectly civilised

man

realises the conception of death, and.

we cannot wonder
savaofe,

that death and sleep should long have been connected


tos'ether in the

human mind.
to be dead.

The

however,

knows well
the

that in sleep the spirit lives, even though

body appear

Morning

after

morning
sleep.

he wakes himself and sees others

rise

from

Naturally, therefore, he endeavours to rouse the dead.

Nor can we wonder


the dead.
life
tliis

at the very general

custom of

providing food and other necessaries for the use of

Among

races leading a settled and quiet

habit would tend to continue longer and

longer.

Prayers to the dead would reasonably follow

from such customs, for even without attributing a


greater

power

to the dead than to the living, they

miglit yet, from their different sphere and nature,


exercise a considerable power, whether for
evil.

good or

But

it is

impossible to distinguish a request to


a

an invisible being from prayer, or

powerful

spirit

fi8

AN('KST)K-\\n|;siii|'.

niKw
Civilisation

iii.

from

diMui-uc"!

("

Origin

of

and

Priinitivt' CoiKlilion of Man.'

Itlicd. 18(S2),

In liarof"

nionv

witli

this

tlicorv. tlu' various societies


spirit,

nian-

kiinl. in tlu'ir relation to IxTu'fin a

world, liavc
('

Uvvu thus classrd hv Mr. lIorl)ert Spencer


of 8ociolo::v,'
.'22):
i>.
'

l^-inciples

Taklnu' the aggregate of the

liuman peoples,
nearly
all

tribes, societies, nations,

we

find tliat

of

them

liave a belief,

vague or wavering,

or settled and

distinct, in a reviving other-self of the

dead man.

Within

this class of peoples,

almost co-

extensive with the whole,


large,

we

find a class, not quite so


self of the

by the members of which the other


in, is

dead man. definitely believed


for

supposed to exist
death.

a considerable
is

period

after

Nearly as

numerous

the class of peoples included in this wlio


propitiation, not only at the funeral but

show us ghost
for a

subsequent interval.

Then comes
more

the narrower

class included in the last, the

settled

and ad-

vanced peoples who, along with the developed belief in


a ghost that

permanently

exists,

show us

a persistent

ancestor-worship. Again, somewhat

further restricted,
a class of peoples

though by no means

small,

we have

whose worship of distinguished ancestors begins to


subordinate that of undistinguished.
the subordination, growing

And eventually
most
leaders

decided, becomes

marked when the ancestors were


quering
races.'

of con-

The

theory, fully developed, appears to be that the

CHAP. ni.

ANCESTOR- WORSIIir.

C'J

dead are believed by savage men to


they themselves live in dreams, a
of their waking hours and yet unlike

live the life whicli


life
it.

very like that


It is

thought

that in death, as in the visions of the night, the spirit

meets
it

its

everyday companions and kinsmen, but that

meets, besides, others

who have
drink,

disappeared from

the living world, and especially those


feared, or hated.

whom

it

loved,
;

They eat,

and speak

as of old

the only difference between their world and that of


is

life

perhaps that they melt into other forms with an ease

and rapidity which are new, but which have ceased


to
surprise.

In this region, the visitant most


life

fre-

quently meets the dead whose

had most contact

with his own, and specially the Father armed with


his Paternal

Power.

This

is

the figure which,

when

sleep leaves him,


state of belief

he best remembers.
feeling,
is

In such a

and

the

lirst

impulse of the

kinsmen whose chief

seen to have finally departed

for the spirit- world, is to provide

him with food and

drink, perhaps with arms, ornaments, and attendants,


for his

new home, which

is

to be so like his old one.


rites,

In these impulses the bloody funeral


still

which are

described in the Homeric

poems, are supposed to


is

have had their origin, and another survival


sacrifice
'

the

of the

Hindu
I

to

his

ancestors

with the

water and the cake.'

myself certainly think that


to

the theory has been


it

made

account for more than

will really explain

by some of the eminent writers

70
wli.)

A.NrK.sTii:-\Vt>KS|iii'.

ciur.

III.

have a.loplrd
tliai.

it

l>iit

llicn^

is

soiiio

intcn'stiiii:;

ovidtMico
rorniMl,
it

so lar as
lar
t<>

flic

early
tlie

lliiiiliis

are contlioir
aiitlii^

ltocs

show
is

origin of

(H'Stor-worship.
inin<ls

TIuti'

manifest perplexity

in

of the sacerdotal

law-writers at the contravarious


is

dictions

between

tlie

reli<^ious

doctrines

imderlvinL:- the law.

How
and

the doctrine of benefit

to ancestors lv ritual
Avitli tlie

sacrifice to

be reconciled

theory of transmigration and of the purgation


?

of sin by punislunent after death


clearer to

Nothing seems

them than the principle


his acts, so

that, as a

man

has

made himself by
the
dies

he leaves

this life for

next, pure or

impure, sinful or sinless.


is
;

He

when

that result

entailed

by the

result of his

acts in

some past
the

state

ne goes into the next state


of his
in
acts

according to

result

here.

These

principles are laid

down
'

solemn and sometimes


is

eloquent

language.
;

Single

each

man born

single he dies

single

he receives the reward of his

good, and single the punishment of his evil deeds.


AVlien he leaves his corpse like a log or a heap of

clay
faces

upon the ground,


;

his kindred retire with averted

but his virtue accompanies his soul.

Con-

tinually, therefore,

by degrees

let

him

collect virtue,

for the sake of securing


since,

an inseparable companion
he will traverse a

with

"virtue

for his guide,

gloom, how^ hard to be traversed!'


'

(Manu,
do

iv.
it

240).

What

thou hast to do to-morrow,

to-day.

OHAP.

III.

ANCESTOR-WORSHIP.
liast to

What thou
forenoon,

do in the afternoon, do

it

in the

for death

may come
is

at

any moment.'
his field, or his

When

a man's

mind

fixed

upon

traffic,

or his house, or while his thoughts are en-

grossed by some beloved object, death suddenly carries

him away

as his prey, as a she-wolf catches a lamb.


friend,

Time
his

is

no one's

and no one's enemy.

When
Time

the effect of his acts in a former existence,

by which

present existence

is

caused, has expired.

snatches

him away

forcibly.

He

will not die before

his time has come,

even though he has been pierced


;

by
is

a thousand shafts

he will not

live after his

time

out,

though he has only been touched by a blade


If this be so,
it

of kusa grass' (Vishnu, xx. 44).


is

a risforous loccical conclusion that nothmp^ which

the living can do will help the dead.


I

But the writer


what seems
to

am

quoting finds

a solution in

us the most unnatural of principles


of the dead ought not to

that

relatives

mourn

for him,
'

but nevera man's

theless should offer the sacrifices.

As both

good and bad actions


associates,

will follow
it

him

after death like

what does

matter to him whether his


or not
?

relatives

mourn over him


and returns

But, as long as
spirit finds

his relatives

remain impure, the departed


to visit his relatives,

no

rest,

whose duty
and
has

it is

to offer

up

to

him

the funeral ball of rice

the water libation.

Till

the

Sapindikarana

been performed, the dead

man

remains a disembodied

.1:

AXCKS'n)K-W(lvSllll'.

omai.

m.

spirit,

iiixl

sulltTs

both

lumber

:in<l

tliii'sl.
li;is

(Jive
jjasscd

riiv

ami

a jar

with watci* lo the


^1'

iii.iii

who
.

inti> thi'

ahoile

lis('iiiltii(lic(l

s|>irits.

IVrloriii

tlu'rdbro the Sliradtla


^irrii'f

always, ahainioniiiu; bootless


It
is

(N i>him,

xx. .'U-.'()).
siiju-rstitioiis

iiiij)ossible

to
;

state the ancient


if

belief

more nakedly

the gliost be not supplied by his mourning' kinsmen


'

with food he will

walk

;'

but the law-writer before

us evidently iinds the doctrine unaccountable, and

maintains
at the

it

because there

is

autliorlty for

it.

It is

same time

to be observed that the })roblem is

solved in a different

way by

the latest

Hindu law,
dead

which declares that the


ancestor
the
'

effect of sacrificing to a

is

to deliver hini from one special purgatory,

Hell called Put.'

The

doctrine of direct post-

humous punishment has


haunts.

to this extent absorbed the

opinion that the perturbed spirit revisits his ancient

There

is

one

peculiarity

of

ancestor-worship
insti-

which recent speculations on primitive human


tutions invest with a great

deal of interest.

The
first

ancestors worshipped appear to have been at

always male ancestors.

'

Although,' says Sir John


the lowest
I

Lubbock,
traced in

'

descent amongst
the

savages

is

female

line,

do not know of

an}'^

instance in which female ancestors were worshipped.'

Female ancestors

in the

direct line

are

now worevidence

shipped by the civilised Chinese, but

tlie

cnAP.

III.

.\NCESTOR- WORSHIP.

shows that the posthumous honours paid to women In the are of later origin than the worship of men.
oldest of the Chinese sacrificial odes, plausibly dated
at not

much
'

less

than two thousand years before


'

Christ, the

accomplished
is

and

'

meritorious

'

ances-

tor celebrated

manifestly a man.

The worship of
till

female ancestors does not appear


division of the
ries,'

much
'

later

hymns.

'

We

have our high grana'

runs the ode called the


our high granaries, with
of thousands
spirits

Fang Nien

'

We

have
dreds

myriads and hun-

and millions of measures in


spirits, to
;
'

them, for

and sweet

present to our
sacrificer

forefathers,

male and female

and again, the


'

in another
father,

hymn

is

made

to say,
filial

great and august

comfort me, your

son.

...

I offer this

sacrifice to

my

meritorious father, and to


It is

my accomexisting

plished mother.'

thought that the

still

practice of placing spirit tablets of wives along with

those of husbands in their shrines had by this time


beffun.

So too in the most ancient Hindu lawis

books, the funeral oblation


cestors.

confined to male an(ii. vii.

At

this rite, says

Apastamba

16. 3),

the manes

of one's father, grandfather,


are the
deities to

and greatthe
sacrifice

grandfather
is

whom

offered.

The
'

rite is to

be performed in the latter


luckiest
fifth

half of the

month of which the


If he performs
;

day

is

the

fifth.

it

on the

day, sons

will be

born to him

he will have numerous and

(1

A\('KsT(i;-\ViiU.^lIll\

CU.V1-. 111.

listin_Li'ui>luil

t)|]">|ii-iii^-,

and
nii

lie

wW] not die


lir>t
tliat

cliildlcss.'
tlic lialftlu;

r>ur

it'

Ijc

|i('rl'(rms

it

the

day of

iiiontli,

tin-

cautum

i.-;

i:i\rii

the issue of

>acrirut'r

will

consist cliiclh

of daui;litcrs.
nnicli
ol"

AVIkmi,
ci'a,

how
like

i'\iT. wt' \ i>linn.

coine lo writci's of a

later
tlie

we
is

liml

<li>t

i-ibntion

saeri-

tices wliieli

very signilieant.
wliole
tlie

\ isliini

^ives

us

sunmiarv of
as
this
priK-tised

tlie

ritual

of ancestor-woi'sliip
treatise ealled
])y

at

date of

tlic

name (Vishnu,
is

eliap. Ixxiii.)

First of

all

the

sacrificer

to

worship the (greater) Gods.

Then

on partieidar days
of certain

the nmth days of the dark halves months he consecrate an


is

to

offerinir

with proper
it

hymns and
Brahmans
ritual

scriptural texts

and present

to

three

present,

who

represent his

father,

grandfather,

and

great-grandfather.
is

The

liturgy and

which he
it

to follow are indicated,

head by head, and


sacrifice that a

is

essential for the virtue of tlie

company of Brahmans should have

been mvited.

On
is

certain

other

sacred

days,

the

Anvashtakas, he

to sacrifice to his mother, his

paternal grandmother, and his paternal great-grand-

mother

and

lastly, says

the writer,

'

an

intelligent
is

man

'

an

expression which, as

always used of a doubtful point


to his maternal grandfather,

it
'

appears to me,

must offer shraddas


to the father

and

and
of

grandfather of him in the same way.'


celebration seems to

The order

me

to follow the historical order.

CHAP. in.

AN'CESTOK-AVOKSIIir.

70

and

to

show that the ancestors

first

worshipped

l)y

the Hindus were the father, grandfather, and greatgrandfather.


It is clear then, I think, that

wherever ancestor;

worship arose, Paternity was fully recognised


as the texts relating to this

and

worship are

as old as

any others
are

in the sacerdotal law-books,

and indeed
import-

probably

the

oldest,

attach

small

ance to casual expressions found here and there in


these
treatises

which have been thought to show

that their writers preserved traditions of the savage

custom of tracing descent through females


Still,

only.

as

we cannot doubt
somfetimes
called

the existence and preva-

lence
usa2:e,

among some

part of
'

mankind of
Mother-law,'

this savage
it

is

im-

possible not to ask

oneself the question,

Did the

worship of the dead bring about the recognition of


paternity, or
is

ancestor-worship

religious inter-

pretation

of,

or a religious system
?

founded upon,

an already existing institution

M. Fustel de Coucustom of
'

langes, without referring to the


law,' certainly

Mother-

seems to

me

to express himself occaall

sionally as

if

he thought that

the characteristics of

the so-called

Patriarchal Family were created by the

worship of ancestors which was ever celebrated in


tlie

recesses of, the household

and that from


its

this

worship sprang the Father''s Power as

high-priest,

and

also the denial of kinship to persons

no longer

TO
;il)lo

ANTESTOli-WoliSllll'.

ciiAi-. 111.

\o participate in
t'liiaiicipati'd

it.

as th(^ inarricil
It

(laiiii;lit(i'

ami
that,
all

till'

son.

ina\"

well

lir

lu'lit'ViMl

ancostor-wnrsliip.
lainil\-

hv
Imt

cttiisccratinL:'.

sii-cnj^tlicncd

rclaruMis.

in

ihc

]irc.->ciit

state
le

ol'

tlieso

in<|uii'ie> ilie

evident-e eerlainl\'

seems to
is

in

laNonr

of the view

tliat

the

l-'atiiei-'s

I'ower
\\ liv

oldei" tliaii the

practice of wonsliippin*:; him.


Fatlier
Ik-

shonid the dead


oi'

wtn'shippi'd

more

tlian

any other meniljcr

the household unless he

was the most prominent

it

may
life ?

be said, the most awful


it

figure in

it

during his
I

was

he,

accordmg to the theory which


menacing,
is

have described, who Avould most frequently


himself,
affectionate

sIioav

or

to

his

sleeping

children.

This opinion

fortified

by the recent

investigations into the customary

law of the Punjab,

the earliest Indian home, I

must

repeat, of the

Aryan

Hindus

after their descent

from the mountain-land of

their origin.

Ancestor- worship does exist

among the

Hindus of the Punjab.


obscure superstition.
like the elaboration

But

it

is

a comparatively

It has

not received anything


it

given to

by the priesthood

in

the provinces

to

the south-east,

many

of

whose

fundamental doctrines are unknown to the Punjabee

communities of Hindus.
tion of the
'

Nevertheless, the constitu-

Family is
kinship
is

entirely, to use the

Roman phrase,

agnatic

;'

is

counted through male descents

only.

There
usages

a very strong resemblance between

these

and the most ancient


where they

Roman

law,

and

their differences,

differ,

throw very

CHAP. in.

ANCESTOR-WORSHIP.
light

<

valuable

on the

more

famous of the

two

systems.

The truth seems


worship had at
first

to be that, although Ancestor-

a tendency to consolidate
its later

the

ancient constitution of the Family,

tendency
sj^stem as

was

to dissolve

it.

Looking

at the

Hindu

a whole,

we can

see that, as its historical


fell

growth pro-

ceeded, the

sacerdotal lawyers

under a strong

temptation to multiply the persons


leged to offer the
sacrifices,

who

Avere privi-

partly in the interest

of the dead ancestor, chiefly in the interest of the


living

Brahman.

In this way, persons excluded from

the ancient fiimily circle, such as the descendants of

female kinsmen,

were gradually admitted to parand share


in the inheritance.

ticipate in the oblations

Some

traces of a

movement

in this direction are to be


;

found throughout the law-books

and a very

learned.

Indian law}^er (Mr. J. D. Mayne, 'Hindu


Usage,' chap,
xvi.)

Law

and
in

has

shown

that,

wherever

modern India the doctrine of


is,

Spiritual Benefit

that
most

of an intimate connection between the religious

blessing and the civil right of succession

is

strongly held,

women and
Roman
it

the descendants of
is

women

are oftenest permitted to inherit. It

remarkable that

the Equity of the


a religious before
precisely the

Praetor,

which was probably


had

was

a philosophical system,

same

effect in.

breaking up the structure

of the ancient
as its chief

Roman

family, governed

by the Father

78

.\\(

KSTOK-WOKSini' ANIt

Ml KKIT AMI:.

CIIAPTKR

IV.

ANCKSTOli-WOKSIlU' AND IMlEiaTAXCK.

The
after

close connection

between succession to property

death

and the performance of some sort of

sacrificial rites in

honour of the deceased has


antiquity,

lonir

been

known

to students of classical

considerable

proportion

of

the not

very plentiful

remains of Greek legal argument to be found in the

Athenian Orators
heritance,

is

occupied "with questions of inlitigant

and the advocate or

frequently
as in-

speaks of the sacrifices


separable.
'

and the succession


us,'

Decide between

he says,

'

which of us

should have the succession and make the sacrifices


at the

tomb

'

(Isa?us,

'

In the goods of Philoctemon,'

Or. vi.)
spirits

'I beseech

you by the gods and immortal


worst enemies to

not to allow the dead to be outraged by these

men
the

do not

suffer his
ii.).

sacrifice at

his grave* (Or.

In a former work I pointed out

number,

costliness,

and

importance of these
the

ceremonies and oblations


insisted

among

Romans, and

on their probable significance as the source

cn.vp. IV.

ANCESTOIl-WORSIIir AM)

INll KUITAXCI':.

70

of the pecnliar fictions

which cluster round early

family law ('Ancient Law,' p. 1!)1).


planation,
I

The

best ex-

argued, of the

facility
is

with which a

strano^er can be

made

a son

that, bcino; admitted

to the religious observances, he is not distinguishable

from a son under his religious aspect.


experience of the world

The

later

may

sho-\v^

us that in the

mere blending of the


there
is

ideas of inheritance

and offering
enough.

nothing to surprise us.


it

It is natural

Wherever

has been matter of belief that the sur-

viving members of a dead man's family could do anything to better his lot in the world after death,
it

has been thought their duty to do


entered upon his possessions.

it

before they

The mediaeval

Christian

Church held
perty
;

this

view of personal or movable profor the celebration of

it

was primarily a fund

masses to deliver the soul of the owner from purgatory.


diction

Upon
of our

this doctrine

was founded the


Courts, in
first

jurisall

Ecclesiastical

which

property of this kind vested in the


it

instance before

could be distributed

and

this jurisdiction,

coupled

with the necessary powers over Executors in the


case of Wills,

and of Administrators

in the case of

Intestacies, has

descended to the modern Court of


light
'

Probate.
of
'

The new

which we owe to the author


his

La

Cite Antique

is

determination of the

nature of the divine beings to

whom

the obJations,

which exercised so powerful an influence on Athenian

80
:unl

AXCEST<^K-W(K>nil' AND IMlKKIT.WCi:.

cniv.

iv.

KtMuaii

IicrilMLics,

wcit
aii\'

(It\(tl('<l.

'I'lir\-

were of
I'lil,

course Hot

ntlcrcil

to

one

Siipi't'inc

(loil.

lU'itluT Wi'vr

tlit'V od'cnMl to tlui ijivatcr dcitii'S


'

of

tlic

l(val I'amlu'on.

I^c

cultc dcs dlcux


Maiio"^
1\I.

<lc

rolympc

ct

celni

(It's

IK'ros ot des
tK'

ii\'iin'ii<

janiaiH cntre

eux

rirn

coinnHin,' says

Fustcl dc Conlangcs.
chiefly to the

The
life

worsliip was

ufiven to tlic dead,

I'cniembercd dead

who had
reality.

just

passed
their

away

into a

not furtlicr removed

from

late existence

than a sleep from


I

will note in passing that the excessive expensive-

ness of the

Roman
still

sacra privata, which

is tlie

burden

of Cicero's complaints in his private letters, seems to he a feature of

survivmg ancestor- worship.


('

The
upon

writer of a paper I have before quoted

Ningpo and

Buddhist Temples

')

gives a curious calculation,

what
the

is

probably American missionary authority, of


the

expenses to which

Chinese are
'

put by

worshipping their forefathers.

One

well entitled to

know what he spoke

of said that fully thirty millions

of dollars are annually expended in China at the three


great festivals in honour of the dead, and, with the

average expenditure of each family, fully 150 millions


of dollars are spent in quieting the
spirits.'

There

is

no doubt

also that funeral rites

and oblations are


I

extremely expensive in India, and

have heard their

heavy cost seriously urged as a reason against imposing a duty on legacies and successions.

The ex-

CHAP. IT.

ANCESTOR-WORSHIP AND INHERITANCE.


observance
it

81

pensiveness of religioiis
arises

among Hindus

from the necessity which

involves of feasting

Brahmans, sometimes in multitudes, and making them


gifts.

The

oldest of the law-books strongly inculcate

the duty of employing the ministry of Brahmans.

Three are especially to be in places of honour


funeral celebrations,

at all

who

are to represent the three


father,

ancestors worshipped great-grandfather.


tained.
'

the
'

grandfVither,

and

But many more are


with composed

to be enterfall

Pure,

mind, and

of

ardour,' says Apastamba,

he shall feed Brahmans


shall feed
is

who know
number
Gautama,
entertain.'
'

the Vedas.'

'

He

an uneven
the rule of
is

of Brahmans, at least nine,' or let

him

feed as

many

as he

able to

Some

singular but very intelligible texts

forbid the worshipper to

make

these sacred feasts a


relatives'

pretext for entertaining his

own

The food

eaten at a sacrifice
is

by persons
Losing

related to the giver

grift

offered to o-oblins.

It reaches neither the


its

Manes nor the Gods.


heaven,
lias
it

power

to procure

wanders about in

this world, as a

cow
'

that

lost her calf


II. vii.

runs into a strange stable

Apas-

tamba,

17. 8).

We
societies

have

now

to consider

some of the ways in

which the law and custom of ancestor-worshipping


have been affected by their peculiar
faith

and

reUgious practice.

The

first
w^ill

instance of a trans-

formation in law which I

give

is

one nearly con-

S2

ANnCSTOU-WOKSlIII' AM)

Ml i:ivMTAN(
ol'

i;.

cilAr iv.

noctri] with the irrow in<^ cdstliiioss


tills

the ritual,

l^y

ritual a rcliirious

and

iiilcllci'tiial
])()j)ulai'

aristocracy lived.

One

of

tlu'

commonest

cn'ors

about
is

tlio

lirahmans even
because tlicv
tliereforc

now cunvnt
spiritiialK'ind

in
tlir

l.n-jlaiid

that,

an-

hiLihcst.

they are
of the

the

wealthiest

most

](wcrriil

Hindu

castes.

They count
families,

amouLi'

them some opulent


house
in

and powerful
is

and one

lloyal

India

liraliman, but, on the whole,


It

tliey are

not specially
to

wealthy.

would be more accurate


and ministering

describe

them

as a scrvinrr

class, their

occu-

pations varying from the high administrative duties

which they once monopolised


to such
service

in the

Mahratta States

humble functions
is

as those of the cook,

whose

a luxury, because no impurity can be con-

tracted at his hands.

The Brahman of the


and
spiritual

old law-

books

is

still

a priest
else,

director

more

than anything
to

though with a

visible

tendency

become a lawyer, a judge, or an administrative

counsellor.
others,

He

lives,

however, by the

bounty of

by

their charitable

and pious

gifts,

more par-

ticularly those given to

of

sacrifice.

It is
'

him on the great occasions strongly said by a modern writer


Usage,' p. 205) that

(J. D.

Mayne,

Hindu Law and

the

modern

law, as promulgated

by Manu, might be
'

described as a law of gifts

to Brahmans.

Every step

of a man's
gifts to

life

from his birth to his death required

Brahmans.

Every

sin

which he committed

CHAP.

IV.

ANCESTOR-AYORSHIP AND IXIIEKITAXCE.

80

mio'lit

be expiated by gifts to Bralimans.


for religions

The huge

endowments
not a dead

purposes which are found


these precepts were

in every part of India


letter.'
is

show that

Now

one chief impediment to

pious liberality

that system of joint ownership


is still

by
in

groups larger than families which


India, especially in that earliest
race,

common
in

home

of the

Aryan
such a

the

Punjab.

Every man's
less limited

rights

group are more or

by the rights of every-

body
group

else
is

and, as a rule, the assent of the entire


its

necessary before any part of

property

can be alienated.

Hence the sacerdotal system, of


to be seen in the law-books, to joint forms of property.
their motives for this disfor

which the rudiments are


is

most manifestly adverse


writers frankly

The
like

avow

of co-ownership and
'

their

partisanship of
'

partition.

In

partition,'

says Gautama,
viii.

there

is

increase of spiritual merit' (x.


ciple is
'

4).

The
(ix.

priniii.)
:

still

more plainly put by Manu

Either

let

them

live

togetlier,

or,
rites,

if

they desire

separately to perforin religious

let

them

live

apart

since

religious

duties

are
is

multiplied
therefore

in

separate houses, their separation

right

and even laudable.'


the

The more
for domestic

separate households,
sacrifice,

more occasion

the

more

opportunities for pious largesse to the sacred order.

The modern writer


p.

have quoted (J. D. Mayne,

204)

cites

my own

opinion, expressed in a former

v*^4

AX("F.ST01I-W(1KS||II'

AM*

I.MI I'lHTANCi;.

chai'. iv.

wttrk

('

I^arly

Ilistorv of

Iiistif iitinns.'
ciiiiai;\'(l

]>.

101)

lliat

the Cliristian Clnircli,


aniont:;
l)arl)ar<)ns

whvn

in

pi-osclyfisiii
tlis-

societies,
lril)al
its
;

exerted a similaih<)Wiii'r>Iii|).

solvinuf
<\^rtaiiilv

force

\\\un\

Tlie

('liiircli

iiitrodiiccd
\\"\\]

l)arl)an)us

coTiverts to tlie
strenii^tlicn
llicir

Testament or

it

strove to
;

reverence for Contracts


to prove that
it

and

tlie

Irish evidence

seems
dis-

lari!:ely

extended Separate, as

tinguished from Tribal, ownership.

Jn reading the

Brehon
writer
tain

tracts,

you remain

in

doubt whether the

means

to lay

down

that tribal land under cer-

circumstances ma}' be parted with generally and

in favour of

anybody, or whether

it

is

only to

l)e

alienated in favour of the Church.


bability
is

The strong

pro-

that he intended to sanction gifts to the


;

Church primarily
such rulings.
that there
is

and that a generally enlarged

power of separate alienation was the consequence of


But
it

has always to be remembered

a radical difference

between

tlie

Brahman

encouragement of charitable profusion and the enlargement of legal


facilities for

pious endowment by

the media3val Christian Church.

Charity with the


;

Brahman began
it,

strictly at
it.

home

he was wedded to

because he lived by

But the Church, although


planted amid barprotection besides

it

certamly desired to fortify by endowments every


it

asylum and stronghold which


barism, had other classes under
its

its

own

servants and clergy.

It fed

the poor and

CHAP.

IV.

ANCESTOR- WORSHIP AND INHERITANCE.


It

00

needy

at its gates.

was ever

careful for the orpliaii

and the widow.

Bat the Brahman law-books, with


some tenderness of
in
feeling,

much

elevation and
oiFensive

are

constantly

the

contempt,

sometimes
for all

amounting
classes

to loathing,

which they express


caste

except the sacred

and

other castes
it,

powerful enough to pretend to equality with

or

proximity to

it.^

We

come now

to

some

results

of Ancestor-

worship which are of the highest interest as throwing light on a number of perplexing questions which

embarrass our

first

steps in the examination of very

ancient societies.

It

seems clear that, according to

the most ancient ideas, not only

must the ancestor

worshipped be a male ancestor, but the worshipper

must be the male


posing,
will

child or other male descendant.

Under the conditions


it

of thought

we have been

suplife

have been seen that the verge of


easily overstepped.

and death was very

The dead

man was he who had been the living dreamer, only that he had now passed permanently into the life of
dreams.
It

thus seemed proper that the

sacrifice

should be offered by a person

who one day woidd


Hence there
a

take his place in the chain of deified ancestors, and


this could
arose,

only be a male descendant.


the

among

ancestor-worshipping peoples,
for

most intense

desire
*

male offspring and, as a


to this chapter.

See Note

S6

AXCKSTOU-WOKSIIll' AND

Ml i:i{IT.\.\('K.

i
cn.vr. IV.

consiMiuoiicc of
al)out

lliis

tloirr.

:i

i-(iiiark:il>l' set

of idoas

patmiiiv.
lu'i'ii

soiisliip,

and

iiilicritaiicc, wliicli

must
more

ha\c

widclv

dill'usod of old aimuiLi' all

tlu

powi'rful
tlu'

races of
st)ck.

mankind,

aiitl

sju'cially

those of

Aryan

Tlioro arc manifest traces either of


tlie

these

iileas,

or of
in

customs with which they were


antiquities of the Athenians

iutcrmixed,

the

le<:;al

and of the Spartans, of the Romans, of the Celtic


Irish,

of the Hebrews,

and of the Chinese.

As

is

natural, from the deeply sacerdotalised character of


their legal literature, the fullest

and most detailed

account of a family system shaped and interpenetrated

by ancestor-worship

is

to be

found in the

ancient books of the Hindus.

It cannot, of course,
its integrity,
it is

be taken for granted that this system, in


a nee existed

everywhere.

One

feature of

found

here, another there.

But there does seem

to have

been a general likeness between the deductions which


the priests and lawj^ers of a large
societies

number of

ancient

drew from the principle that

sacrifice

and

worship were due, under severe supernatural penalties,

from male children to their dead

forefathers.

We
and
its

cannot, as

it

appears to me, frame in our

minds any reasonable explanation of Ancestor- worship


legal consequences, unless

we assume

that,

when

it first

arose amonof men, the Father of each

family appeared to them in the form

which he

constantly shows himself on the threshold of juris-

CUA.P. IV.

ANCESTOR- WORSHIP AND IMIKRITANCE.

87
the

prudence, and which he probably wore^

when
but
it

human

race began.

He
is

is

the Pater Familias.


recognised,

The
is

physical

paternity

fully

blended with protective power.


subject to

Most of the males

him

are really his children, but, even if

they have not sprung from him, they are subject to


him, they form part of his household, they
(if a

word

coloured by later notions be used) belong to him.

On

the other hand, under the religious aspect of these

relations,

from the point of view of a sacerdotal


is

lawyer, the son

simply the person

who

can

effica-

ciously offer the sacrifices.


vol.
ii.

Dr. Biihler (Preface to


p. xix.) writes

of

'

Sacred Books of the East,'

thus of Baudhayana,

whom
'

Sanscritists, Indian

and

European, geperally regard


of the
teachers,

as

one of the oldest


other
ancient
to

law-writers.

Like

many

Baudhayana permits

childless

Aryans

satisfy their craving for representatives bearing their

name, and to allay their fears of falling

after death

into the regions of torment through a failure of the

funeral oblations,

by the
sons

affiliation

of eleven kinds of
Illegitimate sons,

substitutes for a legitimate son.

the illegitimate

of wives, the legitimate and

illegitimate offspring of daughters,

and the children

of relatives

and even of strangers, who may be

solemnly adopted or received as members of the


^

See Chapter VII. (on

'

Modern Theories of Primitive

Society')

below.

SS

ANCKSTOH-WORSlllI' AND

Ml KKITANCK.
all

chap.

iv.

family witliout nnv

ciTi'iiioiiy,

arc

allowed to take
sons.'
1

the place and the rights of

lei;itiiiiale

will

proceed to oxainine this system of


at

arliriii;il allilialioii

some

length, toi^-cther willi


I

iis

heariiiL;'

on

jnliei'i-

tnnce in the t'mhrxo.


it

nlil

ihe ideas nj)on


silted,
it

which

rests

have heen earelidly


all

si'cms to

me

douhtful -whether

investigation of the primitive


])c

forms of society
mature.
First of
fices
all,

is

not likely to

imperfect and pre-

then, the person

who

offers the sacri-

with the best chance of efficacy in the world


is

beyond the grave


is

the legitimate son, the son

who
by

physically the offspring of his father and who,


is

preference,

born of a marriage blessed by ]3rahall

mans and

contracted under

the conditions which


all

their sacred

law prescribes.
is

And, among

sous,

the eldest son

most

likely to confer spiritual benefit

on
the

his father.

Here, however,

we come upon one

of

most remarkable of the extensions which the

sacerdotal lawyers give to their doctrine in order to

prevent

its

miscarriage in particular cases.

With the
legiti-

purpose of increasing the chance of there being

mate sons to present the oblation, some among the


oldest of these Brahmanical teachers relax the conditions

of marriage,

and show leniency to strange

forms of wedlock, so numerous as almost to include


all

possible unions of the sexes.


are

riages

Some of these marvery strongly condemned by the later

CHAP.

IV.

ANCESTOR-WOESHIP A^^D INUEKITAXCE.


for

89

Hindu law-writers
purchased bride
tuated
;

example, marriiige with a

others,

where they occur, are


fraud.
all
Still,
it
is

effec-

by violence or by

to be

observed that the children of

these unions
;

would

be physically the children of the husband


father

and the

and mother, however barbarous their con-

nection, are probably understood to have been un-

married before

it.

Among
eldest
is

all

the sons sprung from the father, the

preferred.

The

sacerdotal reason assigned


that,

by the Hindu lawyers


religious obligation to

is

by

his

birth,

the

have a son who can continue

the chain which binds together the living and the

dead has been

satisfied.

But the

privileges of inheri-

tance corresponding to this spiritual primacy are very

variously defined in the law-books, and, even

when

they approach somewhat to modern primogeniture,


they are
son
is

still

very unlike

it.

Sometimes the eldest

spoken of as taking the whole inheritance of

his father
this
is

and supporting the

rest of the family, an.l

very probably the secular custom for which


lawyers
invented
a
religious

the

priestly

reason.

More

often, the best j)ortion, or

some

similar advan-

tage, is assigned to the eldest of the sons,

and some-

times
stated.

alternative

modes of providing

for

him

are

Of two

ancient authorities,

Gautama

defines

his privileges in

ambiguous and indeed contradictory

language (see chap, xxviii.), while Apastamba, while

00

AXCESTOK-\V()i:sllll'

AMI

Ml

KlllTAN'CIi:.

chap,

iv,

:nlinittin<j:

that

rriiiionx-niturc

i;ivi's

:ulvaiita;^cs
(>(|ual

in

ivrtain ('(luntrics, aririios stronjly for


ainoiiL:
tliat,
at all
\\\c

division
to

sons

(ii. vi.

I.

I).

It

seems

me

tlir i|t(t(li

(>r

tlicsr

Ia\v-I rcatiscs,
aiiioiii;'

the jmcient

PriinoLiciiiturr

was
it

dceaviiiu"

llic

Hindus, as

we know
iifenerallv.

that

decayed
the

in

tlic

barbarous world
usage,

riidor
\va\v taken

orisjinal

the

eldest
his

son

may
;

everythmg and maintained

brethren

but the Brahmans, as I have explained,

were strong partisans of multiplied households, and


this feeling

must

luive militated powerfully against

the privileges of the eldest.


trine

On
is

the whole, the docthat

which tends to prevail

the

division

should be equal

among

sons, with a small advantage

to the eldest as the divider of the inheritance,

which

may have
Next
for

been meant as an inducement to fairness.


to the legitimate sons, as proper vehicles
blessing,

spiritual

the greater

number

of the

ancient

Hindu law-writers

place the son of the wife,

born during her marriage but not necessarily of her


husband.

At

first sight this

looks like an application

of the long-descended legal


nuptice

maxim, pater
^

est

quern

demonstrant^ but

all

the ancient texts taken


I will

together suggest a different explanation, and


consider the
'

son of the wife

'

again

when

come

to

the son of the widow.

The person who, on

failure of all the inheritors 1


offer the sacrifices

have mentioned, can next in order

CHAP.

IV.

A.N'CESTOR-WORSHIP AND INHERITA.NX'E.

91
the son

for the deceased

and claim
'

his succession,
It is

is

of his

'

appointed

daughter.

an interesting

case for a variety of reasons.

The son of a daughter,

regarded by himself, would not satisfy the require-

ments either of a successor or of a worshipper.


the secular point of view, he
a
'

From

cognate,' a

Roman phrase, kinsman through women only, who,


is,

in

according to the usage prevailing

among

all

the
first

more
or at

powerful races of mankind either from the

a certain stage of their development, cannot continue

the family.

The

religious theory of ancestor- worship


for the parent to

would not take any notice of him,

whom
women

he would

sacrifice

would be

woman, and
But
pro-

could not in the earliest times be objects of

worship, and never at any time by themselves.


the ancient law allowed the father,
spect of having legitimate sons, to
'

who had no
appoint
'

or nomi-

nate a daughter

who

should bear a son to himself and

not to her

own husband.

Apparently

this appoint-

ment could be made against the husband's will, for one of our oldest authorities warns the Hindu against
marrying a
father
his
'

girl

who
'

has no brothers, because her

may appoint her, and her husband may have own naturally-born son converted into the son of
The
sacerdotal formula of
:

the maternal grandfather.

appointment
'

is

given in Gautama, xxviii. 19. 18

A father who has

no male offspring may appoint

his

daughter to raise up a son for him, presenting burnt

l'*J

ANCKSTOU-WORSIIII' AM
to

INIl I'lilTANCK.

cini'. iv.

oflVrinii's to Ai;iii

aiitl

l'r;ii:;;'ip;it

i.

ilii'

lord

ol"

crca-

tuivs,

;iiul
'*

;ul(Ircssiiii:'
iin'

'lie

hi-'idcLin'oiii

with
'

those

words,
ilechiri'.'

I'of

he

th\"

iii;iK'
'

oir>|iriiii:,"."

'Some
tlie

add> the w

ritcf.

tliat

daiiuhtor lu'coincs

an appointi'il
father.'

(hiui:;hter

solely

hy the intention of

Some

eusioins lu-ar akin to the


to

Ilimhi usage of

'appointing' a daughter appear

have been very

widely diffused over the ancient worM, and traces of

them

are found far (h)wii in history.


tlie

The daughter
but a channel
child,

here becomes neither

true successor of her father

nor the priestess of his

worship,

through which his blood passes to a male

capable, according to the oldest notions, of sacrificing

to

him

and, according to the newer ideas, of taking

his property

and preserving the continuity of the

household.

At

first

there

w^as

always,

should

imagine, some expression of the father's will, coupled

with some religious ceremony.

Among the Athenians,


law begins, the Testaits

when our knowledge of

their

ment or Will has appeared, though

operation

is

much
ness,

limited.

An

Athenian
a

father, fearing sonless-

might have
;

son raised

up

to

him by

daughter
object

and the commonest mode of effectmg


his property

this

was by devising

or,

to speak

more

strictly, the

property and the daughter together

to

a person selected
her.

marrying

by himself on condition of The son born of the marriage was,

CHAP.

IT.

ANCESTOR-WORSHIP AXD IXIIEUITANCE.


age,

93

on coming of

transferred, to the family of his

maternal grandfather

it

would seem, with some of


his

the forms of adoption


at the

and took
is

name, becoming
(/cvptos) of

same time the legal representative


mother.

his

own

This

essentially the

same method

of obtaining a male child which was anciently in use

with the Hindus.

But some such


certain

practice

must have
barbarous

been followed, and some such ideas must have prevailed

among

portion

of

the

communities which contributed their usages to the

enormous body of

rules finally consolidated as the

Feudal Law. According to some systems of mediaeval

customary law, daughters succeeded, either in order


of primogeniture or in a group,

when

sons had

failed.

According to

others, they

were excluded altogether.

But between

these doctrines there

was an intermediate

view, that a daughter, though she could not succeed


herself,

could transmit a right of succession to her


Hereafter, I shall have occasion to

male children.
point

out that this


III.

was the rule on which our


;

Edward

based his claim to the throne of France

he admitted that the French princess,

who was

his

mother, could not succeed, but he contended that he


himself,
as

her

son,

was

entitled

to

succeed his

maternal grandfather.
vail either in the

This argument did not prein the opinion of

forum of arms or
;

the feudal lawyers

but

it

seems to be clearly con-

nected with

tlie

rano;e of leo-al notions before us.

94
Tlu'

ANCKSTOK

WolvSlIll'

ANH
tlic
it

Ml

liKlTANc K.

cilAi-.

iv.

vh'wC intiTi'st of

lliiiilii

appoint mcnt,'

an<l of tlio r()iintt'r]!irts of


lit's

in the
<>'i<'

law Dl'dllur races,


''

in llu'ir ])nlal)lv inarkinir


<f

<'"'

|'<>ints
its

at

wliicli tho riiilit

women

to

inhcril

made

way

into

tlio strict

airnatic

systems of
amonij^
tlic

kiiishij)

and succes-

sion which

prevailed

more advancccl of
of

the ))arhar<)ns societies.

The Braliman compiler

^[am^

wliile

speaking of the appointed daughter, uses

hinixuage wliich seems to


feeling
tlie
' :

show
is

the natural growth of

The son
is

of a

man

even as himself, and as

son so

the daughter ('thus appointed' adds


:

the commentator)

liow then,

if

he liave no son, can

any inherit

his property but a daugliter

who

is

closely

united with his


itself,

own

soul

?
'

As

the law^ developed

the

most general result finally attained was

that dauditers inherited


it

when
once.

sons had failed.

But

was not reached


writers,

at

Among
:

tlie

ancient

Hindu

Baudhayana seems

to have

wholly

denied the right of

women

to inherit

Apastamba
list

places the daughter at the very end of the


inheritors,

of

but the more modern Vishnu introduces


after

both
sons.

mother and daughter immediately

the
it

In works treating of the Athenian law,

is

usually stated that


succeeded.

when
is

there were no sons daughters

But

this

not an adequate statement


a

of the rule.

The daughter of

man who

left

property

but no sons, was not in strictness his


was,
as

heiress.

She
a

her Greek

name

(iiTLK\r}po<;)

indicates,

'

CHAP.

IT.

ANCESTOR-WORSHIP AND INHERITANCE.

95

'

person

who went witli

the property.'

As

have said

above, her father might compel her by testament to

marry the devisee of her share


nearest kinsman

but, if he died intes-

tate, she was subject to another Uability

marriage
itself

to his

which connects
all

with

some singular branches of our subject


cussed
is

to

be disrules,
it

presently.

In

these Athenian

to be observed that, while the ancestral sacrifices


is

are constantly mentioned, the object of special care

the devolution of the estate in the household.


religious

The
law.

basis tends to drop

away from

the

Indeed, the wish to prevent daughters from carrying


off the

patrimony of one household to another

is

not

at all a feature exclusively of sacerdotalised bodies of

usage.

The

secular law of the unsacerdotalised

Hindus

of the Punjab applies the same principle and exhibits

some
('

instructive

variants

of the

Athenian rules
vol.
ii.

Notes on Punjab Customary Law,'


184, 239).

pp. 75,

81,

Under some Punjab


there are

usages,

the

daughter,

when

no sons,
;

inherits a limited

interest in her father's property


it

but she must resign

when

she marries.

It

is

usual, however, for the


to

husband of such a daughter


father in-law.

be adopted by his

The

legitimate sons, and the son of an

'

appointed

daughter, have in their veins the blood of the father

'

See Jebb, Attic Orators,

ii.

318.

on

ANCKSTdK

\\(>i;silll'

AM) IMI KIMTANCK.


succctMl.
Ix'cn
1>\-

CUKV.

IV.

to wlioin tlu'V sncM'ilicc


live

iiinl

I)ii(

wlicii

tliri'(>

no sons,

;uiil

when

tlici'c liiis

no
tin-

;i|)|)ointin('nt

of a
a

(lauLilittT.
ol'

we

arc inlrodiicril

law-hooks to
is

nuniltcr

jK)ssil)lo
I

successors wliosc sonsliip

alto<rctli('r iictitioiis.

know no
l)c

])art
lliis.

of
or

tlio

ancient

Hindu law more curious than


more imperatively
hv
all

demanding

to

taken into earcfid aeeoinit


l)eui:innin<js

who

investi'j:ate

the

of ortr.iniscd
is

human
Law.'

society.

That ancient family law


( See

entangled
'

with fictions has long been known.


p.

my

Ancient

130.)

One of them has been

sp long before
us.

our eyes as to be comparatively fomiliar to


is

This

Adoption, the engrafting on the family a son from


Its

a strange house.
stitution
at

importance as a private
is

in-

I\ome and Athens


;

of course

well

known
Empire,

to students
it

and,

among

the

Romans

of the
de-*

became

politically important in a

high

gree as one of the chief expedients for bringing about

the peaceable succession of Prince to Prince.


true that to Englishmen, nowadays,
it is little

It is

more
and

than a
educate
in the

name
it,

to adopt a

child

is

to nurture
it

and perhaps to provide


Civil

for
i.

by Will. But
;

French

Code

(liv.

tit.

8,

c.

1),

and other Continental Codes founded on the French,

Adoption survives

as

an institution

a childless

man,

though under somewhat severely


tions,

restrictive condi-

may

take to himself an adoptive child

who

will

be entitled to succeed to his property.

This famili-

CHAP.

IV.

A>'CESTOR-WORSIIIP

AND INUERITANCE.

97

arity with Adoption,

during such a length of history,


it is

Winds us

to the fact that

one of the most violent

of fictions.
it is

The

faculty of accepting them, strong as

in ancient communities,

must have been

strained

to the

utmost when, for the purpose of taking part in

the most solemn of religious ceremonies and earn-

ing a consequent right of inheritance, a strange child

was transferred to the household, or a man


blood

alien in

was permitted

to enter

it

voluntarily.

No

doubt, in the more recent practice of the societies

accustomed to the adoption of children, the violence


of the fiction
is

somewhat diminished.
is

The theory
most

may

be that the child adopted

a stranger, at

of the same order or caste as the person adopting

him, but in Jndia he

is

generally a blood-relation of
list

some kind

and, on looking through a

of

known

Roman
that
is,

adoptions, the large majority will be seen to


'

be instances of the adoption of


of relatives through

cognatic

'

kinsmen

women.

But the ancient


of expe-

feeling on the subject

may

be inferred from the place


list

which simple adoption occupies in the


as set forth in these early
is.
'

dients for continuing the family of a childless father

Hindu law-books.

'

There

a singular disproportion,' says Mr. J. D.

Mayne,

between the space necessarily devoted to adoption

in the English
it

works on Hindu law, and that which

occupies in the early law-books.


all

through

the texts from the

One might read Sutra writers down to

98
the
is
;i

ANTKSTOH WOU^IIII*
P;iv:i-rli:iL,^'i

\\l

MI KIMTANCi;

ciiAr. iv.

witlioiit

tlisc(v(

riiiL:'

tli.-it'

:i(|n|)tion

mailer

<>!'

an\'
].

pi'oiniiH'iicc in tlic

Ilimlii
llial
I

syslmi

'

('

Hindu Law/

Si).
(f

TIic inilli
lictitious

is.

ly its

side

tlierc arc

a iiuiiilu'r

alii

ial

ions

"wliicli

W(>n' of at
wliiidi,
I

least iMjiial antiquity


its

Avilii

Adoption, and

suspect, served

object even

more

cou)-

pletely in very ancient times.


rcvoltinir to

They

arc startlin<r or
per-

modern sentiment, but they seemed


ajid

haps simpler

more natural

to ancient

tliought

than the admission of a mere stranger to the family.

These

fictitious
'

sons

are

called
'

by

Gautama
and the
say

(xxviii. 82) the

son born
'

secretly,' the

son of an un-

married damsel,' the son of a pregnant son of a twice married woman.'


'

bride,'

It is sufficient to

of them that none of them are necessarily the sons of

the father

whom
They

they are permitted to worship after

his death, while some of them cannot possibly be his

children.

are

all,

to use

modern words,

illegiall

timate or adulterine offspring, but then they are


offspring of

the

women who are under the shelter of the household, or who are brought under it. These women
status of their children
is

are under the protection of its head; they belong to him,

and the

settled

by the

well-

known

rule which, in

Roman
it is

law,

would

settle the

status of a slave.

Here

that these strano-e usao-es

link themselves to familiar


societies.

phenomena of primitive
even the Slave
in

Paternal power and protective power are


;

inextricably blended together

is

CHAP.

IT.

AXCESTOK-WUUs;Jlir AND LVIIEKITAXCE.

99
in

some sense a member of the


fact that at
sacrifices

family.

We know
it

Rome

a Slave could perform the family


;

on

his master's death

and

was a comdie insolvent

mon
to

contrivance of

men who expected to

nominate a slave as the heir in the

last resort, in

order that the bankruptcy of the estate miglit be


declared in his name.
fictitious

Thus, on the secular

side, these

sons are permitted to rank as in some remote

sense sons, because they are born of women protected

by the head of the household, and because they


themselves protected by him.

are

On

the religious side,

they are permitted


a

to offer the ancestral sacrifices as

desperate

expedient for preserving the ancestor

from a
terrible

total failure of

male offspring, and from the

consequences of entering the world of the dead


rites.

without the proper oblations and


It

must

be,

however, understood that

strong

moral repugnance to the


illegitimate
itself

fictitious affiliation of these

and adulterine children begins to show

amono- the oldest of the Hindu law-writers


treatises

whose

have

survived.
list

very

ancient

authority,

Apastamba, gives no
lays

of them, protests

against the principle, and


'

the son belongs to the

down broadly that begetter.' Even the writers


greatly as to their place in

who mention them vary


remark
(ix.

the order of succession, and

Manu

aims at tliem the

161)

that 'such advantage as a

man

would gain who should attempt

to ]3ass deep water in

10()

ANTESTOR-WOKSIIII' AND

IMH;i{IT.\N"('i:.

chap.

iv.

n l)oat inntle

of

wovon

rocds, tlmt fiitluT olttjiins

who

})asses the ii^looin of doatli loavini!;

only coiitomptihlc
po[)ularity

sons.'

cannot

(loiil)t

tliat
ol"

the

j^r()\vin<j^

of Adoption, as a nutlioil

nhtainini:; a fictitious son,

was
tion

(hic to nioral <lislikcof tlic oilier


wjiicli

modes of

affilia-

was steadily rismg among the Brahman

tenchers in the law-schools.

Let ns

now

snp})ose the head of the household to


left

have died without havinir

a son, without havinof

appointed a daughter, without having taken a son in


adoption, without male children born in the house

who can
failure

satisfy the fiction of sonship,

is

there any

escape possible
in the

from the dreaded consequences of


family
succession

and the ancestral

sacrifices?

In the opinion of some of the Hindu

doctors, these consequences


institution
attention,

might be averted by an

which has

lately received a great deal of

known commonly as
in its
is

the Levirate, but called

by the Hindus,

more general form, the Niyoga.


to a childless

Under

it,

a son

bom

man

of his wife

or his widow, not from the husband himself but from


his brother or nearest

kinsman. The practice of so ob-

taining a son appears to have extended, with various


modifications and with or without the religious sanction,

over

many
faint

branches of the

human

race.

We
it

come upon
forms

but

still

recognisable traces of

in

the law of the Spartans and Athenians, and in one of


its
it

was certainly followed by the Hebrews.

CHAP.

IV.

ANCESTOR-WORSHIP AND INUERITANCE.

101

The
dead

Levirate, under

which the son

is

born to the

man from

his brother,

that his
to

name be not pur


tlie

out of

Israel,' is best

known
St.

Englishmen from

casuistical question of the

Sadducees in the twentv-

second
'

chapter

of

Matthew

(v.

24

et

sc(j.):

Master, Moses

said, If a

man

die,

having no children,
raise

his brother shall

marry

his wife

and

up seed

to

his brother.

Now
first,

there were with us seven breth-

ren

and the

when he
left

married, deceased and.

having no seed, he

his wife

unto his brother


third,

Likewise the second


seventh.

also,

and the
all,

unto the
died.

And

after

them
had

the

woman

In

the Resurrection, therefore, whose wife shall she be of

the seven? for they

all

her.'

In the passage here

expressly referred to (Deuteronomy xxv. 5) the duty


of the husband's brother
tive.
'

is

declared to be impera-

If brethren dwell together,


child,

and one of them


shall

die

and have no

the wife of the dead


:

not marry without unto a stranger

her husband's

brother shall go in unto her, and take her to wife,

and perform the duty of a husband's brother unto

her.

And

it

shall be that the first-born

which she beareth


brother which
of Lsrael.'
is

shall succeed in the

name

of his

dead, that his

name be not put out

The
is

verses which succeed describe the procedure which

to be followed w^hen the brother-in-law declines the

obligation

and

this procedure, consisting chiefly of a

symbolic plucking off of the shoe, reappears in the Book

1(12

aN('i:st(m:

wousiiip

\ni>

imikijitanci;.

ciiap. iv.

of

Kiitli, wliiTt'
tlu'

the

iilvllic Ix'Mut
i":i('t

v ol'tlicstory soiiuliiiu'S
i> iiiciinl

bliiuls

ri'Mtlrr to tlir

it

to illiistnite,

lor:il

rule wliirli
in
tln'

was important,

in

its iH-arinj''

on

passaur

ucnoaloLiical

history

of the

lloyal

IIouso of Juilah.

Tlio

most ancient form of

tlic insti-

tution appears, liowever, to be that which

is (lcscril)e(l
'

by the ohlest of
whose
lu'ar a

tlie
is

Hindu

hnv-writers.

A woman
may

hus1)anil

deail

and who desires offspring

son to

licr

brother-in-law.
(tliat is,

Let her obtain the

permission of her Gurus


tors).

her spiritual direcshe

On
(a

failure

of

brother-in-law,

may

obtain

offspring

by cohabiting with a Sapinda, a


said,

Sauotra
*

Ivoman would have


a

an

'

Agnatus or
'

Gentilis

'),

Samiinapravara

(that

is,

one of the

same

literary or sacerdotal clan as her


belonij^s to

husband), or

one wlio

the same caste.

Some

declare

that she shall cohabit with


law.'
It is to be

nobody but a brother-in-

remarked that Gautama does not

appear to contemplate that the

widow

will necessarily

become the wife of the Levir, and


of Ruth, the obligation
is

that, as in the

Book

extended by him to kins-

men remoter than

a brother-in-law,

though he notices

the opinion that a brother-in-law alone can raise up


seed to his brother (Gautama, xviii. 6
et seq.)

But

the practice here and there received an exten-

sion even

more revolting
it

to

modern

delicacy than the


'

shape which

takes

m the Levirate.

The

child be-

gotten at a living husband's request, on his

wife,'

says

CHAP.

IV.

ANCESTOR-WORSHIP AND INHERITANCE.


(xviii.

103

Gautama

11),

'belongs

to

the husband.'

There are several mstances of such requests referred


to in the Sanscrit literature,

but the practice, when


strictly

defined

as

an institution by the lawyers,

requu'cd that the natural father of the child should

always be a kinsman.

Gautama immediately adds


'

to

the passage just quoted,

If the natural father of the


is

child wjis a stranger, that

not of kin to the hus-

band,
list

it

belongs to the stranger.'

And,

again, in his
'

of sons, this ancient w^riter places the


It

son be-

gotten on the wife by a kinsman.'


as I shall

would appear,

have to point out presently, that Hindu

sacerdotal feeling

was divided from the very


;

earliest

times on the morality of the Niyoga

but we must

bear in

mind

that

its

coarser form w^s not necessarily

more repugnant to the old teachers than the form


which seems
to

us

somewhat

less

offensive.

Xo

doubt the birth of the son from the widow does not
revolt so

much

as his birth

from the

wife.

But then

the ancient law

made

little

difference
It is

between the

husband's old age and his death.

assumed that

an old

man

will quit his house

and family and withlife

draw

to spend the residue of his


fittest

in asceticism

and the

moment

for retirement is frequently

described as the time at which he becomes incapable


of fatherhood.

There are some vestiges of the class of functions


assigned by the Niyoga to the nearest kinsman in

104

^VXCESTOli-WOKSlIir

AM>

l.Mli:i;iTA.\CK.

ciiAi'.

IV.

the records of butli

he

;n':il

States of (jrccre.
("

well-known story told by


of the
officer,

IMiilarcli

Tn

I'l-lms/ 2C))

relations

between

brilliant

Lacedtunionian
ol'

Acrotatns, and Clielidonis, the wife

Cleoof

nviinis.

and

(A'

the

way

in

which the

<>\d

men

Sparta applanded these relations and invoked blcssinii"s

on the

otfsprin<^ of Clielidonis, docs

assuredly

suggest that, iu that old-fashioned and never very


delicate
society,

some

institution
till

like

that

of the

ancient Hindus survived


Christ.
his

the third century before

Cleonymus was an aged man. and Acrotatns,

grand-nephew, seems to have been his nearest


relative

male

the flower of

life.

At Athens,

the

most nearly corresponding


siderably from the

institution differed conI

Hindu form.

have stated that an Hindu, for

an Athenian father might provide,

like

the contmuance of his family through the son of a

daughter

but

if,

dying sonless and

intestate,

he

allowed his property to descend to a daughter without


special arrangement, she

became the Orphan Heiress


a great figure in Attic law.
for herself,

(or eVt/cXT^/jos),

who makes

She
but

lia'l

no power of choosing a husband

it

was the right of her nearest kinsman

to

marry

her imd his duty to marry or portion her.

The right
;

seems in

fact to

have been keenly disputed

there

was

a special proceeding (or StaSt/cacrta) for deciding

between different claimants, and men often divorced


their wives in order to

marry the

heiress.

The same

cnAP.

IV.

ANCESTOR-WORSHIP AND INHERITANCE.

105

principle

was appnecl Tb a group of daughters,

whom
had
to

their various kinstaen in order of proximity

marry or provide with


course,
is

a portion.

The

object, of

to keep the property in the family, and, if to

possible,

provide that the


its

daughter's

children

should derive a stream of

blood from male descents.

An

even more remarkable application .of the principle

occurred
sister.

when the
sister,

children

left

were a brother and

In such a case the duty of the brother was to but


if

portion the

she were only a half-sister,

the strong Athenian feeling against the marriage of

brothers and sisters had to give way, and he might

marry her and save the portion


power could
were uterine, that
a child

to the estate.

This

not, however, be exercised, if the sister


is,

by the same mother


;

though not by the same father

and

this limitation

has been thought a survival of


at

the

remote

age

which the Athenians counted kinship through

females only.

But marriage with an uterine


to

sister

would have no tendency


at.

promote the object aimed

She would have no

rights over the father's estate,


it

and marrying her would not help to keep


diminution and to preserve in
for the ancestral sacrifices.^
its

from

integrity the fund

Let

me

repeat that, in

most of the Athenian rules about the rights and


*

This

is

the explanation of

M. Fustel de Coulanges

(Cite

Antique,

p. 83),

which seems to me conclusive.


privilege.

He

observes that

an emancipated son did not enjoy the

lOG
(lutii's

AXC'KSTOU-WOHSllir

.\.M>

IMIKKITA.N'CE.

CIIAI\ iv.

of thr

lu'.'iri'st

kinsman,

\\r

liavc illiistniLioiis
ilic

of tluMi'ii(KMu-v, iiianilost also in


thr
1)1

last cliaptcr

of

>nk

(!"

lliilli. nt" aiicifiit

I'oiitrivani-cs lor

continuto

ing

tlio ianiily

to bcconu' nuix'

modes of succession

proju'i-tv.

A
i)al)K'

few words will not be thrown away on the proorinin and

moaning of
is

this

group of

institutions.

The

Lc'virate,

which

a special case of the


raises

Niyoga
seed
to

and under which one brother

up

another, has had a definite place assigned to


lato

it

by the

Mr. d. F. ^IcLennan in the evohition of society.

Originally, I understand

him

to lay

down, there was


This pro-

promiscuity in the relations of the sexes.

miscuity became limited by Polyandry,^ one wife

having several husbands.

These plural husbands

came

in time to be always brothers,

and the LeviIt

rate is a relic of this

form of Polyandry.
all

would

not be quite easy to bring


(of which the Levirate
is,

forms of the Niyoga

as I

have

said,
;

only a

special case) under this ingenious theory

but I will
is

confine myself to saying that the explanation

not

the one suggested, to


antiquities of

my mind
law.

at all events,

by the

Hindu

Let us suppose that in a


for

particular society

an intense desire has arisen


its

male

issue,

whether through

worship of ancestors

or otherwise.

Let us assume that in a particular case


5

See Note B,

'

Polyandry.'

CHAP.

IV.

ANCESTOR- WORSE IP AND INUERITANCE.


is

107
There

actual issue of the father's loins


are

impossible.
fictions,

no daughters.

The accepted

by.

which

sons are created for the sacrifice, cannot be


viceable.

aged or

What is dead man

to be done, that

made serthe name of the

be not put out on earth nor his

lot placed in

jeopardy beyond the grave?

Now

all

ancient opinion,

religious or legal, is strongly influ-

enced by analogies, and the child born through the

Niyoga

is

very like a real son.


;

Like a real son, he

is

born of the wife or the widow

and, though he has

not in him the blood of the husband, he has in him


the blood of the husband's race.

The blood of the

individual cannot be continued, but the blood of the

household flows on.

It

seems to

me

very natural for

an ancient authority on customary law to hold that

under such circumstances the family was properly


continued, and for a priest or sacerdotal lawyer to

suppose that the funeral


the son of the

rites

would be performed by

widow

or of the wife with a reasonable

prospect of ensuring their object.

The very

differ-

ences of opinion which arose on the subject in the

most ancient Brahmanical law-schools seem to me


exactly those which would be provoked by a plausible

and yet non-natural contrivance.


offensive shape, from the very
it

There was a
its

division of opinion about the Niyoga, especially in

more

first.

Aj)astamba

condemns

in the strongest language, while

Baudit.

hayana and Gautama have nothing to say agamst

108
M:inn,
(IX.
rity,

aN'ckstok-woksiih' and imikkitaxck.

chap.

iv.

in

;i

Inter
])\\i

ai^i',

tlcclarcs

it

is

only

lit

Tor cattle

(!.').

()(!),

Xaratla, a

still

more recent authospirit,

almost

|>er\a(i('(l

hy the modern

takes

it

as a matter of course.
I

have stated

that, in

my

opinion, the ca])acity

Avhii-li

came

to be reco^^nised in daughters, to transmit

to a

male child the religious quality of sonshij) to his


is

maternal grandfather,

connected with the ultimate

admission of female descendants to a share in the


inheritance.
It

seems to me, further, a plausible con-

jecture that the capacity of the

widow

to

produce a

son to her deceased husband through the Levirate has helped to confer on her the life-interest in her

husband's property which


India
;

she enjoys in parts of

and has

also led to the

power very generally


a

vested in her by

Hindu law and usage of taking

son to her deceased husband by simple adoption.

My

subject, however, is the

dependence of inheritance
topics are too far re-

on ancestor- worship, and these

moved from

it

to be fitly discussed at present.

In

any inquiry into the origins of the succession of


daughters to their father's estate,
it

would be neces-

sary to examine the practice of giving

them portions
in the an-

on their marriage which prevailed widely


cient world.

The

gift to a

woman

or the provision

for her

on her marriage cannot be separated from her


Speaking generally, they are
;

right of succession.
alternative

modes

of providing for her

and the ex-

CHAP.

IV.

AXCESTOR-TTORSIIIP

AND IXIIERITANCE.

109

elusion of daughters from inheritance in ancient sys-

tems of hiw constantly means that they have a right


to be portioned, as a rule, out of the

movable pro-

perty of a family.

The ancient Hindu

writers scarcely

mention the daughter's succession.


is

Baudhayana,

it

thought, held the opinion that no

woman

could

inherit.

Apastamba brings

in

the

daughter not

only after the male relatives, but after such remote


successors as

the religious teacher

and the fellow-

pupil of the deceased.

But

still

these writers implicitly

recognise some separate property in married

women

(Gautama, xxviii. 24).

In the ancient legal systems


is

of the Western world there

a visible connection

between inheritance and provision upon marriage.

Under Athenian

law,

when

sons have failed and the

father has died intestate, daughters

must be
ancient

either

married to kinsmen, or portioned by them under the

system which

I liave described.

law, at the earliest stage at

Roman which we know it, is


The

thought to have allowed some share of their father's


inheritance to daughters.

But the Roman law has

bequeathed to modern jurisprudence the doctrine^


that,
is

under certain circumstances, a marriage portion

to be

deemed an

'

advance

'

of

legacy

to

daughter, and, conversely, that a covenant

to settle a

portion

is

'

satisfied

'

by a legacy.

have always sus-

pected that this doctrine inverted the principle of the


6

See Dbj. XXX. 84,

6.

Cod.

vi.

37, 11.

no
oldest

ANTK5rron-W01lSllll'

AM)

Ml

I'.K'IT.WCi:.

ciiAr. iv.

l:i\v

:mil

lliiit,
li.'ld

nnclcntlv,
llof

tlic

tlniiulitci"
ii

only

suconodrd wlicn
d()int-l'\iniili('s

slic

liccll jx )rl

tlK^d.

In the

of modern

Indi:i.

and

in tlie

Slavonian
l)e

Honso-Coinniunitii's,
crarded
as

thoiiiili

iIh'

estate

may
a

rctlie

belonLrin'-T to

the male

nienihers

of

household, the AV(>nien are entitled to

])ortion

on

marriaue, generally ainonnting to some definite fraction of the share

which

their brothers

would receive

on

a division

and

in India,

when

the })ro])erty of a

joint-family

is

distributed, the
*

law saddles the shares


the unmarried

with

a liability to

maintain

'

women

and widows.
left

Nowhere, so

far as I

know, are women

without provision in ancient societies wliich have


a slight degree of advance.
is

made even

The

real

prejudice or reluctance

against allowing

them

to

confer on their husbands, to

whom

they are generally

married in infancy, any rights over the kind of property, such as land,

hj which the community

lives

and holds together.

But a provision
is

for

them by
but

means of property which


transferable
is

actually

movable and
fair,

thought not merely just and


it

so imperatively required that

would be a

violation

of decency and a blot on the family honour to omit


or refuse to provide
it.

We have now

come

to the point at which, if there

were anv close analogy between a modern legal writer

and these ancient expositors of the Brahmanical sacred law, they would take up for discussion (1) the

CHAJ'. IV.

AXCESTOR-WOltSUIP AND IXlIliRlTAXCE.

Ill

succession of ascendants of the deceased, of Lis male

paternal ancestors,

if

any survived him, and (2) the

succession of collaterals
his paternal ancestors.

that
^

is,

of

tlie

descendants of
subjects,

The second of these

Collateral Succession, has attained a vast extent

and
and

complexity in the modern

law of the Hindus

on the whole

its

importance has increased rather than

diminished in ^Yestern Europe.

Englishmen

are less

interested in Collateral Succession than other peoples,

and, indeed,

it

may

be said in

all

succession

by law,

through their almost universal habit of determining


the devolution of their property by marriage- settle-

ments or

wills.

But on the Continent,

principally

through the operation of the French Code and of the


Codes modelled on
disposition
is
it,

the practice of testamentary

said to be

on the

decline.

The

rights

over the father's property secured to children are


indefeasible,

and the chief modern object of a Will,

the distribution of property

among

children according

to their character and needs, being thus unattainable,


AVills fall into disuse

and the law

is left

to settle the

succession of

more

distant relatives.

It

shows the

re-

moteness of the legal ideas which I


those

am exammiug from

now

prevalent, that the ancient lawyers before

^ The existing Hindu law on the subject, with tlie principles on which the two rival sets of doctrines depend, is discussed by Mr. J. D. Mayne in a most instructive chapter (xvi.) of his Hindu

Law and

Usoije.

112

ANCKSTOK WiKSllir AND IMl KIMTANCi;.


'I'hey
ol"

cu.\r. iv.

US lianllv notice collateral succession.


for tlie ultiiuato succession,

provide

on

failun'

nearer claim-

ants, of spiritual kinsmen, the rralniian teaclier,

and

the

fellow-piiitil,

and

ior the successioji

of the King,

but they sav hardly anythinu; of Inheritance as


understood,
ascent.

now

save

in

the

direct

line

of descent or

Their language on the remoter succession of


is

blood relations

brief

and obscure, and they do not

use technical terms in the same sense, or in the sense


of the

modern Hindu

law.^
I

They

pass rapidly to the

spiritual inheritors
;

whom

have named, and to the


'

King and one of them adds that


which
skilled
at least ten

in cases for

which

no rule has been given that course must be followed of


Brahmans, who are well instructed,

in

reasoning,

and

free

from covetousness,

approve' (Gautama, xxviii. 48).

The brevity and obscurity of the early law-teachers


on
certain topics

have been accounted for by the


their treatises,

assumed purpose of

which

is

to give a

The familiar terms of the mature Hindu law indicating classes


<fec.)

of inheritors (Sapinda, Sagotra,

occur in these writers, but not

apparently in the more

modern
'

sense.
'

text attributed

to

Baudhayana

defines

'

Sapinda

as

the

paternal

grandfather,

grandfather, the father, the

man
is,

himself, his uterine brother

by a

woman

of equal caste (that

the son of his father by the same

mother as himself, provided she be of equal caste with her husband), his son, his son's son, and the son of the grandson.' But this cannot be the meaning of Sapinda in Gautama (xiv. 13, and rviii. 6). Vishnu seems to employ Sapinda and Bandhu as

synonymous

(xvii. 10).

chap.it.

ancestor-worship axd inheritance.

113
lan-

compendious summary of the law in aphoristic


guage.
full

It is to

be observed, however, that they are


all

and

clear

enough on
It
is,

subjects to

which they

attach importance.

think, impossible not to

see that, so far as regards collateral succession, they

were

little

interested in

it.

The

truth seems to

me

to be that

they trusted, for the proper devolution

of the inheritance, to their various contrivances for

providing a son

when

legitimate

sons

had

failed,

to the appointment

of a daughter, to their fictions

of sonship,
probable

to adoption
at
first

and to the Niyoga.


an
efficacious

It

is

that

sacrifice

to

the dead could only be offered by a descendant in the direct line


;

and though some of the

artificial

methods of obtaining a worshipping representative


were disapproved
lateral relative
of,
it is

very likely that a colall

could not originally sacrifice at

with any prospect of conferring or receiving spiritual


benefit.

But

all

the artificial expedients, save one,

for providing sons

have long since been exploded in

India.

They

are not permitted, says the orthodox

Hindu

doctor, in the Iron

Age

in

which we now

live,

because of the hardness of men's hearts.

As

matter of
all

fact,

a current of feeling adverse to some or


the

of

them runs through


is

most ancient of the law-

books, and this

the source of the opinion which

has ultimately prevailed.

Nowadays,

if a

man

has

no legitimate

sons, he has
I

no resource but adoption,

114
either

ANTKSTOR-WOKSIIII' AM) INMHUITANCE.

ciixr. iv.

hy

liimsclf

oi-

liis

widow, and
rcijiiires

llici'c ;ire
liis

local

disputes wlu'tlicr
directions to
1)0

tlic

wiilow

consent or
if

j^iven before
it

he

dies,

:md

she rea state

quires

it, ill

what form

should be
the

<^iven.

Such

of the law adds


collateral

ij^reatly to

modern importance of
facts wliich co-opeinfertility

succession, and there are

rate

"witli

the law.
liiiih

There

is

marked

Hindus of

rank, and, though there

among may be a

theoretical preference for adopting a son rather than

allow the succession to go to a collateral, yet (as I

am
is

informed)

there

is

a great

deal of the

same

superstitious disrelish for effecting an adoption

which
the

knowTi sometimes to prevent in England


a will.

making of

The

original authorities for the very extensive

body of modern rules governing the succession of


collateral relatives are far less the ancient

law-books

than the so-called mediaeval Digests, dating approxi-

mately from the eleventh to the fourteenth century, of

which the most archaic

is

the

'

Mitakshara.'
is

The most
Usage,'

general feature of this body of rules

thus described

by Mr.
p.

J.

D. Mayne

('

Hindu Law and

51)

'Except in Bengal, agnates, kinsmen con-

nected through male descents, exclude cognates, kins-

men through
of succession

females, to the fourteenth degree.'


for

The
where

same preference

males

is

observable in the rules

shown
'

to prevail in the Punjab,

law and usage are

essentially unsacerdotal, unsacra-

CHAP.

IV.

ANCESTOR-WORSHIP AXD INHERITANCE.

115

mental, secular.'

The judicial experience

of the Chief

Court of the Punjab here coincides with the conclusions of the official inquirers,
'

and establishes that

kinship

is

wholly agnatic'

There can be no doubt,


amons: collaterals
It
is

therefore, that a^rnatic succession

the general principle of


clusive principle of the

Hindu usage.

was the exthe Twelve

Roman law under

Tables, and

it

governed the remoter collateral suc-

cessions under the law of Athens,

which prescribed

that agnates should

always

have precedence over


ruiv appivoiv tcov oltto

cognates
OrjXeCcju).

{TrpoTLjxacrdai. tov<s

ano

Indeed,

if

a comparatively recent writer^

may

be trusted, agnatic succession, succession through


if I

males exclusively, was,

may

so put

it,

the

common
general

law of Greece.

But one remarkable exception


preference
for

to

this

males in India

is

specified

by Mr.

Mayne.

In the populous province of Bengal Proper,

also noticeable for the nearly total disappearance of

the Village Community, cognates are largely admitted


to
'

succeed, and sometimes in preference to agnates.

Heirs in the female line frequently take before very


'

near Sapindas in the direct male line

('

Hindu Law

and Usage,'

p. 428).

Mr. Mayne has very copiously Bengal law, and traced


p. 85.

illustrated this peculiarity of


^
'

See Boulnois and Rattigan, Notes on Punjab Lata,

14 (commenting on a probably spurious law attributed to Charondas).

Diodorus Siculus,

xii.

116
it

A>Xi:STOU-WOi::<llll'

AM) IMIHUITANX'K.

chap.

iv.

to

its

causes, in

liis

^ixteontli cliapter.

The

rcla-

tivol}''

modern

aiitliorities
tliat

followed by the liralimani-

cal

lawyers of

province

the

l)aya-r)ha<:;a

and

Daya-lvrania-Sani;raha
doctrine.

arc

char<^ed with sacerdotal

They

disjilay

not only a close connection

l)etween ancestoi*- worship and inheritance, but a complete dependence of the last

upon the

first.

The

first

question

is.

AVhat

is

the exact

amount of

spiritual

l^nefit received

by the ancestor from the

sacrifices,

and what
shipper?

is

the precise
this is

amount

reflected

on the wor-

and

an accurate measure of the place

of the worshipper in the table of succession.

The explanation seems

to

me

to

be that the
itself,

original Ancestor-worship transformed

and in

the course of change helped to modify the law, but

did not affect

all

the stream of
it

leo^al

doctrine in

the

same degree.

Originally,

cannot be doubted, the

ancestor worshipped was a male, and the worship-

per was his direct male descendant through males.

Again, nothing can be stronger than the denials of


the right of any
find
offer

woman

to offer a sacrifice
'

which we
shall not

in

the ancient writers.

female

any burnt oblation' (Apastamba,

ii. vi.

15. 18).

But, as I pointed out before, there seems to have


arisen in time a practice of associating the ancestor's

wife with the ancestor as an object of worship.

'

man must
the

fare

by himself
'

in the other world,' say


to

Hindu

doctors.

Even were he

die

with

CHAP.

IV.

ANCESTOR- WORSII I r AND INHP^UITANX'E.

117
'^

him, a kinsman cannot follow his dead


'

relative.'

All,

excepting his

icife,
'

are forbidden to follow

him

on the path of

Yama

passage which in later


chief authorities for
in early, but
still

times became one

of the

tlie

burning of the widow.


in the

Thus

not

most

ancient, times,

men

are found worshipfather,

ping their mother as well as their

and

also their

maternal ancestors, though without quite putting them

on the same footing

as their ancestors through males.

One
tem.

great breach was thus

made

in the ancient sys-

Another

transformation of religious ideas,

which

did not perhaps extend beyond particular Brahmanical


schools,
srrowinff

may

be traced in the Daya-Bhaga.


artificial

moral dissatisfaction A^th the

The modes

of procuring sons must have increased the chance of


childlessness,
fices.

and therefore of a
result,

failure in the sacri-

Such a prospective

drawing with

it

not

only supernatural penalties on the dead, but secular


losses to the

Brahmans, would tend

to

produce or

strengthen the belief that mere collaterals


efficaciously oflfer sacrificial

might

honour to the dead, and,


view of
collateral
is

further,

would

aid in enlarging the

relationship as widely as possible.

This, in fact,

the religious system shadowed forth in the treatises

of authority in Bengal.

It is a

system aimed, among

other things, at bringing as large a


tives

number
or

of reLakinsfolk

as

possible,

including
2

cognates,
39.

Vishnu, XX.

lis
tlirouuli

ANCKSTDIJ WOltsllll- AM)

MI KKITANCE.
ol'
;i

ciiAr. IV.

wo.iu'ii.

wit hill
It

tlc

cin-K'

iiiori'

or less
full

etlicacious
that

^^()^slli|>j^l's.

is iiiovcovi'i'

system

of

iiiiiiuii'

(irtail

ami of those suhllc inferences from


wliich are cliaractcristic of a highly

suitjtosetl })rincii)h's

developeil religion whicli lias long since dejiartcd from


its

original sinij)licity.
tlie

must leave the

distinctions

betwei-n

oblation of an entire funeral cake, the offerleft

ing of the fragments

on the hands and wiped


Avater,

off

them, and the mere libation of

together Avith

the corresponding distinctions between the classes of


relatives admitted to the succession, to

be studied in

the

books of professed writers on Hindu law, and

especially in the

works of Mr.

J.

D. Mayne and of

Professor Kajkumar
I

Snrvadhikari.

have already stated

my

belief that at the

back
there

of the ancestor-worship practised

by Hindus

lay a system of agnation, or kinship through males

only, such as

now

survives in the Punjab.

I so far

agree with the theory of M. Fustel de Coulanges that


I

believe this system to have been at first greatly

strengthened by ancestor-worship.

But
its

it

seems to
growth,

me

plain that ancestor- worship in

later

acted as a weakening and dissolving force

upon the
secular

ancient kinship and the ancient family.

The

law followed by Hindus was not, however, equally


or
universally
affected by the The Mitakshara, which

religious
is,

develop-

ment.
of

on the whole,

more authority

in

India than the Daya-Bhaga,

CHAP.

IV.

ANCESTOR-WORSHIP AND INUERITANCE.

119

is

manifestly based in the main upon the

more
I

ancient conception of kinship.

At

the same time

do not regard the

system of the

Daya-Bhaga

as

simply an after-growth of the system reflected in the

more archaic
which led

treatise.

It is rather a separate deve-

lopment of the ancient sacerdotal law.


to
it

The

ideas

are

more or

less discernible in the

oldest treatises, but they


their consequences in

seem to have been carried to

some law-schools more rapidly

and completely than others.


the relatively
late

Xobody will understand


of rules
called
it

collection

after

Manu, who does not recognise that


materially affected

has

been

by the

religious transformation.

Among the forces which have caused and directed the


progress of human society, one of the most powerful has

been the Edict of the

Roman Praetor, which gradually


set

brought law into harmony with a

of principles
a-s

known
It

under their most general designation

Equity.

completely transmuted the


its

Roman

jurisprudence;

and the system, formed by

infiltration into older

rules, is the fountain of nearly all


tal law,

modern ContinenThese

of some part of the English law, and of the

greatest part of the existing


principles

Law

of Nations.

were
tit

finally

considered

by the

Roman

lawyers to
tion, the

in with a

Greek philosophical concep-

Law

of Nature, which was destined to have

a serious influence

on human thought down

to our

own

days.

At an

earlier stage of legal opinion

the

120

AXCKSTOH-WOUSmi' AM)
Kdict
Ava.s tli()UL;h(

Ml KKITANCK.

ciiaI'.

iv.

I^';ptcM*'s

to I'inhody tlic flub

Gcn-

tiiini, a s'.ipjiosc'd

ixenoralisation of tlie iisaujes of a great


I'mt

part o(

niaiikiiiil.

of

tin'

most ancient history


be
sai<l

of

tlu'

Koiiian Kquity

we cannot

to

know anywas
tlie

tliinir.

W' liavet'vidciur, liowevcr,

tliat

the Edict

eniphiyod in very early times to transform

Roman

law of Inheritance, founding

it

on a view of kinship
all.

very faintly recognised previously or not at


I,

Now
as

at all events,

cannot read the ancient Hindu lawwith such


treatises

tracts

and

compare them

the Daya-Bhaga and Daya-Krama-Sangraha without

being led to the conclusion that, in the interval be-

tween the two

states of the

law reflected in the older

and the

later books, a

change has taken place among

the Hindus extremely like that which has occurred

among

the

Romans when

the Agnatic Inheritance of

the Twelve Tables had been altered into the Cognatic

Succession of the Edict.

But the ancient Roman law

of inheritance was closely implicated with ancestorworship.

This at

all

events must be taken as placed

beyond doubt by M. Fustel de Coulanges.


ancient

The

Hindu law had undoubtedly


as the

the same basis,

but

it

underwent in parts of India very much the

same modifications

Roman

law, and

became

a system of inheritance, allowing kinsmen through

females to inherit as well as kinsmen through males.

The newer Hindu


explanation of
its

law, however, carries with


origin
;

it

the

own

the religious element

CHAP.

IV.

ANCESTOK- WORSHIP AND INHERITANCE.


it.

llil

in

it

has been transmuted, and the law with

1
its

suggest, therefore, that the

Roman Equity had

beginning before legal history began, in a modified


ancestor- worship and a change in the religious constitution

and religious duties of the family.

There

are

no ancient philosophies, and perhaps not many


philosophies, which

modern

may not

be suspected of

having their roots in a


corresponds in some of
cession
to*

religion.
its

The Athenian law

rules of collateral suc-

the later rather than to the earlier

Roman

law, and here, too, I suggest that a change

was pro-

duced by an alteration of religious

ideas.

]22

lllNDf

I'ATIMA

I'OTlvSTAS.

NOTES AND Tr.T.USTRATIONS.


Note A.

HINDU rATRIA POTESTAS.


It is ]>ossil)le that the ancient sacerdotal writers, besides heino; led by the dependent ])osition of their order into denying the multiplication of religious

observances through the dissolution of tribal and joint finnily groups, were also desirous that the period
at which each household broke up into several families should not be delayed till the death of its head. Their expectation is that the faithful Hindu, the man twice born through the study of the Scriptures, will retire in advanced years from active life and become an ascetic or a hermit. There are a few texts which have been thought to imply that the sons of an aged father could compel his retirement. Gautama (xv. 19), while condemning such a practice, perhaps admits its existence. But, whatever be the meaning of these texts, I cannot allow that they lend any countenance to an opinion that sons could compel a partition of the family property at any time against th.e will of their father. I regard them as exclusively applying to the case of a father who has reached an age at which it has become a religious duty for him to abandon secular life. The fulness of the ancient Hindu Patria Potestas may be safely inferred from the veneration which even a living father must have inspired under a system of ancestor-worship. At

POLYANDRY.
u

123

much later date the hiw-book of ]\[anu declares that Three persons a wife, a son, and a slave are declared by law to have in general no wealth exclusively their own the wealth which tliey may earn is regularly acquired for the man to whom they
'

belong' (Manu,
still

viii.

41G).

ancient, authority
'

a son is be dead

that of age and independent in case his parents

Xarada

still

more

(v. 39)

says

recent, but

during their lifetime he is dependent, even though he be grown old.' And nowadays Mr. Nelson, speaking of the South of India, over which the crust of sacerdotal Hinduism is thin, describes the Patria Potestas, which he knows by observation, as the one great standing institution of the Hindu. It is tlie undoubted fact that among the so-called Hindus of the ^ladras jjrovince the father is looked upon by all at the present day as the Rajah or absolute sovereign of the family that depends upon him. He is entitled to reverence during life as he is to worship after his death. His word is law, to be obeyed without question or denuir. He is really the master of the family, of his wife, of his sons, of his slaves, and of his wealth (' View of the Hindu Law,' p. 56). And,
;
'

'

'

at p. 38, Resistance to the will of the father appears monstrous.'


'

Note

B.

polyandry.
I SHOULD be sorry to have it supposed that I doubt the existence of Polyandry, and specially in the form of a plurality of husbands who were brothers, as an occasional practice of the ancient world. Tlie muchdiscussed story, in the Mahabharata, of Draupadi

becoming the wife of the

five

Pandavi princes may

1121

r(M,V.\Mil!V.

bo
'

ojHMi

lliii'lii

various iutcrpi-clalions (sec Maync's to I.aw and rsnoc.' p. !\'2), l)ut tliere is fairly
\\

::oo(l

(>vil('n(H>^rolvl)ius. xii. 7, 7'^'2, \o\\ow\u'^ 'I'iniiiMis)

that the Spartans pradisi'd polyandry.

hat

doul)t

(with

Ml-.

I-.

II.

MiiiLiaii)

is

the importance of the

])huv assiiiiu'd hy Mr. McLennan to polyandry in the It serves as a caution against evolution of soeiety. being too much impressed by the anticpiity of the Indian and Greek cxain])les to be reminded that the President de Brosses accused the V^-netian aristocracy of practising the polyandry of brothers in the early of the eighteenth century (' Lettres Ecrites ]\art
i. p. 157). The Spartan and Venetian were both noted for their want of delicacy in sexual relations, and in both cases the cause of the jiractice seems to have been the levy of public fixation on separate households which did not come The into existence without separate marriages. usage seems to me one which circumstances overjiowering morality and decency might at any time It is known to have arisen in cflll into existence. the native Indian army.

d' Italic, torn.

aristocracies

CHAP.

y.

ROYAL SUCCESSION AND THE SALIC LAW.

125

CHAPTER

V.

KOYAL SUCCESSION AND THE SALIC LAW.


In the legal history of those Western societies which

have passed through feudalism, Succession to Property

and Succession to Thrones


together.

are intimately connected


Baliol,

When

Bruce and

with ten other

competitors, conduct a litigation before

Edward

I.

of

England respecting the right

to the Scottish

Crown,

the arguments are not distinguishable in principle from

arguments on the inheritance of an ordinary

fief,

and in

point of fact this famous dispute did settle some points


in the law of succession to land all over the West.

But the law systems of the East, which contain an


elaborate law of succession to private property, contain little or

nothing about succession to thrones.

One

reigning ]\Iahommedan house, that of the OttoSultans, has continued to our

man

day a system of

royal succession of the highest antiquity

that under

which the
between

eldest

male relative
;

is

preferred in the suc-

cession to the son


this rule

but there

is

no

clear connection

and any part of the abundant private

12(5

KOYAT, SUCCKSSION

AM

TIIH SAI.IC

I,

AW.

riiAP. v.

law
tors.

<r iiili(M"itaiic('

(Iceland

l)y

llic

Malioiiiinodan floetli(>

At most we

may

trace a ivscinblaiKH' in

places

respectively
iinclf
in

nssi<::n('(l

to the son

and to the paternal


Indeed, of
all

llu'

^lalmmiiu'ilnii

scliciiu'.

systems of succession to property, the Malioimnedan

system
sions.

is

the most ditlicnlt

-to

adjust to royal succes-

It is a

system of minute fractional division berelatives

tween

number of

whose

groupin<2;

'

nobody
I

seems to

me

to

have as yet successfully explained.

agree with

Sir

George Campbell, that


race

it

must have
easily

grown up among a
herds

whose property was

divided into units, and possibly consisted of flocks and


;

and, again, I think that Mr. Almaric

Rumsey

('Mohammedan Law
sively
arise

of Inheritance') has conclugreatest apparent


difficulties

shown

that

its

from the

fact that,

whatever was the algebraical


the earliest ex-

knowledge of

later

Mahommedans,

positors of this law were ignorant of

some simple

principles in the manipulation of fractions.

On

the

we must at dox Mahommedan


whole,
that they rest

present be satisfied with the ortho-

explanation of the rules, which

is,

upon separate utterances of

authorities

supposed to speak with Divine authority


phet, his companions,

of the Pro-

and those who talked with

them

and that they are not therefore necessarily

reducible to systematic order.


*

The

difficulty is

caused by the composition of the class of

Mahommedan
Cognates.

Inheritors

known

as the Sharers.

The two remain-

ing classes seem to exhibit the usual preference of Agnates to

CHAP. V.

EOYAL SUCCESSION AND THE SALIC LAW.


succession has

127

The Hindu law of


origin.

more authentic
to a religious

claims than that of the

Mahommedans

Some
is

of

its

principles can be applied without


;

much
less
it

difficulty to a royal succession

but neverthe-

essentially a
It is

law of succession to private

property.
little

somewhat remarkable that we learn


For when they
as

from the ancient Hindu lawyers of the rules

under which a King should succeed.


have
once recognised
the

King

an important
not

auxiliary of the

Brahman, they

are

chary of
First of

advice to
all,

him

or of opinions on his duties.

he

is

to execute justice this is

and maintain truth.

much more than


him how

inculcated on him.
(ii.

But Even so
1)
tells

old an authority as

Apastamba

x. 25.
'

to build a city and a palace.

The

palace
it

shall stand in the heart of the town.

In front of

there shall be a hall.


vitation.

That

is

called the Hall of In-

At

little

distance from the

town

to the

south he shall cause to be built an assembly house,

with doors on the south and on the north


that one can see
all

sides, so

what passes

inside

and outside.

In

these three places fires shall

burn constantly, and


daily, or at the daily

oblations shall be offered in


sacrifice of a householder.

them

In this hall he shall put

up

his guests, at least those

who

are learned in the

Yedas.

Rooms, a couch, meat and drink should be

given to them according to their good qualities.


let

But

not the king

live better

than his spu-itual directors

128

UOVAL SUCCESSION AM)

TIIK SAI.IC

LAW.

ciiai'.

v.

or his niinistors.' aniuso


liimsi'lf witli

MIscwIrtc
dice, *in
\\n\y

lie

is

tauglit

how

to

even iiuinbers, made of


appoint
administrative
{.generals.

vil)liit:ika

wood;'

to

deputies

how
all

t(^

reward successful

Gauis

tama compendiously lays down that the king


'

master of

with the exception of IJrahmans

;'

and

in

the later treatises,

Vishnu and Manu, there are

very long discussions on regal duties, the teacher

even giving an account of the art of strategy and of


the methods of taxation. the

But there

is

nothing about

way

in

which princes succeed

to thrones, unless

a trace of a rule

be sought in a direction to a vic'

torious king,

'

not to extirpate the royal race

when

he conquers a country, but to invest a prince of this


race with the royal dignities.
applies his religious

The modern Hindu

law to royal succession only by

analogy, and he generally applies the oldest part of


that law.

The family customs which have grown up

in Indian royal houses reflect the ancient rules, barely

mentioned by our oldest authorities, on the subject of


primogeniture and indivisible patrimony, and
be observed that they
it is

to
for

show

marked preference

Adoption over Collateral Succession.

The

truth

is,

that for Oriental systems of succes-

sion to Thrones,

we have

to

go to usages, older per-

haps than the great religious movements which have

swept from time to time over the East, and having,


at all events, a history

independent of the institutions

CHAP.

V.

ROYAL SUCCESSION AND THE SALIC LAW.


birth.

129

to

which these movements give

The

real or

pretended doubts, the bitter disputes, and the san-

guinary wars which the appUcation of these customs


occasioned were once

among

the

chief scourges of

mankind

in the countries in

which they prevailed, but

the area of such troubles has been

much

contracted
itself

by the British Indian Empire.

Yet the Empire

was only the other day mixed up with one controversy of the kind which might be taken as a typical

example of its

class.

One can never be very

sure

how

long any Indian events survive in English memory,

and yet some of us should recollect the perplexity


caused by the names and claims of the various Chiefs
or Princes

who appeared during

three or four years in

the newspaper correspondence as pretenders to sovereign authority in Afghanistan.

We

heard of the

unhappy Shere Ali Khan who,


success, retired

after the first British

from Cabul,

his capital, only to die

of

Yakub Khan, now

a State-prisoner

m India,

who

ruled at Cabul as Shere All's successor at the time of


Sir Louis Cavao:nari's assassination

of Abdurrhaman
the

Khan, long an

exile in Russia,

who now wears

most

distinct

badge of modern Afghan sovereignty


cities

by holding the three great


and Herat

of Cabul* Candahar^
after inflicting

of Ayub
by the

Khan, who,

on

British Indian troops the first defeat in the open field

which they had


utterly routed

sufi*ered for

seventy-eight years,

Vas
and

victorious General Roberts,

I'lO

UOYAl. SUCCESSION

AND

TIIK SAl.KJ

I,

AW.

cii

M*. v.

\vli(i, iiftrr

aiiolluT SUCCESS
linallv
(Ifr^'ali'il

:i_Li:iinsl

liis

rival Alxlurrliu-

tiiaii,
ill

was

ami

coiiiju'llcd to
flie

lake

I'cfiifro

Persia.

There were also


i;ow

ohsciirei'

names of

Alululla

'Ian.

(Ka

I,

of Shore

Ali

Khan,
lii^

ainl

who was a younger son who was lon<^ accepted


father's licir-

))V all excejtt

elder hrotlier as his

ajtparent,
I

and of Miisa Khan, the son of Yakub,

whom

have seen spoken of in the newspapers as the only


claimant to the Afghan throne. All the

leu;itiniate

princes

have named were in some sense pretenders to


all

the throne, and they are

near kinsmen, being


against

all

de-

scendants of Dost
l^ritish

Mahomed Khan,

whom
up

the

fought in the old Afghan war of forty-four

years since, and in

whose room they

set

for

while a client of their own, Shah Suja.


it

IIow

w^as

that so

many

near relatives claimed to be the sucreigning prince?

cessors

of the last
is

Hardly one

of them

entitled

under the rules about succession


Shere Ali,

to thrones to
after

which we are accustomed.

hard struggle,

succeeded his father,


his father's

Dost

Mahomed, but he was not

eldest son.

Yakub Khan was not Shere


was
all

Ali's eldest son,

and he
brother,

but supplanted by a

much younger
the

Abdulla Jan, and was long imprisoned


ing his claims.

for question-

Abdurrhaman Khan,

now
all,

reign-

ing Ameer,

is

not a son of Shere Ali at


it is

but the

son of his elder brother, and yet not,


his eldest brother.

thought, of
is

Ayub Khan, on

the other hand,

CHAP.

V.

KOYAL SUCCESSION" AND THE SALIC LAW.


is

131

a son of Shere Ali, but he

younger than

his brother

Yakub Khan, who has


who, as
heir to the throne.
to be rivals of

a son hving, the

Musa Khan
these princes

I said before, has

been called the legitimate


all

How

then come
?

one another

How

is it

that there

is

no

rule, as

with us, to regulate (as

we should

say)

the descent of the

Crown

The
is

great difference between the East and

West

that the Past of the

West
The

lives

m
is

the Present of
the infant state

the East.
of our

What we

call

barbarism

own

civilisation.

rivalries of these

Afghan

princes bring us back to one of the oldest causes of

war and bloodshed among men, the disputed


sion to political sovereignty.

succes-

And

the source of these

disputes

is

to be sought in an ancient fact too often

neglected or forgotten.
first

When

political

sovereignty

shows
it

itself

(and the stage of human history at


itself is

which

shows

by no means the
is

earliest

ascertainable), this sovereignty


reside,

constantly seen to

not in an individual nor in any definite line of

persons, but in a
or a Clan.

group of kinsmen, a House or

Sept,

In Greek history, there


sovereignty which
called a

is

a later form of this


its

has

name of

own

it

is

hegemony, the

political

ascendency of some

one city or community over a number of subject

commonwealths.
royal or ruling

But

in

more ancient times the


kins-

body was more often a group of

\'V2

\un\\. srccKssioN

and

tiii;

sai.ic

\..\\\.

ch.vi-.

v.

iiUMi. a C'laii, (ir

:i

Scj)!. callnl in Imli;! a -loint

P'aniilv.

In
h:\'\

tlic anritMit

worlil.

this

<^rt)n|t

of roy.A

kinsmen
jd'ctcndcil

often a

]ni"tl\

ridilioiis jc(lioTC'C,
;

and

To

1)0

(lesrcndrii iVoni a ifod

and

tlici'c is

an cxainjtlc

of

tliis

claim

in

our own day,


lias a

since

the

Emperor
Some-

ov ^likado of daj)an, wlio


lish Court, lays

Minister at the Eng-

claim to a divine ancestry.

times, however, the reigning House consists of the

des^cendnnts of case with the

a-

known

historical hero, as

was

tlie

most

illustrious of all

royal families,

the Jewish princes descended from David, the son of


Jesse.

And just as among the Hebrews there were two


Judah and the princes
war

rival royal chms, the princes of

of Israel, so also there have been rival clans pretendinn- to

the Afirhan throne, and the old Afo-han


so

was not

much
as

a struggle

between Dost ]Mahomed

and Shah Suja


chiefs

between the clans to which these


Barukzies.

belonged, the Suddozies and the

Bloody wars have frequently been fought between


the partisans of rival clans and houses, but in some-

what

later times civil strife has chiefly raged

between

individual pretenders belonging to the same house.

The reason of this is, that there which mankind were at first less
on which
their usages

are few things

on

agreed, few things

were

less at one,

than the rule

which should determine which of the family should


have
its

headship.

We

are so used to

some form or

other of Primogeniture as the system

which regulates

CHAP. V.

ROYAL SUCCESSION AXD THE SALIC LAW.

133

the devolution of crowns that


in

we have some difficulty


I

understanding the ancient disputes of which

have spoken.

Yet Primogeniture
I

to

which

as a

political institution

may

observe that the

human

race has been deeply indebted

did not

at first appear

in anything like the shape in

which we are familiar

with
its

it

rules

when it approached that shape, were subject to many uncertainties. On all


and, even
find evidence that, in the beginnings of hisrife

sides

we

tory, quarrels were

within reignmg families as to

the particular rule or usage which should invest one


of the royal kinsmen with a primac}^- over the rest

and these quarrels bore

fruit in

civil

wars.

The
in

commonest type of an ancient

civil

war was one

which the royal family quarrelled among themselves

and the nobility or the people took

sides.

The mad-

ness of rivalry took possession of the chiefs and the

people were smitten.

A very ancient, possibly the most


called in our
chiefs

ancient,

method

of settling these quarrels was that which has been

day Natural
it

Selection.

The competing

fought

out,

and the

ablest, or the strongest,

or the luckiest, lifted himself into supremacy.

Now
this is

and then, one of the kinsmen has had the opportunity


of crushing the others

by a sudden blow, and

the case of those massacres of princes which from

time to time appear in Oriental history. One of them


is

described in that story in the Hebre"\v^ Chronicles

134

KOYAI. SUCCKSSION

AM)

TIIK SAI.IC F.AW.

OHAP.

V.

wliicli irivrs its

|)l()t

\n

U.-iciiic's fine l>l:iy

of'

Atlialie.'

Athaliah,

tlic

(|iict'ii-ni(ttli(T in 'Iiidali, lliat

'wicked

woman,'

serinn" tliat Iut


all

son

Kini;' Alia/iali

was dead,
tlic

arose and destroyed

the seed royal of

house

One child was saved and hidden in the bouse of God six years and Athaliah reigned over More revolting, bethe land (2 Cliron. xxii. ](>).
of Jndah.
:

cause more systematic, were the massacres of their

near collateral relatives by the Ottoman Sultans; but


the

Turk who bore no brother near


say something presently.

his throne

had

his excuse in a peculiar rule of royal succession of

which
of
t]ie

I will

The

atrocities

Seraglio were

more than matched only the


in the palace at

other day

by those committed

MandaI

lay

by the present King of Burmah, Thebaw.


to say for a personage

have

little

who

in the course of a
relative,

single

week shed the blood of nearly every


;

male or female, within his grasp

but undoubtedly,

when
choice
sacres

there

is

no

clear rule of royal succession, the


lie

may unhappily

between one of these mas-

and prolonged and desolating civil war. Fortu-

nately a great deal of the progressive civilisation of the

human

race

ha consisted in the discovery of


;

remedies against violence

and the

evil of dynastic
little tolerable,

contests has been so manifest, and so

that

men seem

very early to have striven to find

contrivances for preventing them.

Such contrivances

were indeed not absolutely new

most of them were

CHAP.

V.

ROYAL SUCCESSION AND THE SALIC LAW.


tribal or family usages

135

still

more ancient

put to a

new use. One of

the most ancient of

them

is

to obtain the

peaceful consent of the

community

to the succession

of a particular chief either before the death of the


last reigning

sovereign or immediately afterwards.

An

elective

monarchy, much modified in


till

its

later

form, survived

the last century

Poland, and

the most august throne in Europe, that of the Empire,

of the

Roman

or

German Empire, was

till

the begin-

ning of the present century open in theory, as Mr.

Freeman puts
trace of

it,

to every baptized Christian.

There

are in fact few monarchies in

whose records some


survival of

an origmal popular election or confirmation


is

cannot be found, and there

even

a,

it

in

the ceremonies of an English Coronation.

conve-

nient modification of the system, which removes a

dangerous interval between prince and prince,

is

to

have the election during the lifetime of the reigning


chief or king
;

and thus, in Germany, a King of the


generally chosen

Romans was

who was

to

become

Emperor on the Emperor's death. A the same class, particularly where there is a numerous
progeny
.of

precaution of

princes produced

by polygamy, hes

in the

appointment of his successor by the reigning chief


durino- his lifetime.

This on the whole seems to be

the system of succession prevailing in Afghanistan.

Shere Ali owed his throne to

it

and so would Shere

l.')('i

K'OYAL SUCVKSSK'N

AND

TIIH SALIC

I,

AW.
liad
idc.-is

ruAP.

V.

All's

lu'ir-apparcnl,
tliat
it

Aluliilla

elan,

if

ln'

livc(].

Wut

lias

to coiiijx'k' with

oilier
il

aliout

succession
followcil
(luarrel

is

plain from the hloody cis

war which
ihr
later

Shcro Ali's ac-ccssion


this
Tlie

and

from

on

vrrv

puiiit

Iict

wccii ^ :ikid Khaii

and

his father.

present Ameer, Ahdiirrhnmaii Khan,


it.

owes nothing
in its

to

The weakness uf the system


Avife,

lies

tendency to produce the nomination of the child

of !^ome favourite
]>alacc-intrigues

and thus to lead to endless


fruit in civil

which sometimes bear

war.

and in

Yet another contrivance, probably much older itself extremely rational, was once very wddely

diffused over the world, but has

now only one

field
is

of operation

among

the Ein'opean dynasties.

This

the descent of the sovereignty to the oldest living

male of the family.


Turks.

It

still

survives

among

the

The present Sultan succeeded


children
;

his brother,
reifflned

who had
for

and Sultan Murad, who


male children.
its

a few months, succeeded his uncle, though his

uncle,

Abdul

Aziz,

left

Where

the

system

may
it

we

find

more barbarous form, generally combined with that which I


be observed in popular or tribal election.

mentioned

first,

The

Irish

tribesmen and even the clansmen of the

Scottish

Highlands once elected their chiefs, but the former


always chose the brother of the
years,
last chief, if of

mature

and the

latter

seem in very ancient times to


In warlike and per-

have made similar

elections.

CHAP.

V.

EOYAL SUCCESSION AND THE SALIC LAW.

137

petually disturbed societies there could be hardly a


better principle to follow, for
it

has the great advan-

tage of providing that the

grown and experienced

new chieftain shall be a man and barbarism cannot


;

afford to face the dangers of royal minorities.

Its

disadvantages do not begin


to live in palaces

till

princes have
ease.

begun
heir-

amid luxury and

The

apparent then receives a training which more than

compensates for his maturity of years.


in

The

seclusion
all his

which he

is

kept, the jealousy with

which

energies are repressed


his long familiarity

by the reigning monarch, and with the harem, make it too proif

bable that he will prove an incapable ruler

he

is

allowed to succeed.
Chief,

But

the interests of the existing

and

still

more of

hi^ children, are against the It


is

heir-apparent continuing to live.

only in quite

recent times that the next eldest male relative of a

Turkish Sultan could be reasonably sure of the succession.

The

declaration that fratricide


State
is

is

a rule of
II.,

the

Ottoman

attributed to

Mahommed
nineteen

but the great example of the practice was set


'

by
his

Mahommed

III.,

who massacred

of his

brothers and caused to be


father's wives

drowned twelve of
to be pregnant.

who were supposed


I

The system which


which not the
succeeds,

have described, that under

eldest son but the eldest

male kinsman

now

bears

very generally the name of

Tanistry, from the Celtic

word which points

to

its

l."S

i;itVAL

!?UCCESS1U>'

AM

Till:

SVMC LAW.
sci'iiis

niAi'. v.

pr.'U'flfc

in

:mcionf

Trdaihl.
ol'

'r;i!ii>lr\'

to

Ik;

the iindouhti'd parent


it.

Prinio^cnitiuv as

wo know
I'anistry,

rut

tills

later

system of sncccssion to thrones,


ij^rcat

tlionn;h in s(Mn(> resports a

advance on

was
it

not

at

all

free iVoin (lanii;erons unecrtaintios


iiidi'('(l
It

when
one of

was

lirst

lollowrd, and

sonic of these nncer-

tainties linger
sucli

about

it still.

was

tliroiiLi'h

un<x*rtainties that the fortunes of this


to be

country

came

mixed np with a disputed succession, and

that our ancestors were engaged in a foreign

war

which lasted a hundred years and which entailed a


bloody
civil

war

as

its

consequence.

The Royal
involved

House or
England

Sept,

whose disputed

headshi})

in these calamities,

was that of the Capetians,

of the collective body of the descendants of


Capet,

Hugh

who

in

987 got himself elected King of the

Franks, or French, and founded the feudal monarchy


of the country which,
since

by

successive additions, has

become so famous under the name of France.

The progeny of Hugh Capet, continued exclusively through males, is not extinct at the present moment,
after nine centuries
;

but his male descendants, in the


to

direct

line

of descent, came

an end in 1328.

Philip the Fair, the

man

of strongest character in the

whole

line of

French kings, with the possible excep-

tion of

Henry IV. of France and Navarre, had died

in 1314, leaving three sons

who

successively ascended

the

French throne under the names of Louis X.,

CHAP. T.

EOYAL SUCCESSION AND THE SALIC LAW.

139

Philip v., and Charles IV.

No

one of these three


each a daughter,
III. of

kmgs

left sons,

but two of them

left

and one

left three.

Now Edward

England,

who
title,
'

held the English

Crown by an independent
Isabel, the

was

a Capetian

through his mother,


'

she-wolf of France

of

Gray's well-known

Ode.
the

Isabel was a daughter of Philip the Fair.

On

death of Charles IV. of France, the youngest of the


three royal brothers

who

died without
a

male
the

issue,

our

Edward
It is

III.

put in

claim

to

French

Crown.

usual both

with French

and with

English historians to describe this claim as wholly


untenable, but, though I will not here discuss what
is

really a point of technical law, I will pause to say

that this view of the utter baselessness of Edward's


title

seems to

me

to be based partly

on ignorance of

certain

peculiarities in

ancient systems of law and


legal rules,

partly on the assumption that certain

which were then unsettled, were


as they

as clearly recognised

now

are.

There are some very ancient bodies

of law which, though showing a decided preference


for

male inheritance, nevertheless permit the family

to be continued

through a daughter when the sons


that in

have

failed.

The ancient Hindu law required


translated, to bear
this

such a case the daughter should be^ appointed, as the


Sanscrit
father.

word
It is

is

son to her

remarkabk that
^

was the exact

See above, Chapter IV.

11)

UtY.M-

SUCI'KSSION

\M>

Till:

SALIC

l,\\V.

ciup.

V.

position of I'M wan

III.
1)\

lit- iliscl;iiiiir(l

\\iv

idea lliat

rranco could
that,

lu' nilcil

woman.

Iut

lie (((iilciidcd

hvv

l)rotli('r.s
rii:;lit

liaviiii;-

died, .she could transmit


child.
1
1

luT

fatlicr's

to la-r

own male
to
all

'I'hciv arc
l.'s

other apjiarcut
arisinir

ohjcctioiis
liict

IM\var<l
tlu'
it

claim,

iVoui
Ici't

the

ili.u

sons of

riiili|)

the

Pair ha<l

dauiihtcrs, hut

may

he >howii irom

the law-]>ooksot' the time that, evrtiin the inheritance

of private property,
"were to prevail

the rules of succession wliich


si.ch circumstances

under

were

still

uncertain.
It
is

prohable,
III.

then,

that

the
in his

argument
day to be

of
as

Edward

was not considered


all

untenable as

French and some English writers


it,

have represented

but that

it

answered to some

ideas about royal an(^ other successions

which were

more or

less current.

But the point was no doubt


;

regarded always as a doubtful one

and in

fact in

1316, on the death of the eldest son of Philip the


Fair,

Louis X.,

who
is

left

a daughter, an

Assembly of

Notables, which

sometimes described as the States-

General of France,

had resolved that the French

Crown descended exclusively to males and through males. Thus the question of law was fully and fairly
raised
;

and

it

promptly
it

fell

under the only

uris-

diction

by which

could possibly be decided.

It

was put

to the arbitrament of the sword.

From

the
III.

commencement

of active hostilities

by Edward

CHAP.

V.

EOYAL SUCCESSIOX AND THE SALIC LAW.

141

to the close of the Eno-lish invasion of France under-

taken by Henry V., the years of war between the

English and French were as nearly as possible a

hundred and twenty, interrupted only once by a


regular peace, and always on the question of royal
succession
;

and
left

this

hundred

years' war, as historians

now

call

it,

undoubtedly as a legacy, as the result


it

of the fierce military habits which

produced, the

bloody struggle known as the Wars of the Roses, in


w^iich, to say the truth, the

symbols of the two con-

tendmg royal

houses, the

White Rose and the Red,

were no more to the turbulent and warlike English


nobility than the blue

and green colours of the

race-

course which once divided the populace of Constantinople,

the

New Rome,

into

fierce

and seditious

factions.

The

Eno-lish kino;s bore the title of Kino;


lilies

of France,

and carried the French

on their

arms,

down

to the beginning of the present century.

In the repeated negotiations between

the

British
at

Government and the


last bore fruit

first

French Republic, which

in

the hollow and transient Peace

of Amiens, the

question

of

giving

up

this

title

and armorial bearings played a considerable


as

part,

may

be seen from the Papers of Lord Maimes-

bury.

With

this

famous dispute between the English

and French kings


people from the

a dispute

in

which the English

first heartily

took part, and in which

11-

i;i'V\I,

<r(( T.^SIoN

.\M>

llir.

sAI.IC

law.

(Hap.

v.

tlu'

I'niK'li
lias

pcdjilo

first

iiililu'(l

llic

iialioiial

spirit,
tliis

wliicli
lisj)utt*

cnor siiuv cliaractcriscd


arc

tluiii

witli

tliciv

considcraf ions

coiuioctcd
lo

wliicli

sriMii

to

inr

siitliciciilK<>f

iiilcroliiiL;'

(Icscrvc

to

(H'cupv
is

ilie
;

rest

tliis iiapci*.

Soiiic of this
;

iiilc3i*(!st

literary

sonic

is

archa'DJogioal

bnt some

is

prac-

tical.
>f

We

IjiLilisbnicii arc satisfied to

rest the title

onr Ikoyal House on the Act of Settlement, which

limits the ri<xht of succession to the descendants of

the

Electress
tiie

Sophia of Hanover.

P>ut,

in

other

countries

old doubts which caused the


still

war of a
to affect

hundred years have


practical politics.

vitality

enough

As

before stated, the Capetian

Sept or House, composed on the principle laid

down
s^^ring

by the States-General of 1316, of males who


from males,
branch
of
still

continues.

It

embraces the elder

French

Bourbons, represented

by the

Count de Chambord, the yomiger branch consisting


of the Princes of Orleans, the Spanish Bourbons, and
the
Italian

Bourbons
is

spnmg from
is

them.

King

Alfonso of Spain
a

the son of a Bourbon father and


a king in right of his

Bourbon mother, but he


war with
his cousin,

mother, and he was engaged a few years since in a


civil

Don

Carlos,

whose

pre-

tensions to the throne are derived exclusively through

males.

The

conflict of title

between the Count de

Chambord and the Orleans princes is of another kind and of a more modern type. All of them are full

CHAP.V.

ROYAL SUCCESSION AND THE SALIC LAW.

143

Bourbons

but nevertheless the theory of sovereignty


is
still

and government called Legitimism, which


factor in

French and Spanish

politics, is ultimately

based on the assumption of a sort of sacred and indefeasible

law regulating succession


it

to the

Crown, and

placing

beyond competition and above popular


There
is

sanction.

no doubt that the


first

belief in the ex-

istence of such a

law

showed
III.

itself during

the con-

troversy between

Edward

and Philip of Yalois.

This sacred and indefeasible law bears a familiar

name.

As

it

was

at first conceived

it

was

called the
first

Salic law.

It is

not quite certain

when men

began to suppose that the law thus designated applied


to royal successions, but clearly this view prevailed

both in Eno;land and France soon


of the hundred years' war.

after the beo-inningf

the Salic

What were the ideas about law which were common in this country
fifty

from one hundred to one hundred and


the conclusion of this quarrel

years after

may
i.

be gathered from
2,

Shakespeare's

'

Henry
is

V.,'

act

scene

where the

English argument

put into the mouth of the Archcall

bishop of Canterbury. It amounts to what lawyers


a plea in confession and avoidance.
It

admits the
it

existence of a royal Salic law, but denies that


to the case of

applied

Edward

III.

and his

rival.

Now

the

Salic law, like the Capetian

House,

is still

in existence,

and we can put our finger on the very passage which

was supposed

to confer

on Philip of Yalois

his title

Ml
to
tli(>

UOYAL SrcCKSSlON ANH


Fn'Mcli
lliroiu'.
Iiit

TIIK

SM.K

LAW.

cim-.

v.

ln)tli

to the I'rcnoli nv<rn-

iiuiit iiDil to tin' (ouiitrr-iirixmiu'nt wliicli

Sliakcsp(;are
is

])orrowi'il

from

tlu>

I-jiLflisli

clironiclcrs tlicrc
tines iml

ono
all

fatal oliifi'I ion.

Tlir Salic law


to

a|i]il\' al

to

thrones an<l

the

snceessinn

to

(hi'()iies.

It

inrrel\- i-enulates

the succession
in<lisj)ntalile fact

to )>ri\ate ]iro]erty.

WiuMi
in the
tliose

this

most

was

lirst

discovered

sixteenth rentnry hy the rising learning of


times,

there

was

uood

di-al

of scanfhil in
in
;

France and some

little

dismay.

Montesquien
the discovery

the
;nid

eighteenth centnry pojudarised


Voltaire
wliicli
is

never tired of jesting at the Salic law,

he had always supposed, he says, to have been

dictated by an angel to

Pharamond, the

first

Frankish

king, and to have been written with a quill from the


anjT^elic wiuLT.

The

Salic

law

mi<j:ht in fact

be best

described as a manual of law and legal procedure for


the use of the free judges in the oldest and

most

nearly universal of the organised Teutonic Courts, the

Court of the Hundred


so far as the
kinii:

it

only mentions the king in


It

has authority in the Court.


to contain a reference to
Salic land

was once supposed

some
;

peculiar description of land called

but

the
'

new English
'

edition

clearly

shows that the word


is

Salic

is

an interpolation, and that nothing

re-

ferred to except the private inheritance of simple land.


It

becomes therefore a matter of some


3

interest to

See belowj Chapter VI.

p. 169.

CHAP.

V.

EOYAL SUCCESSION AND THE SALIC LAW.


true

145

search out the

origin of this celebrated rule

(erroneously supposed to be contained in the Salic


law), which not only excluded females from succession
to thrones, but denied the royal office to the nearest

male kinsman

if his

connection with the royal house


It
is

was through a
that,

female.

first

to be observed

at

the time of which

we

are speaking, the

middle of the fourteenth century, there were two sys-

tems of royal succession in existence of


antiquity than either the Royal

much

greater

House of England

or the Royal

House of France.

One

of these was

followed by semi-barbarous tribes at the very ex-

tremity of Europe, but


as

it is

of immemorial age, and,

some thmk, almost


it

as old as

mankind

itself.

have already called

Tanistry, the system under


tribe elect their

which the grown men of the


chief,

own

generally choosing a successor before the ruling

chief dies,

and almost invariably electing

his brother

or nearest mature male relative.

In the fourteenth

century this system was confined to the so-called


kings or chiefs of that part of Ireland which lay

beyond the English


of the

Pale, but there

is

a far-off echo

same system in the story which furnished


'

a plot to the tragedy of

Hamlet,' where the mur-

dered king
brother,

is

succeeded not by his son, but by his


strengthens his
.

who

title

(according to

usage also of the highest antiquity) by marrying


the

widow of

his predecessor.

The very memory of

lir

KnVAl, Sl'CCFlSSIOX

AM>

TIIK S.M.IC

I\\V.

ruAP.

v.

Tanistry would pmltalily have

licil

out of I'urojx'

if,

a century
l)ocomo

later, this

nu-tliod of sucrcssioii

had not

lliat

of a throne once the iuo>I exalted in


the cajiture
'I'he
ol"
(

Europe

tliroui::h
'I'ln-ks.

'onstantinople hy the

Ottoman
lowed
but

Sultanati- in theii-

hands

fol-

this rule of descent, brother sucec(\(iing brother,

all

trace of election

by tbe

]ieo|)le,

if

it

ever

existed,

was

lost.

As

followed by the Turks, the


it

system of course excludes females, but


bably have excluded thein at
object
is
all

would pro-

times, as its

main

to secure a military leader in the maturity

of

life.

The other system of


referred

regal succession to which I

was that to the throne and crown of the


Emj^ire,

Koman
election,

which
Italy.

still

theoretically survived in

Germany and
of the
certain
officers

This too was a system of

but the right to have a voice in the choice


limited to a

Emperor had gradually become

number

of prelates and of princes once great

of the Imperial Court.

From one

of these,

whom we know
royal family
elective
is

as the Elector of Planover,

our

own
the

descended.

The parentage of

of the
as
'

Roman Empii'e may be traced to the Roman soldiery saluting a successful


;
'

acclaim
general

Imperator

but since the

fall

of the

Roman
settled

Republic, the Imperial dignity had

a tendency to

concentrate itself in particular

families,

succession being procured by the practice of choosing

CHAP.

V.

ROYAL SUCCESSION AXD THE SALIC LAW.


Cassar during the reigning Emperor's

147
life.

the

new

In the more modern or Romano- German Empire, a


successor might be elected, before the death of the

reignmg Emperor, under the name of the King of the

Romans

and the same result followed in the pracof the Imperial dignity to particular the

tical limitation

families, of

whom

House of Austria was the


as the

last.

The German Empire, considered


cessor of the

direct suc;

Roman

Empire,

fell

in

1806

but in our

own day
election

it

has been revived without a revival of


as a dignity hereditary in the Prussian

and

Royal House.

When,

then, France and

England entered

into

their bloody war of a hundred years, which was to

decide the place of

women

in royal successions, there

were two systems of succession in Europe which

would have undoubtedly excluded women from the


throne.

One would have shut them out from


in the

the

most august dignity

West, because

it

had been
soldier.

originally an honour conferred on a triumj)hant

The other would have denied


chieftainship, because the chief

to

them
in

a petty Irish to be a

was intended

fighting

man

all

his

life.

But

the monarchies

which lay between these extremes, monarchies of the


class

which we

call

feudal,

there

was no

settled
chil-

rule excluding

women, and

still

less their

male

dren.

See what had occurred in England as long as

nearly

two centuries before Edward


1 2

III.'s time.

The

148

\lO\\\.

SrCCKSSIO.N

AMI

Tin; S\M(

I,

AW.

ciiai-.

v.

country

li;i(l

hccu

<l('snljitf(l

hy the war Im'Iwccm


<tf

tlio

Kmpn'ss Matilda and


Kini;-

St('j)lu'n
I'lit

Tdois,

af'l(

rwacds

Strplu'U of

I-jii^laiitl.

Sfcijlicn's
liis

claim to
Iiit

tlio tliroiio

was
;

ilrrivcd

not

fVoiii

iailici-.

iVoiii
hiil

hi- iiiotln'r

aiul

Matilda, herself a
to
ly

woman, and

faintly ol)jocto<l

the

Kn*^lish barons

on that
to
licr

account,
s<in

transmitted
II.

an

un(jnestioned

title

Henry

Il<>w,

then,

came such

a difference

to arise

l.)et\veen

countries

so alike as France and

Knuland then were


<]ivided
l)y a silver

betw^een

monarcliies not then

streak of sea, since the English

kings had ever since the Conquest ruled over more


or less of France, sometimes over
its

most

flourish-

ing pro\4nces, as vassals of the French king more

powerful than their suzerain?


I will indicate as briefly as I

can the chief con-

clusions to

which a long,
us.

intricate,

and

difficult in-

quiry would lead

All the AYestern

P^uropean

monarchies, lying between the

Roman Empire and the


and of the Scottish

tribal chieftainships of the Irish

Highlanders, were (to use a word which imperfectly


expresses their characteristics) feudal.
the

Now among

many things which may be known to us as Feudalism, one


is

said about the system

of the least doubtful

that

it

mixed up or confounded property and soveEvery Lord of the Manor or Seigneur was Every King was an exalted
This mixture of notions which

reignty.
in

some sense a King.

Lord of the Manor.

cnAP. V.

KOYAL SUCCESSIOX AND THE SALIC LAW.


separate

149

we now

had been unknown

the Empire, and had the Western world


the

Romans of somehow been introduced into


to the

by the barbarous conquerors cf


If then

Roman

Imperial territories.

we

avert

our eyes from the ideas about chiefship and kingship


entertained

by barbarous races

ideas generally associ-

ated with some form of the system which I have called

Tanistry

and
it

inheritance

we look to their ideas concerning the of property, we find the same uncertainty
if

and difference of view about the right of women to


succeed to
archies.

which we observe

in the feudal

monset

Here no doubt we come upon a


precise significance
is

of

phenomena of which the


disputed in our day
;

much

but probably there would be

general agreement in the statement which follows.

The

greatest

races

of mankind,

when they
or

first

appear to us, show themselves at or near a stage of

development in which relationship


reckoned exclusively through males.
this stage
;

kinship

is

They
it
;

are in

or they are tending to reach

or they

are

retreating

from

it.

Many

of

them

in certain

contingencies, generally rare or remote, give

women
whether

and the descendants of

women
them

a place in succession,
is

and the question with modern inquirers


the place thus assigned to
older barbarism,
is

the survival of an

now

exemplified in savage races,

which traced kinship exclusively through females, or


whether
it

results

from the dissolution, under various

l'"i(l

r.OVAL

SnVKSSlON AND
'

TllK SAI,IC

I-AW.

diAr.

v.

intliKUcvi?,

of

aL^natic

'

rclatioMslii|>,
only."*

tliat

is,

of

ru-

lationshi|)

throui!:h
tlu'so

males

TIu'
<il'

j)()siti()ii

of

woinoii

in

l)arl)an>iis

systi'iiis

iiilici'itiiiicc

varies very

ijfreatly.

iSuiuetimes llicy

jiiln rii, cillier


ui'

as imlividuals or in classes, only wlien males

tlu;

same generation have


inherit,

failed.

Sometimes they do not

bnt

traiiMiiit

a rii;iit of inheritance to their

male

issue.

Sometimes they succeed

to

one kind of

property, for the most part movable property, Avhicli

they probably took a great share in producing by


their
Salic

household labour

for

example,

in

the
is

real

law (not in the imaginary Code) there

a set

of rules of succession which, in

my

opinion, clearly

admit

women and

their descendants to a share in the

inheritance of movable property, but

confine

land

exclusively to males and the descendants of males.

Indeed,
'

it is
'

not to be supposed that under a purely

agnatic

system of relationship governing inheritare wholly unprovided for.

ance,

women

The

idea

is
is
is

that the projDer

mode

of providing for a
;

woman

by giving her

a marriage-portion

but when she

once married into a separate community consisting


of strano-ers in blood, neither she nor her children
are

deemed

to

have any further claim on the parent

group.
* I have endeavoured to state the alternative theories as I suppose they would have presented themselves to the mind of Mr. J. F. McLennan, prematurely lost to this branch of inquiry, who

has forced

all

interested in

them

to revise or review their opinions.

CHAP. V,

EOYAL SUCCESSION AND THE SALIC LAW.


is

151
that,

There

therefore

strong

probability

among
breed

the miscellaneous mass of barbarians of

Aryan

who

overran Western and Southern Europe,

all sorts

of ideas prevailed about succession to pro-

perty.

Some would exclude


altogether.

the descendants

of

women

Others would admit them in


I regard therefore these dis-

certain contingencies.

putes about the right of succession to feudal


archies as

mon-

having their origin in differences of opinion

about the inheritance of property, but as transferred

by the feudal
are a late

spirit to the

descent of crowns.^

They

survival of very ancient differences of

usage between barbarous communities,


together
of
as

now mixed
The claim

conquerors of the West.


III. to the

Edward

French throne would have

received favourable consideration as a claim to pro-

perty by those most ancient

Brahman lawyers who

framed the Hindu law-books erroneously called by

Western scholars Codes.


It will therefore be perceived that the question,

as

it

presents itself to

my

mind,

is

not,

why
fiefs is

did
that
is

The most general

feudal rule about succession to

contained in the Customs of

Normandy

but the compiler, as


it.

usual with such writers, gives merely feudal reasons for


after stating that the rule forbidding

Thus,

one uterine brother to succeed

to another

{cwm a parentibus suis non descendit) is subject to exception in the case of a fief descending from the mother, he goes on to say procreati autem ex feminarum lined, vel femince successionem non retinent dum aliquis remanserit de genere mascu'

lorum.'

I'VJ

KOVAI. SUCCKSSION

AXO
tlic

Till-:

SAI.K'

LAW.

hiap.

v.

Kdwanl

111.

nf

l-.iiLrl:iii<l.

son

oj*

;i

(';i|)cti:m

l*rin(Hi
liit

cess, Ix'iMHiu' a jJiH'tnidrr

to

tlu- (liroiic

of

l-'raiicc

the dontli of his tluve unclt's wLlliotil


ratlur. wliv wrrc
tlu'ii <'()m|u\sinir

iiiiilc

issue,
|>i-()\

\\\v riiliiiij^

classes of

llic

iuccs

France so obstinately jXTsuad* d that


(locciidcd
tlii'iiiiLi'li

nohody

luit

man

in'ii

iVoiii

\)w.

founder of
over them?
stron<i|^

the,
I

lioyal

House could
is

rightfully reign

think there

an explanation of this

conviction for wliich the


stoutly.

Frenchmen of

tliat

day fought so

It is tliis.

There are some

peculiarities in the

Royal House founded hy Hugh

Capet which,

if

not unique, are of extreme rarity.


called in India, the Joint-Family,

The

Sept, or, as

it is

consisting of the male stock of the founder, of male

descendants tracing their descent entirely through


males,
still

exists,

although not

much
out.
it

less

than 000

years have elapsed smce

Hugh

Capet died, and moreSeveral times

over

it

shows no signs of dying

in the course of this long history

has seemed on the

point of extinction.

Twice has the reigning branch


cliildren.

ended in three kings who had no male

The

direct descendants of

Hugh

Capet ended, as you

have beard, in 1328.

Then

the Yalois succeeded,

and they too came to an end in three brothers who

had no legitimate

children,

male or female, Francis IL,


III.

Charles IX., and

Henry

But the

fertility

of

some younger branch has always remedied the decay


of the elder, and on the death of

Henry

III.,

Henry

CHAP. T.

ROYAL SUCCESSION AND THE SALIC LAW.

153

of Navarre took his place, just as a Valois liad taken

the place of the lineal heir of

Hugh

Capet.
line

The
being
still

same rule of the infecundity of the elder


repaired

by the fecundity of the younger, seems

to hold good.

Of

the Bourbons

who
The

are descended

from Henry of Navarre, the branch of Conde was


exhausted almost in our

own

day.

eldest

branch

of the same house seems likely to close with the


childless Prince

'known

as the

Count de Chambord,

and the elder branch of the Spanish House has only


been continued through women.
lines

But the younger


are
still

of

all

the

Bourbon Houses

prolific,

represented
Italian

by the French Princes of Orleans, by the

Bourbon Princes, and by the Spanish Princes


first

descended from the


Princes
are

Don

Carlos.

All

these

the male

issue,

descended exclusively

through males, of

Hugh

Capet, who, as I said, died

nearly 900 years ago.

These

facts are possibly

not unexampled, but they

are very unusual


rarity

and extremely remarkable. Their

may

be concealed from us by our English

way

of talking loosely about families

who came

in with the

Conqueror, and through our English usage of tracing


descent indiscriminately through males and females.

No doubt
matter of
the

there are
belief.

longer genealogies which


illustrious of
all,

are

The most
is

that of

House of David,

longer, but then the

Kings of
it

Judah were polygamous, and polygamy, though

154

UOYAL

SDlVl'lSaiON

AM>

Till:

SAI.K

LAW.

chap

v.

pomotinu's produces Ftvrility, occasional ly results in


laiuilies like tliat

of the Sliah of Persia,


sous,

who

not

numy

years

ai^^o left i'i^;hty

lu India liurc are ])cdi^rees

j^rcatly Ioniser, for tliere

are jriueos elaiiuin*^ to descend


Ihit
1

from the Sun and the Moon.


that the earlier

need scarcely say


trees are

names

in these jrenealou'ieal

those of fahulous persouan;cs, and indeed

under a

system of succession which,

like

most of the Indian

systems, ])ermits the adoption of children, there can

be but

little

assurance of the absolute purity of male

descent. that
1

It

must

at

the same time be understood

am

not asserting the impossibility of pedigrees


It is said that

of this length, but only their rarity.

genuine pedigrees almost as long


the English gentry, but
that

may

be found

among

anybody can convince himself


though there are excep-

among

the English nobility a long continuity of


is

male descents

very

rare,

tions, a notable

one being that of the Stanleys.


is this

But, rare and striking as

peculiarity in the

family history of the Capetians, that House presented


in

the

fourteenth century a

phenomenon which

is

still

rarer

and

still

more impressive.

The kmgs

sprung from

Hugh

Capet succeeded one another, son

to father or brother to brother, for

more than 300


was no occasion

years.

Through aU
remote

this time there

to call in a

collateral,

an uncle or great-uncle
is

or a cousin.

How

unusual

such a succession we
test.

can conceive ourselves by taking a very simple

CHAP.

V.

ROYAL SUCCESSION AND THE SALIC LAW.

155

Let US take any half-dozen conspicuous

hundred years
and we
through

since,

conspicuous in

men of a any way we


descendants

please, statesmen or writers or

simply of noble birth,


living

shall

find

that

their

through males are few, though their descendants

women may

be numerous.

Go

two hundred

years back and you will see that the fewness of male

descendants through males from

men

of eminence

much
back,

increases,
it

and

if

you go

three

hundred years

becomes

extraordinary.

The whole subit is

ject belongs to a

branch of the theory (as


been

called)

of Heredity which has not

perfectly investito

gated as yet, and which


discuss here.

it

would be out of place


that
it

I think, however,

is

not too

bold a proposition that the greater the eminence of


the founder of a non-polygamous family, the greater

on the whole
tinue itself (if

is
it

the tendency of the family to con-

continue at

all)

through women in
securities for a pure

the direct line

and that the best

pedigree through males are

comparative obscurity

and

(I could almost say) comparative poverty, if not

extreme.

The

rule

is

of course only approximate,


sufficiently

and the example of the Capetian dynasty

The

subject, as respects the pedigrees of the nobility, is dis-

cussed by Mr.

Hayward

in a very interesting paper in his Bio*

graphical and Critical Essays, Third Series,


Irish,

English, Scotch,
'

It is quite and Continental Nobility.' See page 260. startling on going over the beadroll of English worthies, to find how few are dii'ectly represented in the male line.'

1")0

llOYAI. Sl'fX'ESSION

AN1>

Till:

SAMC LAW.
it.

(Hap.

v.

shows
timo,

ilmi iluTc arc exceptions to

At

tlic

simic

tlio

position of the rarlv ('.ipttiaiis


tluv spli'iidour

iiiiisi

not ho

jiullXi'd

hv

of the hilc Kiii^s of I'i'mucc.


;m<l
coiiipai-Ml iv('l\-

Tlu'V were

coinparativelv poor

obsctiro. aiul for IohlT <'oiiM hai'ilK'

make

hca'l aLiaiiist

even

tlu'

luimhler of their iiominal vassals.


1

This, then,

beheve to be the true secret of the

so-called Salic rule of succession.

There

is

nothiiiuf,

even

now. very uncommon

in

the franu; of

mind
wliicli

which leads men to think that everything, of


they

know

or

remember nothing
all

to the contrar\', has


it

existed from
for ever.

time and
in

tliat

ought

to continue

But
all

an age in

Avliich historical
in

know-

ledge

was

but non-existent, and


lived

wliicli the

mass of mankind

by usage, such

a hal)it of
;

thought must have been incomparably stronger

and
male
even
has

we cannot doubt
affected

that men's

minds were powerfully

by

this uninterrupted continuation of

descents in the royal family of France, whicli


to us
is

impressive.

Xobody, they would

say,

reigned in France but a King the son of a King-.

There had been no occasion to


a collateral
relative,

call

to the

throne

much
to

less

kinsman through
on the
French law
solidified.

women.
subject

Amid

a general flux of men's ideas

of succession
at all events

thrones, the

woidd

have appeared to have

And, such being the preconceived notions of Frenchmen, there


is

no doubt that they were strengthened

CHJiP. V.

ROYAL SUCCESSIOX AND THE SALIC LAW.

lb

by

the

provision of the real Salic law, which said

that land

or, as it

was once

read, Salic land

should
This
;

descend exclusively to males through males.


legal provision

was

in fact irrelevant to the question,

but

it

may

very easily have been misunderstood

and

it is

a significant circumstance that manuscripts

of the true Salic Code, the

Lex
first

Salica of the Ger-

mans, appear to have been found in the Royal Library


at Paris

from the time of its

foundation.

The supposed
their descendants

Salic rule,

excluding

women and

from royal successions, has been

adopted in later days in

many
States,
;

countries in which

women were

at

one time permitted to succeed.

In

constitutionally governed

female successions

have always been popular

and quite recently, in

Spain and Portugal, the establishment of constitutional

government coincided with the overthrow of


which excluded queens from the throne.
in a

the rule

The Spanish monarchy was composed of portions


most of which the throne might be
filled

by

when the younger branch of the Bourbons obtained the Crown of Spain, they introduced
woman,
bvit

the so-called Salic rule.


is

This system of succession

manifestly thought to

be convenient

wherever,

whether there be a Constitution or not, a large measure of authority resides with the sovereign. the succession to the
of -the

Thus German Empire, following that


is

Prussian kingdom,

now

Salic

and in

158

ROYAL Sl'CTKSSION ANK


an cxtrciiicly

Till'

SAI.IC

LAW.

<

MAP. V.

Ixussia, wliiTi'

|M'(Mili:ir

rule of siicrossiicccssioTis
tlic

sion
l)oinjx

|>ivv!u1m1.
tliat

one of
tilt'

llic
ol"

most
tlir

usual
late

of

widow
of
tlir

l'iii|i('ror,

cxclusivi'

(lov()liiti(]i

Crowii
time

tliroiiLili

males on

males

was

for
I.

tlic

first

introduced

hy the

Kinperor Taul

The

ex]>lanation i^iven

hy French historians of
sj)ran_i!;

the nieniorahlc rule which first

uj)

in

their

country has nothing to do with reasons of convenience.

Thoy say

that the exclusion

of

women and

their issue

was the
If

fruit of the intense national s])irit


it

of Frenchmen.

liad

not been for this principle

the

King of France might have been an Englishman,


husband
and
this

or a German, or a Spaniard, according to the nationality of his mother's


;

was con-

trary to the genius of France,

which im})eratively
a

required that the


this is the error,

King should be
not so very

Frenchman.

But

uncommon

in the philofor the

sophy of history, of taking the consequence


cause.
It

was not the national


Salic rule,

spirit of

Frenchmen

which created the

but the Salic rule had


spirit.

a great share in creating the

French national

Xo

country grew together originally so

much through

chance and good luck as France.


fined to a small territory

Originally con-

round

Paris, province after


it

province became incorporated with


forfeitures,

through feudal

through royal marriages, or through the


even more powerful than

failure of lines of vassals

CHAP.

V.

ROYAL SUCCESSION AND THE SALIC LAW.


to

159

the

King

whom

they owed allegiance.

But owing
to the

to the Salic rule, the

King always belonged

heart and core of the monarchy.

The King of Eng-

land

who

first

annexed Ireland was a Frenchman.

The King
from

of

England who united Scotland with her

was a Scotchman.
first to last

But the King of France was


born and educated a Frenchman.

The same vein of character may be seen running


through the whole
series of

French Kings, broken

only perhaps in the unhappy Prince

who

closed the

dynasty in the

last century.

Hence the whole auwas exerted


to bring

thority of the French Kings

each successive acquisition of the Crown into political

and

social

conformity with the original kernel of the

kingdom.

And

in this

way

w^as created the

French

love of unity, the French taste for centralisation, the

French national

spirit.

The undoubted power which


all

France possesses of absorbing into herself and im-

buing with her national character

the populations

united with her has been attributed to the French

Revolution

in reality

it is

much

older,

and

may

be

traced in great part to the Salic rule of royal succession.

100

Tin:

KIMi AND

r.AlJLV

(I\1I.

.lU.STU'K.

ciiAi'.

VI.

ClIAPTKIJ VI.
THK KINO.
IN

ins IJKLATION TO

KAHLY

CIVIL .irsTK'E.

WnENEVKK

in

tlie

records of very ancient societies,

l>elonging to races witli which

we come upon
call

we have some affinity, personage resembling him whom we


is

the King, he

almost always associated with

the administration of justice.

The King

is

often

much, more than a judge.


general

or military chief.
priest.

and chief
seldom
justice

But,

He is all but invariably a He is constantly a priest whatever else he may be, he


though
his relation to

fails

to be a judge,

may

not be exactly that with which

we

are

familiar.

The examples
give must be few

of this association which I will

among many.

The monuments of

jurisprudence which lay claim to the highest anti-

quity are those of the Hindus, one of which has long

been vaguely kno^^^l to Europeans under the name


of the Code of Manu.

Many

similar collections of

ancient Indian legal rules have of late been discovered,

and some have been translated, but

it

is

to be ob-

CHAP.

vr.

THE KIXG AXD EARLY CIVIL

JUSTICE.

161

served they none of them deserve to be called Codes.

They are in

fact

books of mixed law and theology,

the manuals in use with the Indian

Brahmans

in

ancient law- schools, in which their subjects were no

doubt

at first

taught orally and committed to memory,

and were only embodied in writing in comparatively


recent times.

They

are further, as

the result of a sort of literary


nal treatises,

we have them, evolution. The origiof


learning,

or rather bodies

dealt

with

all

things divine and human (regarded no

doubt from a purely theological point of view), but


the various portions of this learning became gradually
specialised,
till

at

last

treatises

dealing with

law

mainly, or law entangled with religious ritual, weie


finally separated

from the
far

rest.

In these ancient

law-books,

in

so

as
is

they are law-books, the

authority of a

King

assumed.

He

sits

on the

throne of justice.

He

has the book of the law before

him.

He

has learned Brahmans for assessors.

Some

part of these ideas, like

much

else of

immemorial

antiquity, survive in India.


official

gentleman in a high

position in India has a native friend


life

who
of
it

has

devoted his

to preparing a

new book

Manu.
should

He

does not, however, expect or care that

be put in force by any agency so ignoble as a British


Indian legislature, deriving
its

powers from an Act

of Parliament not a century old.


arises a

He

waits

till

there

King

in India

who

will serve

God and

take

102
the law

Tin:

KiNi;

ami

i;\ki,v

ivii,

.h

stick.

niAr.

vi.

tV"iii

tlir n. \v

Mniiii wluMi lu-

siu

ill liis

court

of justice.
If

wc

]):iss

from

tlir

cxtrcinr
ti)

Must (o

(lie

cxlrciiic

West, from

tlic

castrrlv

the wcstcrlv

wiiii,'"

of

llic

IiuloKuropcan or Arvaii

race.

IVom
'1

Iixlia to Irclainl.

wc

find this

same

association.

hat
is

most

interestin<j^

system,

the

ancient

Irish
it is

Liw,

known

as

llie

Brchon Law, because

said to Iiave been declare<l


fact as nearly as possil)]e

by the

]relions, wlio arc in

the r.nilimans of India, witli


teristics

many
tlieir

of

th(!ir

cliarac-

altered,

and indeed

wliole

sacerdotal

authority abstracted, by the influence of Christianity.


Here, too,

we

find that the great Brehons are


;

Kings

or King's sons

and we come upon the


a

significant

proposition that, though

King
There

is

necessarily

judge,

it

is

lawful for

him

to have a professional
are

lawyer

for

an

assessor.

many most

striking resemblances, often on the


points,

most unexpected

between ancient Indian and ancient Irish


this

law

and

hmt
is

as to the proper constitution of a

Court of Justice

one of th^m.

The
fi'om

ancient

Hindu lawyers claimed a descent

supernatural personages only second to the

gods.
first

The

ancient Irish lawyers pretended that the

of their order

was a pupil of Moses

m the Desert.

But, in point of

fact,

the order of ideas exhibited by

both systems

is

relatively

more modern than that


to

which we can trace in the poems attributed

Homer.

CHAP.

VI.

THE KING AND EAKLY

CIVIL JUSTICE.

163

Here we can perceive the undeveloped form of the


Indian and Irish conception of a Court.

The Homeric
is

King

is chiefly
it

busy with fighting.


is

But he

also a

judge, and

to

be observed that he has no

assessors.

His sentences come directly into his mind


dictation

by divine
or

from on high.
is
'

These sentences,
our

defjLLCTTes

which
'

the

same word with

Teutonic word

dooms

are doubtless

drawn from
is

pre-existing custom or usage, but the notion

that

they are conceived by the King spontaneously or

through divine prompting.

It

is

plainly a

later

development of the same view when the prompting

comes from a learned lawyer, or from an authoritative


law-book.
I

pause on one more instance of the association

The Judges of the Hebrews represent an old form of kingship. The exploits told of them in the Scriptural Book of Judges point to them chiefly as heroes raised up at moments of
familiar to all of us.

national disaster

but, independently of the etymo-

logy of the name by which they are designated, they

were clearly exponents of law and administrators of


justice.

Deborah, the prophetess,


Israel.

who

is

counted

among them, judged


Israel

She dwelt under the


all

palm-tree of Deborah in

Mount Ephraim, and


judgment.

came up

to her for

Eli, the last

but one of the Judges, had judged Israel forty years,

and Samuel the prophet, the

last of

them, expressly

li'l

THE
crcilii
(

Kl.\i

AM) KAKLY
liis

(TVIL

.lU.STlCIC.

ciiAi'.

vi.

riaiins

in
)ii

<iM

ulic

f'i*

tlic

|>uri(y of liis
lli(

jiidirments.
systtMii
is

tlu'

t)tlu'r
till'

IimikI,
lliMt

the (Icclinc of the


.'-oiis
i)i'

^linwii ly

\\iv\

IJi ari3

('X|>iv>sly chariri'*!
ol'

with almsc of authority, and those


rorriiplioii.
|)i-c-ciiily

Sanuu'l

v:\\\\

In

tlie

more mature
the

kingshij)

wliich

succeeded,
nio-t

military
in

functions of the

Kini;'

ai-c

jUMniinrnt

Saul

and David, but


itself
ill

tht' jn<licial

autliority ai^ain manifests

Solomon.
is

There
justice

one portion of these ancient


it is

i<leas

about

on which

necessary to dwell for a

moment
that,

on account of the great importance which they prove


to

have had

for

mankind.

It

would seem

in these early times,

however much the administra-

tion of justice

might be organised, even though a

system of law-courts might exist competing with the


King's justice and quite independent of him, even

though

all

or

some part of the law might have been was always supposed
called a supplementary or residu-

set forth in writing, yet there

to be

what may be

ary jurisdiction in

the

King.

The

law, however

administered, was never believed to be so perfect but


that the royal authority

was always required to eke


as,

out and correct

it.

Just

according to the most

modern
law
is

ideas

about jurisprudence, every body of

thought certain to become an instrument of


is

gross tyranny unless there


to

somewhere a
servility to

legislature

amend

it,

so even that

immemorial

CHAP.

VI.

THE KING AND EARLY CIVIL


is

JUSTICE.

165

usage which

characteristic of very ancient times

did not exclude the correction of usage by the authority of the

King.

We
own

owe

to this belief in a supplein the

mentary judicial authority residing


branches of our

King some
are
in

jurisprudence which

great credit, e.g. the so-called

Equity of our Court of


less repute

Chancery
traced to

and others of much

may

be

it,

such as the old Court of Star Chamber,^

which was established by a belated and therefore unpopular exercise of this same residuary royal power.

But a

large part of

mankind

is

indebted for

much

more than
at this

this to these ancient notions.

Practically

moment two systems


by nearly by
all
all

of law divide between

them

the whole civilised world.

One

is

the Enoflish o

law, followed

the

English-speaking

peoples

by

ourselves,

the colonies actually the

planted by Englishmen, by
Central States
of the

all

Northern and
to a

American Union, and

greater extent every day

by the

millions of India.
it

The other

is

the

Roman

law, whether

take the

form, as in Germany, of what


law, or whether
it

we

call

common

appears under a slight disguise

in the French Civil Code,

and the numerous codes


real indio'enous

descended from
ancient
1

it.

But the

law of
It

Rome
is

deserved no such fortune as

this.

higher antiquity than the statutes regulating

no doubt that the Court of Star Chamber was of it, 3 Henry VII. c. 1, and 21 Henry YIII. c. 20.
There

1G6

Tin:

kinc anp

i-..\ki,v

ivii,

.ustici;.

(i.ai-.

vi.

was

a sliir syhtoiii

ut'

trclmioal and ccivinoiiinus law,


easily rccoo;nisal)lo type.

beloniriii^ to a
iJut
it

common and

undiTwcni

a traiisjormatutii tliroiiL^li tliis

very

ivsiduarv or sinj)lcnK'ntary royal aulliorily of


I

wliicli

have

l>een sjK'akini:;.

Tlir judicial

})o\vers

oi'

tiiose

dinMy seen and half fabulous personages, the Kings


of Iiome,
descended,
at

the

estahlisliment

of

tlie

Ivoman
Pnvtt)r
;

Republic, to the magistrate

known

as tlie

and the old

belief in a divine or serai-divine

inspiration, dictating judicial

rulings to the ancient


into

King, gradually converted


tion, tirst of a religious

itself

the assump-

and then of a ])hilosophical


Pra2tor.

theory, guiding the

more modern

Auguste
illus-

Comte might have appealed


trating

to the

change as

the transformation of a theological into a

metaphysical conception.
large a part of the

What

has descended to so
is

modern world

not the coarse

Roman

law, but the

Roman law

distilled

through the

jurisdiction of the Praetor,

and by him gradually bent


law of Nature. The

into supposed accordance with the


origin, therefore, of a

body of law, regarded by some

of the most civiUsed societies of


fection of reason,

mankind

as the per-

and spoken of by continental law-

yers with what

Enghshmen
is

at all events regard as

extravagance of praise,

to be sought in this

most

ancient behef that law, custom,


all

necessarily

xmd judicature were and naturally subject to correction by

the supreme authority of the King.

OHAH. VI.

THE KING AND EARLY

CIVIL JUSTICE.

167

wish, however, to speak less of early Kings

in general than of the early Teutonic or

Germanic

King and of

his

relation

to

civil

justice.

Our

own Queen

Victoria has in her veins the blood of

Cerdic of Wessex, the fierce

Teutonic chief out of


;

whose dignity English kingship grew


sense she
is

and in one

the most perfect representative of Teu-

tonic royalty, as the English institutions have never

been so

much broken
societies

as

the institutions of other

Germanic

by the overwhelmmg disturbance

caused elsewhere
ideas.

by Roman law and Roman


is true,

legal

But, though this

there
is

is

no community

of which the early legal history


ours,
lately

more obscure than

much
done

as
for

English and German learning has


it.

Fortunately, for an account of the

early relations of the Germanic

Kmg

to justice,

we

can turn to a
constructed at

monument a time when

of ancient Teutonic law


piratical chiefs

from Jut-

land and Friesland were beginning to work the over-

throw of the
island.

Roman
is

provincial administration in our

This

the Salic Law, the oldest of the


insti-

Teutonic codes, the oldest portrait of Germanic


tutions

drawn by a German.

Scholars

are

now

pretty

much

agreed

that

it

belongs
its

to

the fifth

century

after Christ,

and that

preparation was

prompted by the great


effected

codification of
II.

Roman law
Nothing
is

by the Emperor Theodosius

108

TIIK

Kl.Nt;

AM) KAUI.Y IIVIL


llit'

.U'STIt'lC.

chap,

vi,

moiv sinuular than


was
i)f

ilclusiDii,

so

lon/j;

ami so

obstinntrly I'litiTtainod in ICnropc.


citlier

lliat (lie Snlic


aii\'

Law

a systi-iii ol'i'ulcs.
ri<LC>ilatini,^

ni- al

I'atr ((unju'iscd

n set

rules,

tlic

siiiccssion

to

tlironcs

and crowns.
matters.
It

In rcalilv
is

it

deals willi

nuicli

InnnMvr
of tho

conccriKMl -with the daily

lilb
of"

men

avIio

belonged to the confederation


is

tribes called (it

not altogether

German known why) the


all

Salian

Franks.

It

deals with thefts and assaults,

with

cattle,

with swine, and with bees, and above

with the solemn and intricate procedure which every

man

nuist

follow

who would
It

]unish

a "wrong

or

enforce a right.

might be best described as a


legal

manual of law and

procedure for the use or

guidance of the free judges in that ancient Teutonic


Court, the Court of the Hundred.
It is

written in

phraseology which probably

reflects
fifth
it

accuratel}^ the

way

in

which the Germans of the

century spoke
contain interdialect
still

Latin.

Some
in

of the manuscripts of
a

lineations

very old

Teutonic

which,

under the name of the Malberg Gloss,


strongest interest
it

excite the

among

philologists.

With Kings

has nothing whatever to do, except so far as the


is

Kmg

concerned with the administration of justice.


to justify

The famous passage which was once thought

bloody European wars, which caused the war of a

hundred years between England and France, and


which
is still

the basis of the theory of politics called

CHAP. VI.

THE KING AND EARLY CIVIL

JUSTICE.

169

Legitimism, merely gives the rule of inheritance to

landed property.^
This Court of the Hundred, which administered
the Salic

law to the Salian Franks, was the most

ancient of the organised Courts


races.

among
'

the Germanic
'

There were probably

natural

prehistoric

Courts which were older, such as the assemblies (or

moots) of the various village communities, but the

Hundred Court was the


and
the

result of a deliberate attempt

to furnish an alternative to violence


it

and bloodshed,

seems to have been practically universal


tribes.

among
to
this

Germanic

It

has

bequeathed

country a
(as
it

territorial description,

the Hundred,

or

is

called in the north) the


his interesting

Wapentake
'

and

Mr. Gomme, in

volume on

Primitive

Folk Moots,' has traced many of the


its

sites at

which
to be

open-air meetings were held.

They seem
and in the

particularly abundant in Norfolk

east of

England.
institution

The Hundred

Court, however, was not an


vitality in

which had great

our country,

since part of its powers seems at an early date to

have gone over to the larger judicial body called the

County or Shu'e Court, while another part went back


^

De

terrd

{Sailed) in mulierem,
'

nulla portio hcereditatis

transit,' &c.

The word

Salica

'

is

certainly

an interpolation, as

may

be seen at a glance from the tabular compaiison of the

MSS.

in the splendid edition of the

Lex Salica by Messrs. Kern and


et seq.

Hessels.

(London

Murray, 1880), L.S. 379

17t'

Tin:

Ki\(;

and

k.\i;i,y

civii-

.irsTifK.

cmai-. vr.

a^aiu

t)

till'

villairo

coiiiiiiuniiiL's

under

llicir

newer

name of Manors. As the Hundroil Court


it

a|>|H'ai-s in ilic

Salic

Law,

looks at

iirst sit^lit

like

an

i-ntii'cly ]><)jtul;n' !riI)U)ial

witli wliieli rnval autlioritv lias

nothing to do.

The

jud^ros are all the

freemen

livinj^
is

within the limits of


elective

the Hundnnl.

The President

and hears
1

the

name

of the Thuuj^inus or
its

Thiugman.

will say

no more of

general characteristics than


it

tliat it is

intensely technical, and that

supplies in itself suffiis

cient proof that legal technicality

a disease not of

the old age. hut of the infancy of societies,

Uut

it

has one remarkable peculiarity, that in a large class


of cases which come before
or ownership,
It
it
it,

those based on contract


its

does not enforce

own

decisions.
date, this

may

be suspected that, at a

still earlier

singular inability to discharge what seems to us the

most

distinctive
all

function of a judicial tribunal ex-

tended to

the decrees of the

Hundred Court, whates-

ever might be their object.


to be that the

The explanation seems


to be

most ancient Courts deliberately

tablished

by mankind were intended


Courts of Arbitration.

what we

should
tion

call

Their great functo cool, to prevent

was to give hot blood time


redressing their

men from
into
their
redress.

own

wrongs, and to take

own hands and

regulate the

method of

The

earliest penalty for disobedience to the

Court was probably outlawry.

The man who would

CHAP.

Ti.

THE KING AND EARLY


its

CIVIL JUSTICE.

171
If he

not abide by

sentence went out of the law.

were

killed,

his
all

kinsmen were forbidden, or were


the force of primitive opinion, from

deterred by

taking that vengeance which otherwise would have

been their duty and their right.

But

at this

very point the Salic

Law

puts us on

the trace of one of the greatest services which royal

authority has rendered to civil justice.


glance, the

At

the first

King appears

to have nothing to

do with

the Court of the Hundred.


sented

it

by a

class of officers

He is merely reprewho collect his share


if

of the fines imposed royal revenues.

very important part of the


however, that
the un-

We

find,

successful litiojant in the Court

had

ao^reed to abide
it
;

by the
litio'ant

sentence, the King's officer

would enforce
if

and even in the absence of such an agreement,

the

who had been

successful

went

to the Kino-

in person and petitioned him, the King would do him


justice in virtue of his ultimate residuary authority.

These are the

first

feeble

and uncertain steps of


all

royal authority towards the ascendency which in

Teutonic countries

it

has gained over the primitive

popular justice.
this justice,

It has
it

dwarfed and finally absorbed


it

but then

has conferred on

the faculty
it

without which

we can

scarcely conceive
its

existing.

The King has nerved


force of the State is

arm

to strike,

and there

seems no doubt that the process by which the whole

employed

to enforce the

com-

1712

Tin;

KiNt;

anh

i:ai;i,y

civii,

.u'STICe.

ouap.

n.

maiuls of
fjrowinu:

tlu*

jud^t'

is tlic ri'sult, oi"

the contact, ever

in

closenoss,

l>ctAVoon

the royal aiitliority


tlic

and the jx^pular court.


larios of
till'

Wr
Kiiiijfs

jmsscss in

(\i])itu-

Frankish

sonic evidence of the

further course of thesi; relations

hetween the

Kinii;

and the Court.


of the

Afti>r a while, the

popular president

Hundred Court,
is

the

Thinuinan, disappears,

and his place

taken hy the (Jraf or Count, the

deputy of the King.

Royal authority

is

therefore

constantly growing, and, as a consequence,


that the
all

we

find

Count

will use the King's

power

to enforce

decrees of the trihunal, without reference to their

nature,

without previous agreement, and without


King's supreme equity.
officer

appeal to the

The

presi-

dency of the royal

over the Court was the

beginning of a separate set of changes by which the


character of the old popular justice was profoundly-

changed.

Everywhere in the Teutonic countries we

find deputies of the

King exercising authority


and
finally

in the

ancient courts, insisting that justice be administered


in

the

King's name,

administering a
the ruins of the
dis-

simpler justice of their

own amid

ancient judicial structures fallen

everywhere into

repute and decay.

Such being the well-established

consequences of the contact between the Teutonic

King and the Teutonic Popular Courts, it seems worth while inquiring what were the weaknesses of
those
Courts, what seeds of dissolution they con-

CHAP. \i.

THE KIXG AND EARLY CIVIL

JUSTICE.

173

tained,

and what there was in the Kmg, even apart

from

this power,

which made him

their natural suc-

cessor.

Two

forms of authority, the King and the Popular

Assembly, are found side by side in a great number of


the societies of
selves

mankind when they

first

show themare in

on the threshold of

civilisation.

The Popular

Assembly and the Popular Court of Justice


principle the

same institution

they are gatherings


for different public

of the freemen of the


purposes.

community

The King

as political chief is contrasted


;

with the Popular Assembly


contrasted with the
host,

as military leader

he

is

with the general body of

fightmg
is

men

with the Popular Court of Justice he

contrasted as judge, as depositary of the special

judicial authority

which

is

my subject.
disputed,
is

do not enter

upon

questions,

now much

whether the

King
and

or the Popular

Assembly

the older of the


all

two, or whether they have co- existed from


I will

time,

merely observe that the tendency of recent


to assign the

research

is

higher antiquity to the

assembly of tribesmen.
fact that the

Taking

it,

however, as

two

authorities very generally appear


a further

together,

we may remark
follow.

law of progress

which they seem to


those
of which

In such communities as

Athens and

Rome
ideas

are

the

great

examples
of a

in that
part

walled city which was the cradle


of

large

modern

the

o^'gans

of

174
frtHMloiu.

TIIK

KIN(i

AM>

r.AlM.V

ClVlI,

.UsTKi:.

cmai', vi.

;i^

We

slioiiltl

s;iv,

coTitiniiall^'

iiicrcMsc

in

iniporiancc.
Till'

Tlu'
oifluM"
l)iit

assi'iuhlics
(]isa|)ponrs
coinimiiiitii s

inonopolisi;

])()\vor.

KiiiLT

or

bccoiiics

mere
larf^c
is llic

shndnw.
spaces of
Kini;
fall

in

spi-rad

oxer
il

lantl.

and willimit wallrd towns,

who

ufnnvs.

and

all

jiopular instiiiitions tend to


there, then,
far as

into decrepitude.
this

Are

any reasons
re<xiirds

for

growth and decay, so

the

particular institutions with

which

-we are

concerned
Aveakness

judicial
may,
I

institutions?

One source
political.

of

think, be traced in the ancient popidar insti-

tutions, both judicial

and

This Avas the

great

number

of men, and the large portion of every


efficient

man's time, which they required for their


working.

Even

in

communities confined by the

surrounding wall to moderate dimensions, we can


see

the difficulty of bringing

up the people
rope

to the

discharge of their public duties.

Scholars will re-

member
draofsred CO

the
aloncr o

vermilion- stained

which

was

the

streets of

Athens to force the


and which exposed
;

citizens to the place of assembly,

the laggard

marked by

it

to a fine

and their
fee,

recol-

lection will also dwell


obols,

on the famous

the three

which was paid

for attendance there

and

at the

popular tribunal.

Mr. Freeman, speaking of the later

revival of Hellenic freedom in the collection of States

united by the Achaean League

('

History of Federal

Government,'

i.

266), has noticed the effect which

CHAP. Ti.

THE KING AND EARLY CIVIL

JUSTICE.

175

the burden of attendance on political duties had in

throwing

political

privilege

into a few hands


into

and

thus in converting democracies

aristocracies.

Much

of ancient freedom was, in

fact, lost

through
it

the vastness of the

payment

in person

which
class,

de-

manded.
spread

In communities of the other

those

villages over a great extent of country, the

burdensomeness of public duties must always have


been considerable^ and must have become very great

when their size increased through the absorption of many tribes in the same nation. Some evidence of this may be discerned in the importance which old
Germanic law assigns to the sunis or
which
essoin, a

word

which once puzzled English lawyers greatly, but


is

of old

German

origin,

and

really signifies

the ground of legal excuse which a


for
failing

man may make


a

to

discharge any

duty in

popular

Teutonic tribunal.

But the

difficulty is easily
its

unis
/

derstood in another way.

Although
is

pedigree

much

interrupted, our English jury


;

a survival of fi^CM.1^
I

the old popular justice


suppose, receives a
perfect

yet

nobody even now, must

summons

to attend a jury with

complacency.

What, however,

the

necessity for attendance have been

when

the place of

meeting was

at

the other side of the hundred, or

perhaps of the county,

when

there were

no roads in
the eastern

England except the


counties were
little

Roman

roads,

when

better than a fen,

and when the

176

Tin:

kin(i

and kakly
wriv

civii,

.ustick.

cuw.

vi.

WcahU'ti of
is

till-

soulli
lor

n-iilly forosts?

\ v\

tluTc

sonic

jjrouHil

thiiikiiii:;

tluit

llic
tliiiii

hiinli'ii

of

atti'MtlMiict'

was

liLi'litcr

in

I'linliiml

rl-cwlicrc.
I

On

the ('(mtiiicjit of lliiropc, so lon^ as


a

tlic

IiiikIi'ciI

Court had

Livmiiiu' existence,

ami

iiji

to

llic

lime

when

it

was converted

into a liniiti'd ('(jiniiiiltee of

Experts,

we cannot
tliat

trace

any
of
full

relaxation
a<j^e

of

tlic

severe rule

every

man

and

five

must

be present.

Tmt, even in this particular, the beginwliicli

nings of that representative system

has done so
lil)crty

much
in life

to continue the

English form of Teutonic

can be perceived specially characterising this

country.

From very early

times the English

Hundred

and Shire Courts were attended not by every freeman,


but by the Lords of Manors, and by the Reeve and
four

men

representing each village or parish.

Never-

theless there can be little

doubt that even in England


felt

the duty of attendance was

to be very burden-

some.

In the Confirmation of
III.

Magna Charta by

Henry

in

1217, there

is

a provision that the

County Court

shall not
('

meet more than once a month;


i.

and Mr. Stubbs

Const. Hist.'

605) suggests the

explanation that the sheriffs had abused their power of

summoning
absentees.

special meetings of the court

and fining
interest of

He

adds that

it

was the du'ect

the sheriffs to multiply the occasions of

summons.
it,

This multitudinousness,
all

if I

may

so describe

of

Courts of Justice except those of the King, lasted

CHAP.

VI.

THE KING AND EARLY

CIVIL JUSTICE.

177

far
its

down

into the feudal period.

Feudalism attained

greatest completeness in France, and French his-

torians are astonished at the

number

of persons

who

were required for the organisation of a feudal Court


of Justice.

The

principle

is

expressed in a phrase
be tried by his

familiar to us, that every


peers,

man must

which originally meant that his judges were

the

entire

body of persons standing

in

the same

degree
above.

of relation

with himself to some superior


of the

If a great vassal

Crown had
all

to be

tried for treason or felony, all the great vassals of the

French Kings must assemble from


territories of

parts of the

which the French King was the overlord which deprived our
If,

and

it

was

precisely such a Court


fairest

King John of the


were the
able

provinces of France.

on

the other hand, a villein


villeins of the

had to be
French

tried, his peers

same
the

seigneurie.

The

inevit-

result

was

that

feudal
all active

Courts
duties

dwindled into bodies which confided


to a small

committee of experts, and as these experts

were for the most part devotees of the


they
exercised

Roman
in

law,

memorable
absolute

influence

diffusing

notions
specially

of the of

power of the King, and


authority

his

rightful
legis

over

justice.

Quod

principi placidt,

hahet vigor em

this

was

the central principle of the developed

Roman

juris-

prudence.
It

may

thus be believed that the ancient Germanic

17S
l\)j)ul!n*

Tin:

KlNii

AND KAKhV

(IVll,

.USTICK.

ctjiap.

vi.

Courts.

;iinl

j>rnl):il>lv lln-

ri)[>iil;ir

Courts of

many

other

socirtit's, IMI int(


ot'

disliivour or decay, as
larirer
ly

coininuuitics

men
tlie

L'"rew

tril)al

interin-

mixture.
cln<le<l,

tlinuiLili

uuillitu<le

orjuducs
ol"

tliey

and throngli

tlic frn-at

dillieully

discliar<^-

inij judieial functions.

TIk' freeman

wlio oui>]it to

have attended preferred to Btay at

liomc;, .sendinn^ his

excuse ov essoin for the neglect, and sul)mitting to a


fine if
it

were

insufficient.

The

tril)unals

were thus

ever changing into committees of legal experts, with


a strong bias

towards royal authority.


the

Meantime we

know

from other evidence that

King

anrl

the

King's justice

were ever growing

at their

expense;
w^as any-

and we may ask ourselves whether there


thing in the royal
office

and functions which gave


this

them an advantage
Popular Local Courts.
far too long

in

competition

with

the
is

The

story of the struggle

and

intricate to be told

here

but the

habits of the

King gave him one advantage which


interest in pointing out, all the

there

is

some
it

more

because
that,

is

often overlooked.

do not suppose

when

a litigant put himself from the first into

the King's hands, or appealed to the

King over the

head of the popular tribunal, he went to some royal


residence, palace, or castle.

This would have been


of the popular local

an aggrav^ation of the
justice.
It

difficulties

was not the litigant

who went

to the

King, but the King

who came

to the litigant.

CHAP. VI.

THE KING AND EARLY CIVIL JUSTICE.

179

believe

upon

good deal of evidence

that these

ancient kings were itinerant, travelling or ambulatory-

personages.

When they became


The

stationary, they gene-

rally perished.

primitive Kings of communities

confined within walls, like the old Athenian and the


old

Roman

Kings, soon dropped out of sight.

Per-

haps, as Mr. Grote has suggested, they lived too


in full

much
their

view of their subjects for their hurnble


respect

state to

command much

when

the

belief in

sacredness had been lost.

But the more barbarous


a wide territory

King of communities spread over


constantly moving about
it
;

was

or, if

he did not, he too

perished, as the Kings called the

wis faineants of the


to furnish the oldest

Franks.

If I were called

upon

evidence of these habits of the ancient King, I should


refer to those Irish

records of which
for,

the

value

is

only beginning to be discerned,


said

whatever

may

be

by the

theorists

who

explain

all

national charac-

teristics

by something

in the race or the blood, the

most ancient

Irish laws

and institutions are nothinga


in-

more than the most ancient Germanic laws and


stitutions
^

at

an

earlier stage

of barbarism.
I.

Now,
'

See Grimm, Deutsche JRechtsalterthumer


fles

237.

Erstes
.

Geschiift

Grimm

neuen Konigs war sein Reich zu umreiten.' quotes Gregory of Tours, 4, 14, Deinde ibat rex per
'

civi-

tates in cii-cuitu positas.'

He

refers alao to similar duties of the


:

Swedish King, and cites the prayer of the Saxons to Henry IV. 'Ut totam in sola Saxonia setatem inerti otio deditus non transigat,
sed interdum

regaum suum

circumeat.'

N 2

ISO
wlion
to i>ut

Tin:

kim; am*

i;aki,v

<

ivii.

justice,

ciiap.

vi.

Kn;xl>^l>'i''i
tltt'ir

l'l<*

I'MmuukI Spenser
of Inlniid info
tluTi;
tlie

lirst l)('<;an
Avritiii;;'
;it

ol)S('rvnti()ns

tlie on<l

of

tlu" sixtcciitli

century,

was one
keenest
llie

Irish

Jra^ti<'o

of wliich tlicv spoke willi


I

in(li<;-

natioii.

lii^

was
'

\\liMt

tlu>y

called
chiefs,

'cuttings'
is,

and

'

co>.licrini;"s

of

tlie

Irish

tliat

iheir
tlie

])eriodical

circiiits

anioni:;

their

tenantry

for

purp(^se of feasting with their

company

at tlic tenants'

expense.

It

was,

in

fact,

only a hite survival of


life

common
dues, but

incidents in the daily

of the barbarous
to collect his
as

Chief or Kinff,

who had no tax- "gatherers

went himself

to exact them, living

matter of right while he moved at the cost of his


subjects.
it is

The theory of

the Irish law was, though


far it

impossible to say
facts,

how

corresponded with

the

that the Chief had earned this right

by

stocking the clansman's land with cattle or sheep.

We

find

highly glorified

account of the same


life

practice in ancient records of the


Irish Chiefs

and

state of those
'

who

called themselves Kings.


'

The King

of Munster,' says the

Book of

Rights,'

'

attended

by

the chief princes of his kingdom, began his visits to

the

King

of Connaught, and presented to


suits of military array,

him 100

steeds,

100
;

100 swords, and

100 cups
entertain

in return for
for

which the said King was to


at his palace at

him

two months

Ana-

chan, and then to escort

him

to

the territories of

T}Tconnell.

He presented

to the

King of Tyrconnell

CHAP. VI.

THE KI\G AXD EARLY

CIVIL JUSTICE.

181

20

steeds,

20 complete armours, and 20 cloaks, for


said

which the

King supported him and the

nobility oi

Munster

for

one month, and afterwards escorted him

to the principality of Tyrone.'


is

The King of Munster


Tyrone,

then described

as

proceeding through

Ulster, Meath, Leinster,

and Ossory, everywhere beand receiving entertain-

stowing

gifts

on the

rulers,

ment
of

in return.

I suspect that the entertainment is

more

historical reality

than the royal

gifts.

The
as

practice,

however, described with this splendour by


is

the chronicler or bard,

plainly the

same

the

cutting

and coshering which Spenser and others


as
is

denounce
There

one of the curses of Ireland.


reason to believe that the English Kings

itinerated in the

same way and mainly


'

for the

same

purpose.
described

The Eyres
'

of the Anglo-Saxon Kings are


'

by Palgrave in his
(i.

Rise of the English

Commonwealth'

286).

The lawyer might suspect

the continuance of the practice from the comparative

obscurity of some of the places at which some of the

most permanently important of our old


enacted
nell.
'

statutes

were

Clarendon, Merton, Marlbridge, Acton Rura survival of


it

The novel-reader comes upon


were
certainly

in

Kenil worth,' for the progresses of so late a sovereign

as

Ehzabeth

descended

from the
is

itinerancy of her predecessors.

But there

other

evidence of a rather remarkable kind.


scholars,

Two

historical

Mr. Eyton and the late Su- T. Duffus Hardy,

18-

Tin:

KlNt;

AM) KAKl.V
IVdiii

l\ll,

.USTU'i:.

ciiAi-.

\r.

Imw

constructed

(lnciiiiH'iil;iry

trstiinoiiy

ac-

counts of the moveincnt iVoni

i)lacc to place, diiriiiL;- a

lonT space of time, of t\vo<r <nr MuliTisIi Kiiiiis, Kiiiir

IleniT
is

II-

:i'>'l

Kiii^' 'lolin.
Kin<:;,

NCitlici'
in

<!"

tliciii

orcoui'se

very ancient

and

lioili

tlicrc

may have
but
tlieir

been a certain anionnt of native


activitv,

restle.sfsness,

thouirh

it

may have
for

been
1

excessive,

was

certainly not a

new

royal habit.
notice,
in

take the moveliis

ments of Kinj^ John

because

reign

makes an epoch not only


in
'

English
Sir

})olitical

but

l-jiglish

judicial

history.
'

Thomas Hardy's

Itinerary of

King John

gives the places at which

that

King

is

found to have stayed during every month

of every year from 1200 to 12 IG, the regnant year

then beginning on Ascension Day.


a venture
is

I take

almost at
the

May

of 1207.

On

the 1st of
at

May

King

fouml

at Pontefract,

on the 3rd

Derby, on the

4th at Hunston, on the 5th at Lichfield, on the 8th


at Gloucester,

on the 10th

at Bristol,

on the 13th

at

Bath, on the 16th at


LudTershall,
at

Marlborough, on the 18th


at Winchester,

at

on the 20th

on the 22nd on the

Southampton, on the 24th


at

at Porchester,

27th

Aldingbourn, on the 28th at Arundel, on the

29th
Kin"-

at

Knep Castle, and on the 31st at Lewes. The must of course have made all these journeys on
a

horseback over

country scarcely provided with any

roads except the

Roman
when

roads.

But, again, I will


to a

take June in 1212,

the

King goes

more

CHAP.

VI.

THE KIXG AND EARLY

CIVIL JUSTICE.

183

distant and

more impracticable
leaves the

tract of country.

On
the

June 4th
28th
is at

lie

Tower of London, and on


in the

Durham, having been

meantime to

Hertford, Doncaster,

Richmond

in Yorkshire, Bowes,

Appleby, AVigton in Cumberland, Carlisle and Hex-

ham.

What

is still

more remarkable, he marches


country as

at

much
little

the same rate in Ireland, which was then as

known and

as impassable a

the wildest parts of the Sierra Nevada.

now are He reaches

Waterford with his troops from Haverfordwest on

Juae 20th, 1210, and

is

back again at the end of

August, having been at every place of importance in


the south-eastern half of the country.
It

must be

understood that

am

not selecting periods in which

the King's movements were exceptional or his activity


greater

than usual.

This was practically his

life

during every month of every year of his reign.

King

John

passes for an effeminate sovereign, but no com-

mercial traveller of our day, employed by a pushing

house of business, was ever,


in
all

I believe, so incessantly

movement, and

for so

many

successive years, with

the help of railways.

We
ally

are able to see

how

the itinerant

King gradu-

became a monarch of the modern type.


attributed to the

The

change may be

growth of the system

of missi, of itinerant deputies of the sovereign, his


servants,
first

as the English phrase was,

eyre.

The

employment of the missi was much

older than

184
tlu' n'ii;"!!

TUF.

KlNi

AND

K.AKl.Y

ClVll,

.USTIcr,.

niAl'. VI.

("f

iv.nu'

.Itlin

on

tlic

"ontincnl,
as
is

and

foii-

sidonihlv nldor in
cases, Olio
<itluM*.

l"'n<j:lantl.

Iiii.

usual in sncli
di.-itlacc

system

ilid

nii

all

al

oiicc

the

and

Kinii's, thnni;]i
<>r

ui'adiiallv

lu'comini;'

more

stationary

si'<K'ntarv,

did

ndt

suddcidy

cease, to

move
own.

alxMit

their doiiiiiiiiuis
l)v itinerant

wlicn tiny i)0<^an to be

n^presontcd

justiees or dc|nitics of their

The

transition, lunvever,

was

liasteiied

in

our

own eountrv by
wliieli
I

the great constitutional

eliange of

will speak presently.


first

Pmt
life

of

all let

us notice

how

this

ambulatory

of the ancient Teutonic

King gave him an advanthe

tage, as a great judicial authority, over


local

ancient

Popular Courts which had possibly existed from


side.

time immemorial by his

As

have explained,

thev contained in themselves certain seeds of decay.

Their numerous members had the strongest reasons


for

evading or slackly dischargmg what must have

seemed to them a most rigorous duty.


waste

They had

to

many days and


by
forest

to

incur

many dangers
all

while

travelling

and fen

to the place of meeting.

They had
aids of a

to acquaint themselves with

the circum-

stances of the cases brought

them without any of the


Justice.

modern Court of
like a
;

They had

often

to visit the scene of alleged acts of violence.

They

had not merely,


questions of fact

modern

jury, to decide on

they had also to declare the law

or usage and to pronounce the sentence.

And

then

CHAP.

VI.

THE
this,

XmG

AND EARLY

CIVIL JUSTICE.

185

after

all

they might themselves be proceeded

against for a wrongful judgment, and even, according


to the judicial system of

some communities, they

might

be called

upon

to defend their sentence in arms.

capitulary of Charles the Bald bids

them go

to

Court armed as for war, for they might have to fight


for their jurisdiction
;

and

at a later date the oath of

service exacted

by the feudal lord constantly bound

the vassal just as closely to service in Court as to


service in arms.

so severe that

The burden on the poor man was the Church interfered in his favour, and

a Council of the ninth csntury protested against the

cruelty of forcing the poor to do suit in Court.

But while

all

these causes were weakening and

emptying the Popular Courts, the King was constantly perambulating the country, carrying with

him

that royal justice which had never been dissociated

from him since his dignity


*

existed.*

The justice

Avhich

passage in an interesting book, Drew's

Kashmir and

Jummoo,

curiously illustrates the character of the ancient royal

jurisdiction,

and

also

King's activity in exercising

one of the motives which produced the it. Here is an account of what still
the system he follows. Gholab

goes on in the Curia Regis of the Maharajah of Cashmere, himself

a sovereign
Singh, the

much more modern than


first

was established by the English in 1846, was (says Mr. Drew) 'always accessible, patient and ready to listen to complaints. He was much given to looking
of the dynasty which
into details, so that the smallest thing might be brought before

him

and receive his consideration. With the customary offering of a rupee, any one could get his ear even in a crowd one could catch his eye by holding up a rupee and calling out " My Lord the King,
;

18l>

Tin:

KlN(i

AND
the

KAKl.V

(IVII.

.U

STICK.

chap.

VI.

lio (li^|unsi'(l \va.>< in

lirst jilaa'

coinili.U', .siucc

he
It

always

l)y liis ollicfrs

executed his

own

decrees.

was

also irresistible, since he j^en('rally hail willi


!'

Iiiia

the thiWiT
It

the

militarv .^ircnulli of ihc coiiiitry.


luiri-r

was

pr()l)al)iv

tlian

that

of

llic

|(j)iilai*

trihuniil,

which was certainly not iuacccssihle to cor-

ruption

and

it

was more exact,

for anything:; like

pivcise legal

knowledge was very much conlined


followed the

to

the experts

who

King

in his progresses.

^Moreover, in those days, whatever answered to wliat

we now

call

the spirit of reform was conlined to the


;

King and
cedure.

his advisers

he alone introduced compara-

tive gentleness into the

law and simplified


justice

its

pro-

Thus the royal

was ever waxing


;

whUe

the popular justice was

waning

and from the


fact

ascendency which the

first finally

attamed are in

descended most of the characteristics which


ciate

we

asso-

with the law, and which some theorists declare


!

a petition " He would pounce down like a hawk on the money, and, having appropriated it, would patiently hear out the petitioner.

Once a man

after

this fashion

making

his complaint,

when
and

the Mahai-ajah was taking the rupee,

clo.sed his

hand on

it

said, "

No

firet

hear what I have got to say."


;

Even
till

this did

not go beyond Gholab Singh's patience


told his tale

he waited

the

man had

and opened

his
'

gave orders about the

case.'

hand ; then, taking the money, he The civil and criminal aises,' it is
and perhaps have

afterwards stated, 'have usually been previously inquired into by


judicial officers in the Courts of First Instance,

been adjudicated upon by the Court of Appeal; but


suitors
himself.'

it is open to and complainants to try their fortune with the Maharajah

CHAP. Ti.

THE KING AND EARLY CIVIL


it

JUSTICE.

187

to be inseparable from

uniformity,
down
The
itinerant

inflexibility,

and

irresistibility.

It

may

almost be laid

that in

England
is still

nothing wholly perishes.


represented
Circuit
;

King

among us by

the Judges of Assize on

the ancient Popular Court survives in the

Jury, though in the last instance- the line of descent


is

far

dimmer and

far

more broken than

in the

first.

When John

reigned, the delegation

of the royal

authority to itinerant servants of the

King

for

some

purposes had long been

known

but one branch of


Pleas, or in

royal jurisdiction, that over the

Common

other words over the greatest part of the more important


civil

litigation

of the nation, was carried

about with him by the King in those surprising progresses of which I have spoken.

Hence gradually
approached each
difficulty in de-

arose a great abuse.

In primitive times, when ques-

tions were simple, the


local centre in turn

King

as

he-

had perhaps no

ciding every case which

came

before

him

before he

went away.

But, as a more complex and wealthier

society arose, there

was the greatest


it

difficulty

in

getting the King, as


a day.
Sir Francis
'

was

called, to give the suitor

Palgrave has printed in the second

volume of his

Rise of the English


is

Commonwealth

'

most curious document, which


one Richard de Anesty
of-

the account given

by

the trouble and charges to


civil

which he was put in respect of a mixed

and

188

Tin:

Kl\(.

AND

llAKl.V

IVll,

.U'STICK.

ciiav.

vi.

ecdi'siastiral oaso wliicli

lie

had

Ix lui-c tlu'

Ardihislioj)

of Cnntorlmrv and
tion from
llnii-y

tlu' Kiii^-.

lusidis iidinito vexalie

the Ilcclcsiastiral Courts,

had to (nlh)w
;iiid

II. ac*ro>s

the sra to I'rancf and up

ihiwii

Knj^huid

ln'fori' \\v

couhl

i^^d

liis

dav.

After

i-eatHiii^

tliis jtaper.

we
no

i::iin

a vi\ id i(ha

of the importance of

tle

j)rovi>ion in the (ireat Charter that the


Km;j;er

'Common
is a

lMea> >hall
judieial

foUow

tlu; Kinii.'

This
in

i^reat
;

ejM)i'li.

markinu" a revolution
at

judicature

and

Kim:- dolni
it.

once jiroceeded to ilhistrate


sealed

tlie

necessity for

He
15,

Magna Charta

at

lunmy]')

mede on June
liad

121o, and before July

he

been over the whole of the south of England and

again northwards as far as Oxford.

Meantime the

judges of the
did ever since

Common
till

Pleas were sitting

as they

the Court of

Common

Pleas

was

absorbed the other day in the High Court of Justice

at

Westminster, and at Westminster only.


the sealing of the Great Charter the early

With
justice

history of the relation of the English

King

to civil

comes

to
is

a close, and the


established.

modern English

judicial system

It is distinguished in

some respects from the corresponding systems of the European Continent, though these too were
the same general causes.
tralised
all

results of

It is the

most highly cen-

system of judicial administration in the world,

the important branches of judicial business being

locahsed in

London, and

portion only diffused

CHAJ. VI.

THE KIXG AND EARLY CIVIL

JUSTICE.

189

through the country by Judges in eyre, the old missi


sent from the side of the King.

modification of these

The only considerable principles was made when the


established, courts ex-

modern County Courts were

tremely unlike the old Shire Courts.


left

These

last

have

the merest trace behind them, perhaps in some


trees

mound now overgrown with


trifling fine

which marks

their

ancient place of open-air meeting, perhaps

some

imposed on landholders for

failing to

attend a non-existent tribunal.


dition

Even with the

ad-

of the newer

County Courts, the English

judicial system has another feature peculiar to itself

the fewness of the judges employed in administering


justice.

If

you look across the channel


characteristics

to France,

you

find
little

these

reversed

comparatively
number of
like the

judicial centralisation, a large

local

courts,

a multitude of judges distributed over the

various tribunals.
lish

The French King,

Eng-

King, became the theoretical fountain of justice,


eff^ect

but the

was produced much more by the

zeal

with which expert lawyers trained in the

Roman law

preached his authority than by direct supersession of


the local courts

by

emissaries of his own.


itself,

On

the

other hand, the character of the law


administered, was

however
and

much more changed

in France

on the Continent generally than

in England.

The

Roman

law gained everywhere a considerable, and

l'T()

Tin;

KiNti

AM)

r.\Ki,v

civii,

.ustici:.

(iiac. vi.

here niul

tlu'iv
tlic

a coM|>lot(\ asri'iHlfiicy
I'^nMich
is

over .mc'unt
(!"

cnstm. aiul
tlio

Civil Code, the iitcoiiic


ol

lu'volutioii.
I>nt,

only a version
inncli
is

iJiMuan jurisin
llic

pnuU'nce.

tlionnfli

ohscuic
tlic

K'triiininirs <^r

what we

j^iiii-lislnncn call

Coniinon
vti-sioii

Law.

it

was nndouhtedly

in

the main
l>v
i1h'

of

(^iTMianic

nsaw.

jrcncralised

Kin^s courts
()})j)osition
still

and

justioos.

Some savour
since

of the ancient

betwocn the popular justice and the royal justice


clunir

about

it,

we know

that,
it

theoretically
at a

administered in the King's name,


later date to be

came

much

thought the barrier of popular liberty

against assertions of prerogative

by Tudor and

Stuart.

Meantime
justice,

that residuary authority over

law and

which was never

in ancient times quite dis-

sociated from the King, survived the maturity of the

common law. From

this

sprang the j urisdiction of the

Court of Chancery, which cannot be said to have ever


been exactly popular, but which certainly owed whatever unpopularity attached to
it

not to any supposed


its dilatori-

inherent badness, but to incidental vices,


ness and
its

costliness.

But then from this same


become with ordinary

residuary authority arose the criminal jurisdiction of


the Star Chamber, which has

English historians a very proverb of judicial oppression.

The

true historical difference, however, betw-.en

the so-called equity of the Court of Chancery, and


the illegalities and unconstitutionalities of the Star

CKAP.

71.

THE KIXG AND EAKLY CIVIL JUSTICE.


is

191

Chamber,
rity

that one had


it

its

origin before the autho-

whence

sprang had been seriously questioned,

while the other did not obtain


diction
till its

an effectual juris-

time had gone by.

The depth of
fell

dis-

credit into

which Star- Chamber justice


fall

marks the

decline

and

of the King's beneficial influence over

law.

The

royal judicial authority

was once the most


all

valuable and indeed the most indispensable of

reforming agencies, but at length

its

course was run,


its

and in nearly

all

civilised

societies

inheritance

has devolved upon elective legislatures, themselves

everywhere in the western world the children of


the British Parliament.

192

TIlKl)UIH.S

1)1'

rUlMITlVK SOC'IKTY.

riiAi^TF.i;

VII.

TIIEOKIES OF rKIMiriVK SOCIETY.


f

Some years ago


'

(in

1S61)
I

piiblislicd

work (on

Ancient Law') which

described in the preface as


'

having

for its chief object to

indicate

some of the
reflected

earliest i<leas

of

mankind

as tliey are

in

Ancient Law, and to point out the relation of these


ideas to

modern thought.'

It

was not part of


origin of

my

object to determine the


society.
I

absolute

human

have written very few pages wliich have


subject,

any bearing on the


certain
distaste
to

and

must

confess a
I

for inquiries which,


far,

when

have

attempted

push them
fog.

have always landed

me
I

in

mudbanks and

The undertaking which


as

have followed in the work just mentioned, and in


has been to trace the
real,

others,

opposed to
history
I

the imaginary, or the

arbitrarily assumed,

pf the institutions of civilised men.


it,

When

began

several

years

before 1861, the

background was

obscured and the route beyond a certain point obstructed

by a

priori

theories

based on the hypo-

CHAP.

vii.

THEORIES OF rRIMITIVE SOCIETY.

193

thesis of a

law and

state of Nature.

In endeavouringto point out

to get past this barrier, I

had occasion

the

claims

of the

so-called

Patriarchal
real

theory of

society to be considered a

historical

theory

that

is,

as a theory giving

an account upon rational

evidence of primitive or very ancient social order.

The Patriarchal theory

is

the theory of the origin

of society in separate families, held together

by the

authority and protection of the

eldest

valid male

ascendant
ance of

and, having dwelt on the peculiar importin investigations such as I

Roman law

was

prosecuting, I insisted in a few pages of the testimony to this theory supplied


records of

my

book on
earliest

by the

Roman jurisprudence. We have not

indeed
in

knowledge of any working system of institutions


family assumed by the theory.

which the Family exactly corresponds to the primitive

The Roman

law, as a

working system, takes a view of Family


diiferent

and Kinship not very


in

from that accepted


to

modern

societies,

but

we happen

have unusual

facilities for

ascertaining a very ancient condition of


it

this law,

and

is

not possible to doubt that, when

the law

was

in this state, the


it

Family and the Kin-

ship of which

took cognisance had for their basis ^

the authority of the eldest male ascendant.

Other

bodies of old usage

and

legal

rule,

less

perfectly

known

to us than the

Roman from

the scantiness or

the inferior quality of their materials, seemed to

me

IPI
to
suixijfi'sl

TllKdHlKS or I'KIMITIM: SOCIKTV.


that a I'^imilv oi'^iaiiiscd
ht'cii

cini'. VII.

on

tlic

I*a1riarclia]
of"

iinxlol

had

the near or rniiotc antccc'lciit

thf
a|-

Fainilv which
|)i'an'<l

they

rcflcctr*!.
tliis
it

The

IIiii<hi

law

to

me

to

suL'^.i^cst

very strongly.

So

diil

Shivonian hiw. as
soenie<l

far

as

\vas

known.

^Jrcck
less

law
dis-

to point

to

tlic

yamc condnsioii,
;

tinctly yet
fully.
tlio

not very ohscurelv

and, nion^ douht-

ancient law of the Teutonic races.

The

evidence appeared to

me

very

much

of the same kind

and strength

as rliat

which convinces the comparannnihcr of Wi^rds


a
in diflerenr

tive philologist that a

\ryan languages had

conmion ancestral form


mother tongue
;

in a

now unknown
the
inquiry,
*

ancestral

but

I stated

with some caution the opinion that, at that stage of


the difficulty

was

to

know where
it

to

stop and to say of

what

races of

mankind

was not

allowable to lay

down

that the society in

which they
patri-

were imited was originally organised on the


archal

model

'

('

Ancient Law,' 123).

My
is

book was

published in 1861, and delivered as lectures in the


four or five previous years,

and

it

needless to

say that, since then,


to,

all this

evidence has been added

re-examined, and placed in

new

lights.

We now
law

can discern something of the real relation which the


sacerdotal

Hindu law bears

to the true ancient

of the race.
in

Slavonian law and usage, chiefly


is

known

1861 from the books of Haxthausen,

becoming;

more

trustworthy subject

of study through the

CHAP.

VII.

THEORIES OF PRIMITIVE SOCIETY.

195

labours of Prof. Bogisic.

The

earliest

monuments

of

German law have been


Irish

repeatedly fought over by

earnest controversialists, with no very certain result.

The

Brehon law, once

inaccessible, is gradually
Still, if

becoming known to students of archa3ology.


tutions of the group of societies

the inquiry were to be confined to the ancient insti-

which

examined
the

more than twenty years ago,

I should

mamtain

conclusions which I reached, subject only to some


qualifications

which are suggested in the

first

four
>

chapters of the present work.


of an altogether

But much testimony


obtained, since I

new kind has been

wrote, from the ideas and usages of societies which


live in a condition of

barbarism or savagery, and the


us, J. F.

two zealous
and L.

now lost to H. Morgan, who have put


inquirers,

McLennan
on the
society

this testimony into

order, have been led

by

it

to form opinions

primitive or very early condition of

human

which they themselves at

all

events consider to be
I

quite inconsistent with the Patriarchal theory.

am
I

desirous of stating in what light I see these

new

facts

and

theories,

and of showing

at the

same time that

have not neglected the friendly challenge to examine

them which Mr.

J. F.
'

McLennan addressed

to

me

in
I

the preface to his

Studies in Ancient History.'

trust that the general considerations to which I have

been conducted
sons

may

obtain some attention from perI

more versed than

atn in this special line of

196
study
tniUT.

THKORIKS or IMMMITIVItill
iittt

Six IKTV.

chap.

vil.

1>it

print tlirm witliDut s<iino

ivlucin

siiu-i'.

as

will
I

ajtpcar

iVnm

ri'iuarks
tlio

the

followinir pniros,

am

not satisfied that

investi-

gation has advanced far enoniili to admit of a very


confident
(>]>ini<n.

Thr
said,
tiie

ratriarchal

tliciMy of society
its

is,

as I have
families,

theory of

origin

in

separate

held to2;cther hv
tlie

the

authoi'ity

and

protection of

eldest valid

male ascendant.
theory
is

It is

unnecessary

to ad<l that this

of considerable antiquity.
it

So

far

as

we can judge,

first

occurred

to

the

great

Greek observers

and

philosophical thinkers

of the fourth century before Christ.


iii.

Plato
i.

('

Laws,'

680) and Aristotle


it,

(' Politics,'

2) both enun-

ciate

the

first

briefly,

the

last

with so

much

detail

that little has

been added in more recent


it.

times to his statement of


to

It

may

be proper here
l)y

remark that the theory was not founded

them
it

on mere conjecture.
actual observation.

They both

profess to base

on

Plato expressly says that form.s

of society, answering to the assumed original groups,

survived in his day

he

calls

them by the obscure


;
'

name BwaaTelat
ships
').

('

chieftainships

Jowett,

'

lord-

Aristotle expressly appeals to the actual


'

social state of

barbarians.'

It

should be noted that


as

the opportunities of these

observers were such

can never again recur.

Living more than 2,000 years

CHAP.

vir.

THEORIES OF PRIMITIVE SOCIETY.

197

ago, tliey were so

much

nearer the barbarism of the

greater races

the societies open to their observation

were not the mere waifs and strays of humanity, but


people of the same ethnical stock with themselves

and ourselves, lagging, however,


in civilisation.
will Aristotle,

far

behind the Greeks


I

whom nobody

suppose

deny

to

have been a good observer, had abundant

material for his conclusions.


scarcely Hellenic city of

He was born in the He passed much Stageira.


Court of Pella, where
to the

of his
his

life

at the semi-barbarous

father

was physician

Macedonian King.
'

And

he

left

a special treatise

on

'

Barbarian Customs
lost.

(voiiLixa jBapfiapLKa),

now

unfortunately

The

Patriarchal

theory,

during the dark ages,

would have shared the


speculation
if it

fate of

much

else in

Greek
corre-

had not been kept

alive

by

its

spondence with the Scriptural account of the Hebrew


Patriarchs.

But, in the 17th and 18th centuries,

its

place

was taken by a priori theories of the State of


satisfied curiosity as to the original Its revival

Xature which long

condition of mankind.

may
'

be said to be

owing

to Niebuhr's discovery of the

Commentaries

of Gains,' which,
ancient

though not directly treating of


us to divide
it

Roman

law, enabled

into

successive stages or strata, and gave us a singularly

complete view of the earliest


sure,

among them,

am

not

however, that the appeal to

Roman law

has not

done disservice with some minds to the Patriarchal

108
thcorv.

THKOIJIKS

Ol"

I'KIMITIVK SOCIKTY.

riiAP.

vn.

It

lins cncoui'jiLittl

lli<'

1h licC lli;it

i(

rdiMTcd

ton

rclativi'lv !i(l\:iiTl socinl onlrr.


iiiti

Now
))otli

IM.'iIomihI
lt:irit

Aristotle clrnrlv

iulr<l

to dcscrilie a

lii^lily

liarous condition of
Intlio

tlic racr.

I'lcy

illustrate

Homeric storv of the 'Cyclops,' 'who

lia<l

neither assemblies for eoiisiiltation

nor dooms, but

each exereised juristlietion over (issued dooms to) his

wives and
another.'

cliildren,
luit the

and they paid no regard

to

one

family irroups contemplated by the


;

theory are more than barbarous


savage,
if

they are extremely


life

the test be

a})})lied

of analogy to the

of

animals.

The strongest and


on

wisest male rules.

lie

jealously guards his wife or wives.

All under his


child

protection are

an equality.
it,

The strange

who
1)orn

is

taken under
it

the stranger

who

is

brought

under

to serve, are not distinguished


shelter.
is

from the child


wife, child, or

under the

But when
all

slave escapes, there

an end to

relations with the


to

group, and the kinship which means submission

power or participation
This
is

in

protection

is

at

an end.

the family (to borrow Sir George Cox's ener-

getic expression) of the wild beast in his den.

But

when

these several relations are decorated with the


technical

Roman

names of Patria

Potestas,

Manns,

Dominion, Adoption, Divorce, Agnation,


pation (which

Emanci-

mean

precisely the
is

same things), an

impression of recency

given which some minds are

clearly unable to shake off.

CHAP.

Til.

THEORIES OF PRIMITIVE SOCIETY.


is

199
to that

The other theory which


long called Patriarchal
society,
totle
is

now opposed

the theory of the origin of


.

not in the Family but in the Horde

Aris-

and the writers who have followed him suppose


the
larger groups

that

of

men

discernible in the

twilight

of history

have somehow

grown out of

isolated families

like that of the

Homeric Cyclops.
it

As

these larger groups first

show themselves,

is

impossible to believe that they are composed through-

out of blood-relations,

but the Patriarchal theory

according to recent interpreters assumes that there


is

a real core of consanguinity in some or most of

them, to which a rtificial ad ditions have been made,

by a number of ^tions of which Adoption


type
cess,
;

is

the

and that others have been created by a pronot wholly extinct,^ of imitating a dominant

or
'

fashionable model.

My own
stated

conclusion in
:
'

my

Ancient
is

Law

'

was thus

The conclusion
is

which

suggested by the evidence

not that all

early societies

were formed by descent from the same

ancestor, but that all of

them which had any perma-

nence or solidity either were so descended or assumed


that

they were.

An

indefinite

number of

causes

may have

shattered the primitive groups, but where-

ever their ingredients


'

recombined,
'

it

was on the

See Sir A. Lyall's paper on the

Castes,'

now forming Chapter IV.


'

Note A, on The Gens/

to

Formation of Clans and and see ; Chapter VIII. of the present work.
of his Asiatic Studies

'JOO

Tlir.oKIKS dl"

I-|;iMITIVi;

SkII:TY.

niAr.

vii.

iikhIcI

or

prim-iplc
llic

of
tact,

:iii

iissocMatioii
llioiiirlit,

of

kindi'cd.

Wliatt'ViT wen-

all

laiiiruam',

and
'I'he

law

;i(ljusto(I

themselves to the
to

assinn])tioii.'

tluMirv.

which deserves
ol'

he

associated

witli
sai<l

the
in

names

Mcl.ciiiian

and

^loj-Lfaii.

may

he

8ome sense

to invert this

aceonnt of the
the lar*^er

Jiiatter.

It

derives the smaller from


larLTer

uroii]),

not

the

from

the

smaller.

Founded, as

was the

i*atriarehal theory,

on observation, but on observation

of the ideas and practices of the

now

savage races,

it

deduces

all later social

order from the miscellaneous,


I

unorganised Horde.
find
it

must confess that

do not

easy to bring

home
I

to myself the nature ot

the original gi'oups as conceived either


or

by McLennan

by ^lorgan.

But

think I

may

lay

down

that

these assemblages are regarded as companies of

men

and women, in wdiich the relations of the sexes were


wholly unregulated
at
first,

but

passed through

various stages of limitation or restriction until the

Family,

Patriarchal

or

other,

was

reached.

The

modern

social order is thus the result of a modified

]iromiscuity.
differ

These two

most

original

inquirers

widely in their determination of the stages


this course

through which

of development passed.

Totemism
in the

(or the origin of the conception of kinship


their bodies), the

mark placed by savages on

slaughter of female children,

woman- stealing, polyan-

dry (or a plurality of recognised husbands), and the

CHAP.

Til.

THEORIES OF PRIMITIVE SOCIETY.

201

well-known Levirate, play a great part in the system


of Mr. McLennan.

Consanguine Marriage, Punaluan

Marriage (or the intermarriage of brothers as a group

with

sisters as a

group), and Classificatory Relation-

ship (or the confusion under the same general view

and name of
the

all

members of the
are

tribe belonging to

same

generation)

all-important

to

Mr.
\

Morgan's theory.

But both agree

in considering

human

society as beginning in promiscuity,


its

and

as

continually modified by

progressive regulation, as
lifting itself

beginning in the Horde and as gradually


till

the Family was reached.


to

Both writers seem


and

to

,^

me

hold that
the
at

human
series

society

went everywhere
Mr.

through

same

of

changes,

McLennan

any

rate expresses himself as if all

these stages could be clearly discriminated from one


another, and the close of one and the of another announced with
clock-bell, telling the

commencement

the distinctness of the

end of the hour.


it

Before I go further, I think


that the point at issue seems to

useful to remark

me
is

capable of being

more simply

stated than

it

usually

by

these writers

and their followers.

The

chief or the one piece of

evidence obtained from

now

savage

societies,
is

which

points to an original promiscuity,

their habit of

tracing relationship for some purposes through females


only.

When, however, the

inference from this charac'

teristic is

stated to be that

the exo2:amous totem-

ilO*2

TiiKOinr.s

ov

i-kimitini;

mx

iktv.

chap. vu.

kin' of McLi'iman, or

llu"

i;roii|)

wliicli

Mor^'aii
'

\>y

an unhappv
necessarily
forins

/wfitio prlnri/>ii
(ltk'r

has

callcMl

tho

f:c^'ns,'

is
its

(lian

iIjc

l-'aiiiily.

which

In

all

assumes sonu'
lanv^uai:^o

o-rtaiiity
h-ail
t(j

of male

i):ii-(iila<^^c',

such

may

confusion of

th()iii;hl.

The physiological elements of the Family must


ways have been
present,

al-

and must always have been

the source of the larger groups.

A human

being

can no more, physiologically, be the child of two


fathers than of

two mothers, and the children of the


less

same man, no

than of the same woman, must

always have had somethmg in their nature which


distinguished them from every other group of
beings.

human

What

therefore

is

meant

is,

that though the


it

Family must always have

existed,

could not be

recognised through prevalent habits, and through the

consequent uncertainty of paternity.

think

it is

imnot

portant to call to notice that the fact alleged


a fact of

human
is

nature but a fact of

human know-

led o-e.

It

merely intended to be asserted that


long
prevented
savage

circumstances

men
is is

from
matter
matter
as

discovering and recognising paternity, which


of inference, as opposed to maternity, which of observation.
It
is

certainly remarkable

that,

soon

as

intelligent
it

curiosity

was directed

to

the

question,

seems to have exaggerated the share of

paternity in parentage.

Probably

it

was so directed

very early

there

is

a strikmg

remark of M. Fustel

CHAP.

YTi.

THEOKIES OF PRIMITIVE SOCIETY.


tlie

203

de Coulanges, that to

ancient societies based on

kinship, the problem of generation

was very much


to in

what the problem of


Euripides
^

creation
states

is

the
his

moderns.

distinctly

that

day the and

universal physiological doctrine

was

that the child

descended exclusively from the male parent,


Hippocrates
this opinion,
(irepl 77at8tou), in energetically

combating

and contending that the child descended


it

from both parents, seems to admit that


prevalent heresy.

was

For the purpose of agreeing with


that the

McLennan and Morgan, we must assume


not very
difficult

observation on which the opinion

rested could not be made, so brief


clusive

and so

little

ex-

was the union of the

sexes.

It appears to
^

me that,

while the Patriarchal theory

Euripides, F7-ag. Stohceus, 77, p. 455

AW'
TO
fii)

tor', ifioi fiei'

nvroc

ovi^ (.(ttcii rnfiog


rif.iEiv uei,

ov

<T, jjirJTep,

7rpo(T(f)i\ii

Kai Tov hiKaiov, kui tokwv tCjv


aripyii) ht

awv

j^opu'*

tov

(j>v(T(ivTa

twv
ovc'

Trarrior fifJOTwy

yuaXtaS
KEirov

vpi^tt)

TovTo, Kal

<tv ytu) (jidovei'

yap i^tftXaarov,

ar

I'lC

aviip

yvvatKog

avli](riiEf, aXAct

tov irarpoQ.

This passage

is

parallel to

a better

known

passage in the

Enmenides of ^schylus, in which Apollo, as advocate for Orestes, argues that he was not of kin to his mother, Clytemnestra, whom he had killed. The argument seems to me wholly physiological, and not in any way archaeological. Apollo, like an advocate of
the present day with a doubtful case, appeals to
physiology.
the newest which the Eunienides on the other side declare to be trampled under foot, are those of accepted morality, as may be seen from the first lines of the above fragment.

The

'

ancient rules

'

*Jl>4

TIlKOUlhi^

OF

ritlMITIVi: SOCIKTY.

ciiAP. Vli.

ami the countor-tlioorv of


oach
explain

wliirli

liaxc hccii
ctrtaiii
<)]cii

s|t(';ikiiiu'

rcasonaldy well
Ixitli

iiuinln'i'

ol

ancient social phcnonicna,


^ al)lc nltjtition as

arc

to con.sidci-

uiUNcrsal

tlu-oi-ji's

of

tlic

genesis

ol'

society.

There arc inKjUcsiioiiaMv manv asx'inhlages

of savaixe

men

so devoid of

sitiiic

of

tlic cliai-aclcristic

fcatiu'cs of Patriarchalisni

that

it

seems a gratuitous

liyjiothesis to
it.

assume

tliat

they liad j)asscd throufi;h

It

oujrht further to be admitted that


tlie

much

of the
is

archivological evidence for

Patriarchal theory

capable of being so put as to suggest the conclusion


that the societies, seen to be almost but not (juite in

the condition from which the theory supposes


to have started,
tendino- towards

them

are approaching that condition or


it,

rather than declinino^ from

it

as

an older
all

state.

But on the other hand, apart from


surrounded by
^\v.

disputes as to the value of the evidence in detail,


is

the newer theory

difficulties quite

as grave or graver,

state of relations out of

McLennan compared the Avhich he conceived human


by the
cities.

society to have lifted itself to that exhibited

unfortunate class

now found in
infertile

great European

But tbe comparison suggests the


class is almost

reflection that this

wholly

and though doubtless


offered, a
I

explanations of the

phenomenon may be
at the

good deal of evidence ^ (which


3

same time

do

An

eminent living physiologist (Dr. Carpenter) who

visited

the

West

Indies before the abolition of slavery, well remembers

CHAP. vn.

THEORIES OF PRIMITIVE SOCIETY.


tliat

205
such

not represent as conclusive) tends to show


a state of original promiscuity as that which

McLennan

and Morgan postulate tends nowadays to a pathological

condition

very unfavourable to fecundity

and infecundity, amid


implies

^perpetually belligerent savages,

weakness and ultimate destruction.


is

far

greater objection

that the theory takes for granted

the abeyance, through long ages, of the mightiest of


all

passions, a passion

which man shares with


It is

all

the \^

higher animals, sexual jealousy.


contrasted with the Patriarchal

thus strongly

theory,

which

vir"^

tually assumes this jealousy to be the force binding

together and propelling the ancient social order.


will

presently deal with

this

difficulty at

greater

length.
I

have never myself imagined that any amount


written or observed,

of evidence of law or usage,

would by

itself

solve the problems

which cluster
'

round the beginnings of human

society.
'

The imtrifle

perfection of the geological record

is

a mere

the efforts of the Planters to fox-m the negroes into families, as the

promiscuity into which they were liable to

fall

produced

infertility,

and

fertility

had become important

to the slave-owner

through the
that,

prohibition of the slave-trade.

It should be

added

inde-

])endently of pathological evils, the

same infecundity would follow if the promiscuity arose from a considerable inferiority in number It is only under very unusual circumstances of women to men. that a small number of women would give birth to offspring equalling numerically the whole parent generation, male and

female.

"lOCt

TIIKDKIKS OV ri:iMlTIVi: SOCIKTY.

Oli.vr.

vu.

to
'

tlio

imj'i'rfivtion

of

tlic

.iiclja'oloi^ioiil

record.
ATicicnf,

Wliat

wen' the motives.'


^|).

nskcd

in

inv

'

\.:\\v'

l'70\

'

wliirli
tlic

orii^iimlly

prompted men

to
;i

hold tou^etluT
(jucstion,'
otlior
I

ill

family union?'
'

'To

siicli

answori'd.
is

durispnidciK'c iinassistcMl by
to
i^ivc

sciences

not compt'tcnt
1k'

reply.'

This antioi}>ation of aid to


science has been fulfilled,
wliile the greatest

I'xpectcd from hiological


it

and

is

remarkable that,

luminary of ancient science invented

or adopted the Patriarchal theory, the greatest


in the science of our da}'
is

name
Mr.

associated with

it.

Darwin appears

to

me

to have been conducted

by

his

own
tive

observations and studies to a view of the primicondition


of mankind,
this theory.
ii.

Avliich
'

cannot be

dis-

tinguished
('
/

from

AVe

may

conclude

Descent of Man,'
all

362) from what we

know

of

the passions of
intercourse in

male quadrupeds that promiscuous


state

a
If

of nature

is

extremely imin the

probable.

...

we
is

look

far

enough back

stream of time,

it

exceedingly improbable that


lived promiscuously tosocial habits of

primeval
gether.

men and women


Judging from the
exists

man

as

he

now

and from most savages being polyis

gamists, the most probable view


aboriginally lived
as

that primeval

men
with

in small communities, each

many

wives as he could support or obtain,


all

whom
other

he would have jealously guarded against

men.

... In primeval

times

men

would pro-

CHAP.

vir.

THEORIES OF PIIDIITIVE SOCIETY.

207

bably have lived as polygamists or temporarily as

monogamists.

They would not

at

that period

have

lost

one of the strongest of

all instincts,

common
yoimg
the

to all the lower

animals, the love of their

offspring'

(p.

367).

With

his usual

candour Mr.

Darwin

admit'^,

though with some

hesitation,

conclusions of writers

who have
his,

followed a different

path of inquiry from


licentiousness
*

but he thinks that the


savages

attributed

to

belonged to a
in his intellec-

later period

when man had advanced

tual

powers but retrograded

in his instincts.'

It

must be remembered that

a difference in the

nature of the sexual union, answering to the difference


of view separating the Patriarchal theory from
opposite, runs through the
its

whole animal world

and,

under such circumstances, considering: the extreme


scantiness

of the

archaeological evidence,
call in the

it

would

seem reasonable to

testimony of those

who

have made the animal world their study.

When

man had most

of the animal in him, he belonged to


;

the highest animals

and

this is the consideration

which gives such importance


It

to Mr. Darwin's opinion.

would be possible
absolute

to deny,

or to shrink

from,

the
'

conclusion reached in the


')

book (the
;

Descent of
it

Man

in

which

this opinion is stated

and yet

would remain a most wonderful magazme

of facts, pointing to the prodigious influence of sexual jealousy in the animal world, a force increasing in

20S
intensity

Tiir.uiins

ci'

ri:i\ii ri\

i:

xm
in

iitv.

<iit.

vii.

a>

ilir

:iiiiin:il

ascriul.s

lie

scaU',

an*^

conijH'llin^^;

tiio

sexes to associale in ^ruiijjs closely


tliose
in

analogous

to

which
to
l>c

Plato
united.

jiiid

Aristotle
(oreij::n

coneeiv'<l j)riinitivc iiuii

The

lal)onivrs in

the licM
ns.

which McLennan ami

\Ioi'<^an

have occupieil with

have mostly had the advantage


;

of biological training;
fonneil

and they seem


as
]\Ir.

all

to

have
I)r.

the

same

eoiudiision
full

l);ii\vin.

Letoiirnoau.

whose very

and very

valiiahle

com-

pendium of the
against the
is
'

facts of savai^c life contains a protest

modern English

theories as ])rematnre,*

qnite clear as to the natnre of the primitive .family.


primitifs ancetrcs errerent alors dans les forets,
dii pei-e

Nos

par petits groupes, composes chacun

(du male
;

plntot), de sa on de ses femmes, des jeuncs

le

tout

formant

nne association temporairc sons Tautorite


'

paternelle

(Letourneau,
('

'La

Sociologie,' p. 379).
Societes,'
ii.

Dr.

Le

l>on

L'LIomme

ct les

2S1)

strongly denies that the state of promiscuity coidd


'^

be the earliest state of mankind.


des
*

'

Dans

les societes

animaux
Ces
faits et

(pii

se

rapprochent

le

plus
il

de notre
prematura
faits,

bien d'autres prouvent combien

est

aiijourd'hui de pietcndre formuler des lois sociologiques, precises


et rigouicuses,
les

couime des

lois scientifiques.

Rassembler des

grouper, et hasarder
il

prudemment quelques

tli6ories g^nerales,

sujettes

revision

voila a

pen pr^s tout ce que nous pouvonsuous

permettre dans nos e-sais de sociologie (Letourneau, p. 320). La prudence du serpent est la vertu qu'il ne faut pas se lasser de re-

commander aux

sociologistes de nos jours (p. 332).

"

TKAP.

Til.

THEORIES OF PRIMITIVE SOCIETY.

209

espece,

nous voyons ranimal, monogame ou polyses prerogatives sexuelles,


le

game, toujours jaloux de


les

defendre avec lenergie pendant

temps plus ou
au moins

moins long que dure son union,


pendant
la

c'est-a-dire

periode necessaire pour elever ses petits.'


is

There can be no question that this

the result

arrived at whenever the hio-her animals are stronof

enough

to give full rein

to

sexual jealousy.

But

sexual jealousy,

indulged

through

Power, might

serve as a definition of the Patriarchal Family.


If,

however, the

human

race

may

still

be believed

to

have started with the Patriarchal Family,


to

how

are

we

explain the man}'- remarkable

phenomena of
first

savagery and infant civilisation for the


noticed

time

by McLennan and Morgan, and woven by

them

into rival theories of the original condition of

mankind?
absolute

The

inference

that

they point to an
received

promiscuity must be
for

with

the

greatest hesitation, both

Mr. Darwin's reasons

and because the

evils

which such a condition would


to the extinction

draw with
practised

it

would possibly lead


But

or the dano-erous weakenms^ of the societies which


it.

it

cannot be doubted that these


a relation of the sexes

phenomena do suggest such


as

may

be supposed to leave the paternity of chil-

dren in
to

much
lie

uncertainty.

The explanation appears


later period

me

to

partly in Mr. Darwin's conjecture that


to a
'

these

phenomena belong

when man

*J1()

THKoKir.s

oi'

riMMiTivi; s(X'iirrv.

chap. vn.

h:ul

:i<l\ .inccil

in

liis

iiiti'llcchril
:intl

pdwcr
in

lii1

i-cli-o-

rnnlod in

liis
:i

instincts.'
LT^'at
(

jiartly

MiLcniiMn's

hypothesis of
i

and,

lir a|)jK'ars

to think, an uni-

versnl) (IcfK'iciu'y of

women

in llic |tiiiiiitivc f^roups


t

of men.
lv

It

is

not hanl to sec thai


for tlic plicnonicna
is

lie

canst; assiirnod

McLennan
(W
tlio

a riiut ctnisn

it is

caj)a])lo

pro<lncin_ij: tlic clfccts.

We nuist
l)y tlie

ivnicmbei'

that

nionoLTaniy iv>w jmictiscd


tlic

greatest j)art

of niankin<l (and i-vcn by


races)
fact,
is

so-called polyganions

closely connected with a j)riinary natural

the near c(|uality of the

two sexes

in

numbers.
as to the

The idle coDJectures which were once common


set aside

preponderance of male and female births have been

by

observation,

which shows that these

bii'ths are as

nearly as possible equal in number.

At

the same time, in settled modern communities, the

number of grown women is, on the whole, in excess of the number of grown men, because of the more
rapid exhaustion of the males through

war

or dan-

gerous adventure.

Let us, however, for a moment,


argument, assume that balance

and

for the sake of

to be very seriously disturbed.

Let us suppose a

community
is

in

which

for long periods together there

a large excess of females over males.

There

is

no

question

that

monogamy might
religion,
agre

be

substantially

maintained in such a community, by the precepts of

some widely diffused

or

by a morality

derived from some former

or from some external

CHAP. VII.

THEORIES OF rRDIITITE SOCIETY.

211
that

source

but on

tlie

Tvliole

we should

expect
its

such a community would, in some of

parts, be

polygamous.
thesis

Again,

let

us make the counter-hypois

and

suppose a population in which there

an excess of males over females.


Family, as

Here again the

we understand
of
religion,

it,

the Family founded on


the power-

monogamy, might be long preserved by


ful

sanctions

morality,

or

law

but

nobody would be surprised that the


nessed to as prevailing
established themselves
that morality and law
social

practices wit-

among

savages,

had here

now

or at some former time,


to

had adjusted themselves


even to be found

habits,

and that explanations of them


of them* were

or
in

justifications
religion.

Institutions
still

savouring of such a social


be in existence, though they

condition might

had

lost all reality,

and though the natural balance


"]')^

of the sexes had been restored, since the mere survival

of an institution

proves

nothing as to the
elapsed since
it

length of time which

may have

was

produced by circumstances.

Now
portions

that,

during a large part of

human

history,

of the

human

race

have suffered from

a
is

disproportion of females as
in a high degree probable.

compared with males,

McLennan,
female

as is

well

known, explained
lence

it

by the

virtually universal preva- i,^


to

of infanticide,

confined

children.
if

This position was not_accept ed by Morgan, and,


V 2

J12
ussrrtod of
ooiii'uloix'il
1)0

TIIKORir.S

or IMMMlTlVi: SOCIKTY.
lnini:iii v.wc, lias

CUAV.

VII.

tlio

wlmlf

<;iMU'n(llv ]);'cn
i(

as not
tliat
\\;\\o

cri' lihlr.

NCvcrtliclrss
oiir;il)l('

in:i\-

well

l)olicve<l
iiu'ii

im<lor

iml:i\

cii-cimislanci's
tlicir

>avai:v

constniitlv
rni

jtrcvcntcd
llicrc
i)\'

wcakci*
otlicr

oftsnrinir

iVom
\]\v

Hniiil;'.

ai'c

many

causes of

<lisj)ro|>ortioii

ilic

sexes wliidi dis-

'lose tluMusi'lves in tlic


l^art
is in

twiliulu

of liistory.

^rcat

of

tlio race, "wlion

wo

first ol)tain a i^linipsc

of

it,

a state of

movement.

Portions have been torn


far

away from larger aggregates and are wandering


and wide, either
i)ressed

by enemies or searching

for

more abundant

food.

No community,

wdien

first

seen by the historian, can be certainly said to occupy


its

original seat.

It is

ma

high degree likely that


than

these

wandering bodies included more men


There
is

w^omen.

evidence that some of the islands

of the Pacific were populated

by boat-loads of men
of

and

few women, and


that

it

would be no very violent


Australia

conjecture

the

aborigines

and

America originally reached


the sexes in this proportion.
It is needless to

their present

homes with

say what would be the character

of the institutions which would establish themselves

under such circumstances.


ha\'e

In

fact, it

may

be said to

been the usages of the Australians and American

Indians which respectively suggested the theories of

McLennan and Morgan, and


wherever
a

it is

singular

how

often,
is

dim glimpse of

similar

institutions

CHAP.

Yir.

THEORIES OF PRIMITIVE SOCIETY.


it is

213

caught elsewhere,
like the Irish,

amid

societies originally settled,


sea.

by wanderers over the


and we

An

even

more

active cause of inequality


;

between the sexes


freely

must have been war


woman- stealing
emphatically,
if

may

admit

tlie

importance and significance of those practices

of
so

on

which

McLennan

dwells

only

communities

lost their

we remember that, if some women through defeat, others


victory.
I

must have gained through


attention to one striking

will

call

monument

of the scale on

which
been

this loss

and gain occurred, which has not


It is
stele

much

noticed.

an Egyptian inscription,
in the Berlin

on the reverse of a

Museum,

commemorating the
dition.

results of a

conquering expe-

Line 20.
the

I sent

my bowmen
all

against the foes in


it

town of Makhenunem.

They smote
the

and made
prisoners

a great slaughter, taking

women

and

all

the beasts of burden


2,236.
I

505,349

Bulls,

and

Women

Line 25.

made

slaughter

among

all

tliat

were the chief of the

Land

of Lobardu.

All the

gold he had. Bulls 203,346, Horned Cattle "603,108.


All the

women who were


I sent

spared, the chief gave us.


soldiers against Arrosa.
I

Line 27.

my

made

great

shiughter,

taking

all

the

women

prisoners.

Bulls 22,110.

All the women.

21

TiiKOKir.'^

ov rKiMiTivi:

sociirrv.

chat. vn.

I.iiu' .:.

I'rnin

M;iklii-lit rkci-t,

took

:ill

tlie...

mi^U?

All the woimii.


l\'2.
I

Line

inatlo a

i^i'i-at

slanL;hti'r aL;aiiist.
I

those

with the chief of Taiiiakliv.


all

took

all

their wives,

their hortses.

luills

.").\."):)().

I'l

all tills

insrriiti()n,

which

is

loiif]^

one, there

is

onlv on

line

which may he thou;^ht to speak of


alive,

takinir the
ful.

men

and there the

readiiif^ is
it

douhtleaves

^\'ith

other records of ancient warfare,

on

mv mind

no douht that the


to

common

rule of tribal

victorv was

take
:

only

the

AV(jmen.

The men
perhaps

escaped or were slain

but the

women and

the children were spared for servitude, and this seems


to be the point of the

well-known exhortation of
battle.

Greek
1

c^enerals to

Greek soldiers on the eve of


it

think then that

must be allowed

to be

more

than probable that, since the appearance of mankind

on the

earth,

an indefinite portion of the race has

suffered at different times


in

from a serious inferiority


It

numbers of women to men.

must further be

acknowledged that the advance in intelligence of

which Darwin speaks would lead men to establish


institutions in confonnity with this proportion be-

tween the sexes,

if

only

for the

purpose of keeping

within bounds that sexual jealousy which could not


fail

under such circumstances to produce,

if

unreIt

strained, a perpetuity of violence

and bloodshed.

CHAP. vn.

THEORIES OF PRIMITIVE SOCIETY.

215

must be admitted that the tendency of such institutions would be to arrange men and women in groups
very unlike those in which, according to the biologists

and according to the Patriarchal theory, they


it

were originally combined. If however


to say

be impossible
suffered

what portion of the human race has


between the sexes

from

this disproportion

if

we

are

unable to deny that some fragments of the vast


aggregates of

men speaking languages of the Aryan and Semitic stocks may conceivably at some time or other have had this experience what use, it may be

asked,

is

there in insisting on the Patriarchal theory

as expressing the primitive


I

grouping of mankind?
;

answer that there

is

the greatest use

and
is

that,

unless

we

bring

home

to ourselves all that


it is

implied

in the Patriarchal theory,

impossible to under-

stand a number of phenomena which

McLennan and

Morgan The

leave unexplained or explain unsatisfactorily.

Patriarchal theory in the first place fixes oe

Power, the Power of the strong man, as the principal


formative
cause of the groups
first

within

which the

conception of kinship
theories

grew up.

The counterages,

assume the abeyance, during long

of

Power.
the

On

this,

beyond noting the improbabihty of


I

assumption,

will

merely

the only source


is

known

to us

now remark that of new forms of kinship

Power.

It is a special

form of Power, that called by

jurists Sovereignty,

which has created the modern

2\C)

Tiir.oKiF.s

or

ri;iMii'i\

r.

sm

ii;rv.

cuu'. vn.

Kinsluji

known
In
tlio

ns Xntionnlii v. uliirli cuMhlcs us to

s|)oak of I'.nulisljnu'M. l-'rcncliiiirii. Aiisl raliinis. Ami'I

ricans.

next

])liic(^

llic

l':iiri:irili:il
Icil

tlicorv

RU])]V)S('S tliaf

llic

nuitivc wliidi
I

to

tin'

exertion

of power was sexual jealousy.

Ik'

eouiilcr theories

assume

tlie

ahevancc durinu"

lon^"

a^cs

of
1o

sexual
lieiicvc,

jealousy.

Now

it

is

of coiu'se possiijle

upon

sutlieient evidenee, tliat tlic passion wiiicli

eauscd

the wrath of Achilles and the agony of Othello was

unknown

to

men

originally, or

was neutralised by the


;

countervailing pressure of circumstances

but

if it

be

onee believed that this passion, whieli


uugbtiest of the forces acting on
his

is

one of the
heigbt of
intellec-

man

in tlie

moral strength and the plenitude of his

tual vigour,
his instincts

was

also one of the

most uncontrollable of
of the animal in him,

when he had most

the whole of the recently observed


to

phenomena appear

me

to

show themselves
student, then,

in a light materially differ-

ent from that in which the observers have seen them.

The
called

of social archasology

who
is

is

upon

to believe that the

Family constituted by
through Power
of

sexual jealousy indulging

itself

modern
him.^

origin

or of rare occurrence, will be very

rigorous in his scrutiny of the evidence presented to

He

will be cautious in accepting a statement


'

about -savages, or an interpretation of a


^

survival

'

in

See Note

A to this

Chapter, on the

Audaman

Islanders.'

CHAP.

VII.

THEOEIES OF TRIMITIVE SOCIETY.


is

217
at

system of institutions, which

primct facie
nature.
is

variance with observed facts of

human

Admitting

it

to be probable, as he

bound

to do,

that some portions of

mankind have

at

some time
this

been united in groups, which included considerably


fewer

women than men, and allowing that scarcity of women would probably result in

such

institutions as the tracing kinship

through descent

from females, he will

see reasons for thinking that the

condition out of which these institutions arose could


not, as a general rale, be
tribe

more than temporary.

m which the women were for a very long period


number
to the

inferior in

men would
would be

be at a great

disadvantage compared with tribes in which the sexes

were on a near equality.


dity, possibly

It

liable to infecun-

from

disease, certainly

from the

relative

fewness of births from a

small number

of mothers.

Again, he will understand better than the recent inquirers

which,

if I

how it was that all the societies may use the expression, attained to any

degree of respectability, recovered at last what he


will believe to have been the original condition of

the Family.
writing's of

Nothing

is

more unsatisfactory

in the
ac-

McLennan and Morgan than


of

their

count of the recognition

Paternity.
it

Morgan

seems almost to suppose that


popular vote.
it

was mtroduced by

McLennan

expressly suggests that

arose

from a custom of putative fathers giving

-IS

THhXtKIKS

rUIMlTIVi: SOilKTV

CHAT.

vil.

proscn-ts to putative oliildnn.


j:^ivat
Ix?

ImiI

the

n-iiili is

that a

natural force uuist always


acting,

liavi:

acted,

and must
society,

still

on these aherrant (onus of

trndinir alwavs to

make

tlic

most jiowcrlul

poi'tioii

of

each couiuiunity ai-rant^e


tf tlu> n'coi,''niti(>n

itself in <^rouj>s, wliidi

admit

of fatherhood, and (he iiidulirence

of the jiarcntal instincts.

And

thus reasons appear


it

why

it

is

that,

when
tlu;

the Family does reappear,

reapju-ars

not as

modern Family, hut


is

as

the

Family

in
is

which Kinship
that the

blended with Power, and


discloses itself as

why

it

Family so often

an institution of aristocracies, not of slaves, nor even


of dependents.
lie too

who

is

alive to

the nature of this great

emotional force, ever acting upon the class of societies


of which I have been speaking, will be slow to believe
that they recovered all or
dition
l)y

much

of their original con-

series

of changes identically the same.

He
to

will

rather suspect that the stages of recovery

were mfinitely various.

Thus he

will be indifferent

many
will

or most of the points of controversy between

the school of

McLennan and

the school of Morgan,

and

be inclined to tliink that there has been

room, not only for two,

but for

many

courses of

modification and development, each proceeding within


its

own

area.

So

far as I

am

aware, there

is

nothing

in the recorded history of society to justify the belief


that,

during that vast chapter of

its

growth which

is

CHAP.

YII.

THEORIES OF PRIMITIVE SOCIETY.

219

wholly unwritten, the same transformations of social


constitution succeeded one another everywhere, uni-

formly
deep in

if

not sunultaneously.

strong force lying

human

nature, and never at rest,

might no
result, in

doubt in the long run produce an uniform


spite of the vast varieties of circumstance

accompanyit is

ing the stern struggle for existence

but

in the

hio-hest deo'ree incredible that the action of this force

would be uniform from beginning


Lastly,
if

to end.

we

consider the weight of argument

and evidence

to be in favour of the

commencement of

human society we shall think

in Patriarchal (or Cyclopean) families,


it

not only not incredible but highly

probable that certain communities which have sur-

vived to historical times have grown without interruption out of their original condition.

'In most of
'

the Greek States and ui Rome,' I wrote in

Ancient

Law
was

'

(p. 128),

'

there long remained the vestiges of

an ascending

series of

groups out of which the State

at first constituted.

The Family, House, and


as the type of

Tribe of the

Romans may be taken


them as

them, and they are so described to us that we can


scarcely help conceiving
circles

a series of concentric
point.

which have expanded from the same


is

The

elementar}^ group

the Family, connected

by

common

subjection to the highest male

ascendant.

The aggregation The aggregation

of Families forms the Gens or House. of Houses makes the Tribe.

The

220

Tili:oKir.s

or

imjimitivi: s(I(|i;ty.

cuAr. vn.

asrcfroirntion

of Trilvs constitutes

tlio ('onnnon\V(>altli.
t<>

Aiv we
lay

at lihertv to

follow these iudieations and


is

down

that the eoninion wealth

collection

ol"

j>orsons niiitrd

hv conniKHi docciit
familv
?
<

frtnii

ihc

]ii'()i;\'iii-

tor of an nriLfinal

M'

this \\r ma\' at least


I'cLiai'dcd

he

cci-taiii.

that

all

ancient societies

them-

selves as havinfr })rocee<led from one original stock.'

Antecedently,
societies passed

is

it

necessary to assntne that such


j)roiniscuity,

through a stage of
?

more
cir-

or less modified

That would depend on the


\i'

cumstances

in

which they were placed.

they

suffered fiMui a scarcity of


as

women, such phenomena

polyandry and a tracing of kinship through


at

women

would probably show themselves, and


social

any stage of

growth.

But some connnunities of men must

always have been stronger, cleverer, more fortunately


placed

than others

must
for

have had fewer motives

than others for killing their female children, and more


success in carrying

away the women


antecedently

of other tribes.

The
the

great

reason

doubting

the

alleged evidence of promiscuity in the branches of

Aryan
so

race
it

is

that, as

it

has been the most suc-

cessful,

must have been one of the strongest


course the significance of some pieces

of races.

Cjf

of this evidence
it

cannot fairly be denied, nor can

be thought very unlikely that some of the divi-

sions of this race

which wandered

furthest, or

some
its

of the more savage communities which adopted

CHAP.

Tir.

THEORIES OF PRIMITIVE SOCIETY.


fell

221

ton ""lie,

for a

while into a more or less modi-

fied promiscuity.

But the whole question must be

decided by the preponderance one


of the not very plentiful evidence.
clearly

way

or the other
let
it

Only
is.

be

understood what the problem


it

I
'^

have
'

recently stated

in the following

words
first

The

greatest races of

mankind when they

appear to

us show themselves at or near a stage of development


in

which relationship or kinship


through males.

is

reckoned exclu;

sively

They
it
;

are in this stage

or

they are tendmg to reach

or they are retreating

from

it.

Many

of them, in certain contingencies,

generally rare or remote, give

women and
;

the de-

scendants of

women

a place in succession
is

and the

question with modern inquirers

whether the place

thus assigned to them


barism,

is

the survival of an older barin savage races,

now exemplified

which traced
it

kinship exclusively through females, or whether


results

from the dissolution, under various influences,


relationship, that
only.'
is,

of " agnatic "

of relationship

The 'influences' in question (I have elsewhere shown) were in the case of the Roman
through males
law, that of 'the Prastorian equity, and in the case of
the sacerdotal
I

Hindu

law, the influence of Religion.

have yet a few words to say on a topic which


interest

owes the importance and

now commanded

by

it

almost entirely to
^

the

labours of Mr. J. F.
p. 149.

Vide Chapter Y. above,

--'-

rnr.oKiKs ok imjimitivi; sociitv.

ciiai-.

vh,

!\IcI'.'iin:ui.
aiiil
'

He

is tlir :iiith(ir
'

of

'

llic

Irniis' Iv\(^n;nii\-

l-jidoiraniy

tlir lirst siixiufviiiir tlic j)ractic(' llic

of

takinir wivos o\rluivcly Ix'Voiiil

limits of a partl"'

ticular

trilial <'ircl('

tlic last

imlirnt

iiiLi'

ciisloni of
cci-taiii

inarryiiiu^

within

tliat

circle.

The

fact

tiiat

ancient races oxtcndcMl their


riaue far

j)r()hil)iti(ins of" iiiterniar-

heyond

tlic

narn)\v boundaries of our Tabic of

Prohibited

L)c<!:roes

that, theoretically at all events,


aiiv

they forbade a man's marrying


descent tVom
ascertainable

womaji whose
himself was

the

same ancestor

Avith

was not unknown


McLennan

to students of

Hindu

law

but Mr.

w^as the first to i)oint out

the wide prevalence of these prohibitions

barous societies and their connection,


races,

among baramong savage

with the system of reckoning kinship through

women.
with
that
'

The

first

remark "which

have to make

on these discoveries, wliich are closely interwoven


^[r.
it

McLennan's theory of

social advance,

is,

does not seem to


'

me
'

certain that the terms

exogamy

and

'

endogamy
Is there
'

can be directly opposed


is

to one another.

any society which


'

not at
'

the

same time

exogamous
it

and

'

endogamous

Let us fix our ideas, as

is

always desirable to do,


law.

by looking
of a

at the ancient

Roman

Any

marriage

Roman

citizen within a circle not

widely different

from that traced by our own Table of Prohibited


Desrrees

was

invalid

and the children of such a

marriage would be illegitimate.

But

again,

any

CKAP.

Tir.

THEORIES OF PRIMITIVE SOCIETY.

22o

marriao'c o of a

not herself a
a

Roman citizen with a woman who was Roman citizen, or who did not belong to

community having the much- valued and always expressly conferred privilege of connuhium with Rome,
was
also invalid
;

and no legitimate children could

be born of such a marriage.

Thus Roman
;

society

was both exogamous and endogamous


both an outer and an inner
is

there

was

limit.

found in the Hindu law.

The double rule Hindu may not marry


all

woman

belonging to the same gotra,

members of

the gotra being theoretically

supposed to have de;

scended from the same ancestor

but then he must


therefore,

marry
there

within his

own
is

caste.

Here again,
I

is

the outer and the inner limit.

do not pre-

tend that the point


insT

proved by the evidence respectsavao:e or barbarous tribes

number of which have been shown


the OTeat

to have an extended
is

'

ex-

ogamy.'

My

suggestion in fact

that the outer

limit within

which a man must marry has been


and
wish to urge
I

overlooked through the interest excited by the long

unnoticed exogamous prohibition

that the subject requires re -investigation.

myself,

though not a professed inquirer in

this field,

have

re-

peatedly found indications of the outer or endogamous


limit.

Thus
are

there are in China large bodies of related

clansmen, each generally bearing the same clan-name.

They

'

exogamous

'

no man

will

marry a woman
;

having the same clan-name with himself

and much

-'1\

TIIF.ORIKS

OF
tliis

rKlMIl'IVi;

SOCIITV.

cii.M'.

vm.

has

Ik'i'II

madi'

ol"

facl.
i

ImiI oiii' oI' a


iiral inix

^touj)

ol"

earnest in<niircrs, nli> arc


pluMjoiiuMKi

ii

vest

Cliinoso social
lias

on

tlio

spot,

Mr.

elaiiii(>si>ii,
'

ioiiiid

that

tlw'v

arc cn(lon;amons also.


tlicy
;

Mxtcnially they
with

are

endopinious
tril)e

rcfiisc

inan-iaLic

any
;

siirroimdinn:
tlicy

internally they arc c.xoi^ainous


"with

refuse

marriai^^c

anyone whoso surname


'

shows him to be of the same stock


vol. X.

('China ivcview,'

No. 2).
limits, outer

These

and

inner,

may

still

be dis-

cerned in the most civilised Western societies.


the one hand,
are always

On

'exogamy'

is

enforced by law.

There

some of

his near kin

whom

man may not

marry.

The law

rests partly

on considerations of

physiology and partly on considerations of religion,


religion

and physiology not being, however, quite

agreed as to Avhat should be the proper Table of Prohibited Deo^rees.

On

the other, the outer or endoG^a-

mous

limit,

within which a

man

or

woman must

marry, has been mostly taken under the shelter of


fashion or prejudice.
land,
It is

but faintly traced in EngIt is (or

though not wholly obscured.

perhaps

was) rather more distinctly marked in the United


States,

through prejudices against the blending of

white and coloured blood.


hereditary dignities are
still
;

But

in

Gennany
by

certain

forfeited

a marriage
in spite

beyond the forbidden


of
ail

limits

and in France,

formal institutions, marriages between a person

CHAP, vu,

THEORIES OF PRIMITIVE SOCIETY.

225

belonging to the noblesse and a person belonging to the


bourgeoisie (distinguished roughly from one another

by the

particle 'de') are wonderfully rare,

though
which

they are not unknown.

The Church,
'

it

may
'

be added,

has repeatedly relaxed the

exogamous

rule

forbids the intermarria2:e of near kin in order to save

member
marry.
I

of a great Continental

House from having


which he
is

to transgress the outer limit within


to

bound

have a special reason for dwelling on the point.


plays
a

Exogamy
in the

great

part

in

the

system of

McLennan, and (though not under the same name)


system of
i\Iorgan.

Both hold that a


is

definite

stage of human development

marked by the appearcalls the


'

ance of a group which

Morgan

Gens

'

and

McLennan

the

'exogamous totem-kin,' a body of

kinsmen and kinswomen never intermarrying and


witnessing to their kmship by a
their

common mark on

persons.

In so far as this group has fallen

under actual observation, in America and Australia,


it

is

more

like a
;

Sex than any other assemblage of


cannot reproduce
itself unless it

human

beings

it

combines with some similar body, for the


find wives nor the
it

men

cannot

women

husbands.

Consequently

is

always nowadays a part of some larger social


But, although I

aggregate.
realised

may

not have clearly

McLennan's

conception, 1 understand
is

him

to

consider that this groTip

the developed form of the

22fi

T1II:M;IIS

cI"

ri!IMITI\r.

snrirrv.

cuw.
ItdicN'cs

vn.

iinK'jH'MtKMit
liavt'

|>riiniti\T

i:"n)ii|>.

wliicli

lie

to

U'cn :m

!iss'nill:iii'

<>r

men

:iii<l

iimcli

fewer

wiiiiu'ii.

Ii\inL:' toiictlier

in ]ii'()iniM'ui!\-. :in<l tlicrcroi'c

ver\- unlike

ilie

'iitriMrcliiil

or
I'lie

'\"cl(i|ie;in

l-miih' ns-

smncfl

1\-

the older tlieoi-w


1)\"

lewiiess of
foi- its

wonicn

w;is

|)n)<lm''<l
tlu'
lirihit

inf;iiiti<i<lf. ;in<l

!i;ni

c()n.S('(|ii('ncc

of
to

stcalini;"
l)e

women irom

otluT

<j^rou|>s, still

siij)posel

witnessed to

l)y tlu^

form of cMptiire
of
l);irl)Mri;nis.
'

widelv ehnraeterisinir
I

the mnrrinizcs

nder the influence of this hwhit the practice of


'

ex-

onfaniy

was oradually created.


lie

On

the other hand.

Morffan, thoufich
(^rig-inally

too l)eHeves the sexes to have


in

lived

toi^ether

])romiscuity, does

not

seem to consider that their numbers were very unequal.

He

supposes that primitive

men very

early

discovered the evils of close interbreedinn;, and that


all

the early transformations of

human
I

society were

the results of a constant struf^gle to prevent these


evils.

In his view, therefore (as

understand
it

it),

the
'

'

Gens,' as he rather unfortunately calls


'

(the

exoofaraous totem-kin of McLennan),

is

not a primitribal

tive gi'oup,
societies

but a mere subdivision of larger

originally promiscuous, formed for the pur-

pose of limiting interbreeding.

For reasons which


no wish to take
but
it

have already given,

I hav^-

sides with Morofan or witli

McLennan,
should
'

does seem to

me

that, if further inquiry


'

disclose the prevalence of an outer

endogamous

as

CHAP.

VII.

THEORIES OF PRIMITIVE SOCIETY.


'

227

well as an inner
it

exogamoiis

'

circle of

consanguinity,

lends some streng-th to Morgan's theory of developis

ment, whicli

certainly easier to understand tlian


I

McLennan' s.
far as it is

merely accept Morgan's theory so

an explanation of the original formation


far as it considers

of

exogamous groups, and in so


for the

them

to have been subdivisions of larger communities,

and formed

purpose of limiting interbreeding.


felt

The

difficulty

which seems to be
is

by candid

opare
disevi],

ponents of this hypothesis


unlikely to
covery.
its

that primitive

men
an

have made any such physiological


it

If

be true that interbreeding

is

very truth, in their view, militates against the

antiquity of

human knowledge
it

about

it.

Indeed

it is

not certain that

is

true.

Physiologists are not

aofreed as to Tables of Prohibited Deo^rees.

Some no
of serious

doubt would considerably extend them, but others

deny that the


proportions.
assertion

evil

which they prevent


however,
is
it is

is

I think,

forgotten that the


a time

made by Morgan

made of

when

neither Surgery nor Medicine existed, of a time before


that at which, according to the Greek tradition, Pro-

metheus discovered the chopped herbs which were to


be the remedy for
resources of

human

ailments.
at

With the vast


been reduced

modern medicine
or

hand, the evils of

the intermarriage of near kin


to a

may have
is,

minimum
is

may have come


ft

to be doubted.
I take
it,

But

what

invaluable to a savage
2

what we

228
kIu>u1<1

TiiKt^niKs

or ruiMmvi; socikty.
(N)iistituti(Hi
siicli

cii.\r.

vn.

i';ill

^o()l|

;i

coiistit iitioii

nvcivod

!>t

Iiirth

as will
it

not

easily

admit disease, or
native sonnrlness.
conlractei] cannot
if

will easily

overcome

l>y its

own

For amoMLT such men disease once


he artiliciallv enn^l.

Even

therefore

the ad\anta<rc

given hy exoufamous marriane to the children he


a
sliirht

now

one,
I

it

miii^lit

he heyond

price to primitive

mankind.
th.e

cannot see

why the men who

discovered

use of

fire

and selected the wild forms of certain

animals for domestication and of vei^etahles for cultivatitMi

should not find out that children of unsound

constitutions were

born of nearly related parents.

If such children, left to themselves, are really weakly,

the fact would be forced on notice

by the

stern pro-

cess of natural selection, affecting either the individual

or the tribe.

It is this

process which has produced

those wonderful contrivances for the intercrossinir of


plants and the generation of a healthier vegetable
offspring which have recently been observed

by men

of science

but

if

the process ever acted without

check on mankind
intelligence
It

should imaOTne that their earliest


its

would enable them to note

operation.

should be added that the earliest serious attempts

to

combat disease appear to have taken the form of

precautions, of training and of the formation of habits,

rather than of remedies as

now

understood.

THE ANDAMAN ISLANDEKS.

229

NOTES AND ILLUSTRATIONS.


Note A.

THE ANDAMAN ISLANDERS.

AM afraid that I incurred some reproach by remarking in an earlier work (' Vilhige Communities in the East and West') on the unconvincing character of much of the evidence for savage customs to which tlie utmost significance had been attributed, and by speakMy observaing of some of it as travellers' tales.' tions on this evidence (which has since then considerably improved) were coupled with a statement that I expected much from the critical examination which was beino- given to savao'e or barbarous usai-e by officers of the Indian Government engaged in the administration of the so-called aboriginal races still The expectation has been abunluimerous in India. dantly fulfilled already, and I will instance one set of
I
'

results.
I suppose that if there was one community which, looked at from a distance, or at occasional intervals, seemed more than others to constitute the missing link between the brute and the man, it was the h\ the Preface population of the Andaman Islands. to Selections from Records of the Government of India (Home Department),' No. Y., written before these made the seat of a convict station, were finally islands it is impossible to imagine any human it is said that beino;s to be lower in the scale of civilisation than are The little that is known of the Andaman savages.
' '

'

XX

'

230
their

Tin:

AMtAMW

isi.axdkks.

manners and cu^tonis


or
i:\ii'iinirnt.
llic
ot'

|i-o\t's

tlirin to
llit'\-

he without
in
.

rcliirion

autl

that
ol

li\c

pcr.

petual thvad ol
1

contact

any

(tlu'i*

I'aci;.

lie

traditions

so ai)sohitcl\' harharons a race are

'Ihc. U(U likely to throw any liiiht on their origin.' to seeincil Inlly hear out existed tliat little evidence Ihe oldii* )riental jndgnient. unl'avonrahle tills
(

n-presented the islanders as cannil)ais accounts (a chariiC which now appears to iiav(' heen witliout anv tonndation), and in the Asiat.c liescarches oC 17'.i*). 'The Lieutenant (.'olehrooke wrote of them Andauian Islands are iuhahited by a race of men the least civilised perhaps in the world, bein^ nearest a They state of nature than any }H'Oj)le we read of. wearin<i; at times a kind the women naked quite <i"0 of tassel or frin<i,e round the middle, which is intended merely for ornament, as they do not betray any si<i:ns of bashfulness when seen without it.
iiad
'
'

( )ther are cunning, crafly, and revengeful,' authorities to the same effect are quoted by Lubbock

The men

The AndaPrehistoric Times,' 4th ed. p. 451). man Islanders appear to be entirely without any sense of shame, and many of their habits ore like those of
'

beasts.

Marriage only

lasts till the child is

born

and weaned, when, according to Lieutenant St. John, as quoted by Sir E. Ik'lcher, the man and woman
generally separate, each seeking a new partner.' The Andaman Islands are now the principal convict station of the Government of India, and the islanders have been brought under British adminismost interesting account of them, founded tration. on actual observation, has been ]>ublished by a British Indian public officer, Mr. K. II. Man (' Journal of the

Anthropological Institute,' XII. i. G9, and ii. 13). of the points most dwelt on in this account is the modest}' of the women. They will not renew their Another leaf aprons even in one another's presence.

One

THE ANDAMAN ISLANDERS.


is
'

231

hi the esteem ia the married women's chastity. which they (the ishmders) hold their virtues (modesty and moraUty) they compare favourably with that
'

in certain ranks among civilised races.' Marriage is a well-detined institution. JMarriages never take [dace till both parties have attained maturity, the bridegroom from eighteen to twenty-two, Bachelors and the bride from sixteen to twenty.' spinsters are placed at the opposite ends of the large common dwelling-house and the married couples in the middle. Paternity is thoroughly recognised the father is generally present at the child's birth. There
existiDg;

no example of a cross-breed in the islands. There is a government by chiefs whose auA chiefs thority is reflected on their wives.
is
'

wife enjoys many privileges, especially if she be a mother, and, in virtue of her husband's rank, she rules over all the young unmarried ^vomen, and the married ones not senior to herself.' There is much mutual affection in social relations,' says Mr. ]\Ian. Children are taught to be generous and self-denying. The duty of showiug respect and hospitality to friends
'

'

and

visitors is

years.
classes,

impressed on them from their earliest Every care and consideration is paid to all to the very young, the weak, the aged, and

the helpless.' impression is that there is no subject on which it is harder to obtain trustworthy uiformation than the relations of the sexes in communities very unlike The statethat to which the inquirer belongs. ments made to him are apt to be affected by two very powerful feelings the sense of shame and the and he himself nearly always sense of the ludicrous Almost sees the facts stated in a wrong perspective. innumerable delusions are current in England as to the social condition, in regard to this subject, of a country so near to us in situation and civilisation as France.

My

-32

KAST KUUOrKAN

lloisi;

ltt\IMl\mi:s.

ckap. vm,

ClIArTKi:
EAST KrKorr.AN
XoTHiNc; would
oloury ihaii
scrviiiii1)0

\IIf.
com.minities.
arclui'-

iioi si:

of

]ii^-licr

value to scicntilic

any addition

to

our
race

o}portuiiities of obstill

societies of

Aryan

i-cmaininir in a

condition of barbarism.

Tlic practices of savage

men,

lying altogether beyond the circle of the greater races,

have been carefully observed and compared of


years,

late

and some generalisations of nuich ingenuity


;

and interest have been founded on them

but the

relation of these practices to the beginnings of our

own

civilisation is far

from

satisfactorily settled at

present.

The

early

usages of

the

now

civilised

societies can be partially recovered

from their records,


;

their traditions,
is

and above

all

from their law

but

it

just where these sources of evidence can least be

depended

upon,

where

history runs
definite

into

poetry,

tradition into legend,

and

law into dimly

seen custom, that the connection between barbarous

Aryan usage and savage non-Aryan


be established,
require
is

practice has to

if it

really exists.

What we most

the

actual

examination by trained ob-

CHAP.

viiT.

EAST EUROPEAX HOUSE COMMUNITIES.

233

servers of

some barbarous or semi-barbarous com*


is

munity, whose Aryan pedigree


India has

reasonably pure.

made

contributions of great importance

to the study of early institutions,

and

hope to show,

before the close of this paper, that

important are the

most

recent.

among the most Many portions of


high-caste.

the social and family

life

of the

Hindu
com-

unquestionably answer to stages of social develop-

ment through which


munities of the
twilight of their history.

the

earliest

civilised

West may

just be seen passing in the

But there

are

some

serious

drawbacks on the value of Indian

social facts,

and

some considerable limitations of their impressiveness.

A great
in India

deal of the very ancient usage discoverable


is

non- Aryan.

There are no doubt abundant


it is

remains of true Aryan barbarism, but

not always
is

easy to distinguish this from barbarism which

non-

Aryan, and that which


transformed to

is

really

Aryan has been

an unknown
its

extent.

religion

which has lost

affinity for the religions of the


it,

West

is

constantly penetratmg and modifying


'

and

the newer influences of the

English dominion are


effect.

working upon

it

with ever-increasing

AVhat-

ever, too, be the value of Indian observations, they

do not certainly

at

present produce the impression


historical

which might be expected on the European


scholars
society.

who

are

busy with the rudiments of Western


an evident distrust of illustrations

There

is

234

KAST r.rK'TKW

llolsi:

coMMrMTIHS.
iisa_i:;o

ciiAi". VIII.

of social iintwtli taken from


iviuote as
tlu"

tlio

of a

])('o])l('

so

HIikIus, and so
tlii'

loni;-

parted from Uic

sisttT-connniiiiitics of

Aryan

i^rouj).

No

field <f iiivestijifation


tile

seems

to nic to
sctcial

promise
antiipiity
tlie

so mueli to

student of jn-imitive
l)\-

as that op^ni'd to us

tlie

ol\ious tliinninu' of

superficial crust of .Ma]iomme(lan institutions spread

over so
all

u;reat a part ol'

the once civilised world.

In

the

countries

now

or lately

under Mussulman
forms of

dominitin, strange and

dee])ly intercstin"'

ancient social organisation irom time to time

come
com-

into the light, like buried cities from volcanic ashes

or lava.

This remark

nuist be confined to

munities conquered by the

Mahommcdans and made


scientific

tributary to them, but not converted to the !Mahora-

medan

faith.

For the purposes of the

archajologist, a

group of men converted to ]\Iahomunder a

medanism becomes practically worthless, because from


the

moment
is

of

its

conversion

it

lives

civil

law which

also a religious law,

and which can only

be explained at present as a religious law.

The

portions of ancient usage which in the present state of


these inquiries 3'ield most to the student of early institutions are those which, in

modern phraseology, we

should

call

the law of Inheritance and the law of

Marriage.

But

a society

which has adopted the Mahas come under a system

hommedan law of inheritance

of rules of succession which

may

possibly

embody

CHAP. Vin.

EAST EUKOPEAX HOUSE COMMUXITIES.

235

some Arabian customs, but which on the whole can


only be accounted for as consisting of
tions from the letter of texts
strict

deduc-

assumed

to be sacred.

This system of rules arranges the heirs in classes


unlike those

known
it

to modified or unmodified

Aryan
the
is

custom, and
definite

is

moreover a system of extremely


into
fractional shares.

division

On
it

other hand, under rudimentary

Aryan

usage,

not the individual, but rather a collective group of

kinsmen, which profits by the death of a relative


it is

and

exactly because the composition of this group,


witliin
it,

and the mode of devolution

probably

reflect

some more ancient method of


durinn;
life,

collective

enjoyment

that rules of intestate succession have


so

nowadays

profound
still

an

interest.

Again,

the
is

barbarous Aryan,

following

Aryan custom,

not only generally monogamous, but (to use Mr.

McLennan's extremely convenient term) exogamous.

He

has

most

extensive

Table

of
is

Prohibited

Degrees.

The Mussulman, however,


:

not only

polygamous but endogamous

that

is,

his

law perIt

mits comparatively near relatives to intermarry.

has been noticed by good observers in India, that the

comparative liberty of intermarriage permitted by

Mahommedanismis
vert in relieving
restraints of the

part of the secret of

its

success as

a proselytising religion.

It offers a bribe to the con-

him from the undoubtedly vexatious


Brahmanical law of marrias^e.

230
l*iit

KAST KrUOPKAN IIOUSK COM MIMTIKS.

diAf.

viii.

when* coinninnitics
iK'Vi'i*

subjoi-t

to l\riissulmaii
tlic

rule

l:ivi'

Ikvii

convcrtrd to

Miissiilinaii
is

failli. tlu' I'fVoct

of the doiniiiaiit
ii-

Malininiiu'danism

to li\

and

sti'rt'<>tv|ic tin

l)arl>arisiii. wlici'c tlicy

arc

l)arlarotis.
or:;anisi'd

A
in

lar:^\'

uiiiiilitr

of

tliciii

arc

socially
oi*

groups held togctlicr


of cMjninion

l>v

the reality
j)Os.sibly

the

fiction

blood

tlicy

may

never have attained to a


or

]ii_<;hor

organisation than this,

what

is

more probable

the

Mahonimedan conto retrace

quest

may have

not merely arrested their civilisation,

but niav have actually forced


])art

some of them

of the path by which they had ascended from

a ])rimitive

barbarous

condition.

When,

liowever,

these groups are once organised on the well-known

model of an association of kinsmen or tribesmen, there


is

much

in

Mahommedan government which


by
wliicli

tends to

tighten the bonds

they are held together.

The members

of Christian societies are most reluct-

ant to enter the

Mahonimedan Courts, and thus they


which
all

are led to value the domestic tribunals,

naturally

organised brotherhoods include.


life

Again,

community of
implies

based upon consanguinity always


liability to the

common
;

discharge of legal
exactions
of
the

demands

and

thus

the

fiscal

Mussulman

ruler give a strong motive to the kins-

folk to keep the

burden of taxation resting on

as

many

shoulders as possible.

The advantage of mam-

taining the liabihty of groups rather than the liability

CHAP. Tin.

EAST EUKOPEAN HOUSE COMMUNITIES.


also felt

237

of individuals

is

by

the

Mahommedan Gobodies, just as the

vernments themselves, and they are thus led to favour


the
integrity

of these

natural

French seigneurs are stated in mediaeval law-books


to have favoured the
villeins

existence of communities of

living au menie pot.

The natural processes


indirect

of dissolution to which such groups are subject are


also

much retarded by the Mahommedan power. The


merce.

influence

of

chief dissolving forces

acting on primitive communities are

war and comscatters the

One

tears

them

to pieces

and

fragments abroad, the other disintegrates them, by


creating inequalities of wealth
;

and nothing

is

harder

(as will be seen presently) than for the rich

and poor

brethren to dwell together in unity.

But a Mahom-

medan Government on
both by
its

the whole keeps the peace, and


its

acts of
its

commission and by

sins

of

omission,

by

irregular taxation,

and by

its failure

to provide

modes of easy communication and a pure


justice,
it

and regular administration of

retards or

puts a stop to the accumulation of capital.

The
in

closer examination of the

Turkish provinces

Europe which many causes have recently made


has
already recovered
for

practicable
perfect

us a nearly

example of one of the oldest institutions of


race

the

Aryan

probably, with the exception of the


The House Community
is

Family, the very oldest.

not peculiar to the territories and dependencies of the

2J)8

KAST KniorKAN

IIOISI"

(OMMIMTIKS.
loimd
it

<

ii

mv vm.

Turkish
Soiitli

Ijujtirc.

siiu-o

it

is

ninoiiL:;

all

ihc

Slavonian jiopulatioiis. hut

occurs in

|L!;rca(o.st

ooninletcncss
st<)ck arc

whcrcNcr
<>r

mm
like

<!'

tin-

South

SIa\()iiian

now

ha\c hccn latrlv undci-

M iissuliDaii
incessant,

jjovcmnient, or

where

the

Mdiilcnciii'ins. they

have

lal tlicir

whole histdrv drtcnnincd hy

!<trnXjlcs

with Mnssnlnian ]>ower.


is

The inij)ortance

of those House ('onnmniitics


the stuch'nt of
social

easily nnck'rslood

hv
call

what

may

perhaps venture to

and

jiolitical

enil)ryolog3\

They

are a living

form, verv near to us and constantly hrought nearer,


of institutions
rather liinted at than revealed in the
a.

most ancient records of


civilised

singularly large

number

of

nations.

The Roman

law, which supplies


travel

the only snre route

by which the mind can

back without a check from civilisation to barbarism,

shows us society organised


ruled
l)y

in separate families, each


its

the Paterfamilias,

despotic chief.

But

it

also exhibits vestiges of institutions not


jrotten.

wholly

for-

of
still

certain

associations
in

of

related

families

which

had something

common and might


There are some marks

once have had a

common

life.

of these associations on law, and some


ligion,

more on

re-

but practically in

Roman
Romans
name,

legal history they

are dead institutions.

Next above the Family, there


the of a group which

were vestiges

among

had no

special

collective

the

Agnati,

or
re-

Agnatic Kindred, the collective body of kinsmen

cir.vr.

Tin.

EAST EUROPEAX HOUSE CO-MMUXITIES.

239

lated exclusively tlirougli

male descents, who either

were, or might have been, under the paternal power of the

same ancestor.

Again,

above the Agnatic

Kindred, there was yet another and a more extensive


group, of which the origin was lost in antiquity, but

which was believed by the Romans themselves to


liave been

formed as the Agnati were formed


real

that

is,

by descent through males alone from a


male ancestor.
This was the Gens.

common

Nothing can be

more

interesting than

to find alive in usage these

groups which, as bodies having a corporate existence,


are dead in

Roman

law.

There can be no reasonable

doubt that the

House

Community

of

the South

Slavonians corresponds to one or other of the larger

Roman

gi-oups, to the Hellenic yevos, the Celtic Sept,


It

the Teutonic Kin.

answers

still

more
is

closely to the
itself a living

Joint Family of the Hindus, which

though an extremely perishable

institution.

Tn what
of savage

way

it

is

related to certain

associations
it,

families, like it

and yet very unlike

upon which
Primitive
(in
it

our attention has been fixed by the deeply interesting researches of Mr.

McLennan
Mr,
is

(in his

'

Marriage

')

and of

Lewis

'Ancient Society'),

a point

Morgan upon which

his

may

one day be possible to have a clearer opinion when


the

savage and the Aryan group have been fully


life.^

studied in the
^

See Note

A to this chapter, on

The

Gens.'

'JIG

KAST rriMlMlAN
FilU'rii or
t\V(iii\-

llttrsK

(OMMrMTIKS.
llic
;it

(IIap. viii.

vc:ir^

n^^o

iiisritiitioiis

of
it

the Slsivoniaii> Iiml


\v;is

Iici^iin

lo atlrad
|r(>l);ilil('

tent

ioii,

mikI

ln'comiiiu"
l>c

'\lr<in(I\liridu^o

lli:il

llicy

would
of"

prove to

the

connect

iiiLi"

'

^vo port ions

the

earth and inaid;ind

hmi;"
'I"h'

arliitrarily
lJn.->i;in

sej)araleil,

the

Kast and the West.


ties
if

\'ilhi_i,^c

(V)Miiniini-

were seen

to
a

he the liidinn
ini>re

\"ill;iir('

Coinnumities,
tliaii

anvthinu; in

igrhaii-

condition
the

llie

eastern

cnltivatinu"

i^roup.

In
ol"

\ i!laL;"e

Coni-

ninnitv, liowever, the

Ixtnd

coninion orii^in an<l

kinship, though

still

recognised in language and to

some extent

in feeling, is feehle

and indistinct

the

model has been too often simulated by


the sense of reality to be very strong.
families

fictions for

The

related

no longer hold

their land as an indistinguish-

able

common fund

they
it

have portioned
periodical!}?'
;

it

out, at

most they

redistribute

sometimes
are

even that stage has been passed.


high road to modern landed

They

on the
I>iit

i]g:'oprietorship,

in

the Joint Family of the Hindus the agnatic group


of the

Romans

absolutely survives

or

rather, but for


it

the English law and English courts,


vive.

would

sur-

Here there

is

a real, thoroughly ascertained

common ancestor, a genuine consanguinity, a common fund of property, a common dwelling. And the Joint Family of the Hindus, save that it now lasts
for fewer generations, is point for point the

House
distri-

Community

of the South

Slavonians.

The

CHAP. TTir.

EAST EUROPEAN HOUSE COMMUNITIES.

241

bution of these ancient groups in the countries in

which they

are found

is

well worth remarking.

The

North Slavonians or Russians have the Village Community.


to the

The House Community belongs


Servians,

specially

South Slavonians, the Croatians, Dalmatians,

Montenegrins,
Bulgarians.

and the

now

Slavonised

On

the other hand, in India, the Joint

Family and the Village Community are often found


side

by

side,

sometimes indeed bound together by


relations.

complex common
it

Even

there, however,

has been observed that, where joint families are


is

abundant, the village organisation

weak and

village

communities are rare


in

and

this is notably the case

Lower Bengal.
The House Community then
is

an extension of

the Family

an association of several and even of

many related families, living together substantially in a common dwelling or group of dwellings, following a common occupation, and governed by a common
chief.

The law
has

or custom which regulates


lately

these

institutions

been subjected to a close

examination by an eminent
writings are
still

man
b^''

of learning, whose

obscured

that unfortunate veil

of language which hides


this

Slavonian literature from

generation of Englishmen.

The name
least

of Pro-

fessor Bogisic is connected

with several places, with

which,
to

now

of

all

times,

we should

expect

have literary associations.

He

is

native of

-I'J

i:\>-T

r.n;(^iM:\N

inusi; ((MMrMTiKs.

ciim-.

vm.

IiJiL:;usa

liis
jit

l;i>f

work
;

is |mltli!i('il

liv tin-

AcMdcnuTiiiof"

of Sciences
vcrsity of
(

Amtmih
;

he
lie

is

prdirssDr
(MKliticil
liis

in llir
\\\r

Mcssii

mid

li:is

];i\vs

Montencirnn

Tlic rcsulls
tliroiii:;!!

of

iii\t"-tii:;i(ioiis

mi-c

only knt)\\n lo nie

sonic (JcniiMii ti-niislations


tliron^li

of passMij^cs in tluMn, and


i)ortion of tlu-ni 1)V ^I.

a sinnniary of a

Frdor Deinclic.

Xotliinii\ in

my

opinion, can exceed their instrnctiveness.

They

sliow us the very


tribal

way

in

wliicli,

amid

pi-iinitive

society of

Aryan

race, the ])ersonal

relations

and ideas of men become modified when the small


groups of which they form part arc absorbed
in larger

assemblages, both the large and the small group being


respectively tied together

by community of blood.
Political

They thus
embryo
:

disclose to

us

Power

in

the

the Chief growing out of the head of the


its

household, the State taking


the Family,

first

beginnings from

They

are entitled to take their place

by

the side of some recent Indian investigations which


I will describe presently,

as

new

materials of the

highest value for a theory of the


hiirher races of
It

condition of the

men

a state of barbarism.
all

would appear that in

the South Slavonian

countries Natural Families,

as

they are called, are

found intermixed with the House Communities.


a
'

By

natural family

'

is

meant

a group consisting of the


still

descendants of an ancestor

alive,

while a house

community

is

(almost invariably) an association of

cnAP.

Tm.

EAST EUROPEAN HOUSE COMMUNITIES.

243

families all descended

from a

common
wished

ancestor de-

ceased.
carefully

These natural families have not been as

examined

as could be

they had not


in the eyes of

the strangeness of the house the observers,

community

who

again

show no

signs

of being

acquainted with the controversy which has arisen on


the point whether the larger or the smaller group
is

the more ancient, and better entitled to be considered

the

cell

out of which

human

society sprang.

I have,

however, no doubt myself, from a variety of indications, that these families are, as a rule, despotically

governed by the eldest ascendant. Not only the legal


writers, but all travellers in

South Slavonian lands,

have noticed the extraordinary respect of the South


Slavonians for old age.
'

Without reverence

for old
'

men

there

is

no

salvation,' is a Servian proverb.

A
an

father,'

says another Slavonian

maxim,

'

is

like

earthly god to his son.'


'

A less

reverent adage runs,


so

The reason

why

the devil
Still

knows

much

is

that he
is

is

so extremely old.'

more convincing evidence

furnished
that the

by the fact observed by Professor Bogisic, South Slavonians, like the Romans, maintain
and Cognatic rela-

a clear distinction between Agnatic


tionship,

which they term respectively kinship through


little.

the great blood and kinship through the


a group of men, connected with a

Thus

common

ancestor

through male descents (natural or adoptive) exclusively,

are

kinsmen of the great blood

they are

241
kinsiiKii

KAST KlKorKAN lltUSK I'OM MIMTI KS.

cilAT. viii.

t)l'llR' lilllo

hlood wIk-ii they iiuliuk; also

tlif

doscemlnnts of

fi'inalo ivlativos.
is

Now

tlic roco^iiitioii

of animtic relationslii|)
clial

nood evidence that patriaror has


havt-

jo\ver
;

eitluT exists
tliere
is

once existed
l)een

in

coininnnity

may
uo

once

])aternal
is

power wliere there


aiiiiatiiui

a^uution,

hut wliere there

there

must

ahiiost certainly

have heen pater-

nal

])ower.'-

The
in

play, then, of relation


is

between the

Family and the House Community

exactly what

we observe

India between the Family and the

Joint Family.

The

family,

when

it

does not dissolve

by the swarming
the house

off of tbe cbildren,


;

expands into

community

the

community (though not


up into
se})arate natural

so often as in India) breaks


families.

The

process, for all the evidence before us,

may have gone on from


mixed with the natural

time immemorial.
inter-

The House Communities, which are found


families,

and which are con-

stantly springing out of them, are as far as possible

from being patriarchal despotisms


2

and they

illus-

I learn of the

Power

from correspondence with Professor Bogisic that the Father is stronger among the Russians than among

the South Slavonians, and that

among

the latter

it

is

stronger

near the coast than


to his father,
'

it is

inland.

He

has heard a young


coast country,

man

say

We are not here in the


and
sons
nothing.'

where fathers

are

everything

In some parts of these

countiies sons cease to be subject to the father's power

when they

marr)'

but in this case marriage seems to imply severance from


is

the paternal domicil, which


process

probably the earliest form of the

which the Romans

called Emancipation.

CHAP.

Till.

EAST EUROPEAN HOUSE COMJIUXITIES.

245

trate very clearly that diminution of paternal


Tvhich,

power
itself

as

have frequently

insisted,

shows

when

families, instead of dissolving at the

death of

an ancestor, hold together and take the


towards becoming a nation.
first

first steps

The community

at

sight

is

rather democratically than despotically


it

governed, and

would

in fact

depend on the point of


it,

view from which the observer regarded


considered
cratic,
its

whether he
aristo-

government to be democratic,

or monarchical.

Every member of the body


fund.

has an absolute right to be maintained, housed, and


clothed out of the

common

Every daughter
to

of

the associated families has a right


portion

a marriage

when

she marries

every son has a right to a


introduces her into

provision for his wife

when he

the community.
a voice
iii

Every male of the brotherhood has

its

government.

The assembly
over,

of

kinsmen

(the Skuptchina) meets every day as a rule, generally


in the evening after

work

is

under a tree in the


All the

neighbourhood of the
affairs

common

dwelling.

of the

community

are there discussed,

and

every
tions.

man may

theoretically mingle in the deliberait is

Nevertheless, as a rule,
;

the old

men who

debate

the authority which, as I before said, the

South Slavonians assign to old age, makes the opinion


of
the

old
;

far

more weighty

than their
it

indivi-

dual voice

and in very large communities

would

seem that

it is

generally the mature heads of families

24(")

r.AST

KrilorK.W HOUSK COMMIMTIKS.


All
this

chap.

vm.
in

who

attcii'l

llu'

asst'iiil)lv.

is

exactly

hariiiKiiy

with wjiat we
tliroui^hoiit

know
the

of the

l)rL;iiiirniL;'s

of
it

Aristocracy
shoulil

Arvaii
if

world

hut

always he niiHiiihcrcil that


iiiililant.

the association the

were habitually
youths

Imth

ilic

oM men ami
to tlie

wouM
who

jtrohahly

fall

into the baek4-roun(l,


l)elou<i:

and

the authority in council woidd

mature

warrior

is

foremost in arms.
aspect, however, tlie
is

Under another
of the

government
all

community

monarchical, and at
is

times

its

most important member


matchin.

the House-Chief, the

Doits

He

alone represents the association in

dealings with other persons and members.


ministration of
the daily tasks
all its affairs is in his
;

The
:

ad-

hands

be

allots

he presides at the
;

common

meals

and distributes the food


delinquencies
;

he reprimands

for faults or

he

is

invariably addressed in language


;

of the greatest respect

all rise

on

his entrance

no
no

one covers his head or smokes in his presence

amusement or ceremony commences

till

he appears or

has announced that he will stay away.


of the brotherhood does not review his

The
acts,

council
it is
it,

but

expected that he will submit important cases to

and

its

jurisdiction

is

called into exercise

when new
The

principles of administration have to be settled.

women of

the community,

it
;

should be stated, are not


there
is
is,

directly under his authority

a house -mother

who appoints

their work, but she

whenever

it

is

CHAP.

vilT.

EAST EUROPEAN HOUSE COMMUNITIES.

24:7

possible, the wife of the house-chief,

and

is

always

subordinate to him.

The mode of appouiting the House -Chief

is

in the

highest degree interesting, and throws a strong light

on a number of problems which meet us in the The student of ancient history of the kingly office.
political

embryology

is

familiar with

the

seeming-

contradictions between the facts just seen in the


light

dim

which surrounds the beginnings of royal power.


office

Sometimes the
wholly
elective,

of the Chief or

King seems

and
;

its

bestowal entirely determined


it

by personal
ditary,

fitness

sometimes

appears to be hereit will

but then

it is

quite uncertain whether

descend to the brother or to the eldest son of the last


sovereign
;

in general the office is confined to

men,

yet here and there a

woman

in certain eventualities

becomes lady or queen. Very ingenious explanations


of these

phenomena have

lately been suggested.

But

the system of choosing the South Slavonian housechief,

while

it

exhibits exactly the same apparent


at the

uncertainty,

shows

same time that

it

arises

from a very natural and


conflict

intelligible cause

from the
and a very
First,
;

between a sentiment and a necessity, between

a very powerful feeling of respect for blood


clear sense of the pressure of the facts of

life.

the chief

is

elected

by the

collective brotherhood
if ever, fails to

but the brotherhood rarely,

choose a

member

of the family connected with the

common

*J

18

KA^ Kl'ROPEAN HolSK COMMUNITIKS.

ouw.

viii.

ancest<M* tlironiili (Icsccnts

ol"

]riin(ii''nilui'<'.

lis intlio

clination
la>t cliift'.

would
Itut
ot'

lu'

to choose

the (eldest son of


aiic.

it>

veneration for

and

its

sense of

the value
strujj]fle

experience as

a tnciins
it

of success in the

for existence, lead

constantly to elect the


Vty its

next brother of the

last administrator.

strong

appivciation of the importance of individujil capacity


it

is

led occasionally to put a


in
this

woman

at its

head

who

case

is

quite distinct from

the house-

women under the house-chief. The practice of electing a woman to the chieftainship appears to be, less common than was supposed by the travellers who first observed the house commumother, governing the
nities,

and

it

is

not impossible that they failed to

discriminate between the


ity

two shapes which the authorBut undoubtedly

of the
is

house-mother takes.

woman

occasionally placed not only over the

women, but over the


wherever
fitness to

men

of the community, and

this occurs it is for reasons of her especial

undertake the administration.

The leading

case mentioned

by

my authorities
girls

is

where a consider-

able part of the revenue of a

community was derived


kept by the ladies
as this
effect in

from a boarding-school for


belongino: to
for
it.

Of

course,

no such reason
have had

choosinof a woman

to rule could

primaeval ages, or even at the

dawn
is

of history.

The

explanation of the early female successions to sovereignties

and lordships no doubt

that the circum-

CHAP.

VIII.

EAST EUROPEAN HOUSE COMMUNITIES.

249

stances of tKe time allowed unchecked play to respect


for the claims of

blood

the

woman

was taken rather than a


Nevertheless,
that,

men being exhausted, a new strain of blood


Slavonian pheno-

introduced.

these

mena suggest

even in the primitive militant


a

communities, emineht capacity in

woman might

overweigh the disadvantages of sex, and that every

now and then


munity.
chosen
is

Deborah or an Artemisia might rule

the tribe as the house-mother rules the house com-

Sometimes,
the

it

should be noted, the

widow

of the last chief,

woman who during his

lifetime shared his authority,

more

particularly over

the females of the household.


It appears to be a general rule of all these

house

communities that the capital stock or fund necessary


for carrying

on the business of the association

is in-

capable of alienation.

The nature of
;

this alienable

property varies a

good deal

thus, with a

community

of vine-growers, the fermenting vats cannot be parted

with

and

it

is

the usage with associations of dis-

tillers to

apply the same principle to the apparatus of

distillation.

But the great majority of the house


it is

communities are purely agricultural, and


able that the property

remark-

which the custom of these


corresponds

communities

makes

inalienable

very
:

closely to the res mancipi of the older

Roman law

that

is

to say,

it

consists of land

and plough oxen.

It

has often been suggested

by

myself among others

250

EAST KUROPKAN HOl'SK


placed hy

o.M Ml

MTI KS,

(iiai-.

vmi.

tliat tlu' oltj''ts

tlir

Komaiis

in llic liinh.

est

class

of

i>r(i[K'rty

wore

tlic

coiiiiiiodilics
;

of

first

importaiKT to an
only

aijfriciiliural ji(n|t|c

;iii(l

(li()iii;li

wo

knnw

thr

lioman

ris iniiiiiiin a> alicii.-iMc iindi-r

certain circiiiiistanccs, the very complexity of the fornialilies

re(juired for alienation furnishes a hint that

they once constituted the inalienable capital stock uf


liie

ancient Latin cnltivatint^ communities.

l>ut these

recently observed facts from Eastern Europe 8u^(rest

some new

ideas, not

only concerning the res inancipi

but also and more particularly concerning that other

and technically

inferior class of property, the res nee

mancipi, in which the

Romans

placed

all

the objects

of enjoyment not included in the higher division of


things.
I

myself conjectured, some years ago, that


not enumerated

the

articles

among

the favoured

objects seem to have been placed on a lower standing,


'

because the knowledge of their value was posterior

to the epoch at

which the catalogue of superior pro-

perty was settled.

They were

at first

unknown,

rare,

limited in their uses, or else regarded as mei-e appen-

dages to the privileged objects.'

I still

think this de-

scription of the res nee maneipi probably true of

some

stages of primitive society,

and

if

the last

words,

'appendages to the privileged

objects,'

be understood

of the products as distinguished from the instruments

of labour, I think they are also true of the social


stage of the ancient world to which the Slavonian

CttAP. -viil.

EAST EUROPEAN HOUSE COMMUNITIES.


It

251
may-

liouse

communities most nearly correspond.

be supposed that the earliest cultivatmg communities

were barely self-sufficing


with their instruments of

that they never parted


tillage,

and consumed

all

the fruits which the earth yielded to their labour.

But

as production

became more abundant,

as intervals

of peace became less rare, as

common markets were

gradually established, economical forces would begin


to operate

with greater activity, and the res nee


first

mancipi would obtam their

step in dignity as

commodities exchangeable

at a profit.

All the sur-

plus produce of the domain would be res nee mancipi,

and,

if

not stored, would be bartered or sold.

We

can see from the Slavonian examples that some things


included in the higher class might locally and occasionally be dealt with as

belongmg

to the lower.

The
which

Roman

res

mancipi

land, slaves, horses, and oxen


to the commodities

would no doubt answer


primitive
agriculturists

would

almost
it

everywhere
likely that
its

regard as properly inalienable, but

is

Roman

authority generalised the usage beyond


area.

primitive

community

of

cattle-breeders

would regard oxen

as eminently exchangeable,

and

even an agricultural community

may

originally have

confined the inalienability to the oxen which served


as beasts of plough.

Peculium
the

few head of oxen kept apait


the

was

name which

Romans gave

to the permissive

252

KAST KrilOriVW

HiU'Si:

COMMrNiriKS.
slave.
t

rii.\i'.

vm,

soparnto |>ni>rrtv allowed to son


eil>le

<ir

No

|)riM

was
of

luoi'e jxTsisteiit
t\\v ptriilimii

in

lonnan law
aiii lioi-'n
lie
\-

liaii

tliesuli-

jivtii^n
laiiiilias
it
;

1o the

iit"tln' jiafcr-

or the master, sliould


tlie iiide|H'n(U'nt

choose to cxcTcise

and
sous,

lioMinii;of the /><v/^//7/m,

even

by

was scoured only hv very


nsa]^es

late le^ishition.
tlie

These Shivonian

and

tlie

experience of

Slavonian communities

j^ivc

us reason to believe that

the separate holding of ])ro]ertv by the


the brotherliood had
a
intieli
it

members of

more
had

iinportaiit influin

ence in other societies than

one so sternly

tenacious of a central principle as the

Roman.

The

pecidium seems to be always an actively dissolving


force.
It

had

this effect to

some extent with the


it
is

Romans, but with the Hindus

the great cause

of the dissolution of the joint families,

and

it

seems to

be equally destructive in the South Slavonian countries.

When

the house
there

community
is

is

in
:

its

primitive
is

and natural
in

state,
;

no pecidium

there
is

none

Montenegro

the dominant notion there


is

that, as

the

community
it

liable for the delinquencies of its

members,

is
;

entitled to receive all the produce of

their labour

and thus the fundamental rule of these


is

communities, as of the Hindu joint families,

that a

member workinor
But, as in India,

or tradino; at a distance from the seat


it

of the brotherhood ought to account to


all
;

for his profits.

sorts of exceptions to this rule

tend to grow up

the most ancient and most widely

CHAr. viTi.

EAST EUROPEAN HOUSE COMMUNITIES.

253

accepted appearing to be, that property acquired

by

extremely dangerous adventure belongs independently


to the adventurer.

Thus, even in Montenegro, spoil

of war

is

retained

by the

taker,

and on the Adriatic

coast the profits of distant maritime trade have from

time immemorial been reserved to seafaring members


of these brotherhoods.

But the reluctance


is

to sur-

render individual gains

a sentiment observed to be

gaining in force everywhere, and, in connection with

some other causes which


the communities.

I will

mention afterwards,

it

universally tends to bring about the dissolution ot

Doubtless

it

was always among

the most potent of the influences which began to

transform the old world of consanguinity into the

new world of economical relation. The situation of women in the


of barbarous Aryans,
is

primitive groups
calls for

a topic

which

much

ampler and more minute discussion than can be given


to
it

within

my

present limits.

will,

however,

briefly note

one or two points among a considerable


separate treatment,
{a)

number which deserve house community of


munity of males.
taken
is

The
like

the

South Slavonians,
is

the joint family of the Hindus,

primarily a comare
entitled
to

Jhe daughters
its

be married and portioned at


are
to

expense, and steps

bring

about

their

marriage

before

any son

married, but they have no right to any


capital

share of the

stock

on

the

rare

occasions

2">4

KAST KVIlOrKAN IIorsK ('OMMIMTII.S.


wliicli
is

.mai'.

mm.

oil

it

i^

tlivitlcd.

(A")

At the

])r('S('iil

cci-liiiii
;i

liKcrtN'
];mtl.

iillowt'd to
in

tlicin

in

clioicc
I.-iiids,

of

liiis-

luit

the
ari'

South
niaiiv

Sl;i\ (Hii.-in

as

ols(^-

wlirrc. tlui-f

vcsti^os

of infant niarrian'c
Liii'l

Pown

lo

([iiitc

ivcontlv. a

Cliristian

In

I'a^tcrn

I'liiroju'

was irrevocably
(r)

hctrotliod,

th()iiji;li

not inarripf],

in I'arlv cliildliood.

The wives
tlic

of

tlic

confederated

kinsinen l>rouglit into

connnunity from outside

have their marriage portion reserved to them ns


separate property or pecidium, and a certain

amount
us to
gift ')

of

money
held by

or goods (which

many customs enal)le


'

trace to the ancient institution of the


is

morning

them independently, not only of the


but of their husbands,

collec-

tive group,

(d) In some of the

house communities both this property and the marriage


portion,

both the parapherna and the

dof<^

descend, like the

Hindu

Stridhan,

by

a peculiar line

of succession to female inheritresses.

Like

all

branches of the Aryan race which remain


still

in a condition

savouring of barbarism, but which

have

not

adopted

Mahommedan

institutions,

the

South Slavonians bring their wives into the groups


in

which they are


distance

socially organised

from a consider-

able

outside.

To

this

'

exogamy,' in the

primitive militant state, they no doubt

owed hardi-

hood,

physical vigour, and relative success in the


;

struggle for existence


the

and

at the present

moment

common

residence of so

many

persons of both

'

CHAP. TUT.

EAST EUUOrEAN HOUSE COMxMUXlTIES.

255

sexes in the same household

may

be said to be only-

possible through their belief that

any union of kins-

men and kinswomen would be incestuous.


Slavonian Table of Prohibited Degrees
wide.
cal
is

The South
extremely

Every marriage which


is

requires an ecclesiasti;

dispensation

regarded as disreputable

and,

though the rule of ecclesiastical jurisprudence on prohibitions against intermarriage


is is

tolerably followed,

it

rendered excessively stringent by a peculiar method

of counting- the des^rees.

The

distaste of the
is

South

Slavonians for suing in the Turkish Courts

largely

caused by these ideas about intermarriage.

Mahom-

medanism,
religion
;

as

I before stated,
its

is

an

'

endogamous
and thus

it

derives from

Semitic origin a rather


;

limited

Table of Prohibited Degrees

Turkish Court, though not professing to apply the

Mahommedan
the Christian

rules, is

constantly found

admitting

the legitimacy of children born of a marriage which

Slavonians consider to be mcestuous.


at the

Nobody can wonder

repugnance of the Slavoliti;

nians towards entering the Turkish Courts as

gants in cases where their

women

are concerned

but

undoubtedly some of the principles which they accuse


the Turkish judges of applying have

more in common
and legitimacy,
to

with our ideas than with

theirs.

Besides this com-

plaint on the subject of intermarriage

the

Slavonians
the

are

said

by Professor Bogisic
rules,

resent

application

of

Mahommedan

in

JoG

KAST ITKOPEAN IIOUSK COMMUNITIICS.


inlu'ntnncc
jtropcrly
l)y

ciur.

viir.

ori<:^in.

t<>

tin*

(if

woiiun,

I inlor

MaliomnuMlan law. wlicrcvcr sons


toLX^'tlu'i*.

ainl (lauii,iilialf a

tors

taki'

the

ilaiiiilitrrs
ol*

lake

son's

>liare.

Now
tlio

tlw ciistoin
(lauij:litt'rs
is

\\\v

house coniiminit'u's
sliarc

exclmics

from any

when

the

coMinion fund

divided, either at a death or otlierwise.


is

The deeply rooted and very ancient noti(jn

that an

unmarried

ihuiii;liter

is

only entitled to maintenanee.


is

and that a married daughter

finally

and exclusively

provided for by her marriage portion.


I

have here noticed the practices called by Mr.


' '

McLennan exogamy

and

'

endogamy

'

chiefly for

the purpose of calling attention to the manifold and

surprising fictions by which an inberited sense of the

advantage of exogamy and of the disadvantage of


close intermarriage
is

reconciled with the doctrine


It
is

of the Eastern Church on the point.

to be

remarked that every variety of


observed

fiction

heretofore

among

ancient societies held together

by the

assumption of

common

descent

is

found among the

Christian Slavonians of Eastern Europe.


in the first place created artificially in this case the

Kinship

is

by Adoption, and

adopted member of a family or house

community

is

assimilated to the naturally born kins-

man

for all purposes indiscriminately.

Entire sub-

families

are

engrafted on the house

communities
;

individuals are taken into the subfamilies


sionally aged

and occa-

men, strangers in blood

to the brother-

CHAP. Ylli.

EAST EUROPEAN HOUSE COMMUNITIES.

257

hood, are admitted to a place


the joint household from

among
labour

the elders of
is

whom

no longer

exacted or expected.

It

seems to be a universal con-

dition of the Slavonian adoption, that the person or

family received into the house

community
a

shall be

virtually without natural ties through the death or

emigration of the natural kindred

precaution

which may remind us of the extreme care bestowed

by the Roman College of Pontiffs, that the ceremonial


observances of two families should not be confounded

through a precipitate adoption.


ficial

But

besides the artiall

adoptive relation, which stands for

purposes

on the same
are

level as natural connection of blood, there


fictitious

numerous other

relationships

which

exist chiefly for the purpose of preventing intermarriage.


ties

Several of these correspond to the fictitious


are

which

shown by

their ancient

law to have

])een

common among

the Celtic Irish at the opposite


relation of foster-parent

end of Europe.

Thus the

to foster-child creates relations


tive families

between their respec-

which operate

as a bar to intermarriage.

Gossipred, spiritual parentage, the connection between

sponsor and godchild, has the same effects

among

the

South Slavonians which


Christian world.

it

once had over the whole

But

there are in Eastern

Europe

forms of

fictitious

consanguinity hitherto

the study of ancient institutions.


at a

unknown to The groomsman


which restrict

wedding comes under a

set of rules

'J5S

KAST KlltorilW MOUSE COM Mf Mil

KS.

chap.

viii.

intermarri:i_ut' wiili tlir l:iinily <>rtli<' hridc lo just, tlic

saino

rfVi'ct sis

if

he

li:i<l

Ih'ch

iial

iinilly

the

l)n)lli('r

of

tlu" lri<li'irn)(>in.

Coiirratrniilv. rKiilious

hi-otlirrlioiMl

wliicli is ail ai-lilicial creation oi" iVatcfiiity, jiisf

as

a(l(pti(>n is

an

artificial

creation

ol" |)ar('iita<(o

retains
which
it

probably

in those

Slavonian

lan<ls the shajx'


it

wore

in nn^re westerly countries before

In-came

the.
;

central })rinciplc of so
is

many

onlm-s of kniglithood

it

solemnised with a special ritual of the Slavo-Grcek


it

Church, and
Prohibited

is

the source of a special

Table of

Degrees.

But perhaps the most singular


itself
is

illustration of the
artificially

tendency of kinship to extend

under the empire of primitive ideas

to

be found in certain Slavonic forms of gossipred or


spiritual relationship.
fiction.

Here we have

fiction

upon

The

relation of sponsor to godchild imitates


;

consanguinity

the Slavonian gossipred imitates the

ecclesiastical gossipred.

A man

whose

life is

endanan
If

gered by the enmity of another


offer of

may make him


by
misfortune.
killed

what

is

called gossipred

the

enemy refuses, he may be lawfully


If he accepts, he

even by

treachery.

becomes connected with

his former adversary


ship,

and

is

in fact

by a kind of spiritual relationcompelled to become sponsor to


These peculiar
artificial relations

his next-born child.

in the wilder Slavonian countries,

and particularly

in Montenegro, are found extremely useful in staunchinfj-

blood-feuds.

When

momentary

reconciliation

cnAr.

VIII.

EAST EUROPEAX HOUSE COMMUXITIES.

259

has been effected by friends or neighbours between

Montenegrin Capulets and Montagues,


to give
it

it

is

common

stability

by

insisting that the heads of the

contending houses shall become spiritually related to

one another.

The expedient
not

is

well

known
is

as the

gossipred of reconciliation.

The truth
these

that

mere

sentiment has

among
tie

people

solidity

enough
If
it is

to

form a binding

between

man and man.

to

bear the ordinary strains of barbarous


a core, of fictitious consanguinity.

life, it

must have

House Communities and Natural Families which make up the bulk of South Slavonian
I stated that the

society are constantly running into one another

the

community dissolving
lies,

into a

mere collection of fami-

the family expanding into the community.

But

both these groups occasionally dissolve in other ways,

and some instruction may be obtained from observing


the

mt)de of dissolution.

When

a natural family

breaks up,

room

is

made,

need scarcely say, for the

operation of the body of rules which

we

call Inheri-

tance

and in those portions of the South Slavonian

countries

which are under Codes,

as, for

example,

those which belong to the Austro- Hungarian

Mon-

archy, the law settles the distribution of the family


fund, and to

some extent the personal relations of the

kinsmen to one another.


the local usage
is left

But

where,- as in

Turkey,

to its

unchecked operation, one

of the systems of succession


s

commonly followed has

2ft0

r.AST

r.ri:t)ri:\.\

iiorsi:

((MMr\iTir.s.

cnw. vm.

a great ileal of inteivsl lor us, as ho irrows

l-ladi

son

(ifilic fair.ily,

up and marries, leaves

his father's houseits

hoKl, takini^

with him the sIimiv of

possi!ssions

which umler developed

law

would have devolved


and he
i;'oes

upon him

at

hi- father's death,

elsewhere,
Per-

often into a far count r\% to seek

anew
at first

foiMune.

haps there are few things which

sight seem to

have a more distant connection with one another than


the customs of Primogeniture and

liorough English

and the Scriptural parable of the Prodigal Son.


precisely the

Yet

same group of usages


its

lies at

the root of

the institution and gives

point to the story.

The

division of the family property does not wait for the


father's

death.

The son who wishes

to leave the

family
to

home
it

takes his share with him, and goes abroad

add to

or waste

it.

The son who remains


^^otesto'.',

at

home continues under


father

jxitria

serving his

and never transgressing

his

commandments,
that

but entitled at his death to the entire remnant of his


property.
I
'

Son, thou art ever with me, and

all

have

is

thine,' says the father in the parable,

and

this is

precisely the foundation of the rule of ancient

law.
a

Which indeed

shall be the

home- staying son

is

point on which there has been

much
it
it

diversity of
is

usage.
son.

In the Scriptural example,


Primogeniture, as

the eldest

we know

in

our law, had

rather a political than a civil origin, and comes from


the authority of the feudal lord and probably from

CHAP.

viir.

EAST EUROrEAX HOUSE CO.^^MUXITIES.

261
tlie

that of the tribal chief

but here and there on


it

Continent there are traces of

as a civil institution,

and

in

such cases the succession of the eldest son does

not exclude provision for the younger sons by what

The evidence of ancient law and usage would, however, seem to show that it was usually the youngest son who remained at home witJi
are called appanages.
his father to serve

him through hfe and succeed


;

to

his remaining property at his death

and thus the

Slavonian usage accurately


of the English custom of
If

reflects the earliest stage

Borough English.^

we take a survey of the Slavonian usages as a whole we shall have little doubt that the natural development of the House Community would be into
the Village

Community,

It has almost universally


territories.

assumed

this

form in the Russian

The
says

number

of families included in the brotherhood has


larger.

now become much


sixty individuals,

Professor Bogisic

that the house communities rarely include

more than
than the

which

is

greatly less

number

of persons

making up the community of an


But with the extensions

Indian or Russian village.

have come

a variety of changes.

The
the

land, instead
is

of being cultivated absolutely in common,

divided
shifting

between the component

families,

lots

among them
3

periodically, or perhaps vesting in


seq.

them
Mr.

Elton's -work

See Elton, Orighis of English History, pp. 184 et is rich in new information on this subject.

2C)2

K.AST

r.ntttlMAN

llorSK

COMMIMTIKS.

ciiAl'.

Vlir.

;us

their i>ni])i'rty. siibjirt to


its

;i

iiowci' In the col

Ice

live

bcxly of villa <:;ors to veto

sale

The

tic
;

of brotherall

hood has also


tictioDs
hloitd

lu'ciMiie

i^reatly
it.

weakened

sorts of
in

have

cnfct'hlcd

and m) inanv stran-jcrs


tliat

have

heeii
is

admitted,

the

tradition

of a

common
South

(^ri;:;in

dim

or lo>t.

The common honsc


in

of the llonse Conuiumities tends constantly

the

Slavonian

countries

to

become
is

^nvMip of
esstmtially

dwellings, but the ViUage

Community
the

an assemblage of separate houses,


its (\vn

eacli

ruled

by

chief.

The reason wliy

Southern com-

munities have held

compactly together, while the

Northern communities have relaxed and extended


themselves, can in
tlie

main only be guessed

at

but

we can hardly be very wrong


the nearness or remoteness of

in conjecturing that

had

a great deal to
is

do with

it.

Mahommedan power This Mahommedan

power

doubtless the secret of the survival of both


;

forms of the community

but the South Slavonian

communities, closer to the headquarters of Ottoman

dominion, needed a stronger and more compact organisation to protect their possessions, institutions, and
faith,

while the Russian populations were only occa-

sionally

and intermittently scourged by the invasions


Tartar suzerain.

of their
times,

In comparatively recent

the house communities

have chiefly had to

complain of irregular exactions from their Turkish on the whole t:.e Turkish Government has masters
;

CHAP,

viii,

EAST EUROPEAN HOUSE COMMUXITIES.

263

encouraged them, just as the French feudal lords seem to have encouraged the house communities
lately discovered in France,
tive opulence,

on account of

their rela-

and on account of the better security thus afforded for the punctual payment of taxes and
dues.

Assuming

that the decay or dissolution of the


is

House Communities

matter of regret, there

is

no

doubt as to the quarter in which they find their most It is not barbarism which they dangerous foes.

have to dread, but

civilisation.

All the recent ob-

servers of the South Slavonian communities lament

the influence of

modern codes

in

undermining or

destroying them.

The same

destructive effects are


is

attributed to the older Austrian code which

in force

on the Eastern shores of the Adriatic, and to the

newer laws introduced into the Slavonic lands dependent on the Hungarian Crown.
lieve these statements, as I
I

can well be-

have frequently observed

the

unintended disintegration of the Indian joint

families

by the

less violent operation of

Anglo-Indian

Legal maxims apparently the most innocent law. prove to be fraught with peril. Long since I pointed out that the widespread principle of modern law,
'

Nemo

in

communioiie potest invitus

detineri,^

'

Xo

one can be kept in co-ownership against his

will,'

was

irreconcilable with archaic usage

and Professor

Booisic dwells on the destructiveness of a well-knowD

2f)4

KAST KUnOri'lAX HOrSlC COMMIMTII-.S.


(^(MMmiiii
jiiri^l.
;il

(hai-.

vm.

(liHMrinc

i>r
l:i\v

till'

(MniiiiMil

I*iiclil:i.

llial.

^vlu^

;i

aiitl

:m

iisMi^c

uw
In-

coiiHicl. llic

smiiic

rules of int('rj>ivtatioii sIkmiM


inuf

npplicil in li;iriii<)nisi

tluMM wliicli

jir(M'in])l()V('(l
.

to rccniitilc
is

wo contralegis-

(licMorv provisions of law


tliat

It

\^'V\
IVoiii

justly objected
tlic

laws

tliiM^iTtirallv itrocccd
is

same

lator,

who

assumed

to

have contradicted himself

by

accidi'Ht,

whereas law and usage constantly spring


sources.
'J'hc

from

liistiM'ically dillerent

Iciidency of
is

modern courts administering modern law


to look

in sliort

upon the house comnnniities


it

as bodies ot

voluntary partners, and to draw from


that they

the inference

may

dissolve at the will either of any one

associate or at all events of a majority.

These purely legal causes of dissolution are further


strengthened by economical causes, which now^ constantly tend, as probably they have always tended, to

sap

all

associations founded

on consanguinity.

The

adventurous and energetic member of the brother-

hood

is

always rebelling against

its

natural com-

mimism.

He

goes abroad and makes his fortune,


resists the

and strenuously

demand
account,

of his relatives to
(-)r

brmg

it

into the

common

perhaps he

thinks that his share of the

common

stock
as

would be
in a

more profitably employed by him


mercantile venture.
satisfied

capital

In either case he becomes a dis-

member

or a declared

enemy

of the brotheris

hood.

And

just where this kind of discontent

CHAP.

vm.

EAST EUROPEAN HOUSE COMMUNITIES.


facilities for

265

commonest, the

indulging

it

are greatest.

For the Slavonian countries which have Codes


course the best governed Slavonian countries.

are of

There

wealth
is

is
;

more

easily obtained,

and

its

preservation
j

easier

and there

also the courts

of

ustice

are

open to arguments which,

if successful, are fatal to

the cohesion of the house communities, because they appeal to principles born amid a civilisation to which the ancient natural
foreign
associations

of

mankind were
chief

or

unknown.

The

first

French Revolution

has sometimes been charged with

havmg

left its

mark on law
and
for

in an excessive preference for partitions

sharply drawn lines


;

of division

between

proprietary rights

and

it

has

been thought to

have thus led by reaction to the modern theories of


Socialism and

Communism.
fact the

But

this preference is

as characteristic of the

Roman law

as of the

French

Code

and in

Austrian Code, which has

proved so

fatal to the

house communities, was begun

before the Revolution

by the Emperor Joseph


is less

11.

have no doubt that the peculiarity

attributable

to the discontents of the eighteenth century than to


its
all

growing wealth, and to the increasing


economical forces.

activity of

The
the

legal history of the

North Slavonians seems

likely to furnish us

with a mass of information on

mode

in

which feudal lordships and the kinds of

property dependent upon them grew out of the older

-GCt

KAST Kniorr.AN IIOrSK CO.MMI MTIKS.

hiai-.

vm.

social

;iii<l

iM-itprictary or^iiiiisatioiis.
I

liul \\\c Soulli

Slavonian House Ctunniunity


onK'T of (lovelopiiirnt
the

lu'liove to
\ illa^'tj

hv older in

lliaii
ii

ilic

Coniiniinily of
llirow
li<j;;lit

IJussians.

and

liciiri'

helps

liltle to

the most diflicult

of

all

liistorico-K*pd

pi-oldcms,

the rise of feiuhil ownersiiip.

One
tlie

sii^nilicant state-

ment

is

liowever made,

tliat

on

Austrian military

frontier,

where house eonununities were phmted on


l>y

hinds lieM

tenure of military service, the au-

thority of the house-chief

assumed more and more


and he could sometimes
from a
sole

of he

despotic

eliaracter,

hardly distiuguislied

owner of the

oriLiinally

common domain.
for a theory of the

These new Slavonian materials

growth of Aryan
one drawback
;

society, valuable as they are,

have

they are the phenomena of tribal

groups wliich for a long period of time have not been


fully
tion.

exposed to the stern process of natural*

selec

The Mahommedan governments above them


if

have on the whole prevented their engaging in war


or brigandage
;

they have fought,

it

has generally

been against a
it

has just

common Mussulman foe. Fortunately, now become possible to place by their side
facts,

another set of novel


observer from an

gleaned by an Indian

Aryan

society wliich has hardly

ceased to be violently disturbed.


tained

These

results, ob-

by

actual inspection of Rujputana, the

home

of the Rajput clans, are in fact related to the results

CHAP. yra.

EAST EUKOPEAX HOUSE COxMMUNlTIES.

267

of Professor Bogisic, as are the

barous and militant to the

phenomena of barphenomena of barbarous


Excellent observers have
it

but peaceful communities.


never been wanting in
is

the Indian services, but

the

exceptional distinction of Sir


to

Alfred Lyall,
that he

the gentleman

whom

am

referrmg,

understands the nature of the problems suggested

by the most recent


his

archseological research

and thus

appointment to a Commissionership in the wild

province of Berar in Central India, and to the high


office

of

Agent of the Governor- General


said to

in

Raj-

putana,

may be

have begun a new epoch in

the investigation of Indian

Aryan usage

in the stage
fol-

most conveniently
lows
a
I

called barbarous.

For what

am

indebted to his writmgs,


called
'

now

collected in
parti-

volume

Asiatic Studies
vii.,

'

and more

cularly to chapter

on the
viii.,

'

Formation of Clans
'

and

Castes,'

and chapter

on

The Rajput

States

of India.'

The
society

social
is

system of Rajputana

is

pure clanship
tie

held together entirely by the

of blood

nor
sists

is

there any serious question that

its

kernel con-

of Aryans,

still

barbarous, indeed, but of the

purest breed.

Though

the pretension

is

resisted

by

the Brahmans, the Rajputs claim to represent the.

ancient regal and military caste of the Sanscrit

reli-

gious
that

literature,

the Kchatryas.

The circumstance
of a very

villages

of

Rajputs, often

humble

208

KAST Kl'lJOTKAN

IlOl'SK

COMMrNITI KS.
oNri- inosi
<>(

dui'. \in.

stalion, ;uv (K-casi(>iiall\liulia.

r<iiii(l

Ndrilicni

admits of
aii'l

.-iiuplc cxiilanatioii.

)i-iuiiially a

CdiKjiU'riiin"

iiiilitar\-

race,
tlic

tlic

iJajpiils

seem to

liavr lutii

lii-si

wtaknicd hv

attacks nf iiidincnons
li(diii(il

trilws (riimidtUi' oriuiii, and liiialK' nxcrw

hy

Mahoiniiu'dan

c'DiujUost.

Some

ol

lliciii

lo\vt.'d

their
enlti-

necks to
vators
iuto
ill

tiie

yoke, and remained a>

iM-aecfnl

the phiins of India; but others migrated

tlic

ureat natural fastness

now

called from
all

them

Kajputaiia, where they founded societies


type.
Tlie valour of the Eajputs

of one

and the strength


being

of their

country long preserved them from

reduced into mere subjects of the Mogul, but perha})s


their greatest influence has

been derived from their

intense pride in blood and birth.


so

No

princesses were

much

coveted for wives by the emperors at


as the

Agra

and Delhi
pore
;

daughters of Oodeypore and Jey-

and
as

alliance

with them
price.

is

still

regarded by
point,

Hindus
ever,

above

all

The lowest
no

how-

which

their fortunes reached

was just before the


;

British conquest of Northern India

states

owe

more

to the success of the British arms,

and none are

governed by princes more loyal to the British Crown.

These Rajput clans have long been recognised as

m the highest

degree interesting and worthy of the

most careful observation.


observers of social

As

said

before,

irood

phenomena have been

plentiful in

India, but unfortunately, in the case of Rajputana,

CHAP. Tin.

EAST EUROPEAN HOUSE COMMUNITIES.

2G9

the interpretation of the


vitiated
careful,

phenomena has been much

by

a false historical theory.

One

of the

most

learned,
is

and valuable books ever written


Tod's
'

about India

Rajasthan,'

but the author


that

laboured under the erroneous impression

the
call

most ancient type of society


feudal.

is

that which

we
is
;

Society in Rajputana or Rajasthan


;

not,

however, feudal

it

is

pra3-feudal or tribal

at the

utmost, some of the signs of inchoate feudalism

may

be detected in
references to the

it

and thus Colonel Tod's constant

well-known incidents of feudal tenure


Sir Alfred Lyall has

are extremely misleading.

now

shown

that the true instructiveness of the country


its

comes from
feudalism,

illustrating,

not the mechanism of

but the method of tribal formation and


consan-

development, the stages by which Aryan


guinity grew to
It results
its

perfect form.

from the inquiries and observations of

Sir Alfred Lyall that in Rajputana, the land of the


clans,

and in the wilder Indian countries under Rajsets of forces or agencies

put clannish influence, two

are constantly at work, disintegrating agencies

and

organising agencies, forces of dispersion and forces of


consolidation.

All of these have seemingly been in

operation

from time immemorial, though some of

them

are losing their activity under British super-

vision or administration, and'


altogether.

may

ultimately die out

270

I'.\<T

KniolMlAN

lltUsr.

(OMMINITIKS.

chai'. VIII.

Tlu' (iispiTsiiiu; iorcos arc


aiul

iiiaiiily

war, jx'stilcnrc,

famiiu'.

War.

in

tin; tlie

count

rics

under

liritisli

aullioritv,

takes

now

form of
at

Ini-randaiiH',

l)nf

npstilomv and

famine liave

most beon
*

l)ronirlit

under some
savs
I, vail.
'

dei:;ree

of eontrol.

It

is

well

known,'

iVoni liislory,

and on

small scale Irom


famines,
all

experience of the
desolatini!;

present day,

liow

wide

invasions, pestilences,

and
the

^reat social
of

catastrophes,

shatter

to

pieces

framework

Oriental societies, and disperse the fragments abroad,


like

seeds, to take root elsewhere.'

There are clans

apparently of real
local
first

common

descent wliich are also


tliey

elans, still

occupying the seats of which

took possession, or to which they emigrated as


;

body

but

many
are

of these circles of kinsmen have

been and

still

broken up, and

all

of
to

them or
any place

portions of
in

them have been driven away

which they can find refuge or subsistence.


is

The
not to

Fuidhir, or broken man,

as

common
Yet
is

in Central
it is

India as he was in ancient Ireland.

be supposed that the original kinship


idea as
retains
it
is

broken in

in

fact.

Each

fugitive or emigrant

the

memory

of the

stock

from which he

sprang, partly from pride of blood, partly because he


carries

with him his usages of intermarriage, and


it

would think

incest to

marry

a son or daughter

within the prohibited degree.


settles,

Thus, wherever he

he tends to become a new root for a Rajput

CHAP.

Till.

EAST EUROPEAN HOUSE COMMUNITIES. or sept, and the centre of a

271
circle of

yeuo<s, gens,

new

affinity.

The

effect

is

to produce a structure of

society extremely like that which meets us in the beginnino"s of classical history.

As

will be seen presently,

the fugitive

is

at

once placed under a

new

order of

relations with the neighbouring families in contact

with

whom

he actually

lives,

but he

is

not released

from connection with his natural kith and kin, just as a Roman or Athenian noble, settled at any point
of the Ager Roraanus or the Attic territory, would
still

count himself a member of his patrician house or

eupatrid tribe.
It

seems to

me

highly probable that these forces

of dispersion acted on the ancient tribal organisation


of
if

more northerly branches of the Aryan


the conjecture

race.

But,

may

be permitted, I should say that


scale.

Wars were probably as bloody and frequent among the forerunners of the Romans and Athenians as among the Rajthey operated on a smaller
puts,

but pestilence and famine have always been


in tropical regions.

more destructive

Thus the
It
is,

fugi-

tive was driven to a smaller distance.

however,

no more incredible that an Athenian family settled m a particular locality of Attica should have been at

some time expelled from

its

original tribal

home,

than that, in later times, a citizen of Athens should

deem himself a hopeless

exile at Corinth or

Megara

In order to understand the most ancient condition

of lunnnn

f^cvit'tv.

all

distancos niusl he n'duccd. ami


tlic

we

imist

l('k at

mankiiul, so to sju'ak, tlirou^Ii

wrouir
It

iMid

of

llic liistoriral telescope.

lia> >lill
oi*

to

1)1'

eon^iilereil

Imw

it

((iiiies

lliat

an
liis

emijxraiit

ruiiidNc
liis

Kajpiit.

Ix >i(l('s

retainiiiL;"

connection
into

\\\\\\

natcral

trilie

of (Icsccnt. enters

new

relations with the families anioni:;

whom

he

has settled.

Here, in order to understand sonu; of

the most interesting of Sir All'red Lyall's observations,

we must

attend to his distinction between pure

anil im])urc tril)cs.

]iure tribe is a tribe of descent, living together

generally in the same local seat, and having a real


frenealoiry.

Such

tribes are still

founded in the same


l)een

way
'

in

which they have

always
'

founded.

Whereas,' says Sir Alfred Lyall,

in

modern times

great

men

of action found d^^nasties or noble families,


alongr the

which transmit the founder's name down


the same calibre founded clans or

chain of direct lineage, so in prehistoric ages


sejDts, in

men

of

which not

only the founder's actual kinsfolk


fortunes were enrolled, but
his enterprises.'
to
all

who

followed his
share in

who had any

All such clans in Rajputana claim


;

run up to a single ancestor

and probably the

pedigi'ee

even of those "which pretend to the most


is

prodigious antiquity

to a great extent
still

genuine*

For

literature in

Rajputana

retains that

which

we may

believe to have l^een its

most ancient form

CHAP. Ylll.

EAST EUROPEAN HOUSE COMMUNITIES.

273

in the songs of the hereditary bard, celebrating the

exploits,

and above
is

all

the antiquity, of the family of

which he

the honoured retainer.

These bardic

o-enealogies

may

probably be trusted up to a certain

point

but even the least imaginary of them have


fictions.

been doubtless to some extent affected by

Not only

are the kinsfolk of the


all

eponymous heroic
followed

founder mentioned, but


original adventure

who

him

in the

come

in time to be reckoned as
is

kinsmen.

The pedigree

lengthened sometimes

through unintentional

error,

clansmen who lived

at

the same time being counted as belonging to successive generations,

and sometimes through deliberate

or poetical exaggeration.

The main trunk of the

family tree

is

carried

beyond the true founder, and


princely

finds its root in a

god or among the luminaries of


houses of Rajpu-

heaven.

The proudest

tana pretend to a descent from the sun and the moon,

but a real

human

founder, an adventurous and sucdetected.

cessful warrior, can generally be

.As

Sir

Alfred Lyall says, the best type of the founder of a

pure clan

is

David, the son of Jesse, with his hard-

fighting kinsmen, the sons of Zeruiah.

The most
investigations

original result of Sir Alfred


is

Lyall's
in

his determination of the

manner

which impure clans are formed. In a work published

some years

ago, I said that the' conclusion suggested


accessible was,
'

by the evidence then

not that all early

274

KAST KIKDI'KAN lIorSK COM M l' MTI

KS.

riiAP. viil.

societies wort'

refund
<>1

l>v (lescenl

rnmi
li;iil

llic

smiiic :ui-

eestnr. Imt tlint all

tlu-m wliidi

an\- juTniaiiciicc
<//

or soUditv
flu'V were.

iffnr wovo so (IcsccikIciI,

assiiiii('(l

lliat.

An

iiKlcfmiti'

inmiluT ofcansi^s
liit

iiiav liave
llicir iii-

shattered the pi-imilivc Lirmips,


JXredients recoiiiltiiicil.
<r
it

wlicrcvcr

wason
'

tlic iiio'lcl ni- jti-inciplo

an
is

ass(tci;iti()]i

df kimlrcil.'
<r

An
lint

iiiii>nn'

IcilK-or

elan

not

a lioily

kinsmen,

ho'U' fornicfl

on the model or principle of an association of kinsmen.


Sir Alfred Lyall

has been fortnnate enonirji to see

these associations in the actual course of formation.

Not only

(he says) do robber tribes receive bands of recruits

during periods of confusion, but there goes on a steady enlistment of individuals or families whom a variety of incidents or ofTi^nces,
public opinion or private feuds, drives out of the
life

jjale

of settled
collec-

and beyond

their orthodox circles.

Ujjon this dissolute

tion of masterless

men
them

the idea of kinship begins to operate afresh,


systematically in groups.

and

to rearrange

migi-ant becomes one of a


so far to his origin

new

tribe,

Each new imbut he adhei*es nevertheless


insist

and

his

custom as to

on setting up a

separate circle under the


lands.

name

of his lost clan, caste, family, or

Where an Englishman,
by naming
his

settling perforce in

Botany Bay, or

spontaneously in Westei-n America, kept up familiar local associations

homestead after the county town in his

old country, a Rnjput, driven into the jungles, tries to perpetuate

the more primitive recollection of race.

In this

way new

clans are constantly forming,

under the presidency or


family,

hegemony of some
a

successful
social
rela-

and

always with

mechanism of

arrangements closely copied from the internal


*

Ancient Lav:,

p. 31.

CHAP.

Yiri.

EAST EUROPEAN HOUSE COMMUNITIES.

275
family-

lions of the principal group.

The leading

will often consist of real Rajput emigrants, and in


this case the

whole of the new clan will have a


Rajput

faint

sort of claim to be recognised as of

origin,

but the proud Rajputs of the ancient stock will only


allow the pretension after very strict examination of
the emigrant's pedigree.

Sometimes

it

will

happen

that the chief wlio becomes the kernel of the

new
it

association

is

a mere captain of robbers, but

is

generally found that in a generation or two his de-

scendants will lay claim on curiously slender grounds


to a

Rajput extraction.

great

many

of the stories

current in India about the loves of gods, and about


princes or princesses stolen in their infancy, have
really been devised to give colour to fictitious pedi-

grees

and

this is the

humble and commonplace

be-

ginning of

many
the

popular tales for which the Com-

parative Mythologists have claimed a


origin.

more august

At

same time

it is

not to be supposed

that

all

associations of

men

are successful in consoli-

dating themselves into a clan.


rudimentary clans are cut off or disqualified by one or other of the innumerable the blood is corcalamities -which beset primitive mankind, rupted, the genealogy is lost, the brethren are scattered abroad to
early

A vast number of
in

their formation

new habits
gods and

of life

maimed
away

and unauthorised means of subsistence, to strange But the broken groups re-form again rites.

like a fissiparous species.


circles fade

And

as the great majority of these

in outline, or break

up again into atoms before

they can consolidate, there goes on a constant decomposition and


T 2

117^1

FAST r.rn(iri;\\

iioi^i:

(dMMrMTir.s.
wo

mw.
'^vi

vm.

rfpixxluction of sn)ups

iit

viirious stjigoH, wIjouco


tiirlt'H

at tli

oxtnioixlinoiy nniltittuh' of
iiji

of

iilliiiitv

....

which luako

tlio

luiswllany of Indian
lie
is

KOi'icty.

chii'l'

.>^i'ciTt

(r

:i

.^t:in('

of social evolution
is

whicli

now

uttcrlv straniic to us.


1

tlic

condition

of mind whicli
ancient Irish

recently <lwclt iijion in dcsrrihin^


in the

socioty.""'

mental state which has

survived in Central India, ideas are few, and additions


to

them scanty and slow.


itself

'I

lie

jii-ohlcni

which

iiiiisl

have ohtruded

on men ever sinee their existence

hecame the same thing as thought, the question why


they had relations and sympathies with one another,
is

solved by an appeal to kinship.


is,

The fundamental

assumption

that

all

men

not united with you in

blood are your enemies or your slaves.

on terms of equality or friendship


not in some sense your brother
dition
;

To associate with a man who is


an unnatural con-

is

if it

be prolonged your neighbour grows into

your brother.

The modern reason

for

holding to-

gether in social union, that you and your neighbours

belong to the same

territorial sovereignty, is

new and
in-

even monstrous in Rajputana and the countries under


its

influence.

The

British

Government of India

deed recognises nothing but


the principle on which

territorial sovereignty as

men

are

grouped together.

The

Maharana of Oodeypore, the Maharajahs of Jey-

pore and Jodhpore, are only


*

known

to the Calcutta
8.

Early Ilistonj of Institutions, Lecture

CHAP.

viir.

EAST EUROPEAN HOUSE COMMUNITIES.

277

Foreign Office as princes ruling over certain defined


territories
;

but to

all

the native dwellers in Central

India they are the semi-sacred chiefs of clans of the


purest blood, deriving their patriarchal authority from
heroic or divine forefathers.
Sir Alfred Lyall gives

some striking

illustrations

of the

unpopularity of
It is con-

territorial sovereignty in Central India.

doned in the case of the British Government, which


delivered

the

Rajput clans

from oppression, and


;

probably saved them from extinction


ordination of pure Rajputs
or
to

but the sub-

low-caste Mahrattas

Mussulman

apostates
all

is

resented as a crying in-

justice.

We

have

heard what

Camerons and

Macdonalds thought of being required to obey the


Earl of Argyll, not because he was

McCallum More,

but because he had obtained a grant of feudal superiority

from the Scottish king

but the Indian princes

who

rule over

many

Rajputs, Scindiah the Slipper-

bearer and Holkar the Shepherd, are in their eyes less


like chiefs of the

Campbells than
tribes

like upstarts

sprung

from the enslaved

who hewed wood and drew

water for the great clan of the Western Highlands.

Among
ment
to

the

more

special causes of the process of

tribal af]ro;reo[ation is the

convenience of the arrano;e-

men who

regard a more or less strict ex-

ogamy
but he

as sanctified

by usage and

religion.

The pure
which

Rajput has a prodigious table of prohibited degrees


is

also surrounded

by

a circle within

*27S

KAST KlKtH'KA.N" HOl'SK rOM.Ml XITIKS.


imixt

rim-, vim.

ln'

iiiiirrv.
ii't
iii;irr\

He

niiisf

m.-irrv witliiii
sjx'ci.-il

Iiis

cjisfc

Ik'

niav

wifliiii
rnMliiiL:"

liis

<'l:m.

Ilr
:

)ins

iiTt-at (lifricultv in

wives for
liinlinL:

l)is

sons

lie
]oi-

Ims
his

still

irrcatcr diniculty
'riicsc

in

linshands
ol"

(lauu"litors.

vexations

rules

intcrtnarriairc

are extromcly mix-liitvons to the aiv gn'iitlv

jinn-

dans,
tlieir

wliicii

weakened

l)v tlie

necessity for

obser-

vance, ami are even said to be slowly


lack of reproduction.
it

dyinij,'

out for

IJut to the eniiL^rant

Kajput

is

a positive

advantage to be i^rouped
tribal
lie

in the

same
oi

vaii'ue

and extensive
or septs

bond with a number

families

whom

has not yet learned to

regard as literally of the same blood with himself.

He must

marry, to borrow the IJoman expressions,


;

within his tribe

he

may
is

not marry within his


just definite

(jnis.

When

the tribal union

enough

to serve

as a substitute for caste,

and when the various septs

included in

it

are separate from one another

strung

together, to use Sir Alfred Lyall's language, like rings

on

a curtain rod

the chances

for the fertility of the


it

clan are at the highest point, and give

a manifest

advantage in the
being perhaps
it

struo^crle for existence.

At

the outset,

little

more than
stage

a horde of brigands,

may
;

suffer

from the scarcity of


at
this
all

women

within

its

circle

and

sorts

of fictions are

adopted to bring stolen girls within the tribal outline.

At

the other end of

its

development

it

will again

sufFerj

because

all

the families or septs in the clan

CHAP.

viir.

EAST EUROPEAN HOUSE COMMUNITIES.


to be looked

279
one
in-

will

now have come

upon

as akin to

another, and debarred from intermarriage.

The
is

termediate stage of which I have been speaking

the

most convenient of

all.

But the most


into the origin of

interesting result of these inquiries

impure clans

is

the determination'

of the principal fiction at


It is

work

in their formation.

one which has not by any means died out of the


it

Western world, into which


revival of feudal

was reintroduced by the

and municipal aristocracy.


it

The odour
it,

of vulgarity which

has

now
its

contracted makes

perhaps, hard to understand


since
it is

primitive importance,
fiction of a
is

neither

more nor less than the

better family
entitled to.

and a longer pedigree than one

really

What was
a foible

once a force in the West


;

has

now become

but in the East,


it

among
a force.

societies

held together by kinship,

is

still

Ly all's
started

explanation of the problem with which we


is

that,

to quote his words,

'

the different

stocks congregate
to form a tribe

by

force of circumstances,
tribe,

and tend

and clans within a

under the

name and withm the influence of the most successful The Indian mode of bringing the fiction as groups.'
near as possible to a fact
terially different
is,

should observe, ma-

from any contrivance resorted to in


It

this part of the world.

by no means

consists in

bold assertion, or getting a false entry introduced into


a nohiliaire or peerage.

In India a man's rank

ib

liSO

KAST KlKol'I.W

l|iir>i:

(OMMINITIKS.

ciiai'.

viu,

inrni*nroil,
is

n^t

l)V liis wi>;ilili


liini, liit

or powrr, not ovon l)y wliat


mniilu'r of tliin^"s
its
lie

writtni about

l>v tlu'

may

<irinay not do.

family on

promotion

j)ra('-

tisos tlic

most

riiiitl

a))stin('nc('

fi-om
all

j)Mrhcular kinds
sorts of actions,
niaiM'iair*'
<1

of food ami drink, abstains from


is

scru[)ul^nsly

carcrul

alxuit

tlic

its

dau^lit(M's,

and

ltoos daily tlirouuh a j)iinctiIious cereIt


;

mony

of domestic worship.

cnpiLiCs a l>ralunan

chaplain and a lirahman cook

and thus

tlic

entire

l^>rahman priesthood of the country will perhaps be


led to countenance its pretensions to high-caste extraction.

Once taken under the

shelter of

Brahmanism,

the fiction can hardly be distinguished from a fact.

The

effect of these

remarkable observations

is

to

suggest a theory of the origin and growth of society

amoniT the hijxher races of mankind, which

differs in

some material respects from any hitherto propounded,


thouffh
it is

much more

consistent with

some of the

current theories thim with others.


follows

Sir Alfred Lyall


'

Mr. Carlyle in saying that

the perplexed

jungle of primitive society springs from

many

roots

but the Hero


decree
all

is

the taproot from which

in a great

the rest are nourished and

grown.'

mighty man of valour, with his kinsmen and


founds a clan.
this clan is

retainers,

Through the very


first

fact of success,

saved from the

from the calamities

which

arise

from an unequal balance of the sexes

the real secret, as I believe, of those

unhappy usages

CHAP.

viir.

EAST EUROrEAN HOUSE COMMUNITIES.

281
all

which have been saddled by recent theories upon

mankmd. a genume

It

becomes therefore a pure

clan,

having

pedigree,

in %Yhich certainty of paternal


is as-

descent from the famous founder or founders

sumed from the


either

outset.

It

may
spoil,

also be

exogamous,

through the number


its

of female captives which or simply because

always formed part of


die practice of taking
its

wives from a distance, howits

ever this came about, increased

pliysical

vigour

and caused

it

to prevail in the struggle for existence. a clan

The formation of such


and, so far as

might be a
it

fact

by

itself,

we have

gone,

would be a plausible

objection that the wholesale formation of such clans

was highly improbable.


clan acts on the masses of

But now we

see
it.

how

such a

men around

It starts a
all

process of ferment and


tribes
its

crystallisation

by which

and assemblages

in its

neighbourhood or within

influence group themselves in circles as nearly as

possible adjusted to the heroic model.

The
all

original
sorts
it

communities of
forms
:

men may have

taken

of
is

in the present state of these inquiries

impossible not to suspect that no statements can be

hazarded on the subject which are at once


very general.

safe

and

But evidence of
'

many
'

different kinds

suggests that this

miscellany

of primitive society

was brought into shape by the influence of dommant types, acting on the faculty of imitation which must
have always belonged to mankind.

The communi-

2S2

p:ast

Kruorr-.w

iiorsi-;

(ommi mtiks.

cmai'. vui.

tics wlucli

wiMV

(Icstiiu'tl

lo civilisation

seem to
llicni

li.'ivc

rxpcrii'UctMl

an ntlractinii wliich
the
\uivv

dww

Inwards

one

oxi'iiiplar,

clan,

<i^cncr;illy

cxog'anions
tlic

aiuoiii;

the Aryans, iicncrallv cndoi^amons amon<>l)nt

Semites,

always hclievinn

in

juu'itv

of paternal
iiero

descent, niui always looking back to


as the first of the race.

some god or

THE GENS.

283

NOTES AND ILLUSTRATIONS.


Note A.

THE
The
more or

GENS.

passage in the text respecting the ancient groups less answering to the still extant House Community has been somewhat altered since it was Nineteenth Century.' first printed in the It will be seen that, in the present state of these inquiries, I do not accept the account of the origin of the Gens given either by Mr. McLennan or by ]\Ir. Morgan as universally true. I do not, for example, venture to dissent from the view which the Romans themselves took of the history of this peculiar group What this view was may as known to themselves. be inferred from a passage in Varro ( De Lingua, The Latina,' viii. 4) which has been often quoted. grammarian observes that there is a certain agnation and gentility among words. All the cases of the noun ^milius are descended from the nominative, just as all the members of the Gens Emilia, all the ^milii, are descended from a single original ^Emilius. The Romans, therefore, regarded gentility as a kinship among men not essentially dilFerent from agnation.' The Agnati were a group of actual or adoptive descendants, through males, from a known and remembered ancestor the Gentiles were a similar group of descendants from an ancestor lono^ since foro-otten. It is
' '
'

'

'

'

'

'

'

'

'

284
\v\iv tliat soiiu' li'anji'tl

TIIK ciKXS.

Koiiuims
<in
tlic
ol"

.-ccin

to liavc [xTccivcd

or

tlioiiL^it

tlmt

tliis (iciitilc
:

niafioiishij)

was

\n

some
it

extent

tictitioiis

hut.

wlmlc, they

fi<rurcil

to tlicniM'lvrs as a iorm
scciit, tliroiiiili

kiii>lii]> ari>iiii;' Iroiii

dctin-

iiialfs. fVoiM a ii puniiiui


\

male
tliiuk

aiiccslor.
lliat
<i('iis

For ivasons
at

ijfivcn in ("liajtttT

II..

IJonian tlicorv of the oriLnii of


K'ast

tin-

loitnan

was

prohaiilr.
thi'

thou^li sniiir of
niul
otliiTs

_i"ontos

mc no reason may have

to (loul)t that,

hccn fictitious,

jiartially firtitions, tluTc

of apiatic consaiiLiiiinity in very first. The ])rol)al)le cliaractcr of the fictions wliich chistcrod round tliis core may be j^athered from tlie latter part of the i)reccdinf^ eliaj)ter. As Sir Alfred Lyall's description of the mode in which ij^ronps simulating true trihal groups are formed is now printed in his Asiatic Studies,' I might have omitted my aljridgment of it but I retain it, because nothing seems to me to have more affected primitive society, and yet to have been more neglected by those who have theorised on it, than the imitative faculty which man has always possessed and which Sir Alfred Lyall has witnessed in actual employment by barbarous men.
'
;

was a fcal core most of them from the

On superficial consideration, we are apt to think that man's mimetic faculty confines itself to matters of taste and personal habit. But, in truth, there is no successful, or conspicuous, or simpl}^ fashionable
model which men, in the various stages of their progress, will not endeavour to imitate. The habit of political imitation, which has always been strong, still survives. Make us a King to judge us, like all the nations,' said the Israelites to Samuel (1 Sam. viii. 5). Give us a Constitution to regulate our
' '

liberty,

like that of one ])articular nation,' is the corresponding modern and Western demand. If any-

THE GENS.

285

body

inclined to think that the process of copyini^ models by entire societie>s is extinct, he should look at the way in which the British Constitution, which was once regarded by men more civilised than the
is

l^mglish as an eccentric political oddity, has spread over nearly all Europe in less than seventy years. What Sir Alfred Lyall has shown from his own observations is the activity of this process of imiraBarbarous men tion in barbarous stages of society. will copy any successful or fashionable social type a Tribe, a Sept, a Gens, a Village Community, the exogamy or 'endogamy,' the practice of rules of The agency by which the infanticide or suttee. imitation is carried out is Fiction, sometimes of the most audacious kind, and through it an old order is constantly giving place to a new, and even broken
'
'

definite social forms,

hordes, mere miscellanies of men, are transmuted into which afterwards might seem as if they had all sprung together from roots deep in

the Past.

The important

vestigation it is the way in which the

lesson is that in sociological innever possible to discover more than

Type has been formed.


it is

If

an

institution is once successful,

the imitative faculty, which

extends itself through stronger in barbarous

than in civilised man. It follows from this that no universal theory, attempting to account for all social forms by supposing an evolution from within, can person perfectly ignorant of possibly be true. European history might suppose that the British Constitution and the Belgian Constitution, which are extremely like one another, Avere produced by y^t the Belgian analogous courses of development Constitution is really the copy of a copy, and the true growth of constitutionalism can only be traced in the history of the English Constitution.

280
riit>

Tin: (.kns.

Miiiiuni

writers
tlicin.
:ill

Imvc
iwc

ii:imc(|,

if

have
tlic,

riirlitlv

untlt'r<f<><<l

Hoinaii

(tons

jml

siniiliir

of opinion bodies are

tli:it

derived,
to
\h\

without
riiriiies

e\<'0|)tioii,

from

older

groups

still

(<l)servt'd anioiin-

savaii"es,

Aiiioni:"

the so-called

al)o-

of Australin, amonir tli(. Xorili and Sontli Ainoriran Indinns. and elsewliere, Init always aiuoni^

slii,^litlv

advanced coinniunities, there are

lonn<l i:;ron|)s

of men and wonu'ii traeinu; kinsliip exelusivcly tliroui^li the foniah' parent, ami not tln'oni:;!! tlu' male. ^Vller(>VTr thev have any tradition of luunan ancestry, tlioy trace their ])arcntai!;c, accordiiifr to Mr. Mor<i;an, to a common ancestress, and not to an ancestor. Tlieir most distinct characteristics are tliat they mark tlieir bodies with some common mark or totem,' and that the members of the same ii;ronp never intermarry and thns. as I have said in the text, they resemble a Sex rather tlian any other combination of luiman beinf^s now familiar to lis. On the other hand, amone: several barbarous or semi-barbarons communities we can still observe, and in the ancient histor}" of several civilised or semi-civilised societies we can still detect, another class of groups having a close resemblance to the Roman Gens. They attribute their origin to a single common male ancestor, and they trace kinship through The members the male parent, real or adoptive, alone. r)f such groups much more frequently intermarr}^ than do the members of the savage group but occasionally they will not intermarry, at all events as a matter of Such is the Hindu theory with reference to theory. kinsmen and kinswomen belonging to the same Gotra, and there is some faint evidence of a similar feeling Even among once existing in the Roman Gens. savages, examples of groups tracing relationship through males are found intermingled w^ith groups acknowledging female descents only and Mr. Morgan
'

THE GEXS.
insists that the first

287

groups are merely the last in a transmuted shape, and that the transformation occurred everywhere, in the societies now civilised as well as in those still savage or barbarous. He several Descent in the times thus describes the process Gens was chano;ed from the female to the male line,' givino; the name Gens indifferently to both groups. Whatever the facts may have been, the language of Mr. Morgan seems to me to be open to much One of these two groups did not really objection. succeed the other, but the two co-existed from all time, and were always distinct from one another. We must be careful, in theorising on these subjects, not to confound mental operations with substantive realities. The Agnatic Gentile groups, consisting of all the descendants, through males, of a common male ancestor, began to exist in every association of men and women which held to^-ether for more than a sing-le They existed because they existed in generation. Similarly the group consisting of the denature. scendants, through women, of a single ancestress still survives, and its outline may still be marked out, if it be worth anybody's while to trace it. What was
' :
' '

at a certain stage of the history of all or of a portion of the human race must have occurred, not in connection with the Gens, but in connection with the Family. There was always one male parent of each child born, but prevalent habits prevented his being individualised in the mind. At some point of time, some change of surrounding facts enabled

new

paternity,

which had always existed, to be mentally contemplated and further, as a consequence of its recognition, enabled the kmship flowing from common paternity to be mentally contemplated also. As
;

to the

new

facts

which led

to this recognition, all


is

that, in niy opinion,

can be said of them

that they

288
luiist

Tin: cKNs.

have luvn such as

a^^aiu lo liivc iVfc lorcc.

|)1m\-

to an
I

owrniastcniii!: t'inoti(^nal

iU'licviiiLi,

as

do,

Patcniity na|>|i('ar(Ml, it rcapjx'arcd in that r((jnirr no ass(M>iation with Power and I'lotcctioii. i'\|)lanation of" ilic i;icl that the kinship ihm i'('co<(nisrd was kinship throni^li inah' descents onlw Mr. Mor<i;an"s apphcation of the same name lo tlie i^ronp mentally lornied hy attending solely to female descents and to the gronp conslitnte(l by
I

when

male descents, seems to mc; tunate, Wcause it tends to put out of siiiht the It is hard tial dilferences between the twt). how the savage gi'oup can he self-ex istinir, ov
lookin<x only at

unforessento see

indeed anythincr but an organisation formatrimonial pniposes


sj)read over alarger tribal comnuniity. 'I'he men i)orn of the women belonging to it are themselves members of it. but the sons of these men leave it because they l>ut the belong to the same group as their mothers. other group, formed by male descents from males, retains uninterru])tedly the flower of its masculine strength, and this strength is constantly reproducing itself Hence it tends to be a self-existent militant bod3\ The famous exploit of the Fabian Gens at Home, when they collectively attacked A eii. and were all but No extirpated, is thus in itself perfectly credible. doubt it is said that Australian savages will sometimes travel great distances to join in the quarrels of men

but these contests between having the same totem people who have hardly any interests in common c.on be scarcely more than faction-fights between men Avearing different colours. At the same time, 1 admit that further information of the precise way in which these ])eculiar organisations affect the practical life of the communities subject to them is greatly needed and I regret that ]\Ir. ^[organ's death prevented his communicating to me the result of some investigations
'
;
'

THE GEXS.

289

on the subject which he had promised to make. As to the South SLavonian communities, the actual origin of many of them has been recorded or is otherwise known. With the hmitations mentioned in the text, they are composed of the descendants, through males, of a common male ancestor. I have said above that workers in the new field opened by the life and usages of investigation of seem to me to be under some temptasocieties savage
tion to take mental operations for substantive realities. Mr, Morgan, it is well kno"^n, considered that the

savage habit of grouping relatives in large classes, without reference to degree of grouping, for instance, a man's father and his uncles together and calling them all his fathers, or forming his brothers and one class and callmg them all his male cousins is a relic of a state of society in which the brothers relations of the sexes were very unlike those to which we are accustomed. Earnest, and indeed bitter, controversies have already arisen on this theory of Classificatory Relationship, and ingenious efforts are from time to time made to identify and recover May I suggest that it the lost forms of marriage. is at least worthy of consideration whether all or part of the explanation may not lie in an imperfection The reader of mental grasp on the part of savages ? of Dr. Macfarlane's remarkable Analysis of Relationships of Consanguinity and Affinity' ('Journal of Anthropological Institute,' xii. 1) will require no further proof tliat the comprehension of a large body of complex relationships demands a prodigious mental effort, even now requiring for its success the aid of a

'

special notation.

Some communities have surmounted

by giving separate names to which is what Mr. Morgan relationships, nearer the System Descriptive ; but is there not ground calls the
a part of the difficulty

290
for a
snsj)iciui that

Tin: niiNs.

tin-

sa\a^(> classilicatioii

is

ailci*

all ndlliiiiL^ iiiDrt'


at.

than
il

a imhIc ;iih1
ol"

iiicuinplclc atteinjit

llu'

iiiciital

contciiiitiatioii
I>

a loici'ahlv iiuiiicrous
((Hi((])li()ii
(iiil\-

trilial

IkxIv

':'

iiiorc

than a
li\'

ofcoinliCiu'Ca-

|)K'\
tioiis

i'('lati(ii>lii[).

rcaclicd

looking;"

al

ami

l>v ('liininatinir

Tlic

ri)iiL:;li

vii'w
is

the uica otirradr or (Icurcc ? of a coimmmitv as consisting of


enouiili.
it

jjfcnerations
tlu'

common

apix-ai-s alike in

Hindu

tlu'

saoordotal distrihution of lifu int.o that of Student, the llousi'holder, and tlie Ascetic, and

Greek song of the militant Dorians "which makes the men boast that they arc warriors, the children that they will be warriors some day, and the
in the line

old

men

that they were warriors once.

CHAP. IX.

DECAY OF FEUDAL PEOPERTY.

291

CHAPTER

IX.
IN

THE DECAY OF FEUDAL PROPERTY

FRANCE

AND ENGLAND.
Considering the immense space which the first French
Revolution
filled in

the eyes of the generation which


it, it is

immediately succeeded

surprising at

first

sight

that the search after authentic materials for an opinion

concerning

its causes,

course,

and character was

for

a while but slackly prosecuted,

virtually inex-

haustible store of such materials existed in the cahiers

the
the

statements of grievances which, according to


States-General,

ancient practice of the French

were sent up from every administrative subdivision


of France to the body which became the
stituent
first

Con-

Assembly.

Yet

it

is

only in comparatively

recent

days that this and other similar stores of

historical wealth

have been

critically

examined.

The

story runs (I do not

way
to

into print) that

know whether it has found its a well-known German historian

once expressed his amazement at having pointed out

him

in Paris

some dusty bundles of papers, with


lain

the

remark that they had


u 2

undisturbed since

292

1>K('.\Y

or

I-KIDAI,

I'HOI'KUTV

I\

tiiAP. IX.

tliov Nvon^ (li'positi'd

in

llic

Archives on the nronKei^^ii

itnu'tion, after the close of the

of

'I'error,

of

the L:,louinily famous ('omniittees of Puljlic Salvation


ar.<l

Gencrnl

Security.

'

lint

yon
sai<l
'

liavc

classical

histories of the Kcvolution,' he

have not these


'

documents been examined hy

heir writers?
ol" 171)1.'

'No,'

was the

reply, 'that
is,

is

the dust

There

however, some account to be given of

this neglect, especially as regards the raJucr.s.

One

canse of

it

has undoubtedly been that preference for

o-eneral explanations of

phenomena which has always


;

been a heavy drawback on French genius


o'eneral explanations of the first

and the

French Revolution

current in France are a multitude.

But another, and


is

probably the most powerful, cause


the Revolution
itself.

the nearness of

De

Tocqueville,

who

first

dug

deep into the cahiers, and showed what great results

might be obtained by thoroughly exploring that mine,


has
left

the striking remark that no foreigner can


appreciate

propel Iv
section of

the

state of sentiment

in

one

French

society,

where there

is

scarcely a

single family in

which

the guillotining of a parent or

a near relative is

not a recollection or a fresh tradifruits of this condition of feel-

tion

and one of the

in"^ is

a strong: reluctance to connect the France of

the Revolution with the France of the Monarchy.

Another, and a
traces
its

much

larger, portion of the nation


social rights to the period

political

and

CHAP. IX.

FRANCE
all

AIs'D

ENGLAND.

293
;

dnring which

this blood

was shed

and hence

arises a manifest disposition to

regard the Revolution

as a historical catastrophe, terrible but inevitable, and

to look on the society


closely related to that

which succeeded which preceded

it it

as

no more
is

than

the

vegetation which has


after

grown on

the sides of Vesuvius

an eruption to the vegetation which the lava

destroyed.

Between

unwillingness

to

find

the

parentage of the Revolution in the old regime before


it,

and unwillingness to have


the
first

its

crimes placed in full

light,
critical

condition of scientific history, the


its

examination of

sources was too


late,

much and
the rela-

too long overlooked.

But of

and mainly owing

to the influence of that invaluable

work on

tions

between Old and


still

New

France, on which

De
aid

Tocqueville was

engaged at his death, the busi-

ness of correcting preconceived opinions


of authentic historical materials

by the
one

has been rapidly

proceeding.

Two
('

interesting

books,
'),

by

M.

Chassin

('

Le Genie dela Revolution

and the other

by M. Doniol
dalite
'),

are

La Revolution Fran^aise et la Feoamong the first-fruits of renewed ex;

amination of the cahiers


of his
'

and in the three volumes


France,'

Origins

of Contemporary

which
in-

M. Taine has
stalments

lately published,

he has given us
its

of a work which, apart from


is

great

literary merits,

not unworthy to be compared

with

De

Tocqueville' s fragment in the originality and

294

HKCAY OF

I'l'.l

DAI,

IMlKniUTV

IX

cilAP. IX.

i-arcrulnoss of tlio roscnrcli

of

wliicli

it

pros

proof.

M.

Doiiiol .statos that u^roat (jiiaiililics of tljc original


lie

rahiers are to
tliouu^li
1

found

in tlie I'icimIi

Arcliives

])ut,

some of them were separately printed


not

in 1781),

am

acquainted with
that
pul)lishe(l,

any collection of them

fuller

than

many

years

ago,

hy

l^rudhomme and Laurent de Mezieres.


But aUhoui^h the diligent prosecution of these
inquiries
is

comparatively recent,

it

has already led


facts

to considerable results.
<iiscovered.

Some new

have been

some already

kn<jwii have been brought

into clearer light,


tected.

and several errors have been dethe

Among
or

passages

in

the

Revolution

hitherto obscure which


stood, one

may now

be better under-

two deserve

especial

remark.

The

hostility of the cultivating peasantry to the territorial

nobility in all pro\"inces of France except Brittany

and Anjou, has generally been recognised, not merely


as

one of the causes of the Revolution, but as the

chief cause of the rapidity with

which

it

gathered
it

head and of the comparative


fested.

stability

which

mani-

The
into

provincial cities and towns were slowly

drawn

the

movement

throujfh

the

action

of

Jacobin clubs, gradually established in them,

and

taking their instructions from the central body in


Paris,

which no doubt from the

first

was a furnace

of revolutionary agitation.

But the peasantry, always

excepting those of the western provinces, were from

OHAP. IS.

FEANCE AND ENGLAND.

295

the very beginning enthusiasts for the destruction of

the ancient institutions, and so they remained until

they gained their objects.

This universal hatred of

the peasants had for one of its effects a condition of the country which, no doubt, has often perplexed the

reader of the ordinary histories.

After a while France

became hermetically
guillotine

closed,

and escape

from the
writers,

became almost impossible.

Some

in explaining this,

have attributed to Robespierre a


;

special genius for police organisation

but the truth

seems to be that the cultivating

classes,

who

at first

witnessed with pleasure the emigration of the nobility,


constituted themselves a voluntary police as soon as

they found that, by detaining the nobles in France,


they would probably send them to the scaffold.

This

extremity of detestation
for

is

not sufficiently accounted


for
it.

by assigning general reasons

The comto

plicity of the peasants

with the rulers of the Reign

of Terror

was undoubtedly connected with a wish

preserve certain advantages which they had obtained


just at the very period public
;

when France became


earlier series

a re-

and similarly an
testify to

of incidents,

which

the same unqualified bitterness of


to have

feeling, are

now shown

had a

special rather

than a general cause.


subdivision of his
tanee
'

M. Taine has described


called
'

in tlie

work
early

L'Anarchie Sponof violence which

those

terrible

outbreaks
as

occurred even

as

1789,

and

which are

200
soinotiiiics
tlio

nKCAv or

ri;ri>Ai,

iMtoi'iiinv

in

mw.
l)iii-ijiii;j;

tx.

lcsi^"H!it('il

cdllt'i'tiviK'
is

llic

'

of

cliAtonux.'
1>1'IM1

AVlint

now
is

seen clcnrlw
tll.ll
llli'

I'nl

had
tlic

onlv

SllSJX'ctrd
liad
a

1m1(I1-c.

.'U'ts

of

inccndiarii's

distinct

ol)j('cl.'

Tlic

ol)joct in

setting

lire to a cliatcaii

was

to

Imni the niiininientthe niiiniinent-rooin

rooni

and the objct of

hurniiiL:,-

was

to destroy the fifns or title-deeds of the seiiTueur

of the lief as

wc

.shouhl say,

of

tlie

lord of the

manor.
for a fact,

All

this

would be hardly

intel livable

but

now

established, wliich possibly requires a


it

lawyer rather than an historian to appreciate


fact

the

that the

French nobility were everywhere enwith the peasants.


it

gaged

in never-ceasing litigation

The majority of
understood,

the
little

French nobles,

should be

had

or no analogy to

what we

understand by a landed aristocracy.

A certain

num;

ber of them, relatively but a few, had great estates

but the largest part of them had

little

or no land let

for rent to lessees or tenants-at-will.

The multitude
classes indistin-

of petty noblemen and gentlemen


guishable from one

another in Old

France

lived

See Taine, vol.

i.

of

La

devolution (vol.

ii.

of the entire

work), pp. 94: et seq. It will be observed in how many cases the attack on the chateau ends with the burning or pillage of the muniments. M. Taine obsei*ves that the anarchy was sure to
spread.
'

Remarquez,' he writes, 'que les chartriers et


les

les titres

feodaux sont encore intacts dans

trois

quarts

de France,

que

le

paysan a besoin de

les voir disparaitre, et qu'il est toujours

aim6.'

CHAP. IX.

FEANCE AND ENGLAND.

297
servicies

on the money produce of the small incidental


due, as

we should
'

say,

from owners of land held in

copyhold to the lord of the manor.


their finances, the
fines
'

Thus they had

of our copyhold tenure, the

dues payable to the lord by the peasant proprietor on


death or on the sale of his land.

They had

also their

monopolies, such as the obligation of the peasant to

send his grain to the lord's mill for grinding, or his


beast to the lord's market for sale.

And

they had

number of miscellaneous and

nondescrif)t sources

of income, such as a sole right to have a dovecote

stocked with pigeons, which fed on the peasants' corn.

Now

on the legal foundations of these privileges a

strong controversy was proceeding

among the French

lawyers during the half-century preceding the Revolution.

Some maintained the leo-al doctrine which o had made great way in France at the period when feudalism was
'

reall)^

strong

Kulle terre sans seigneur,

No

lord,

no

land.'

On

this principle, the

presump-

tion

was always

in favour of the liability to feudal

dues,

and the right to them could always be estab-

lished

by

prescription.

But another

school,

no doubt

unconsciously influenced by the economical doctrines

which had excited such

interest

among

the educated

classes in the latter part of the eighteenth century,

contended that the lord must show his


almost went the length of
rights

titres,

and

argumg

that no feudal

had a

legal basis unless

documentary evidence

208
of
tlie
title

M-.CW OK KKIDM,

I'K*

U'KKTV

IN

ni\r.

ix.

rouM

Ik"

|)r<>*l;:cc(l.

Tlic

striii;^^lo
.'iii

between

cMtnijx'tiiiLT

jU'iiiciplcs

|)r()(luct'<l

enormous

unKHint of

litii!:ation,

soiuetiines the Un-d eiicroachiiig

on

tlie

stri'nu;t]i

of one view, sometimes the peasant


of the
h>rd
tlic

on the

strenu'th

otlier.
lia<l

In

any event,
tlie

llie

title-jleeds

of

tlic

heeome of

i^reatest

importanee.

and

advantage which the tcMiants


is

gained by their destruction


a
hiter

obvious enough.
in

At

date

it

lost

its

value

the

eyes of the

peasantry,
irrievances

because more

drastic remedies for their

had then been devised.

The

legislation

of the Constituent Assembly swept

away the

greatest

part of the feudal dues, and provided compensation


for only a part of them.

The

Legislative or Second

Assembly abolished the residue and withdrew the

The Convention, or Third, found almost nothing to destroy, though it was passionately
compensation.
eaicer to fasten

on a hated

institution,

and though
in
it,

the Revolutionary lawyers,

who abounded

were

the real authors of the legislative provisions, after-

wards engrafted on the Code Napoleon, which for ever prevented the revival of feudal ownership in
France.

The

transfer of property from one class to

another through the abolition of the feudal dues was

much more important than has been commonly supposed, and had much gi'eater influence over the
course of the Revolution.
tion ceased to

When

in fact the Revoluit

be a social movement,

lost

the

cnAP.

IX.

FRANCE AND ENGLAND.

299

greatest part of its aliment,

and nothing remained

for its authors except to tear one another to pieces.

While, however, the re-examination of the cahiers


has placed beyond question the character of the grievances of
the French peasantry,
it

has raised some

new

problems.
felt,

Bitterly and strongly as these griev-

ances were
tions?

were they of extraordinary proporrelations

Does the comparison of the

between

the French peasant and his lord with similar relations


in other countries suggest that the small cultivator
in

France had exceptional and intolerable burdens to

bear?
If I were to say that the first

French Revolution
of

took place because

great

part

the

soil

of

France

was held on Copyhold Tenure, the


like a

state-

ment would doubtless sound

paradox.

Those

who have any


it

practical

knowledge of Copyhold, know


form of landed proall

to be certainly an inconvenient
it

perty, but hold

probably to be, like

property,

rather a privilege than a grievance.

Those again who


have possibly

have paid any attention to

its

history,

heard that Copyhold Tenure has descended from the


precarious holdings of
tion to

Bondmen

or Slaves, a condi-

which the greatest part of the Anglo-Saxon


is

population

supposed to have been reduced

after the

alleged destruction of the ancient land-law of England

and confiscation of

its soil

by William the Conqueror.


origin of Copyhold, or at

The popular theory of the

son
all

ii:(\Y

or

I'KrPAi,

i'i;(M'i:i;tv

i\

(hm-.

ix.

events the tlu'ory


is

in

wliidi

iii(i>l

liiwycrs are edutin*


'

eatod,

explicitly set forlli in a

met on

Use of
of"

the

Law,' I'onnnonlv printed

in

collections

the
vii.

writin;::s
j>]i.

of Lord liacon (Spedding's edition, vol.


et seij.^

4Sl

The Conrjneror
all

is

dcsci'ihcd
ol"

as

having 'got by concpicst

the hin<l

ihc realm

(except riiiirch lands and the lands of Kent) into his

own hands
estate,

in

demesne, taking from every

man

all

tennre, property, and liberty

of and in

the

same.'

He

then distribnted the


'

soil

of ][ngland

among
heirs
'

his tenants in caplte,

reserving some retri-

bution of rents or services or both to him and his


;

and

'

by example and resemblance of the


of the realm did the like as near
after reserving to

king's policy in these institutions of tenures, the great

men and gentlemen


as they could.'
self the

Each of them,

him-

land in the immediate neighbourhood of his

mansion-house, or manor, gave a certain portion of


the
'

uttermost parts

'

of his estate to some

'

trusty

servants, to find a horse for

war and go with him


to

when he went with


which tenant
is

the king

the wars,

called a tenant

of knight- service.'

Smaller parcels of land he assigned to socage tenants,

who were
domain,
his
'

to

plough part of the domain of the lord


;

and bring home the harvest and the remainder of

this

which he kept to

himself,'

he cultivated by
at the courts

bondmen, and 'he appointed them

of his

manor how they should hold

it,

making an

CHAP. IX.

PEANCE AND ENGLAND.


it

301

entry of
lord's

into the roll of his court


to take
it

yet

still

in the

power

away and
;

therefore they were


court-roll, being in
;

called tenants-at-will

by copy of

truth

bondmen

at the

beginning

but, having at-

tained freedom of their persons, they are

now

called

copyholders, are and so privileged


the lord cannot put
'

by the custom that


grew out

them

out.'

The writer adds that


it

Manors being
which

in this sort at first made,

of reason that the lord of the manor should hold a


court,
is

no more than

to assemble his tenants


. . .

at times to be

by him
Baron
;

appointed.

This court

is

called a Coi]rt

and herein a

man may

sue for
;

any debt or trespass under forty


proofs produced on both sides.'

shillings' value

and

the freeholders are to judge of the cause

upon the

The

tract

on the

'

Use of the

Law

'

appears to be

wrongly attributed

to

Lord Bacon, who has elsewhere


ideas than
its

shown

that he had

much sounder
it

writer

of the true history of English institutions.


account, however, which
gives,
is

The

of the origin of
the one which, on
is

Manors and of copyhold tenures

the whole, has generally prevailed, and there

un-

doubtedly a good deal in the received

autliorities

on

copyhold to suggest it.

Yet

it is

certainly not true,


it

and perhaps the


not true.
For,

least

drawback on

is

that

it is

by substituting
it

for the truth a set

of plausible fictions,
instructive
political

gives a

wrong point

to

some

lessons,

and has besides the

302

PECAY or FKrOAl- riJOI'KKTY

IN

cu\r.

IX.

iiiisrliiovons indirect (ircrt of


institutioiiN.
tlu' pjroat

(lisii;iiisinir
life,

from

ii;^

tlmt

like

fonns

ol' ori:;iiiic

arc siilijccl lo

law of evolution.
Tacts

The

ri-al

arc

liciiiLT

.^radiiallv,

i1ioiil:,1i

l)iif

slowly, I'stahlished by very recent researclies, but, so


far as tlic\-

can

lc

slatcij

in

tlie

space

at

our

coiii-

maiid, they arc as follows:

lias settled

When Western Europe


iirst,

down

into

com-

parative peace after the deadly strife which followed,


the irruption of the

Germanic races into the

Roman

provmces, and next, the disruption of the Car-

lovingian Empire, and when the feudal world has at last

been constituted,

it

wears superficially a variety and

iiTegularity of outline very unlike the apparent uni-

formity of the

Roman Empire.

But, on close inspec-

tion, all feudal society is seen to

be a reproduction of

a single typical form.

This unit consists of a group

of

men

settled

on a

definite space of land,


call

and form-

ing what

we Englishman
Fief.

a Manor, and

what

in

France was called a

The great misconception


this

which runs through the account of


I took

group which
is

from the
:

tract passing

under Bacon's name,

as follows

the waiter regards the

Manor

entirely as

mode

of property, the manorial organisation as a

mere proprietary arrangement.


Fief, in its origin,

But the Manor or


proprie-

was

as

much a political as a

taiy body, as nearly akin to a State as to an Estate.


It retained

even in

its

decay some of the characteristic

CHAP. IX.

FRANCE AND ENGLAND.

303
political

and curiously persistent marks of Aryan


organisms.
king.^

The Lord
council.
;

is

the ^acrtXevs, the rex, the


are

The

free tenants

the

yepovaia,

the

senate, the

The

villeins

are the

mass of

the people

and below them are the true bondmen,

the slaves, or thralls, or, in later legal language, the


villeins
iii

gross.

The

Signorial Court, the Court

Baron,

is

the ancient village assembly, in which the

administration of justice has

now

taken precedence of

other public concerns, but in which those public concerns continue to be discussed, the lord presiding,

the free tenants advising, the villeins attending with-

out definite share or voice in the deliberations, like


the crowd in the Homeric Agora.

Those fines, dues,

and monopolies which

still

annoy the English copyfirst

holder of our day, which went far to cause the


In the
is

series of papers, called

'

Souvenirs d'Enfance,' which

M. Eenan

publishing in the Revue des

scribes a class of territorial nobles

Deux Mondes, he dewho were found in Brittany,

just before the devolution,


later nobility

and who were quite distinct from the They had fallen into great poverty, but they received much consideration from the peasantry, who regarded them as the lay chiefs of the parishes of which the cures were the ecclesiastical heads. M. Renan mentions the remarkable fact that they touched for the king's evil. He says of one of them On croyait que comme chef il etait d^positaire de
of
I'oyal

creation.

'

la force de son sang,

qu'il possedait

eminemment

les

dons de sa
la relever

race, et qu'il pouvait avec sa salive et ses

attouchements

quand

elle etait affaiblie.

On

etait

persuade que pour operer des

gu^risons de cette sorte

de noblesse.'

il fallait uri nombre enorme de quartiers Revue des Deux Mondes, March 15, 1876.

804
French

DKCAY OF KlU

l.\I.

I'lJol'KUTY

I.N

ciiAi-. ix.

lu'V<ilnti<^ii, iiiid wliu'li IkmI

lo he

dcircd away
rrussia
I'reiicli
ilic

h\

i\

liiiu'lv

stroke

oji'

stati'sinaiislii|)

hclnn"

coultl

bepii a

stniiXrlo to relieve licrscll" I'miii


in liicii' ni-ioin
ilic

iiiilitarv

despotism, were
in

r.iilitr in

nature of tax(vs ilmn

nature

tA'

I'enl.

liny
of the

represent the ancient jtrovision lor


little

llie ser\ ice

villaiie

comnionwealth.

Some

of them
lord,

n^ay

have sprung from the oppressions of the


from aurcement with him
;

and some

but the greatest part had

their origin in regulated force, the sovereignty of the


little State.

The Lord,
superiors and

the Seigneur of France,

is

answerable
its

for the conduct of the whole manorial group to


its

neighbours.
little
is

He

is

the manager or

governor of the
free tenants.

society,

with the advice of his


affairs in the sigall

norial court.

He He

arbiter of its

is

not the owner of

the land of
it

the

Manor

but he generally owns some of

under
his

the

name

of his

domain.

Much, however, of

revenues, and here and there the most important part

of them, consists of the various dues payable to

him

from

all

classes of his tenants.

Immediately under

him

are his freeholders,

who

render him military or


suit,

other honourable service and do

which involves

giving an opinion on the judicial or other matters


arising in the Court Baron.

But the greatest part of


or Fief, in some cases
in the

the land included in the

Manor
it,

much

the largest part of

is

hands of the

CHAP. IX.

FRAXCE AND ENGLAND.


It

305
this

Villeins.

was inevitable that the position of

stratum of the manorial community should be

much

misunderstood until the Comparative Method of Inquiry


let in light

upon it through observation of those


which have preserved
to our

more backward
days the
life

societies

and and

social

forms of the eleventh and


villeins

twelfth centuries.
sorts of dues

The

owe
his

to the lord all

services, personal labour,

among
;

others,

on the lands which form

domain

they
;

may

not leave the Manor without his permission

no

one of them can succeed to the land of another without his assent
;

and the legal theory even


villein

is

that the

movable property of the

belongs to the lord.

Yet
lio;ht

it

may

confidently be laid
research,

down

that, in

the

of

modern

none of these disadvanta2:es

prove an absolutely servile status, and that

be explained without reference to

it.^

may Those who


all

remember
serfs

that, twenty-five years ago, the

Russian

were popularly supposed in England to be as


slaves as the negroes of a Mississippi

much
ter,

plan-

but nevertheless are aware that under the great


Bracton most clearly explains that in the
tliirteenth cen-

tury Villenage was a tenure and not a personal status.


'

Either a

freeman or a bondman might hold in villenage, but the tenement changes not the condition of a freeman any more than of a For a freeman may hold in mere villenage, doing whatever blave.
service thereto belongs,

and

shall not the less be free since

he does I

this in regard of his villenage

give the whole passage in

and not in regard of Note A to this chapter.

bis person.'

806
inrasiuv
iniu-li
<r

IK

\V

<>F

I'KlliAl,

I'KOIM'.HTV

IN

CIIAI*.

IX.

1S()1 tlir scrlV,


lar>:i'st

and iml
tlic

llic l<in]s,

c^btainod
])ro))arod
a<j^cs

the

part of

land,

may
tlic

\)v

\nr

tilt"

asscrti<ii that

thr villeins of
i)i'

middle

were

m vi r

in tlu- strict sense

the

word

slaves,

and nevtr ceased to be in some sense landed proprii'tors.

Tn

the

tvi>i("il

fdrni

whicli
less

have

described,

Kin<jdoms were adiuste<l no

than Manors,

The

sovereign wlio became the most powerful in Europe,


the

King of France, was the


His
free tenants

lord

of an exalted

Manor.

were the Dukes of Nor-

mandy and Bnrginidy, the Counts of Toulouse and Champagne his domain consisted of Paris and of These continental instithe old Duchy of France.
;

tutions were reproduced in England, but, as has often

been the
the

case, ivith

difference.

The great power of


came
from
their

early

Anglo-Norman kings

allowing nobody to be absolutely interposed, like a

Duke

of Burgundy, between

themselves

and

their

subjects,

and from their exacting fealty and therefore


from
iv.
all

militar}'- service

Englishmen (Freeman, Nor'

man

Conquest,'

694).

We

can trace the Manorial

group backwards to an

earlier social form, a

body

of

men democratically
in

or rather aristocratically governed,

which the

free tenants

had

as yet

no

lord,

the

village
*

community.*

AVe can also trace


chapter,
'

its

gradual
and

See Not

to

this

Village Communities

Manoi-s,'

CHAP. IX.

FRAXCE AND ENGLAND.

307

dissolution, until the forms of landed property

were

established with which we are

all

familiar.

The
in its

exact point before us

is,

Why

did the

Manor

decay produce such different results in England and

France?

Why

did

its

transformation
is

end in one

country in a revolution which

an epoch of history?

Why,
It

in another, in a

somewhat inconvenient form of

landed property?
is,

in the first place, to be observed that the


externally, the

French peasant tenures of 1789 wear,

strongest resemblance to the copyhold tenures which

were found
indeed
limited.
still

at the

same date

in England,
their

and which
is

survive,

though

area
I

much
be

From my own

researches,
is

should

inclined to doubt whether there

a single service of

the French peasantry established

by authentic

evi-

dence of which at least a trace cannot be discovered

among the incidents of English copyholds. Young, who travelled just before and just

Arthur
after the

outbreak of the Revolution, singles out certain French


services for their especial grotesqueness, but feudal

obligations nearly answering to several of

them

are

mentioned by one or other of the witnesses examined

by the

Select

Committee of the House of Commons


sat in

on Copyholds which
are,

1850 and 1851.

There

no doubt,

certain alleged incidents of the

French
of

tenure,
tenant,

implying an extreme

degradation

the

which do not appear


X 2

to

have ever had their

308

DKCAV or
s

i'i:ri>Ai,

ntoriMtTV

i.v

rnw.

ix.

rouMtorparf
tlioiisxht

in
l>i'

I'lmlaml.

iIkhiliIi

tlicv

li:i\('

Itccn

to

lis<'<ivci-alil'
liit

in

llic

Iialf-k'^cndary
lias

liistorv of Scotlantl

llic f\

idrncc oftlicni

of
it,

lato luHMi c'onsidoroil to

1k'

fxtrctncly (loul)(rul, and

certainly consists in

some

cases of a inisappreliension
jni-idical

of

tlie

meaning

<r

I'M

l-'rciicli

terms.

()ntlie
I'.nLilisli

\vli<>l('. tlie

corresponilciici' ol'tlir

I'l'eiicli

ami

tenures

is

n-inarkahlv close

and

notliinjx

can exceed

the surprise of M. Doniol

the

lirst

of

liis

country-

men,

I believ*',

wlio has become ah've to this correall

spondence

that grievances which

his authorities

declare to have brought about the great Kevohition,


are in

England grievances of no
of the

political significance

whatever.

M. Doniol has imagined the following


disadvanta^j-es

in<Tenious illustration
existinf>"

of the

English copyhold tenure.

He

supposes a

capitalist

from the South of


for

England
His

beginning

negotiations

the

purchase of an estate in the


his fancy.
in the
solicitor tells

North which has struck

him

that ^lanors

abound
is

Northern counties,

and that the


inquiry, he

estate
is

mostly copyhold.
is

On

further

informed that the land

subject' to

arbitrary fines
that a

the finances of old French law and

sum of money is therefore payable to the lord of the manor every time a copyholder dies or sells his land and every time the lord dies, a similar sum
;

must be paid

to his successor.

These arbitrary

fines

were once really arbitrary, but the King's Court long

CHAP. IX.

FRANCE AND ENGLAND.

309

ago declared that


cases) they

(save in some very exceptional

two

years'
is,

must be reasonable and must not exceed The consequence, value of the land.
that every time

however,

any one

in

a series of

hereditary copyhold tenants (father, son, or grandson)


dies,

and every time a death occurs in a similar

series

of lords of the manor, two years' value of the land

must be
chaser
to
is

paid.

Hence, M. Doniol's would-be purit

warned that

never can be worth his while


his property, since they

make improvements on

would only add


on

to the standard of the line leviable

in these eventualities.
his

He

is

further

warned

that,

death,

the most valuable piece of personal

}>roperty he possesses will be liable to be seized

by

the lord under the


that the Pitt

name of a Heriot and Diamond and the famous


;

it is

a fact

picture of
is

Rubens, the

'

Chapeau de

Paille,'

which

the

gem

of the Peel Collection in the National Gallery, were

barely saved from seizure as Heriots, and the most

valuable racehorse of
their

its

time was actually

seized,

owners happening to have some fragments of


estates.

copyhold amid their

M. Doniol's
a

solicitor

then goes on to enumerate


inconveniences of the tenure.

number

of smaller

One

of them was in

France one of the chief grievances of the peasantry. On being properly summoned the copyholder must
supply a

man

to assist in reaping the lord's harvest.

In old France, the peasant went himself, but in

r^lO

DKCAV OK

rr.lK.M,

1M;(1'I:i;T>

in

(HAI.

i\.

l-".ij:;l;in*l

it

tucnh- cnnH's tn

tlils,

that

tlic

copylioliK
;

loses a (lav's

work ofofif
not
i::aiii

<>l'

\\\^ lal>iir('rs

(Int<>

loi'd.
liiiii

Imwcvcr,

(l(H's

it.

lor the lalti.iircr sent


l)y tlir

dix\s as little wt'i-k as


is ontitli'tl

pussiMc. and
is

custom

lie
tli(>

to a dinner, wliicli
at its best.

wortli

more than

valuo of his labour

M. Doniol concludes by
could buy such a property.
h(^ld

askinu' wlio in his senses

Tlic incidents of copyreal

which he

specifies

have a
;

existence and
others e(junlly

are

verv familiar to lawyers

many

singular in the eyes of a foreigner were describe<l to


the Select Couimittees of the

House of Conmions.
is

Nevertheless, as

M. Doniol himself admits, there


his

a certain fallacy in
illustration,

account.
all

For purposes of
copyhold land
is

he assumes that

burdened everywhere with these onerous

services.

The
it

truth

is

that, the picture is

burdens spread over a great

made up by uniting number of manors and


;

may

be asserted generally that

in

the southern

counties of Enjrland manorial

liabilities are

seldom of

much importance

and everywhere they have been

extinguished in great quantities during the last five-

and-twenty years by the proceedings of the Copyhold


Commissioners.

The

reasons which

may

ultimately lead to the


all

compulsory enfranchisement on equitable terms of


English copyhold land are not
grievances of the copyholder.
at all likely

to be the

If he were to urge them,

CHAP. IX.

FRANCE AND ENGLAND.

311

the answer openly or tacitly given


is

would be that he

fortunate to have even an


is

inconvenient kind of
entitled

property, and that he

no more

to

the

public pity than a shareholder in a railway which

pays intermittent dividends or none at

all.

Very

probably he would be told that, whatever be the


disadvantages of his property, they were doubtless
allowed for in the price which he or his predecessors
paid for
will
it.

The grounds on which enfranchisement


if at
all,

be enforced,
is
it

will

be,

that

copyhold

tenure

an obstacle to agricultural improvement, on


entails a direct penalty,

which

and that
soil.

it

is

restraint

on the productiveness of the


extremely modern.

It is to

be remarked, however, that this reasoning, or at least


its

cogency,

is

As

recently

as

two centuries ago, an observer, not over- sensitive

to

other people's interests, described the grievances of

copyholders in language curiously like that used of


the wrongs of the French peasantry in the cahiers
sent

up

to the

French States-General.
'

Roger North,

in his delightful book,

The Lives of
by acting

the Norths,' tells

us that the Lord Keeper Guilford qualified himself


for practice at the bar

as the steward of

various manors, and he quotes a good deal of the

Lord Keeper's conversation on the


rights.

subject of manorial

Guilford was in the habit of saying that he

found himself the executioner of the cruelty of the

Lords and Ladies of Manors upon poor men

that

.S12

1>K(AY (iK I'F.rKM,

I'lJdl'KIiTY

IN'

nivr.

ix.

small tcMicMiciits niid

j)i('C(s

of land
it

wlilcli

li.'ul

Ixcii
ly

men's inlu'rilancrs
liiu's
ttk
;

for
(

LifncnU

ms

Avcrc

(lc\(iiii-('(l

tliat

it

was w

iHJcrin]

Ih'W i*afliaiiMiit, wliicli


///

awa\'

tlic

i'<>val

ttiniri's

cdjiffc, (lu* tlic

liad

iirNcr

relieved the

poorest laiid(unri's of
tliat

nation IVoin
tenure ouuiit
(4" tlic

extortion and oppression, and


to be aholishi'il.

Mere
the

is

the very niutterin;^^

volcano
]ut

iH^fore
is

French revolutionary eruption

there

this diflerencc, that the class


is

compassion-

ated Ity North


jioor

ivlativcly small

one as well as a

one, for he ^"oes

on to ol)serve on the large

numl)or of manors
jiartially

-vvhich

had become

alto<^cther or

extinct in England.
if

XoAV,

hundred years ago, a great part

of

the class which, as a fact,


labourers,

consisted of agricultural
class which,

and a considerable part of the

as a fact, consisted of tenant farmers,

had been made

np of copyholders standing to the Lord of the


in the relations

Manor
under

which North

describes,

and

if,

the law of the equal division of property these copy-

holders were constantly multiplying their numbers

without severing themselves from the land, there

would have been


society

in this

country a state of agrarian


It

very nearly resembling that of France.


if

must

be allowed, I think, that


it, it

no similar convulsion
for

had resulted from

would not have been

want

of explosive material.

As

a matter of fact, nothing

of the kind occurred, and the very suggestion of an

CHAP. IX.

FKA^X'E

AND

EIS'GLAXD.

313
oppression

English Revolution caused by the

of

copyhold tenants strikes every one as an absurdity.

How

then came the feudal edifice of

which the

outline

had been extremely

similar in

England and

France, to break into such different shapes?

How

came the same


the
first

institution to

become a grievance of
to this question

order in one country, at most an incon-

venience in the other?


divides itself into

The answer
branches
;

many

some of them I
of the long

could not follow without retracing

much

and

intricate history of English land-law,

and without

using
of a

much technical language, but the few may not be out of place here.

consideration

One powerful cause


of France

of the difference lay

m the

strong distinction between the judicial organisation

and of England.

In both countries, a

considerable part of the popular law, the law which


affected

the mass

of the

people in most of their

concerns, had
courts, the

been once administered by the local


courts,

Manor

and

signorial courts, prelord,

sided over theoretically

by the

but practically
hailli.

by an expert deputy, the steward,

attorney, or

The French

signorial court
is

is

extinct,

and the only

picture which remains

a caricature, in the play of


'

Beaumarchais called the

Mariage de Figaro.'
is

Yet

even the sketch of Beaumarchais


tribunal in
its

a sketch of a

way

powerful and important, and thus


courts which, though
still

very unlike

those Manor

?A[

DKCAV or

ri;ri>Ai,

i'rti'i;i;iv

in

cim'.

i\.

.suinmoiicd in mir

<l;i\"

Idi* ilu-

tr;uis;ict.itii ol" l)ii.sini!.s.s,

betray in ovcrv
ilocay.

|):irt

nt'

their ijrocccdinu^tlic'ir cxtrciiit'

A
of

ccntui'v

siiifi'.
it

the

i-jiL^lisli
is
;

Mmikh- couit
llic
si;i,iiori;il

was viTV iimch


roiirt
l*'r;iii('('

wlial

now

Imt

w;is

((iin|>;ii';il i\

cK"

lloiii-isliino'

institution.

Tin'

I'liulisli

counlry

i^cnllcin.in,

who

was
of

lonl.oftlu' manor,
autlior'.ty

was

a(hninistrativcl\- a jxtsoii
;

]:;ivat

and

inlhiencc

hiit

his

ancient

junsdiction was in extrenii' dccropitudc, and tlicoidy


judicial

powers wliich

lie

prized were prol>ahly tho.se

wliicli lie derived, as a

Justice of the IVacc, from the

King.

The

Frencli Seigneur, on the other liand, was

administratively a cipher; as Tocqueville has pointed


out, the agents of the centralised royal authority

had
but
lost

usurped

all

serious

administrative functions
it

then the court of his signory, though

had

much, had retained a good deal of


rity

its

ancient autho-

and

activity.

The
in the

different condition of the local jurisdictions

two countries was certainly due

to the different

action

upon them' of courts outside and above them.

In England the King's Courts at Westminster Hall


constantly corrected the jurisdiction of the manorial
courts, limiting the area of land 'subject to
it,

confin-

ing

it

rigorously to specific cases, and strictly pre-

scribinff the

manner
of
the

in w^hich
little

it

should be exercised.
societies

The heads

manorial

long

struggled against what they deemed to be an usurpa-

CHAP. IX.

FRANCE AXD EXGLAXD.

315

tion.

Too few manor

rolls

have been published

but in those which have been made accessible you


frequently find the lord and the

homage

(that

is,

the

assembly of free tenants) making rules against resort


to the King's Court.

Thus,

if

we turn

to page

239 of

Mr. Scrope's

'

History of the Manor of Castle Combe,'

we

find an entry of a distress

made on
'

the goods of a

copyholder for violating the constitutional rule {com-

wunis ordinatio) of the Manor, that

no tenant

is

in

any way or

for

any reason

to implead, or procure the

impleading of any other tenant, in any external


court.'

Not only did the King's Courts disregard

all

such

rules,

but they established the principle that

the lord miffht be

made

to

answer to

"the

Kino^ for
privi-

any excess of his authority, or of his customary


leges.

Some

of the best-known principles limiting

manorial rights were settled in this


other^, the doctrine

way

among
all

which

in its origin

must have
so-

been most beneficial to the copyholder, that


called arbitrary fines

must be

reasonable, the standard

of reasonableness being taken at two years' value.

The most
sisted

destructive influence

exercised

by the
higher

King's Courts over the manorial jurisdictions con-

probably in the inclination of the

tribunal to narrow the area of land held on tenures


traceable to the ancient villenage.

The King's Court


The
free tenure,

would bind a lord


cular piece of land

to prove strictly that a parti-

was copyhold.

31G
ti'chnirally
iiii!^

DKCAY
callcil

()!'

naiiAl, I'KoI'KUTY in

ciiAi'.

IX.

6oca;;"i',

was

tliiis

always cxlciid;

at

tlu'

cxponsc of servile tenures


tills

and

lv<i;rr
ol"

North

\[>rcs>lv

us
i>,

that,
aliont

al

ihc

linic

which hf writesseventeenth

century 'most
hall" lost.'
at

that

the

midillc of
in

tiic

luaimrs

Iji^laiid

were more than

What
French
Kiuii^
;

the Coin'ts

Westminster Hall were to the


rarliaments were to the
creations of the
l*aris
is

Knglish Manor, the


Fief.
till'

Fnneh

They were

ori<.:;inally

pedigree of the Parliament of

as

distinctly traceable as that of the Queen's Bencli to the

ancient Curia llegis

and originally the Parliaments

were as untiring as the Courts of the English Kings,

and

in the teeth of far fiercer protests

from the French

nobility, in

extending the authority of royal law at

the cost of local law.

Not only did they employ

against the signorial courts the same weapons which

were used by the English judges, but they borrowed


a special instrument of attack from the

Roman

law,
all

by

insisting

on

their right to hear appeals

from

subordinate jurisdictions.

Yet

there

is

no doubt
Although,

that this hostility slackened after a while.

as I before said, a special current of decision set in in

the latter half of the eighteenth century, yet, on the

whole, the later doctrine of the French Parliaments

was

'

Nulle terre sans seigneur

'

and thus there was

always a presumption against the existence of the


free

tenure most nearly corresponding to our socage.

CHAT, rx

FRA^TE AND ENGLAND.

317

The Parliament of Paris, just before tlie Revolution, ordered the work of Boncerf, On the Inconveniences
'

of Feudal Rights,' to be

publicly burnt

and the

decree no. doubt testifies to the opinions

most strongly

and permanently held by the majority of the French


judges.
a o-eneral ao;reement amono- historians of
this later tenderness of the

There

is

French law that

French

Parliaments to signorial rights and signorial jurisdictions


'

is

attributable to the interest

which the French


signorial

nobility

of the

gown

'

had acquired in
feeling
is

privileges.

The change of

connected with

the innovation, generally regarded as disastrous,

by

which

offices in the great

French judicial assemblies


Thenceforward,

became purchasable and hereditary.

as M. Fustel de Coulanges has observed, a judge was

almost invariably a m.an of inherited wealth

in the

France of that day, the only investment for wealth


was" land or interests in land,

and proprietorship was

just as likely to consist in a right to signorial dues


as in

ownership of the

soil.

to controvert this

view

yet I

am not in a position may venture to interall


is

pose the remark that the student of English history


will perhaps

doubt whether in

states of society

the saleableness of judicial office

an unmixed

evil.

Our
fact

associations
certain

with the French Parliaments do


injustice.

them a

amount of

They had
legislative

in

inherited,

from a time when

and

niS
judirial

DKCAY OK

Fi;ri)\I.

IMtol'KIiTV

I\

.nvi-. ix.

j)owor were not clfiirly separated from one

nnotliiT, a daini to clicck the Ic^-jslatioii of tlic Kiii<;s

of

I'Vaiici', l)y rcfusiu*;-

to register their e(li(fs

when
Their

they wore, as

we sliouM

say, uncoiistitiitional.

not always wisi'.and


staii'l

.iliiiost

iilwavs fcclilc eflorts to


l('L:isl:it

in llic

way

of

liiLih-liaiidi'd

ion, are

apt

to lead ns into contrasting tlieiu


tliat

nidavoiirahly with
wliicli

famous body bearing the same name

has

so long

made laws

for

Englishmen.

But, as courts

of justice, they were


especially
Avhicli

extremely remarkable,
that

more

for

having much of

independence

we

are used to consider a natural and necessary

characteristic of legislatures.

The very

defects of their

constitution contributed to this independence.

AVhile

the justice administered in the P^nglish Courts

was
any

from very early times more emphatically than


other European country the King's Justice

in

while the

each of the four Stuart Kings found no difficulty in

packing the English bench with his creatures


seats in a

French Parliament were

filled

by men who

retained a certain measure of independence, exactly

because they had purchased or inherited their

offices.

The Parliaments may be justly taxed with many


faults,

but they wei-e never servile instruments or

pliant nominees of the King,

down

to the

day when

the States-General, Avhich had not

met

since 1614,

again assembled in 1789, and ground the King and the

Parliaments and

all

French institutions

to

powder.

CHAP. IX.

FRANCE AND ENGLAND.

319

There were other causes, besides the tendency of


judicial decision in the King's Courts,
to prevent the

which helped
spirit

growth in

this

country of that

of discontent which

exploded
I

among
that
is

the

French

peasantry in 1789 and 1790.

have no doubt that


ao-o-reo-ation

we must reckon amono- them


property in large estates which

of

of old date in this


it

country, though the pace at which

has proceeded

has greatly increased of


other evils, but
I
it

late.

It

may have produced


I

reduced the particular evil of which

have been speaking to insignificant proportions.

could not fully account for this aggregation without


entering

upon the

technical history of land-law

but

one of

its

economical causes

may

be noticed here.
it

The English Lords of Manors

class whigh,

must

be borne in mind, includes the forerunners of both


the English nobility and the English gentry

had

been originally
order in
nobility

much

poorer than the correspondingthe French

France.

The forerunners of
power
in

had

settled or risen to

some of the

wealthiest,

most populous, and most highly cultivated

provinces of the

Roman

empire

and the imposts


gave them

which afterwards became

their feudal dues

no doubt great

relative opulence.

But England was a

country of large forests and wastes, as indeed might


be inferred from Macaulay's famous Third Chapter, describing
its

condition in comparatively

modern

times.

Now

one of the best ascertained incidents in the

320
LiTowtli
*)['

DKiAV OF
[\'\\t\:\V\s]]\

I'KlllAI,

IMJorillM'V

l\

oilAP.

I.T.

is
till'

ilic fiiirmL^-

of
llic

ilir

wasjc ImikIs

of

tlu*

iiiMiKtr

iiit(

hands

dl'

lord,

and

a pai'-

ticiilar (irciiiiistaiu'i'

uavc an especial
})r<){)erty.

iiii|)(rtaiiee

to
llie

this

<iradually aecpiired

J"]ii;j;laid

in

midtlle au;es had a sdiiive of national wealtli which can

oidv

1h'

coni))aiV(l

with

oni*
I''

ji'esont

coal

and

iron,

with the wines of modei'n


of Australia and California.

ranee, or with the n'old

Her

soil,

her climate,
i"or

and

(h)ubtless

her tenures, were

specially fitted

the })roduction of wool

those
KoU
'

'wools of England'

which the King,


Staple,
is

in the to
call

of the Ordinance of the

made

the sovereign merchandise

and jewel of our realm.'

The English wool supplied


to
it

the industrious cities of Flanders with material for


their looms,

and was carried


This

all

points

of the

Mediterranean vseaboard.

was which turned


;

a poor nobility into a rich nobility

and,

when

the

Wars of the Roses have closed, a popular movement


which has attracted too
been
little

attention and which has

much misunderstood shows


land,

the

Enghsh

lords of
it

manors rapidly acquiring

and acquiring

for

purposes of sheep-farming and of agriculture on a

But the French noblesse seem to have "reat scale. o never been able to buy up the holdings of their
former
villeins.

A
;

certain

vast estates described in


lished

number of them had the M. Taine's recently puband

volumes

but, taking France as a whole,

excluding Church and Crown lands, the sense of

CHAP.

IX.

FRANCE AXD EXGLAXD.

321

property in land was not in the seignenr but in the


peasant.
It is

one of the most vulgar of errors to

suppose that small properties in France date from the


Revolution
;

immediately before

it,

Arthur Young,
travellers,

one of the most observant of English


presses himself as
this multitude

ex-

amazed

at their multitude.

And
were

was

increasing, since the peasants

buying up the domains of the richer

nobility, ruined
all this

by the court

life

at Versailles.

But

mass of

petty proprietors was subject to the. payment of feudal

dues and to the curtailment of their profits by small

monopolies

and we may gain a

feeble notion of the

exasperation which the system caused by recalling


the days

when
But

the English farmer had to allow the

tithe-owner's agent to take


his field.
tive

every tenth sheaf from


is

]3erhaps fiction

even more instructo the


it
'

on the point than history.

Turn

Bride

of Lammermoor,'

and gather from

the opinion

which the feudal tenants of the Lord of Ravenswoofl


had of the raids of Caleb Balderstone on Wolfshope

extend
and one

this to a

whole population and understand

that a legion of Caleb Balderstones overran France

may

be able to bring

home

to oneself the
insti-

view which the French peasantry took of the


tutions under

which they
to

lived.

If
that,

we turn

England, we have reason to think


last century, the

by the end of the

bulk of the

class corresponding to the

French peasantry consisted

322
I'ithcr
oi'

DECAY

iH'

Fi;ri)\i,

I'ljoriiirrv

in

(hu-.

ix.

nLTrK'ullural lalxtiircrs

<>r

of

tcii.-iiit

fai-iiicrs.

PiMihtli'ss

much
in

inii::ht
tliis

Ik*

said

on
as

the

excessive
willi

iiiultiplication

country,
<!'

comit.inMl
tlic

others,

of"

the first
;

portion
hut,
tlic

this class,

auri-

cultural la))ourcrs

tenant

fanners, tliou^h

not uivcn to hide their grievajices, liave never heen


])olitically dani^orons.

It

is

not indeed to be sup-

|)Osed that the


is

Copyholder, cultivating his

own

land,

never found even

now

probably a part of the

very considerable number of small landowners which


the so-called

new Domesday Book shows


Several of

to be left to

us consists of this class.

them were ex-

amined by the Committees of the Plouse of

Commons

which inquired into copyhold tenures, and they were


pressed with the question whether they were not at
all

events better off than the farmer holding on lease


paid a rent, not at irregular periods, but re-

who

gularly every half-year.

The

true answer

is,

that a

copyholder

is

not a hirer but an owner of land, but


is significant.

the comparison implied in the question

Xo
It

doubt the status of the tenant farmer has had


effect

much
then-

on the feeling of cultivating copyholders.

has served as a standard with which to compare


condition
;

own known to

and indeed

it

is

fact

now
their

lawyers that copyholders in the sixteenth

and seventeenth centuries frequently impaired


legal position

by accepting

leases of their land

from

the lord

of the manor.

But the French peasant,

CHAP. IX.

FRANCE AXD EXGLAND.

323

holding by servile tenure, never compared himself

with the farmers of the domain land of the nobles,

who were

a very special class, the metayers^ not only

hirino" their

land from the lord, but havino-

it

stocked

by him. The peasant compared his lot with that of the


nobles themselves, and bitterly chafed at the contrast.
I

have yet to mention one cause which perhaps

more than any other prevented not only manorial


rio'hts

but

all

rio:hts

in

land from beino; seen in


last

England

at the

end of the

century in precisely

the same light in which they were viewed in Conti-

nental countries.

It is a fact of great political

and

juridical interest that from very early times landed

property changed hands by purchase and sale more


frequently in England than elsewhere.
legal facilities for this

The unusual

which existed here belong to

that technical history of law from which, as before,


I abstain
;

but

it

was certainly the early wealth of


down,

the

country which led chiefly to these transfers.


jurists

Some

have

laid

as a general principle,
is

that every acquisition of property

founded on a
is

previous contract or agreement.

This no doubt
is

historically untrue, but the mistake

one which

is

closely

connected with

some of the most widely

received ideas of the eighteenth century.

The

sacred-

ness of contract was one of the fundamental ideas


of the French philosophical creed,
influenced the proceedings
T 2

and

it

strongly

by which ih^ manorial

124

itr.i

Av ov

ri:ri'\i,

i'i;nri:i;TV

i\

cjj.vr.

ji.

riirlits

of

tin-

l"rriirli

niil)i!iiv

were taken away.


coiiiju'iisation
\'ny

Tn
tlic

tluM'iul, tlic nobk's received


liss
if

no
tlic

those

riu:lits
it

as
as

llainc

of I'cNolntloii

^atluTod head,

Avas

niiicli

as tlicy could
this

do
at

if
all
it

thov saved

their

lives.

Hut

was not

iutonded hy the
aholished

l-'irst

or Coiistiiueiit

AsseiuMw
rijj^lits

without
suj>j)ose(l

eoiu|)eiisation
to

those

only

whieh

it

have
;

spruni;'

from the ancient

helplessness of the villein


rights seemed to
it

but wherever any class of

to

have originated in a contract


it

between the h^nl and his vassal,


indeed

abolished
receiving

them
their

but provided for the lord's

money-value.

The

distinction did

some honour

to

the spirit of justice prevailing in the First Assembly,

but no doubt

it

was founded on
for

historical

error.

There

is

no reason

supposing that manorial rights


is

originated in simple violence, but there


little for

equally

supposing that any large number of them

orisdnated in agreement.
AVhat, however,
in a certain

was untrue of France, was true


is still

sense of England, and

truer now.

The

title

of the

Lord

of the

Manor and

the

title

of

the Copyholder were then, as now, far

more deeply

rooted in agreement than in any other deeply feulalised

country.

The lord had

often, personally, or
;

through his predecessors, purchased his rights

the

copyholder had constantly obtaiaed his land subject

CHAP. IX.

FRAXCE AND EXGLAXD.

325
else.

to manorial rights,
It will be

by purchase from somebody


political

found that English

economy and
property

Enghsh popular
sively pervaded

notions are very deeply and exten-

by the assumption

that

all

has been acquired through an original transaction of


purchase, and that, whatever be the disadvantages of
the form
it

takes, they

were allowed for in the conI

sideration for the original sale.

cannot doubt that


is

this assumption, to a very great extent a true one,

a very valuable safeguard to property

perhaps in

our day not


its

less valuable

than the general sense of


feeling, as old as the

expediency and than that

oldest rudiments of civilisation,

which has translated

itself into the legal rules of prescription

and into the


section of
If this

respect of the

most permanently powerful


its

every society for

established institutions.
is

be

so,

the immediate practical lesson

that

we owe

our best wishes to those attempts, hitherto not very


successful,

which have been made to give an impetus


If they ever suc-

to the exchangeableness of land.


ceed, they will facilitate

one of the most conservative

and reparative of processes, the purification by contract of the title to property.

I do not wish to be understood that the contrast

between the view of feudal obligations and rights


taken in England and France
plained
is

wholly to be extliis

by the causes which

have analysed in

"-fi

l)i:t\Y

OK

riUIt.M,

I'lMl'llKTV

I.\

(iiAP. IX.

ja|HT.

Ills set

of causes
ill

n])iM':rs

to n\v to liavc been

kept

l(o

iniu'Ii

till'

liackni'ouiitl.
iiiitl(s('i*\
iiii:;

and
of

tlicrcforc
imi.

liavt' th(Min:lit tlinii IK

it

at Iciil

It,

belongs to

i\\o i'i\il

liistoriaii to lr'mi;- to

liulit otlicrs
iirc

wliicli an- 'mtc'riiiiiiL:;lc(l

with

llic
illr

wliolc struct
h.-is

of

Irciicli
gestotl,

society.

H'

'InccpirN

stroiiLiIy

siil;-

and

otlicrs

alter liini

will

probably

dciiioii-

strate. tliat the

enormous

social prestige of the


its

French

Court and
tastes

its

constant indulgence of

military

had

at

length turned the French territorial

nobility into a caste as distinct from the cultivating

peasantry as

is

the Ivajput from the Sudra, as disAvhite planter of the

tmct as was the

Southern States

from the negro who laboured in his cane-fields.


effect of this

The

deep alienation was completely to alter

the normal or natural character of the social group of

which
itself,

I
it

have spoken, the Manor or


is

Fief.

Left to
all

one of the most conservative of

insti-

tutions.

In our

own country the Manor is

in

extreme
organi-

decay, and chiefly survives in


sation as the Parish.
jiassed

its ecclesiastical

In France a revolution has


it

over the Fief, and

has become a mere

Commune. But, as we move eastwards through the German and Sclaadministrative subdivision, the

vonic countries, this primitive social organism grows


stronger and
stronger.
It
is

plainly

discernible
institutions,

under the superficial crust of Mussulman

CHAP. IX.

FKANCE AND ENGLAND.


it

327
as

until in India

emerges in

its

most ancient form,

the Village- Community,

a brotherhood of self-styled

kinsmen, settled on a space of land. however,


it offers
;

Everywhere,

more or

less

stubborn resistance

to change

whether the instrument of change be

military conquest or the centralising legislation of

well-intentioned rulers,
case can only look
.

who from

the nature of the

on nations

as miscellaneous aggre-

gates of individuals, and can at

most aim

at the

greatest happiness of the greatest number.

Nobody
is

who knows England


a

outside cities and towns will,

think that deference to the Squire and the Parson

phenomenon only

fit

to point a sarcasm or a joke.

Xo

Frenchman,, except a Parisian, will laugh at what


call

Frenchmen

the patriotism of the Steeple.

But

in the latter half of the eighteenth century, the normal

operation of the Fief was reversed in France.


causes,
is

Many
which

and among them that personal


all

friction

the despair of

science,

who would make History a had produced among the peasantry such
him anywhere
King and
in

intensity of hatred to their lord that they were ready


to find allies against

before the Revo-

lution, in the despotic

his

usurping agents

after the Revolution,

the Convention, in the

Jacobin Club, in the Directory, in the First Consul,

who was

soon to be the Emperor.

And

even

now

the tradition of the feudal dues and the fear of their

828
n'vival
tcinliiii::

iii:c\Y

OF

n:ri)Ai,

i-kh^i'kimv.

(iiap. ix.

arc
1(>

ixtlilical

iiilliit'ncos

of

tlic

first

order,

naki' a irreat part

of

tlir halioii

i-caly,

or

not

ivliiotaiit.

to

throw

itself

(as a ^rcat

Fri:iulj

orator saiiH

iiilo tlie
it

arms of
lie

tlio first

lucky corporal

who makes

helicve that
l)y tln^

can in'cservc the insti-

tutions cnatod

]\cvolution, without bringing

back the J^evolutiou

itsilf.

VILLAGE-COMMUNITIES AND MANORS.

329

NOTES AND ILLUSTRATIONS.


Note A.
VILLAGE-COMMUNITIES AND MANORS.

Although no question has been more discussed by German and Ensflish scholars, the exact mode in which the Manor or Fief arose out of pre-existing
social

forms

is

work published
in

still a very obscure problem. In a ten years ago (' Village Communities

gave an abridged acor had been conjectured on the subject, but additions are being constantly made to our knowledge some small degree, I hope, owing to the book I have named and much information may be expected from Russia, where the growth of lordships and of the chief incidents of villenage are of relatively recent date, and A\here there appears to be materials for an authentic
the
I

count of

East and West'), all that was then

known

histor}''

of this social transformation.

I trust that

Mr. Mackenzie Wallace will not long withhold those results of special investigation which he promised in the preface to his work on Russia. On another aspect of the subject, a forthcoming work of Mr. Frederick Seebohm, which I have had the privilege of seeing, will throw a great deal of light. This, however, is a walk of investigation in which the caution given in a Note on The Gens to Chapter YIII. is especially necessary. We must
'
'

make
kind.

full

allowance for the imitativeness of mangreat number of Village- Communities to

S'lO

VIM.Alii:

roMMl MTIl'.S AM)


various
j:ii-ts

.MA.\Ul{S.

1)0

Iniiii'l

in

tlic

of

\]\o

world,
in

iiiid

LiTcat

iuml)('r

of

Manors

wliicli

still

cxisl

Mnii-

lanl

ini'iv

dccav. must lia\c liccn originally of a niodrl which had izi'ow n Mm-h of the waste land of India, at into I'avour. ino!t lu'M previously in va^uc tribal ownershij), was colonised 1)V urou])S of men who settled down in no oilier \ illaii'e-l'ommimitios Ix'cause thev knew form of connnon cultivation, and the waste places of Kuro|)e Were extensively brounht under tillai;'e by
in extrciiu*

n'j)rodiictions

colonists arranii^ed in manorial

<j;rou])s

under religious
obtainiul

bodies

or

powerful

men who

liad

large

grants of land.

and liavc been from time immemorial, parts of the world in which settlers
Tliere are,

as natiu'ally ]>lant themselves in these groups, English or Scottish emigrants in Canada or New Zealand would now establish themselves on separate farms to be cultivated by themselves and their chilAll, then, that we can dren, or by hired labour.
as

would

hope to discover

is

the typical form.

\'illage-Community a body of self-styled kinsmen, havin"; a "'overnment of their own, and enf^atijed under fixed rules in common cultivation is too peculiar a group to have arisen by accident, or to The have had its origin in individual caprice. evidence seems conclusive that it first grew up in remote barbarism, though in l)arbarism probably not older than the period at which mankind began to cultivate cereals, or to combine that cultivation with the pasturing of flocks and herds. It may give an idea of the wide diffusion of the Village-Community in its more archaic shapes if I mention that it has been observed not only in the largest part of India, but in the Fiji Islands (by Sir Arthur Gordon), and among the Berbers of North Africa (by M. Ernest Renan), and that what appears to be a

Now the typical

VILLAGE-COMMUNITIES AND MANORS.


distinct

331

tribes of

form of it, followed by the more southerly North American Indians, is described by Mr. Morgan in the fourth volume of the United States Survey of the Rocky Mountain region, which

appeared last year.

Nor

is

it

possible for

me

to

doubt that the typical Manor arose out of the Village-Community. Everybody who has made for himself a clear mental picture of the last group will see that it contains everythmg which is found in the earliest Manors, with no differences except those which come from the substitution of individual for popular authority. Everythmg which the lord can do can be done by the council of village elders, or by the village-headman, these last, however, being responsible to the community,' while the lord tends more and more to become a mere owner, just as the King of France came to be called by the lawyers the But beyond King-Proprietor of all French land. this account of the relation between the Types, it Both the type of the would not be safe to go. Village- Community and the type of the Manor have been extensively copied,^ and here and there in surTheir wide extension by prisingly recent times.
colonisation is, I suppose, the source of a paradoxical opinion which I have seen, that their most distinctive
peculiarities are altogether

modern.
origin of

Manors or Fiefs Western Europe, and then spread far and wide by artificial agency, is wrapt in obscurity. I argued m a former work that everything which contributed to what we call feudalism must have sprung

The question of the

established in

The earliest settlers in 'New England appear to have planted themselves in townships having a strong resemblance to villagecommunities. Manors were found in the Southern settlements. See John Hopkins Lhiiversity Studies, edited by H. C. Adams. 1882.
'

..>J

Vll.I.A(iF.-(

(>MMrMTIi:s

WD
sni.)

\l

WdllS,

cither from l):irlKin>us cu^toiu or from


('Ancii'iit

IJoniaii

l;i\v

Law.'

ji)).

.'Wi

it

lut

from
i

wliicli
?

source were the

ufiTiiis

of manorial autlioritv
ol"

<l.'rive(l

On

tlie

one

liaiul, tlie

examination

tin-

Iu'o(K)sian

Cotle

shows

jtrietarv

tiieir

that the p-i-at estates of the IJoman i)n)/v'/A/', euhivated hv ci'/oii/ and slaves

contracted a certain resemhhincc to the ^hinor, whicli I myself am, on the wliole. (Hsposc.'d to exphiin hy tlie nnmher of cnliiN ators of l)arbarous oriLfin with which tliey Were iilled. 1 liavc always distrusted the implied assertion of the Roman lawyers that the multitudinous Roman slaves had no institutions at all and I ima<rine that a vast property, crowded with barbarians, would naturally fall under a system of management not uidike the mechanism of one of the most widespread of barbarous institutions. It is certahily significant that the Germanic draftsmen of Codes and Charters always used the word villa for what we call a village-community. While I certainly cannot accept the conclusion to which some learned Frenchmen incline, that the Manors of the continent are in
;
' '

their oriuin nothinu; but

Roman

rilla',

still it

seems

only reasonable to suppose that in the former

Roman

provinces the organisation of the v/llce did assist in causing the cultivatmg groups to take the manorial form rather than that of self-governed village-communities. It is to be noted at the same time that the oldest of the barbarous codes, the Lex Salica, knows nothing in its earlier and genuine portions of manorial authority. The pote.stas dominica of which it speaks is royal power. It knows the village-community villa (see the Title 45, of under the name De Migi'antibus '), and in describing one of its even now marked characteristics, its rigid exclusiveness, it implies that the community is one of freemen entitled to sue before the free Court of the Hundred. The
' ' '

VILLAGE-COMMUNITIES AXD MANORS.

333

appears, however, to have been known to the compilers of the Later Leges Barbarorum._ The difficulty of attributing the origin of English Manors to the Roman Villa need hardly be stated. The particular Teutonic tribes which conquered Britain came from homes so northerly that they can hardly have so much as seen a great Roman estate, and, even if they had, it is not easy to under.stnnd adventurous warriors settling down as serfs or villeins in their oversea conquests. This subject, however, is one of those most fully treated in Mr. Seebohm's volume. It may be convenient that I should give in full the passage from Bracton stating the legal theory of villenage which prevailed in his day, The tenement changes not the condition of a free man any more than of a slave. For a free man may hold in mere villenage, doing whatever service thereto belongs, and shall not the less be free, since he does this in regard of the villenage and not in regard of his person. Mere villenage is a tenure rendering uncertain and unlimited services, where it cannot be known at eventide what service hath to be done in the morning that is, where the tenant is bound to do whatever is commanded him' (fo. 26a). Again 'Another kind of tenement is villenage, whereof some is mere and other privileged. Mere villenage is that which is so held that the tenant in villenage, whether free or bond, shall do of villein service whatever is commanded him, and may not know at nightfall what he must do on the morroAV, and shall ever be held to uncertain dues and he may be taxed at the will of the lord for more yet so that if he be a free man he or for less, doth this in the name of villenage and not in the but if he be a villein name of personal service [by blood] he shall do all these things in regard as

Manor

'

831
well
<f

!i.i.\(;i:-(

(tMMrMTii:s and manous.

the

illciinir''

'>

<>1

lii^^

]M'rs(n

'

(fo.

208A).

Tlic only
cht'fuin

ilifVi'n'iK'c in tlic

services wjis tliat the nur-

inarryiiiir JV claui^liter, Ix'ini;- ;in incident oj" servitude (as a fine ])jiid t<> tlie lord lor depriviiii,'' him of a slave), was not deniandahle from the friM' man holdinir in \illenap'' ( l'\ Pollock,
|)crson:il
' '

on

Notes on Marly Knirli^h Land I^aw,' Law Mai::azine and IJeview tor May J(S<S2). Tlu^ whole of Mr. Tollock's valuable paper deserves consideration
'

CHAP. X.

CLASSIFICATIONS OP PKOPERTY.

335

CHAPTER

X.

CLASSIFICATIONS OF PROPERTY.

All

"wlao

have any knowledge of Legal History are


all

aware of certain distinctions which run through

commodities or through large departments of them,

and which cause the objects of enjoyment lying on


either side of the line to belong, in the eyes of lawyers, to widely different provinces

of law.
the

Among
ancient

these distinctions, there

is

that which

Roman

lawyers drew between Res Mancipi and Res

nee Mancipi

that

is,

between Things which required

and Things which did not require for their transfer the
conveyance of Mancipation; there
is

the mediaeval

West European
the
still

distinction between the Allod


;

and the
there
is

Feud, between allodial land and feudal land

surviving English distinction between Realty


finally there is the late

and Personalty, and

Roman

and modern European distinction between Res Mobiles

and Res Immobiles, between movable and imonly

movable property.

We

know

the distinction between Movables

and Immovables

as relatively

modern

in the

Roman

S36
State and in

CLAf^Sl

I'll

ATI t>,\S

or njol'KKTV.
rcsnll
llic

ciiAi'.

X.

I'.nrnjtc.
l:i\\

It

i< tlic

of ;m attempt
old liistorical
ics,

of

tlu'

Ktniiaii

\( rs

t<

ulianiloii

classifications,

and

to classify connnodit

ri'oiicrly,

the

olijci'ts

ol"

cnjovnirnt. according to
_i:;t'neralisation
:

llicii-

actual
little

nature.

The

has

re(|iiire(|

liut

subscHjuent correction
arisen in
iisini;-

the dillicullies

Avhieli

have,

it

have been insi^nilicant. and have

occnrred only on the very border-line between the

two great

classes of Things.

In the Middle Ages, the

fact that a tree,

though immovable, generally acquires

value throuixh bein";


able,

hewn down and

becominir mov-

and possibly some local practice of employing

nioval)le

wooden frames

in the structure of houses,

suggested to the expositors of a few early


legal

German

systems a definition of movables as everything


fire
;

which could be destroyed by

and, in more

recent times, the question of the proper place to be

assigned to a class of thino-s of which

modern manuimmovables

facturing industry has greatly increased the import-

ance

'

fixtures,' as
'

we

call

them, the

'

by destination of French law


and disputes.
Still,

has occasioned doubts


if

on the whole,

law had really

been founded on the principles imagined in the last century to constitute


its

basis

on those
'

principles of

simplicity or fitness or

good sense which


'

are associated
'

with the words

'

Nature

and

Natural

it

is

pro-

bable that no classification of commodities would

have struck mankind sooner than that which divides

CHAP. X.

CLASSIFICATIONS OF PROPERTY.
into

66

them

movable

and immovable.

We
Roman

know,
legal

nevertheless, tliat the whole course of

modification from the Twelve Tables to the reforms


of Justinian had
to

b3 ffone throuofh before this

seemingly obvious distinction formally superseded


the old historical distinction between Res Mancipi

and

Res nee Mancipi, the

first

including

Land,

Slaves, Horses,
else
;

and Oxen, and the second everything


fact

and the curious

remains that the Englishher colonies, and

speaking communities

England,
improved

considerably more than half the States of the American

Union

still

reject the

Roman

classification,

and, separating leases of land for years from the bulk of immovable property, join

them

to personalty or

movables.

Thus stubbornly do
hold their ground.

the

old

historical
if

classifications

But

still,

we

firmly grasp the truth that these historical


cations can only

classifi-

mean

that the commodities which

they place in the highest class must have been at

some

time' or other the sole important subjects

of

proprietary right, and that the others either did not


exist or were of trifling value,

we cannot but
earlier

see that

there

must have been a

still

time when the


themselves

accepted historical

classifications

were

modern.
old as

The most

archaic of them, one probably as


to

any conscious attempt

draw

this

kind of

distinction, is that

bequeathed to us by the Romans.

Yet

land, slaves, horses,

and oxen cannot,


z

as subjects

338
of

ii-.\ssiri(ATi(t\s

{\v

rii(>i'i:i{Tv.

cuw.

\.

inlivi(ln;il

)roportv.

li;i\

c Imch

oI"

cniitcMipornncous

oriiiiii.

riuTc must
tiiiuctl.

]\;i\v liccii

time

when
was

;i

Avild

aiiiiiiMl
lliaii

wliirli

was
<>{

a i-aciiw

was

(ifinoi-c

vmIuc
sniier-

hmi'lnd acres
I

land,
a

wliieli

almndant.
lnsloi'\t

lie

dnniani

dl"

trilie.

as soon
Iteen

;is

the

mankind
it

Ix'Lian.

mny

Inive

jealously'

iXuarded
ini:: tlu'

1>\"

:is

exelusiNc limit

inL;'-,L!"i''"iid.

as niai'khitep
]iav(^

limits wliicli

none

lnit a
oi-

tribesman could
pluiuU-r, or
staii;e

within save for l)lo(Mlshed

may

been reserved
pasture
;

l)y

it

(in

;i

later

of soeiety) for

but each man's


to

sliare of this

domain was of

l^s value

him

individiiallv than a slave, a horse,


a

an ox, or even than


tliis

flint-headed axe or s])ear.

All
;

follo^vs

from the simplest economical .axioms

but the vestifres of the older (and yet probably not


t

oldest)

stat.^

of the primitive objects of enjoy-

ment

are plainly

stamped upon one authentic record


;

of archaic custom, the ancient Irish law

and they
Teuit

seem to me equally discernible


tonic Code, the
is,

in the ancient

Lex

Salica,

which, whatever else

is

pre-eminently a body of rules protecting the

ownership of kine, swine, sheep, goats, horses, and


even bees.
I

pass to a distinction which rose into importance


nsre

in

an

nearer our

own

the

distinction between
allodial

the allod and the feud,


land.

between

and feudal
is

The

allod in

some form or other

probably

as old as the institution of individual landed property,

CHAP. X.

CLASSIFICATIOXS OF

mOPERTY.

oo9

and we may regard

it

as equivalent to or dii*ectly

descended from the share which each

man

took in

the appropriated portion of the domain of the group


to

which he belonged

tribe,

joint-family, village
facts

community, or nascent

city.

But many

facts

which are receiving constant additions


to

appear

to

me
or

show

that this share was not at first a definite

area,

but what we should

now

call

a fraction

aliquot part of the divisible land.

The

shares of the

domain which each family or household could claim


shifted

among

the

households under a system of

distribution in turns or

by

lot,

and each share very

slowly became appropriated to particular families.

We
the

only

wealth

know the society of the Roman Commonwhen it had reached this last stage indeed,
;

hungry struggle

for

the public

domain which
to

begins authentic

Roman

history

would seem

show

that the system of 'shifting severalties,' which


quite died out in

had not
and the

England
free

fifty

years ago, was long


;

over
traces

among
of an

the

Roman

peasantry

older

economical condition must be

sought in that copious law of servitudes or easements


into

which modern lawyers of

all

nations have

dug

as

into an inexhaustible mine,

and which seems to show

that the agricultural land of every


servient,

Roman was

really

as the technical phrase ran,

to his neigh-

bours in respect of rights of way, rights of riding,


driving, and draught, rights of drawing and lending
z 2

340
"Water,
!iii<l

CLAJiSIFICATIONS OF

rKoi'KUTY.

chap,

x.

iiiii^s

of otlirr

I'iulits.

I'ar

hcyoiid

all

inotK-ni

('Xjuric-m-i'

and

t'xaiiiplc.

Tlic

ahiindaiit
tlic

Koman
,'<anu'

scrvitiKlcs apjn^ir to

me

to point

back to
land

niotlif'u'd

common cnjoymcnl
otlicr

of

\\liicli

diaractcriscd
])tTiod

.\r\an

races

but

tbc

early

at wliicb

tbc Land of a ircQ l^omaii peasant


liis

beca!ue ai)pro[)riatc(l to
affected tbc \eg;n\

lamily in strict severalty

and economical bistory of Roman and tbus becomes a


fact

society very strono;ly,

of

mucb importance
world.

in tbe

development of tbe Western

Tbere are indications tbat

at

fir.st

tbe possession

of allodial land was every wbere tbe distinctive privilege

of

tlie

freeman.

Down

indeed

to

tbe

first

Frencb Revolution tbe exceptional tenure of land


in
'

franc-alleu,' wbicli bere

and tbere survived amid

tbe general feudalisation, was held


in bigb honour.

by Frencbmen
modern history

Nevertheless, the
is

of allodial land

essentially tbe bistory of the hold-

ing of land
It

l)y

servile or

by very humble

classes.

bequeathed

its great characteristic, its divisibility all

at

death between

the children or

all

the sons, to

tbat lowest stratum of landed right

upon which tbe

feudal structure reposed, either because communities


originally free

bad sunk on

all

sides into villenage,


all

or because the allod was the type of

enjoyment

of land, and was follow^ed in colonies of serfs planted

by

Roman

dominus or Teutonic

lord.

All peasant

CHAP. X,

CLASSIFICATIONS OF PROPERTY.

341
till

holdings in France were adjusted to this type


the Revolution, and so were

German peasant

estates

down
of
in
its

to a considerably later date.

We

have traces
of Kent, and

peculiar rules in the

Gavelkmd

much copyhold
when

land

and a comparison of the

treatises of Glanvill and Bracton enables us to fix the

time

the most widely diffused of English tenures


just

socage was

putting off the characteristics

of the allod, and putting on those of the feud.

But

our current Real Property

Law

is

coloured throughis

out by the feudal view of land, which


held
in

that,

when

individual

enjoyment,

it

is

primarily im-

partible or indivisible.

The

great system of land-

law, resting

on

this feudal conception,

though occa-

sionally wrested into departure

from

it

by sovereign

authority,

is

essentially a system of rules regulating

the tenure of land


tenure,

by noble

classes.

The

allodial

which

is

believed to have been originally the

tenure of freemen, became in the Middle Ages the

tenure of

serfs.

The

feudal tenure, which

was

cer-

tainly at first the tenure of servants who, but for the

dignity of their master, might have been called slaves,

became in the Middle Ages the tenure of noblemen.


It

was by an exception, and a remarkable

one, that

in our country the land-law of the nobles

became the

land-law of the people.

We know

thus

much

of the beginnings of that

feudal system, of

which the feudal land-law was a

342
|):irt,

ri.ASsii'U'ATKiNs oi'

I'Koi'r.irrY.

(it\p.

\.

tlmt

it

liml sovcnil divt-rsc orii^iiis.


<>i'

Tlic hiinl

oji

tlio

IxtnliM* lines

tlic

IJoiiiMii

l-'tupirc wiis licld


;

l)y
iiiid

s(>l(lirr-rultivattr> <mi triitin- of inililarv service


tliis

must

liavo
ol'

had

sonu^tliiiiiT to

do

witli

it.

'V\\v

Iloinau

law

Patron and
witli
it
;

(Tieiit

must

liave

liad

soniotliinL!:

to

do

for
ol

it

jtlainly

su_i>-n;<'>^^G<^

nianv
see

ens(oniai'\' I'elations

loi-d

and

\assal.

A\ e

nnicli wliicli

cannot

Inil

have contrihnted
usa<(es of the

to

it

in tlie

jirimitivc or barbarous

Aryan

races re-introduced into the llonian

Empire by the

Germans.

Among

these, society

was distributed into

compact grouj^s of

families or clans, the first ad-

ministered by the eldest

member
if

subject to a si)ccies

of election, the second often,

not always, govenied

bv some member of
Chiefs or

a ruling family, selected

by the
these

process which the Irish called Tanistry.

And

Kings were

in the

habit of buying

or

rewardino- the services of their immediate retainers

by

gifts.

"We can put our finger on a variety of the

ino-redients of feudalism spread over a large surface.

Nevertheless, with

all

our knoAvledge, there

is

still

the greatest obscurity on one point.

How

was the
V

conception of landed property so completely changed

Nothing can be more singularly unlike than the


aspect of allodial land, or, as the
called
it,

legal

Romans

Avould have

land held in dominmni, and the legal aspect

of feudal land.

In passing from one to the other,

you

find yourself

among

new

order of legal ideas.

CHAP. X.

CLASSIFICATIOXS OF PROPERTY.

646

Perhaps

it

requires a lawyer alive to the signifi-

cance of technicalities, and tolerably acquainted with


the later

Roman and
all

earlier feudal law, fully to esti-

mate the thoroughness of the transmutation.


account of
here
;

An

which

it

implies

would be out of place


it,

but,

to take only

one phase of

no sub-

version
striking

of an

accepted legal notion

can be more
is

than that of the

Roman (which

the

developed allodial) view of land as essentially divisible

by the feudal conception of land


partible.

as essentially im-

The Roman lawyers


divisible

note, as a fundamental

difference

between immovable
is

and

movable proand

perty, that land

ad

infinitum,

may

be

always so conceived though actually undivided, while

movables are not properly capable of


could
conceive

division.

They

land as held (so to speak) under


dispensations,
as

different legal

belonging to one

person in Quiritarian and to another in Bonitarian


ownership,
feudalism
a
splitting
fallen

of
into

ownership
decay,

which,
in

after

had

revived

our

country in the distinction between the legal and the


equitable estate.

But there
a

is

no symptom that a
call a series

Roman

lawyer could conceive what we

of estates

that

is,

number

of owners entitled to

enjoy the same piece of land in succession,


capable of being contemplated together.
It
is

and

a very

remarkable fact that when these

gi'eat legal

thinkers

had to form an idea of an

interest in land so familiar

344
t(

CLASSIFK ATld.NS OK I'KOI'KKTV.

chap.

X.

US

its

;m
to

r>t;il'
l:i\v

tor

life,

tlicv

li.'id

to

()

fur

:iii

;iiialoLry

the

of x-rvitiidcs or
laiiil

cjisi^rneiits.

A
life

iJomaii

iisiitViict
tlif

of

was

iii

its

|>ra<'tical

circcts
;

vrry
l>iit

iiiucli
tlie

same

as an

I'.n^lisli
it

estate for

loxiiaii jiii-isls classed


fiel.!.

Avitli rii^lits

of

way

over another mail's

or

a rliilit

of drauiiii;' water
left

from another man's well.

The impression

on

my

mind hv
records
is

\arietv of passai-es in

that, if a

tlie Roman le<^al Roman lawyer had been asked to

taki' into his

mental view

nnni her of persons having


property,

rinlits

together over the same

he would
it

have contemplated them not as enjoying


but as dividing
it

in turn,

at

once between them.

Thus

far

was he from conceiving the ownership of the same


area of soil as distributed over tenants for
life

and

remainder men, tenants in


tail

tail

male, and tenants in

female,

doweresses, tenants by the courtesy of


reversioners.

England,
persons,

and
all

This

long

series

of

having ascertainable rights capable of

co-existing in the

same property

this

long succes-

making up together one complete ownership, the feodum or fee could not
sion of partial ownerships,

have been dreamed of

till

wholly new conception

of landed property had arisen.


turies
to
after

When,

several .cen-

the birth of feudalism, lawyers

sought
rela-

employ the Roman


had
to

law to express the feudal


its

tions, it

be violently wrested from


;

true

meaning and purpose

as

was notably the case with

CHAP. X.

CLASSIFICATION'S OF rROPERTY.

345

the law of Fidei-commissa, or testamentary gifts in


trust.

One

particular agency

by which

this great revo-

lution of legal ideas was, at least, partially effected,

has been of late the subject of controversy between

some of the most learned men of our day


controversy, I

and the

am

sorry to say, has been

marked by

much
still

of the bitterness peculiar to disputes which are

confined to the learned and have not yet become

popular.
of land

The Beneficium, or

Benefice, an assignment
as the

by a conquering Teutonic king


is

reward
to

or price of military service,

allowed on

all sides

have had much to do with


legal point of view.

this great

change in the

Whether the

benefice

was always
in-

a gift of public land


sists

as M. Fustel de Coulanges
is

that

it

was

in the countries which passed under

the sceptre of the


fiscated land
all

House of
there

Clovis, or a gift of conit

as
in

reason to think

was, at

events,

some subjugated provinces of the

Roman Empire
of land4aw.
estates of

it

it

began a new stage in the history


form
it

In

its earliest

was unlike the

matured feudalism, since (according to the

better opinion)

was not

at first generally hereditary

but

it

was

still

more unlike the allodial lot of the

Teutonic freedman and the fundus of the


provincial citizen.

Roman
I still

One
it

modification of

Roman landed
;

property came near

the Emphyteusis

and

hold to the opinion that we have here one of the

340
sources
tills

CLASSIFICATIONS

01'

ruOI'KUTY.

ciur.

x.

of

tlio

now
is

l('ii;al

conception.
far
llu-

F)Ut tliou^Ii
it

rxplaiiation
;

jilausihlc, as

as

goes,

it

is

only partial
clians^e
in

and,

nion'ovcr,

syiiijitoins
j)i-(i|i(rly

of a

the Irnal view of lamlcd


wliicli
Iia<l

arc not
ol'

confined to countries

roniicd
in

]);irl.

the

Uonian
lands.

1'Jiipire.

l)iit

arc

fouiid

jmrcly 'rcnJonic

Feodum, the
licium,
is

lati r

'Peutoniscd

name

of the Jiene-

now

allowed to have been derived from the


\fihu^'

ohl CfOthic

word

or

^jivJ

cattle.

The term

is

supposed to have come to mean


pecunia, from
pecus, contracted this

])ro}erty,'

just as

meaning.

Gnv

years ago, after pointing out the great part phiyed by


cattle in converting Irish tribal holdings into

some-

thing like feudal tenures,


'

stated that

suspected

feodum

'

to

have a closer connection with cattle


imj)ried.

than the usual etymology

M. de Laveleye,

commentins: on this remark, has stated that he has

no doubt of the association


allodium and feodum
fe-od, the cattle

and he observes that we

thus see the meaning of the original contrast between

al-od, the comj)lete property

property.

Plausible as this
it

is,

should have hesitated to build on


for the

as a basis but

remarkable results disclosed by the examina-

tion of the Salic

Law.

It

undoubtedly shows that an

ancient a

Law

of Movable Property

may

deeply affect

Law

of Land.

Xow, we know

that

among

the

Germans observed by Tacitus or

his informants the

CHAP. X.

CLASSIFICATIOXS OF PEOPERTY.

347

chiefs

were

rewarded by King or Commonwealth


;

with assignments of cattle and corn

the companions

of the chief, living in his house, received a horse and

arms

as pay.

It

was exactly the system, which pre-

vails at this

in

moment at the Court of a Kaffir chieftain North Africa. Now, let us conceive this system
In the
first case,

modified by the growth of population or by conquest,

but otherwise unaltered.


creases in value

land in-

through natural economical causes.

In the second, the Teutonic host become the masters


of lands long since populous and filled with wealth

accumulated during the Pax Romana.

If,

then,

we

assume

that, at

once in the occupied provinces and


in Teutonic territory, gifts of land
gifts

more gradually

took the place of

of cattle and arms, but that


of movables

the old associations with assignments

continued to attach to a Benefice in land, the transfer


of idea

to

my

mind, at
else

all

events

explains
hereditary
;

better

than anything

the transformation of the legal


I can
first

aspect of landed property.

now understand
why,

why

the Benefice was not at


it

even when
select the

became hereditary, the donor could

son

who was
why,

to inherit

why
or

he could

cause

it,

after the
else
;

death of any holder, to remain to


like
cattle,

somebody

a horse,
it

suit

of

armour, or a herd of
a successiort of

could pass through


revert to the giver
gift of
;

hands and then

why

it

was impartible, the ancient

movables

348
haviiii^
<j>(CU'
;

CLASSIFICATIONS

ol"

I'i;<

>n:KTV.

niAr.

X.

to

l>c

rost(iiV(l

entire citlicr in

(j,')}<-ir

or in

and

lastly, to j)ass to

niori' tcclinical
ly

matters,
i-arly

wliy

surli

importani'C
.seisin,

was attached

tlu-

ieudaJ law to

or actual

possession, and

why

the

::il't

of a feudal estate

inijilic(l

ari;iii(

v of (he
ilid.

title to it,

which

urant

<!'

allodial land

never

As
as

matter of

fact, avc

have

in the Irisli

usa<'X's

lately broui;-ht to

our knowledge a system just such


if

we might expect

we were

i)ermitted a

view of
first

Teutonic customs somewhere between the


the fifth century
it)

and

a feudal system (if

we may

so call

dependent on
I Avill

cattle

and kinship instead of land


repeat the account which
social

and tenure.
I

not

now

gave on former occasions of the remarkable


;

mechanism disclosed by the Brehon hiws

but those

who

will

examine

it

carefully will find a

number of

special feudal rules

much more simply

explained by

the relations of Irish chief and Irish clansman than

by any theory founded on the exigencies of military


service or
in land.
1

on spontaneous modifications of property

must not be understood

as affecting; to offer a

complete account of the complicated system of rights

imd

duties,

some personal and

some proprietary,

Avhich

made up what we

call feudalism.

The mailed
spoken of in
if

knight of the days of chivalry,

who

is

much

of history and historical romance as

he were

a product of one age

and one region,

may

be shown

CHAP. X.

CLASSIFICATIONS OF PROPERTY.

349
the

to

have obtained

from

all

sorts

of quarters

materials of the ascendency which he long exercised


in

Western Europe.

His iron armour came from the


at

household cavalry of the Eastern Caesar

Byzantium;

the stirrups, without which he could not have

worn

it

on horseback, were brought, with

his horseshoes,

by

Tartar riders from the steppes of the furthest Asia.

Just so feudalism, which in the twelfth century looks


to us all of a piece,
is

undoubtedly the result of many

converging lines of descent.

We

are

now

only conit

cerned with the feudal land-law, and to attribute


a single origin would be quite inadmissible.

to

We

must

give due weight to the influence of purely


ideas
:

Roman

those connected with the Emphyteutic form

of property, those springing


colonies

up among the military


of Patron and Client.
ideas are others even
origin.
I

on the German border, and those which had

their origin in the

Competing with

Roman law these Roman


when

more

potent,

of barbarous
that,

or primitive

cannot doubt

the Benefice or

Feud became
race

hereditary, the plan of succession

was mainly taken

from that which the

men

of primitive

Aryan

had

considered as appropriate to chiefships or sovereignties,

and which in one of its stages the Irish called Tanistry.

As

little

can I doubt that the general tumult of the

Western world, during the dissolution of the Carolingian Empire, contributed to diffuse succession

by

Primogeniture on the one band, and to produce

^50
\
illtMi;i_iX<'

CLASSIFICATIONS OK I'HOl'KKTV

(iivp.

x.

on the

olIuM*.

The

iiiiliiiliclil

(|;iil\'

diMiu-ciiinliiral
liis

oausctl little sociciics


leader.
j>laee
;

to .'Iiistcr
ol"

i-oiind

ilicir
liaij

<m*

some

soldier

rortiine

who
<1"

taken

the

Ll't'neral ini]to\ crishnient


ol'

caused

men

to he

depressed to the condition


("juestionahly the scjtialor

heasts

Imrden.

I'n-

and j)overty which meet ns


A:cs di<l

on the threshold of the Middle


terise the provinces of the

not charac-

Konian

l*]in])ire,

even on

the eve of

its fall.

Tliere can be

no greater delusion

than that the lumian provincials were pauperised by


taxation
to
at
:

and

Af.

Fustel de Coulanges seems to


in

mc

have quite proved


all

his

last

work that Gaul,


l)arl)arians,

events, even
still

when sw^arnimg with


wealth

was
surer

full

of

and

splendour.

lint

no

ruin can

be wrought to the hoarded capital

of centuries than by such an anarchy as prevailed

on the relaxation of the Carolingian power.

Lord

^lacaulay, in contrasting India as the English found


it

with the impressions of

it

entertained
it

by Euroa very

pean adventurers, has said that


poor country
of so
acreat
;

is

really

but

it is

very

difficult to believe this


soil

an area of

fertile

crowded

for a<res

by an industrious population.
covering,

The

true secret
is

of
re-

the poverty of India, from which she


I

slowly

take to be

tlie

desolation caused

by the
chiefs
I

wars and brigandage of about 2,000 several


while the Mogul dominion was dissolving.

think

that India during the reigns of Akhbar and Jehangir

CHAP. X.

CLASSIFICATIONS OF PROPERTY.
as rich as

351

was very probably


thought
it
;

the Western world

but

its

carefully hoarded capital

was

destroyed as were the accumulations of the

Roman

Empire.

There are some very singular analogies

between the dissolution of the Mogul and the dissolution of the Carolingian
their course, but in a
social effects.

power

to

some extent in

much

greater degree in their

These, however, cannot be conveniently

considered here.

One
arose

result of this revolution of legal ideas,

which
to

from

assimilating
I

immovable

property

movable, was,
plicate

need hardly say, greatly to com-

the

law of land.

The complex land -law


but in this
as I before

of the feudal ages was, on the Continent of Europe,


essentially the

law of noble classes

country
stated,

it

became the general land-law,

by exception.

Among
us,

the

many
it

proposals

which have been made

for reforminor

since

Bentham

became an authority among


forward

one frequently put

may

be described as a proposal to carry to

its farthest

consequences the early process of change

in

which feudalism begun.

The suggestion has

often

been made that real property should be closely assimilated to personalty,

more

especially in respect of condifficulty, it is

veyance.

There ought to be no more

said, in transferring a piece

of land than in selling a

horse.

I believe the analogy to be

unsound, and the


far

route indicated a false one.

There

is

more promise

352
in

CLASSinCATIoNS
ivvtTsiii^'
liiiitl

dl"

I'lJorKIJTV.

niAP.

x.

ilian
;is
i

in

t'Xicn

Iiiil;'

tlic

pfinciplc,

in

tivntinn"
in a

ssciitiiillv
aiiticiit

unlike
iiir(li(Mls
is,

hidn ahlcs,

and

i\'turn

to

tin*

of ('onvcyiMr
reasons,

allodial

land.

Tin- snl)('ct
ii'n.

for

.several

wortliN' of mil- at tent


It
is

to

lie

recoUock'd,

first,

that

tlie

primitive
all

convovances of allodial land were before


publie.

thintrs

Land

belon_ii:ed to
it

the tribe, joint- famil}'', or

village-community before

belonged to the individual

household
the

even when

it

became private property,


lar":e ri<dits

brotherhood retained

over

it,

and
it

without the consent of the collective brotherhood


could not be transferred.
village to a sale of land

The public consent of


required over

the

is still

much

of

the

Aryan world.

Although, as we
legal

know
is

the

Man-

cipation in

Roman
it

history,

it

form of
its

private

transfer,

i)lainly bears

the stamp of

original publicity.
assist at a

The

live witnesses

who had

to

Mancipation represent the old consenting


to a principle of representation

community, according

by
a

fives

widely diffused

among
it

primitive races.

As

private conveyance,

Mancipation was extremely

clumsy, and I have no doubt


tage to

was a great advanconveyance

Roman
and

society

when

this ancient

was
the

first

subordinated to Tradition, or simple definally superseded

livery,

by

it.

Nevertheless,
re-

most successful
in

modem
to a

experiments have

verted

principle

method of transfer even

CHAP. X.

CL.\SSIFICATIONS OF PlTOPERTY.

353

older than Mancipation, and the latest simplifications

of the conveyance of land are a reproduction of the


primitive public transfers in the face of the com-

munity, in a new form appropriate to large and


miscellaneous societies.

In France,
^v^ith

and in the

territories
I.,

incorporated

the

Empire of Napoleon

there has existed,

ever since the establishment or introduction of the

Code

called

by

his

name, a system of publicly


morto-ao^es of land.

reo'isterino; sales

and

In some

of the Germanic countries there was long: a disinclination to adopt these expedients
;

but they have

now
is

been almost universally copied on the

Con-

tinent, and, as

sometimes happens, the new system.

most

perfect

where the delay in accepting


land-registries

it

was

longest.

The

which have the highest


are
e.g.

commendation from
certain

juridical writers

those

of

small Teutonic communities

the state

of Hesse-Darmstadt, and the Swiss canton of Zurich.


I

can

here

give

but a brief

description
is

of

the

mechanism.
into a

The land of the community

divided

number of circumscriptions

of no great area.

For each of these a central


a staff of functionaries
perts,

office is established, 'witli

who

are to
is

some extent exopened in which

and

at each office a register

separate portions or groups of pages are appropriated


to separate masses
jof

land.

There has been some

controversy as to what the area selected for separate


A A

354

ri,Assiri(ATi()\s ni-

imjoi'krtv.

ciiat. x.

troatmont slumld be

wlniliii-

:i

spaco (IctcrniiTU'd

])y

laiul-TiU'asunMnt'Mt. or. as
jiiTirreirato 1* C?*^
(>(

we

slioiiM sa\-. an csfafr, an


as
a

lands once
lliat

licl<l

sinulc im-oixtI v
lliiit

.11.
once

])Ut

bclicvf

the historical

system,

wliicli
])y

deals with estates rather than with areas settled

landsurvevors. has been loniid


convonient.
\\

j)i'aetleall\'

the most

hen

the

ivu'istcT

has

been

opened, the legal histoiy of every parcel of every


area
is

thenceforward

recorded in

it,

and
it,

ever}''

transfer or

mortgage must be registered in

under
sell

pain of invalidity.

Whether

a person wishing to
it is

or mortgage has the right to do so


of the staff of experts to ascertain.

the business
is

It

absolutely

essential to the system that the register should be

easily

accessible,

and the formalities of registration

simple and cheap.

The
systems

nearest English analogy to these


is is

new

foreign
;

to be sought in the Cpurt Rolls of Manors

and

it

sometimes asserted by lawyers that the


disadvantages
of

manifold

copyhold property are

compensated by the
its

many

conveniences arising from

registration in these rolls.

As

to the great
is

mass

of English freehold property, there

a general ad-

mission
tion,

among lawyers

of the expediency of registra-

but vehement dispute as to the best method.


certain disposition to look
as

and a

upon the
is

practical

difficulties

insuperable.
n^reater

It

true

that

these

difficulties

are far

than abroad.

Our land

CHA?, X.

CLASSIFICATIONS OF PROPERTY.

355

law

is

mucli more complex than the land law of


it

Contmental countries, where


if it

has

its

counterpart,

has any, in the exceptional law applied to the

estates of a limited

number

of noble families
still

and

English real-property law has been


plicated

further com-

by the

liberty of transfer

and devise which

we have enjoyed from


The great
difficulty

a comparatively early period.


lies

with us

in the preliminary

process of ascertaining whether a person desirous of


selling or morto'asfino; has
this is in

the rio-ht to do

it

but

most Continental countries a comparatively

easy matter, the bulk of the land having been held


until the early part of this century
strict villenage, or, as

by a tenure

of

we should

say, in copyhold.
is

My

immediate object, however,

not to pass an

eulogy on the principle of conveyance by entries on


a register,

or

to

weigh
I

one

system of

registra-

tion against another.

wish rather to point out


registration

some remarkable consequences of


study.

which
of

ought to have our attention in our special branch

A
all

short time since I stated that the problems

once solved by the expedient of Warranty were com-

mon
all

to

bodies of jurisprudence.
is

What
has no

is

to be

done in the case of the man, who


the powers of an owner, but
?

in fact exercising
title to

who
?

show

Is he to be at the

mercy of anybody who

chooses to injure or disturb

him

The Roman law

answers this question by providing the vast body of


A A 2

OOO
riili's

CLASSIFI CATIONS OF IMH

tl'llKTV.

iii\i'.

X.

wliii-li
ll;l^

coiistit
l)c

it1<'

tlic

cliiiiihT
111:111

<hi

Possession.
lioii^lit,
ilic
li-iic

Wlint
\\itli

to

(loiir

with

ilie

wlio Ims
IVnin

llir

]>rn|trr
tVoiii

ti>nii;ilii

io.

luil

not
Kiit

ownor
|)i'o|>('i'

>r

tlir

Iimic

owner.
;iiis\V('r
lA'

not

with

tlic

roi'inalitics ?
tlic

Tlic

of the Iloin.ni law


ainl

consists in

iloctrincs
///

/lond fi'/c I'osses.sion

of

owncrslii])

horn's

is

lionitariaii

of
tlu;

l'^|nital)l('

<nvn'rshij>.

Is tlic

Bonitarian owner or
faith,

Possessor,
ini-

with

(r

without o^ood

alwnys to liave an
in the ^reat

perfect title ?

The reply
his

departments

of hnv eoucerneil with


If a

I'sucaption and Prescription.


jn-operty to a

man mortgages
volume of
rules
is

number

of

creditors, in

wliat order are they to be

satisfied ?

Tlie

by which

all

systems try to

solve this problem

quite enormous.
is

But

it is

very

remarkable that where there


land
registr}^ the

a perfect system of
is

strong tendency
as
it

to revert to the

doctrines of
Possession,

Roman law
Usucapion,

must have been


Bonitarian

before

and

ownership

grew up.

The

registry of the sale or

mortgage of

land being extremely easy, expeditious, and cheap,


there
is

marked

disposition

among

the authors and

expositors of law to say to the

members of the comyou


shall

munity,
or cause

'

Either register your transfers or mortgages,

them

to be registered, or
If

have no

rights whatever.
it

you nealect
at

doino^ that

which
at a

is

in

your power to do

any moment and

trifling:

cost in time and monov. vou shall not have

CHAP. X.

CLASSIFICATIONS OF rKOPERTY.

357

the benefit of Possession, of Bonitarian ownership, of

Usucapion, or Prescription.

At most,

there shall be

an Action of Contract to compel the


register

seller of

land to

and the buyer to pay the pnrchase-money.

As

regards mortgages, they shall rank in the order


if

of priority of registration, and

you delay going


them

through the proper


to

formalities, or compelling

be gone through, you, the mortgagee, will be

postponed to creditors more diligent than yourself,

and

you

w^ill

be

satisfied

after

them.'

follow
is

German
in

writers of authority in saying that this


is

the condition to which legal doctrine

approximating

much
it.

of Germany, though

it is

not quite adjusted

to

The

sino'ular result is that


difficult

some of the most

intricate

and

chapters of law cease to be of

any, or much, importance.


registration
is, it

The expedient of public

will be seen, purely mechanical.


it

contrivance very like

in

principle spontaneously

and very early suggested

itself to the

human

race.

Nevertheless, where a public registry of mortgage

and land transfer has been


tendency to dwindle

established,

some of the

most famous and luxuriant branches of law show a


and wither away under
its

shadow.
ship,

Possession, Usucapion, Bonitarian ownera j^rodigious

and Hypothek occupy together

space in the

Roman

jurisprudence

the bulk of what


is

corresponds to them in other systems of law


great
;

very

if

they are reduced to

fraction

of their

.')08

CLASSll'lt

ATIONS OF

I'Kt )1'1;i;TV.

ciiAi'.

X.

]>n*sonl
lotlv

diiiu'iisinns. the
l:iw

(rmiimition

ol

ihc iiuuitlimIc
:iii<i

of

will
ill
;i

l)r

fxtnionliiiary
mic\|i'rt(Ml

will

li;i\i'

luTii |>ro(lii(HMJ
I

most

way. systems of
I

li:i\r

ilwfit

oil
aiiil

llicM'

Coiilinciitiil
llic

liiiiil

i-fuisl

ration,

on

cMccls
i'or

at

i-il)iif cij

to

thcni

1)V

(uTinan juridical
placi',

oi/niioi;.
is

two

i-casoni.

In

till'

first

tho fad

certainly (;urions that

the hitest iin{)roVL'iucuts in the nicciuinisni uf mort-

gage

an(i

hind transfer involve a reversion to the


of conveyance.

lriniitive pul)lieity

The
all

jmhlic registransactions

ter at

some

accessible spot, in which

must be

registered

under penalty of immediately

forfeiting all their beneiits, pretty

much

corresponds

to the primitive assembly of the village before


all

which

transfers of shares in the

domain mnst be accom-

plished, in order that the brotherhood

may

consent

to

them and supply evidence of

tliem

by the general

recollection.

It is true that the ancient formalities

had one object which has nothing to do with the


modern.

The primitive
was
insisted

publicity of transfer went

with a most rigid exclusiveness, and the public consent which

upon was employed

to refuse
of

the power of purchase to strangers.

The decay

the ancient public conveyances was very probably

caused by a change of circumstances which made the

communities either unable or unwilling to maintain


their collective control over the land of their domain.

In niodern

luflia

the groAvth of wealth has greatly

CHAP. X.

CLASSIFICATIOXS OF PROPERTY.

oo9
buyers and

stimulated the spirit of individualism


sellers of

land alike become impatient of the necessity

for obtaining the public consent of the villagers to

their bargain

the

modern Anglo-Indian law


restrictions
;

is

un-

favourable to

these archaic

and thus

the primitive public methods of alienation are every-

where giving way to private


torically ancient world, the

transfers.^

In the his-

same

results

were most

probably produced by conquest and by the absorption of one

or

more of the primitive proprietary


In the

groups by others stronger than themselves.

Roman

State, including a population ever

more and

more miscellaneous, we
history, a

find, at the outset of legal

mere shadow of the old forms of transfer


;

in the Mancipation
its

and Mancipation, long before

abolition

by

Justinian,

was subordinated by every


mere Delivery or Tra-

sort of legal contrivance to


dition,

Yet even

Tradition,

when

it

became the

sole

Roman

conveyance, retained some trace of the

institutions out of

which

it

grew.

The Roman law

never to the last allowed the dominium or right of


property to be passed from one person to another by
a

mere contract

it

was. absolutely necessary that the

contract should be followed by the dehvery of the

Thmg
^

which was

its

subject.

This

is

a peculiarity
Registration

Two valuable Acts of the Indian Legislature, the

and Transfer of Property Acts, are mitigating the evils arising from the privacy and heterogeneous forms of these transfers.

360

("LVSSIFICATIONS OF IMIOPKHTV.

chm-.

x.

whioli lias iuon than oiuv oausi'd pn-jtlcxitv

to jht-

sons wlio have co!isulte<l


in iinioranco
wliirli
tlu'

tlu IJoiuaii

law nf Transfer
<>ii

of

its

Ikmiiu^

founle<l

j)rin<'i|l('

Kni,'lisli

law ami the Frmcli (Vxlc liavr

alaiuloiu(l.

Tho other
is

fact to

whith

wish to

lall

atti'iitioii

not niert^ly curious, hut

hi;::hly

insvructivo.

T]uI

tendency of German

juritlical opinion,

which

have

mentioned, shows that "we are In

dani:er

of over-

estimating the stahility of legal conceptions.

Legal

conceptions are indee<l extremely stahlo

uianv of

them have

their rocits

in the

most

solid portions of

our nature, and those of them with which we are

most familiar have been

for ages

under the

protecti(iii

of irresistible sovereign power.


is

Their great stability

apt to suggest that tliey are absolutely permanent


:

and indestructible
to be sometimes

and

this

assumption seems

to

me

made not
and

onl}"

by

superficial minds,
I

but bv

stroncj

clear intellects.

am

not sure

that even such juridical thinkers

as

Bentham and
write
false
is

Austin are quite


as if they

free

from

it.

They sometimes
statement,

thought

that,

although obscured by
false

theory,

false

logic,

and
all

there

somewhere
which

behind

the

delusions

which they
looking

expose a framework of permanent


is

legal conceptions
eye,

discoverable
a dr\- light,
fitted.

by

trained
a

through

and to which
AVhat
I

rational

Code

may

always be

have stated

as to the

:nAP. X.

CLASSIFICATIONS OF PKOPEETY.

3G1

effects

upon law of a mere mechanical improvement


very impressive warning that

in land registration is a

this position is certainly doubtful,


true.

and possibly not

The

legal notions

which

described as decay-

ing and dwindling have always been regarded as

belonging to what
of jurisprudence
perishable
;

may be

called the osseous structure

the fact that they are nevertheless

suggests
itself

very forcibly that even juris-

prudence

cannot escape from the great law of

Evolution.

.)Oli

CLASSIFICATIONS

ol"

IJli.AL

KILHS.

ciiAi'.

xr.

ciiArTi:i;

\i.

CLASSIFICATIONS OF LEGAL KULES.

Almost
(if

tlic first

thing which
tliat
tlie

is

Icanit

hy the

stiirlent

Ivoiniiii hiu'

is,

chissical

jiirisls ol"

IJome
of

divided the wliole body of legal rules into the


Persons, the

Law

Law
may

of Things, and

tlic

Law
is

of Actions.

Although, however, his studies, as law

now

taught

amongst

us,

soon introduce him to some vehe-

ment disputes
he

as to the

meaning of

this classification,

may

be long in becoming alive to the extent and


it

importance of the literature to which


birtli.

lias

given

It

would seem,

in

fact,

that in the seven-

teenth century, which was a great juridical era, theories

of legal classification took very

much

the place of

those theories of law reform which so occupied the

minds of the

last generation of

EngUshmen.
is
it

The

continuous activity of legislatures

an altogether

modern phenomenon
lect of the

and, before

began, an intel-

type of Bentham's, instead of speculating

on

the possibility of transforming the

law into con-

formity with the greatest happiness of the greatest

number, or

Avith

any other

principle, speculjited rather

CHAP

XI.

CLASSIFICATIONS OF LEGAL RULES.


in

363

on the possibility of rearranging


philosophical order.

it

new and more


in

The improvement

view was

thus rather a reform of law-books than a reform of


law.

The most extreme example


two
'

of such theories

is,

perhaps, to be found in the attempt of


tribute all law under its
as
set

great

Domat to discommandments
'

forth

in

the twenty-second chapter of St.

Matthew's Gospel
neighbour.

love

to

God and
'

love to one's

But on the whole the arrangement in


'

which the compilers of Justinian's Institutes followed


Gains, distributing law in

Law

of Persons,

Law

of

Things, and

Law

of Actions, became the point of


Its his-

departure for theories of legal classification.


tory has been not unlike that of several
it

equally

famous propositions.

After long neglect,

came to

be regarded as an expression of absolute truth, and

an essential and fundamental distinction was assumed


to exist between the three great departments into

which the Romans divided law.


dence was, no doubt, very
sumption,
little

English jurispruaffected

by

this as-

but

English lawyers occasionally come


it

across the inferences from

when they have

to deal

with Private Liternational law, or, in other words,

with the conditions upon which one community will


recognise and apply a portion of the jurisprudence of
another.

At

a later date certain difficulties

were obdoc-

served in the rigorous application of the


trine,

Roman
in

and much ingenuity was expended

removing

ZCi
tlirni.

CI.ASSirK ATIONS (ir

I.KC.M,

KfLKS.

(Iiap.

xi,

or

cxi'ln'miiiL;"

llifiii

;i\v:iv.

Iiii;iII\.

il

was
only
his-

jr(nt>unc('<l

to

In-

tlicoi'tticalK' iiiiiriiaMc,
rctaiiicil
(ii

:iii<l

U'siTviiiL:"

of

lii'iiii:-

accoiint

ol" its

torical iinjiortaiicc.

An-onliiii;" to \\\v liCiici-al

aLii'i'c-

nieiit of inotlc'iM wi-itrrs

on

jiifispriidciice, tlu' lloiiiaii

(listrilmtioii
Tliin<:;8,

of law

into
ui'

Law

of

IN'i'soiis,

I,

aw

of

ami Law

Aclit)iis,

musL be

rciranlcd as

now

exploded.
a
]n,'rfcct

As

classification

of

Ic^-al

rules

would

distrilmte

them

accordiiii;' to

their real relations with

one another, and would


complete analysis of
subject has not lost
all

therefore he founded on a

the legal

conceptions,

the

its

interest for

very powerful

minds
(ni

in this century.

The
fill

speculations of Austin

classiiication
us,

almost
a

such writings of

liis

as

remain to

and

valuable essay of

John Stuart

Mill on these speculations

may

be read in the third

volume of

his

'

Dissertations and Discussions.'

On

the Continent of Europe a

more

practical interest

has been given to


codification of the

such questions by the gradual

law of the whole

civilised world,

except England and the countries under the influence


of the English legal system

Code must be arranged somehow, and few would deny that the more
;

for a

philosophical the arrangement the better.

But the

great majority of writers on the subject, whatever


their title to be

heard, are

agreed in depreciating
all

the

Roman

classification

and

classifications

de-

CHAP.

XI.

CLASSIFICATIOXS OF LEGAL RULES.

3G5
is

scended from

it,

and sometimes their censiue

sur-

prisingly strong.

This modern fashion of de"crying,

and even of

reviling, the

arrangement of the

Roman
and
I

Institutes threatens to
see that a

produce some

reaction,
it

manful attempt
America.

to rehabilitate

has been
Chicago,

made

in

A
Law

book published

at

and written by a
versity of Iowa,
is

Professor of the State Uni-

not likely perhaps to come into the

hands of many English readers, but Mr. Hammond's


Preface to the American issue of Mr. Sandars's well-

known edition of the tains much the best


classical

'

Institutes of Justinian

'

con-

defence
of law.

have seen of the


opinion
is

distribution

My own

that the
tion
is

now common depreciation of this distribuThe not so much mistaken as misplaced.


proposed

legal classifications

by the most modern


Right

thinkers on these subjects are classifications of legal

Rights.

Every one of such systems has


and pivot.

legal

for its centre

But, singular as the fact


it,

may

appear to those unacquainted with


attained, or

the

Romans
ele-

had not

had not

fully attained, to the

conception of a legal Right, which seems to us

mentary.

According to the general usage of the

Roman

lawyers Jus meant not 'a right,' but 'law,'

and usually a particular branch of law.


undoubtedly, certain senses
of Jus in

There

are,

which the

meaning of
approached
;

'

right

'

is

approached, and even closely

but, on the whole, the

Romans must be

ijCiCi

rLA^SIIMiATloN^

<>!'

I.KdAI-

I.TI.KS.

cum-.

\i.

conMtU'ml
toin

tn

li.-ivc

coiistnictr
ilic

llicir iiunioiMlilc
i<n
<>("

s\s-

without

till'

li('l|> tif

cniK'cpl

Ici^nl

Ili^lit
illii
:is

Wi" linvc
sions

((iiit:inil\'
li\-

to

In- >ii

our ^iinnl

;i!i'Miiist
\'

jirniliiffil

ilic

iinilonhtccl stnltilil

nf

I;i\v

0(inij)art*(l

witli

otlici'

proN

iix-cs

of

llioiiiilit.
;is

Some
wci'c
Ici^al

modiM'ii writers speak of


t<i

llic

lutiiiaus

if tlicy

blamo
;

f)r

not

lla\ill^

clc.-irlN'

roucciviMl

Kiirlit

c\vn Mill speaks of their lanu'ua^c on the


'

])o:nt as

uiihap})y

'

but
le_a;al

tlio

truth

is,

and

it is

very

impressive, that the

idea of a Kight

was veiy
lawyers

slowly evolved.
it

In the inind^ of the


otlier notions,
it

Roman
became

was entangle! with

and was thereclearer,

fore obscure.

Tn the Middle As^es


its

doubtless through

examination by the scholastics.

But, unquestionably, a clear and consistent meaning was, for the


right
'

first time,

given to the expression

'

by the searching analysis of T^entham and


I

Austin.

object,

therefore,

to

the contemptuous

language sometimes applied to the


provinces of law, as in effect

Roman map of the taxing persons who had

not yet attained to the conception of a legal Right,

with not having anticipated methods of classification


of which Rights are the basis.

In order to give their


first

due

to

the ancient lawyers

who

divided law into

Law

of Persons,

Law

of Things, and

Law of Actions,
view of
;

we must

try to bring

home

to onrselves the

the field of law which this division superseded

and

then we shall

see, I

think, that the

new

arrano;ement

cnAP, XI.

CLASSIFICATIONS OF LEGAL IIULES.

00/
object

may have

been a

grer.t feat

of abstraction.

The

of this paper will be to

show what was the


as

original
;

Roman
it

notion of the contents of a legal system


it

bnt

will derive such interest

possesses from the

light

which the inquiry throws on certain primitive


law and justice which appear to have

ideas regarding

been once diffused over a great portion of mankind.

The
thouofh

respect,

which once amounted to reverence,


law in the

for the classification of


it

Roman

Institutes,
is

has had time to culminate and decline,

relativtsly

modern.

There

is

no reason

to

suppose

that the

Roman

lawyers set any extraordinary value


to their Institutional treatises

on

it.

It

was confined

or primers of law, the educational manuals placed in


the hands of beginners.

The student was soon

ad-

vanced to the Prsetorian Edict, and the greatest part


of his pupilage was passed in the close examination

of

it,

and in reading the numerous commentaries of


it

which

was the

text.

But the Edict of the

Prtetor,

even when consolidated by Julianus, did not -divide

law into
Actions.

Law

of Persons,

Law

of Things, and

Law

of

The Twelve
of

Tables, older than the Edict,


;

have no trace of

this classification

nor has any later

compendium
principle

Roman

law.

The Gregorian and


a different
;

Hermogenian Codes were arranged upon


;

so

was the Code of Theodosius the Second

so, manifestly, are

the Code and Digest of Justinian.

When

the study of

Roman law

revived in the Middle

808
Auf*"^.
it

CLASSIFICATIONS

oi"

I.Kt.AL

lai.KS.

duiv

xi.

was not

llic
till'

ari'MiiLit'iiiciiI

ol"

(lie

Instil iitcs

wliich
lowotl
tVoiii

lVi::iilMti'(l

coiirsr

ol"

lri;;il

sludv sooiilol-

b\'

thonsamls of
1

stiulcnts.

As may

1)0

seen

Mr.

l;iiiiiii"iiil s
'

I'l'i'l'aci',

the iiicdia'Nal teachers


is.

lulloweil the so-ealK'<l

h'l^al

order.' that.

the actual
hefort;

nrdiT of K'ual
the chiss.

toj>ics

ill

the text of the hook

Tlic asccudcncy

of
its It

tlie

ehissificatioii
in

of

the iDstitutes in fart took

rise

dissatisfaction

with this
schools,

'

leg'al

order.'

survived in the hiwto

says

Mr.

Hammond,

the

end of the
the time

eighteenth century, consequently


of Blackstone
' ;

till

;ifter

but the increased

iiii))ortance of the

Institutes in the plan of study

graduaUy made

their

arranirement to be recfarded as the basis of


tific

all scien-

systems of jurisprudence.'

It

has now, howfar

ever,

become

plain,

and with regard to matters


legal classification,

more important than

that
in

which the eighteenth century abandoned


recovered and re-examined,
thouo-ht
is

much the name

of science and in equally respectable names must be


if

the thread of

human

ever to be knitted anew.

the 'legal order,' which appears in

What then was the Roman Digest


its

and Code, and which, when those bodies of law were


put together, had already maintained
place for

about ten centuries in the legal records of a society


of pre-eminent legal genius?
tion will be found to have
nical
I

think that the quesa merely techinterest.

more than

and more than

merely antiquarian

CHAP. XI.

CLASSIFICATIONS OF LEGAL RULES.

369

The arrangement

of legal topics which can be

shown

to have been extraordinarily persistent in the


is

Roman law
retical basis.

first

discovered in the fragments of


its

those Twelve Tables which to the last were

theo-

The contents of

all

the Tables except the

Eleventh and Twelfth have been

known
;

in a general

way

since the time of Gothofred

but

we

are

now
This

only under the necessity of attending to the subjects


of the first three, and especially of the First.
First Table of the primitive

Code contained a number


first

of rules de in jus vocando, on the


judicial proceeding,

steps in a

on summons

to the defendant,
later

and on the excuses, or


tonic

to
its

employ the

Teuearly

word which found


'

way

into our

own

law

the

essoins,'

which he might make

for not

attending.

The Second Table had


and next (so
;

to do, first, with

the Procedure to be followed when the case was


actually in Court,
lieved) with theft
it

is

commonly

be-

it

went

at

once from legal pro-

cedure to the fraudulent subtraction of a movable.

The Third Table contained rules as to Deposits. We need not go further, and all which must be recollected
is

that the earliest

Roman Code

treated first of

legal procedure, and then, either at once or shortly

afterwards,

dealt
all

with the subjects of Thefts and

Deposits

the other heads of law discussed in the

remaining Tables followed the same apparently haphazard arrangement.

Let us

now

turn to the Prae-

B B

oTO
tori.'in

CLASSiriCATlnNs oV I.KdAL KIM-KS.

cuw. w.

or IV'rjx'tual I'Mict.tlic liodv of IJotumu K(|uity


as
()|)|)os((l

jurisprmK'nci*

tn

ilic

Ifoiuaii

Coininon

Law

c()nstruct(<l

mil of
of"

tin-

Twelve Tables and out

of the accrft'mn
nucleus.

Ic^ial

rules wliidi liad tlicm inr a


oi-der of

The

1-Miet

had inKjiiestionalilv an
I

^ul>jeets of its
at

own.

will not

now

dix-iiss the

time

whieh, or the
It

mode

in whieli. this order first ap-

peared.

beij^an
first

with

a title

manifestly corre-

sponding to the
given

Decemviral Table, though usually


words,
de actlonc

in different

danda.
Avith

The
Pro-

Second

Title, like the

Second Table, dealt

cedure in Court.
Title
;

Deposit was treated of in the Third


first

but Theft, instead of taking the

place

after Procedure, as it is

thought to have done in the

primitive Code, occupied the last part of the Fourth


Title, in

which

it

was preceded by Marriage Portions


There
is

and Tutelage.

a general

but not exact

correspondence with the Twelve Tables throughout


rhe remaining Titles,

and on the whole the

classifica-

tion of the Edict looks like a modernised

form of the
is

ancient order of the Twelve Tables.

It

well es-

tablished that the distribution of subjects of the Edict

was observed in the great mass of Roman


ture,

legal litera-

and that

it

influenced the earlier attempts at


it

codification,

but

was long a matter of dispute

whether

it

determined the order followed in the Code

and Digest of Justinian.

At

first

sight there

is

no
'

trace of resemblance or correspondence, but the reason

CHAP.

XI.

CLASSIFICATIONS OF LEGAL RULES.

371

is tlicat

a great quantity of prefatory matter introduces

the true classification in both of these famous compilations.

In the Code the preface

is

ecclesiastical

in the Digest there are first

some general propositions

about law, and then an account of various Imperial


officers

connected with the administration of the law

or having some sort of jurisdiction.

The

real

body

of the Digest commences at the Fourth Title of the

Second Book, and begins with the very subject of


the First Table of the Decemviral
vocando.
liest

Law, de

in jus-

close correspondence

between these ear-

and

latest

monuments of Roman law may be


through no
;

discerned running

less

than nineteen

books of the Digest

only Theft has dropped into an

obscurity characteristic of modern as distinguished

from ancient law.

From
men,
it

this brief

summary

of an inquiry which has

occupied the minds of several generations of learned

would appear that the form of the Roman


its

law throughout the whole course of


strongly influenced
subjects in

history

was
Ot

by the primitive arrangement

the Twelve Tables.

Have we any

clue to

the meaning or principle of this ancient legal classification?

At

first sight it is

simply disorderly, even

less capable of

being referred to any dominant notion

than the arrangement of our classical English Digest,


Bacon's
'

Abridgment,' which begins with


to the Jurisdiction of a Court,'
B B 2

'

Plea in

Abatement

and goes

372
i^

CLASSIFICATIONS OF LKOAL KIKF-S.

m.Kv. xr.

to
all

tri'ttt

of Amliassjilors and Attorneys,


tlic

l)iil

wliicli

at

events inav lav claim to


onler.
niiu^lit

convenience of an

alj>hal)i'tieal

Tlic

siispicioii.

however,

tliat

soMio
the

liirlit

he llirown on the arranijemont of


heeii

Twelve Tahles hy what has more recently

called

Comparative Juris j)niilenee


tlie

is

not new.

ICver

since

earliest
*

and

j>urest

of the 'reutonic (xxles,


it lia.s

the Prankish

Lex
it

Saliea,'

has been examined,

been seen

tliat

exhibited some curious *^encral rein

semblances to the course of legal topics followed


all

the

monuments of Roman law except


mminiir, on

the Institutes,
to a Court,

The

first title is ile

Summons

thus exactly answering to the First of the


Tables, and to the First Title of the Edict.

Roman
n(;xt

The

seven Titles are concerned with Thefts, just as was


the second part of the Second
Salic titles

Roman

Table.

The

on thefts of swine, thefts of kine, thefts of

tame

birds,

and so

forth, succeed

one another down


is

to the ninth Title,

where the subject of Trespass

taken up
to Theft,

but the code-maker immediately returns


to treat

and though he interrupts himself


is

of Homicide and other serious crimes, he

constantly

recurring to Theft throughout a great part of the

Code.

The

title

corresponding most nearly to the


till

Roman

Deposits does not present itself

the middle
'

of the Salic

Law

is

reached

it is

numbered

fifty,'

and has the bai'barous Latin heading de


but
it is

fides factas

most elaborately framed, and has furnished

CHAJ. XI.

CLASSIFICATIONS OF LEGAL RULES.

373

plentiful food to
fact

modern German

erudition.

The
to

remains that the German Salic

Law

begins, as did

the
a

Roman Twelve
legal eye

Tables, with committing


is

what

modern

the paralogism of placing the


;

Law

of Action in front of the law

that, like

the

Twelve Tables, it gives a very high. place

to Theft

in
;

modern law one of the most


and that
tions,
it

insignificant of subjects

elaborately discusses contractual obligait

but that

puts them in no place in the smallest

degree corresponding to that reserved in the


Institutes for the

Roman

Law

of Contract.

These resem-

blances, as I stated, attracted notice

some time ago

but

it

was matter of dispute whether they proved

anything more than that the Frankish code-maker

had heard something of the

Roman

'

legal

order.'

On

the

one side the strong probability might be

ursfed that the

Theodosian Code had somethino- to


;

do with the Frankish codification

on the

other,

it

mio-ht be said that the substantive law of the


Salica

Lex

shows no signs of derivation from the Roman


It is purely barbarous.

jurisprudence.

Again, the

order of topics in the


later

Lex

Salica

is

not that of the

Roman
it is

law, which the Frank might conceivably


earliest

have followed, but that of the

Roman

law, of

which

almost impossible that he can have


After Procedure, the Salic

known

anything.
Theft.

Law

deals with

So, according to the better opinion, did the


;

Twelve Tables

but in the later

Roman law

Theft

374
hail

n.Assirn ATioNs ok

i.koai,

hulks.

niAi-. \i.

l)cci)iiu*

tM'iniinal

ull'ciin',
is,

ami not

niir

(("

aii\'

imj)M*tan("'(\

riic
is

fad
a

tlic

|>r<>iiiiiiiiL

jlarc

as-

siirnrtl

to
it

'riioft

(listinctivc
ilic
|)frii)il

mai-k
wlicii

(("

l)ai-lai"oiis

law.

lu'lonixs

to

nioxahlcs
]>('rsoiiaI
Ix'

aiT
]>r(i-

of Inr

liii^luT

valiir

than iiniiiovaMi's.

]nM'tv than

land.

No

surer inlcrcnco <'an

<lfas\ii

tVoin
tlie

the insistence of a lawi!;iver on Theft than that


lepi-islatcd liad

coniniunity for wliieli ho

more land

than sufticcd for cultivation, and that the

common

prey of violenee or fraud was the movable, the slave,


the domestic animal, or the ornament or utensil which

was the prochiet of woi-knien


fidness l)y laboriousness.

makmg

up

for unskil-

The arguments against the


from the

derivation of the Salic


liave

Roman arnmgement
I

always seemed to

me
for

to preponderate, independently of

new

material.

-^

an opinion.

hit these

new

materials place the

matter beyond a doubt.

By

itself

indeed the lately


little

revealed Irish law would carry us a very


Its great peculiarity is the
it

way.

extraordinary prominence
principal Irish law-book,
in its prefac{^

gives to Procedure.

The

l^retending to be a
to

Code and claiming


'

have been framed when


is

Theodosius was monarch

of the world,'

almost wholly taken up with the

law of Distress.

Undoubtedly we have here the

Celtic counterpart of the First


jufi

Roman

Table, de in

vocando.

Distraint
it

is

the ancient Irish method,

and probably

was once the Greek, the Roman, the

CHAP. XI.

CLASSIFICATIONS OF LEGAL RULES.

375
it

German, and the Hindu method, possibly

was the

universal method, of vocatio in jus, of compelling a

person complained against to come into Court and

submit the quarrel to arbitration or adjudication.

The

state of things is that of

which we have a bare


you, having re-

trace in

Roman and
in

Hindu, but traces somewhat


;

more abundant

Teutonic law

ceived an injury, so far availed yourself of the primitive natural


it,

remedy of forcible

reprisals that

you used
But,
>

with the sufferance or under the control of the law,

to

compel your adversary to come into Court.


this

though
further

amount of correspondence

is

manifest, n<

resemblance to the

Roman Twelve

Tables

can be discovered amid the singular confusions of


the Irish jurisprudence.

The

subject discussed

in

the great Code, the Senchus Mor, next after Distress


is

the law of 'Hostage-securities,' and

it

may

cer-

tainly be asserted that this

must have been an imBut


in fact a great

portant branch of law amid a community perpetually


belligerent like the ancient Irish.

part of law

is

incidentally discussed in the Senchus


it

Mor under

the head of Distress, and

must on the

whole be admitted that neither in that nor in any


other Irish law-book
is

there

any

clear sign of de-

signed classification.

All

we can

say with confi-

dence
the

is

and

this is

an important proposition
regarded the

that
of

Irish

Brehon lawyers

mode

bringing of a defendant into Court as the legal topic

'MCi

rL.\SSIFICATIO.\S

OF

UT,.\\.

Kl'MCS.

cnAr.

ii.

wlncli rlu;ht fully and luitiirally took precedence of others.


It
;i]|>i';irs

all

to

iiH'

tli;il

tlic

k('\'

to these mysteries

may

Ix'

I'oiind in

those

Hindu law-hooks whidi have


to us

heeu more or less


inappropriate

known

under the extreniely

name

of Codes.

One

of tliem has hecn

lonir accessil)le to l'^ny:lisli

students throuj^h the trans-

lation of Sir

William Jones, and this so-eallcd Code


believed
'

of

Manu

is

by orthodox Hindus
'

to he the
'

very collection of

sacred laws

which Manu,
to

whose

powers were measureless,' declared


sages
his
'

the

'divine

who approached him

as he

'

sat reclined with

attention fixed on one object.'

But the sacred


to

laws thus promulgated

no way answer

the

modern conception of a Code.


in a

They

are contained

book which, among other things,

is

a treatise on

the seen and unseen worlds,

on the

art of govern-

ment, and on the various classes of Hindu society.


Similarly the Christian Brehon laws are found

mixed
;

up with discussions on cosmogony and logic


the

and

Roman Twelve
of ritual.

Tables clearly consisted in some


of

j)arts

The Code

Manu would

in fact

by

itself

suggest that Law, as a subject of conscious


of a gradual evolution.
It

reflec-

tion, is the result

was not

at first dissociated fi*om all sorts

of propositions on

matters which affect

life

in this world or the next.

The

Sanscritists of our day, as I have explained in the

earlier chapters of this

work, are not

at all inclined

CHAP. XI.

CLASSIFICATIONS OF LEGAL RULES.

377
tnat vast

to concede to the later

Hindu law-books
for them.

antiquity which

was once claimed

Follow-

ing a theory of Professor

Max

Miiller,

they trace the

rhythmical texts of the so-called Codes to collections


of

maxims expressed

in

language so concise as to
finally to their

fasten themselves

on the memory, and

fountain-head in the oldest literature of the


race.

Aryan
to

But the law-books once framed appear


specialisation.

have

undergone a further

Ritual, of

which

there are plain traces in the

Roman Twelve

Tables,

has a compendium of rules entirely appropriated to


itself in

that remarkable record of another Italian


till

community, the Eugubine Tables, which


other day no
;

the

Narada,
a

man could read and in the book of now open to the EngHsh reader, he will find version of the sacred laws of Manu in which Law
'
'

proper has been isolated from other subjects, and


regarded very

is
it

much

in the

same

light in

which

would be viewed by the author of a modern Code.


In the mediaeval Digests of Hindu law, which are
the actual sources of the law
India,

now

administered in

Narada

is

sometimes quoted as of almost equal


In point of
fact,

authority with Manu.

both

Manu

and Narada are entirely mythical, and the books


called after their

names

are nothing

more than com-

pendia of the teaching of particular


schools,

Hindu law-

ckn.

on the model of a gens or Both these law-books pretend to an orio-in in


less

formed more or

378
tlio sMcrctl
ill

rL.\ssiri(\Ti<>Ns

of

i.i;(;ai,

ijri.KS.

chai'.

m.

laws iloclarcd
of
tlic

1)\-

iliai
;

?\Iaiiii a\1i<> (ocik

|)ai'l

till'

iTratioii
li>(il<.

\Mrlil

l)iit

tlic

autlior of

llic

I'Xtaiit

wliicli

piirjioi'ts
'

to contain
'

the

whole
]is-

teacliinu^ oi
tiiu't

Maim,

(iiiolcs
aii<l

Maiiii

as a jxTsoiianc

from liimsclf;
doscriln's
(^riiiiiial
it

tlir

prt'lJu't;

to

tlic;

l)ook

of

Xarada

at

Icnuth the process by wliich u


spe-

suj)j)osed

Code of Manu was gradually


at last a treatise

cialised, until

became

on

civil law,

Manu. says the

writer, eoni})osed a

work which, auiong


andjiave

other things, told of the creation of the w'orld, spoke


of the classification of beiuj^s in
it,

tlje

enuit

meration of the countries assigned to them, and


contained 100,000 slokas, legal texts or verses.
delivered
it
'

Manu
by

to

Xarada,

who made
its

the very reasonable


easily studied

remark,

This

book cannot be

human

beings on account of
it

length.'

He

accord-

ingly abridged

to 12,000 verses^
it

and

his disciple,
It is only the

Sumati, further abridged

to 4,000.

gods, says the introduction,

who

read the original

Code.

Men
life.

read the second abridgment, since

human

capacity has been brought to this through the lessen-

ing of

The
has

chief interest of the

book of Narada, which

recently

been translated into English by Dr.


is

Julius Jolly, of Wurzburg,

that

its

writer

is

much
Both

more of
his

a pure lawyer than the writer of


is

Manu, and

work

much more

nearly a work on law.

of them were certainly Brahmans.

The writer

of

Manu

CHAP. xr.

CLASSIFICATIONS OF LEGAL RULES.

379
still

is

intensely sacerdotal, and like earlier anttorities,


civil

contemplates the

and earthly sanction

as a sup-

plement and aid to the spiritual penalty.


other hand, the author

On

the

of Narada depends almost

wholly on the
racter

civil sanction,

and his

religious cha-

shows

itself chiefly in earnest

and often very

impressive exhortations to observance of the law and


of the moral duties implicated with legal obligations./^

For

my

present purpose, however, I have only to

point out that these Brahmanical code-makers, differ-

ing sensibly in some respects from one another, and


each probably reflecting the doctrine of some venerated school, agree essentially in their conception of
the order and contents of a Code.

The

classification

of subjects which they follow

may

be seen by ex-

amining the eighth chapter of the Code of Manu in


Sir

William Jones's translation, and

it

is

ob.^erved

throughout the law-book of Narada.


it

I will describe

from the

last,

since

it is

plainer in the

more purely
it

legal treatise.

The following account of

will be
li>

found at page 6 of Dr. Jolly's version in slokas


to

20
*

:
eight constituent parts of a legal proceeding

The

are the

King, his Officer, the Assessors, the Lawlire

book, the Accountant and Scribe, gold and


Ordeals, and water for refreshment.
'

for

Recovery of a Debt, Deposits, Concerns among

Partners, Abstraction of Gift, Breach of promised

o80
(

CIJ^SSIFICATIONS OF MKiAl, Kll.KS.

ciiAr. xi.

HK'diciu'c,

N<tii-j>;iviiKMit

of

Wall's,

Sale

willioul,

Owncrsliip. X<n-<l(Tiv('rv nf a Coiumoditv sold, Rescission


ol"

I'urcliasc.

l'.i-('a<h

ol"

^I'dcr,

'(tntcsis alxuit

I'ouiidarics. the iMitics


Inlu'rilaiicc. \'i<iloiU'c,

dl'

Man

aii<l

ilc,

the
(

Law

(tl"

Abuse and

Assaidt,

ianil)lin<i;,

Miscellaneous
'

)isputes.

These aiv the Eighteen Heads of Dispulc'


of subjects
is,

This distribution
rii;t>rously

on the whole,
treatise, ex(',e})t

observed throughout the

apparently in one particular.

The

inrclianisin of a
first clal^orately

Court of

'lustice

audits procedure are


Kin<i:

described.

The

seats himself

on the throne
;

with the book of the law in his hands


the justice described
is

l)ut, tliou^^h

throughout royal

justice, the

King

is

significantly directed to follow the opinion

of his Chief

Judge or Assessor.

After a full account

of judicature, the "writer (subject to a remark which


1

will

make presently) takes up the


which, in his
view,

subject of Evi;

dence,

includes Ordeals

and

then, having started with a


live in the light of

summary of what we who Bentham should call Adjective


'

Law, he proceeds to divide the Substantive Law^ into


eighteen branches, which he calls

heads of dispute.'
is

The order

in

which he discusses these

that in wliich

he placed them in the passage which


this exception, that the first

quoted

with

head of dispute, Recovery

of a Debt,

is

interpolated between Judicature

and
acci-

Evidence.

This

may

be the result of a mere

CHAP. XI.

CLASSIFICATIONS OF LEGAL RULES.

381

dentfil

disarrangement of the oldest compendia of


law, but
it is

Hindu
like the
itself in

to be

remarked that something


'
'

same misplacing of recovery of debts


the treatise of

shows

Manu, and

it

is

conceivable
diffi-

that

it

may have

been caused' by the inherent

culty of explaining adjective law without reference to

substantive law^ and that one

'

head of dispute

'

vany

have been taken out of

its

place with the view of fur-

nishing illustrations to the text-writer.

The
fication

principle
strike

and meaning of
as

this ancient classi-

me

obvious.

The compiler of

Narada or

his

original

makes the assumption that


sets forth the

men do

quarrel,

and he

mode

in

which

their quarrels

may

be adjudicated upon and settled

without bloodshed or violence.


present to his mind
Sanction,
is

not a

The dominant notion Law, or a Right, or a


Positive

or the distinction between

and

Natural Law, or between Persons and Things, but


a

Court of Justice.
exists

The

great fact

is

that there

now

an alternative to private

reprisals,

a^mode

of stanching personal or hereditary blood-feuds other

than slaughter or plunder.

Hence

in front of everyits

thing he places the description of a Court, of

mechanism, of
facts.

its

procedure, of

its

tests of alleged

Having thus begun with an account of the great


which
settles quarrel?,

institution

he

is

led to distri-

bute law' according to the subject-matter of quarrels,

according to the relations between

human

beings

nS'i

CLASSIFICATIONS OF I.KOAL

Kl'I-KS.

riiAi-. xi.

wliicli do. as a fact,


l)t'l)t.

;:,i\i'

rise to civil (li>']tiitcs.

Tims

Partncrslii|). tlic

Marital Kclatioii, IdIk rilaiicc,


:is

t\\u\

I\)!iatioii arc
at

coiisidcnMl
<!'

iiiattcfs

alxmt which
fact,
ie.s

men

certain piMiit

ei\ ilisatioii

do, as a

liavc difrerciices,

and

llie \afiiiiis I'i^lits

and

liahilit

(as AVc slionld call tlicni) to which they ^ive


8ct fortli
siinjilv

rise,

an;
tle

as guides

towards detennininui;
i:ivc

indirnient
(ailed

which

a C(,)urt of rJiisticc slioujil

wlien

npon

to adjudicate on qnarrels.

It

appears to
tlie

me

that this exphuiation covers the


classification
I

wliole of

problem suggested, by the

of subjects in the primitive Codes

Avhich

cited.

They

all

seem

to

begin with Judicature, and to dis-

trd)ute substantive

law into

'

heads of dispute,'

The

Irish law never, indeed, gets fjirther than the initial

steps of procedure.

All the learning and ingenuity

of the

contributing

Brehon lawyers are bestowed


which

on defining the rules by which adversaries may be


brought under the control of the
the lioman and
institution,

Hindu Codes assume

to

have been

long since in existence and long since in active and


regular operation.

The testimony, however,


the

to the
is all

early overshadowing importance of Judicature

the

more

Frankish,

As we have seen, and Hindu Codes also divide


striking.

Roman,

the subjects

of the quarrels which are the materials for litigation


into several branches
;

and, as to the order in which


'

these

'

heads of dispute

are taken up,

it

seems to

me

CHAP. xr.

CLASSIFICATIONS OF LEGAL RULES.

383
at the

that

it

depends on their rehitive importance


I

time when that order was fixed.

do not

at all

doubt that the arrangement


haphazard, but
it

is

in a certain degree at

seems to

me

that there

must have

been a meaning in the prominence given to Deposits


in the

Roman and Hindu

law, and in the prominence

assi^rned to Thefts in the

law both of the Romans and

At the reasons of the special importance of Deposits we can only guess, but I have
of the Salian Franks.

already stated

my

opinion that the importance of


a particular stage of economical

Thefts

belongs to

and

social advance.

We

can see the signs in


is

Roman
exactly

law of

their

dwindling importance, which

what we should expect from the growth of population,

from the rising value of land, from the greater

plentifulness of capital,

and from the

freer multipli-

cation of movable articles of use' or luxury, and


their consequent relative
that,

from

cheapness.

It

is

curious

though Theft

is

not a specific Head of Dispute

in the

book of Narada, casual allusions to Thefts


discussion of Deposits,

occur during the

possibly

derived from an older state of the law.

The

suggestion, then, which I offer

is

that the
all

authority of the Court of Justice overshadowed

other ideas and considerations in the minds of these


early code-makers, belonging to societies of the

Aryan

race so remote from one another and so unlike to

one another.

The evidence of

this position does not

"tSl

CLASSIFICATIONS OF

I,K(;A1,

1(11, KS.

(IIAp.

xi.

solely arise IVom

tlu' |)r(>l)al)iliti('.^
tlif

or (Icpriid

<>ii

infrr-

cncc from
juMidia.

tlie

construction of
is

ancient leual cointlic

'I'here

wlmle
\"i\i(l

litci-at ni-c.

Icchinilic,

which

iiives tlie

most

ini|i"cs>ii>ii

of the jxiwcr

and majesty of Courts ol'Iusticcin anam-icnt society.


It

mav ahnost
1)V
is
;

be said

tliat in

the

Iceland revealed to

us

the labour and learning of

Konrad ^laurer
and

there

no institution worth
all
it.

spcukinfj; of excei)t the


it

Court

society is

moulded round

all

ideas

centre in
prose.

It affects all literature,

both poetry and

It is

manifestly in the most intimate relation


incident, affection, and
])assion of

to every passage,
life.

And

as the society depicted is in the highest


it

degree bloody and violent, so long as


natural bent,
as
all
it

follows

its

becomes
it,

clear that

it is

not the Court

we understand

but the Court standing before


reprisals,

men's sight as the alternative to forcible


as the avenger of their victim,

and
to

which has attained


need not, more-

this

commanding

altitude.

We

over,
is

go

to historical records for the proof that this

a natural condition of men's minds. The phenomena can be reproduced, and are in fact not imcommonly reproduced in the country which has only
lately

emerged from the anarchy into which

it

fell

long after the laws of ]\Ianu and Narada had ceased


to be

administered in

it

by

tribunals which

they
ill-

de.scribe.

When
is

a province hitherto

specially

governed

annexed to British India, the

first effect

CHAP.

xr.

CLASSIFICATIONS OF LEGAL RULES.

385
discontent;

ordinarily

is

neither

satisfaction

nor

neither the peaceable contmuance of old usages nor

the sudden adoption of new, but an extraordinaryinflux of litigation into the British Courts,

which are

always

at

once established.
is
it

The

fact occurs too uni-

formly, and at first sight

too inexplicable, not to

have attracted notice, but

has generally been obafter

served upon with regret, and,

a while,

when
is

there has been time to forget the original condition

of the annexed territory, this

new

litigiousness

sometimes adduced to show that in exchanmno; native


for British rule a

community does not

obtain an unto

mixed
is

blessing.

But the proper conclusion

draw

that already

drawn

in this paper, that Courts of

Justice

have an immense ascendency over men's


for their tastes,

minds and a singular attraction

when

they are first presented as a means of settling disputes

which were either violently adjusted or slumbered


because they could only be settled at prodigious
risk.

Another phase in the history of Courts of Justice


is

instructively illustrated in the

more

settled parts

of British India.

The commands of

the

British

Indian Government and of the British Indian legislature are far

more

implicitly obeyed than the

com-

mands
far
ful

of any previously existing authority in India,


implicitly than the orders of the

more

most power-

Mogul Emperors.

The law
c c

is

obeyed in India
it is

as uniformly as in England, but then

much more

380

rLASSIFICATIOXS OF LEOAL RULES.

niAi-. xi.

i-oiisi'iously olu'yi'd.

At

pivsciif (.'ind

foi'

a loni:^ wliilr

to

come

it

will

prohahly he so)
-Iiistici'

tlio fact

of the cxist-

t'nce
is

of Courts of

n'Linlarlv culnrciiiu- the law-

ooiistaiitlv Ix'Torc the


tlitii'

minds nftlic natives of India


a

subjoct to
this

jurisdiction to

dci^i'cc

Iiicli

we

in

countrv can scarcely conceive.

Tlie law and tiic

(^ourt

have an importance wliich

may

be measured
authority,

bv

(Mrcumstance related to
ill

me on

f];'ood

that

many

parts of India youths learn the texts of


in daily lessons, as

the Penal and Procedure Codes


did
tlie

young Romans of

Cicero's

day the

cantilena

of the Twelve Tables.

r)Ut Avith

us, I

need scarcely

say, there is little conscious observance of legal rules.

The law has


ence to

so formed our habits and ideas

that

Courts of Justice are rarely needed to compel obediit,

and thus they have apparently


It is

fallen into

the background.
to

only when the law happens


facts

be uncertain, or

when

with which we are

concerned happen to get unusually entangled, that

most of us, who are not lawyers, ever come into contact

with the administration of the law.


is
still

No doubt
;

the force which arms the law


lies

there

but

it

in reserve, in (so to speak) a


it

compact and con-

centrated form, which enables

to keep out of sight.


is

On

the whole the effect of peace and civilisation

to diminish the conscious reverence of mankind for

Courts of Justice, and the abiding sense of their


importance.

CHAP. XI.

CLASSIFICATIONS OF LEGAL RULES.


believe that the impressiveness

387
of the

We may
to a

early Courts of Justice

was in part created by what


their infirmities.
It

modern eye were


was

would

seem that by their


vived which
it

side the very practices

long sur-

their object to

suppress.

The

tenderness of early judicial procedure to immemorial

barbarism

is

shown by
call

its

partial recognition of the

remedy which we
'

Distraint and the

Germans
on the
signi-

self-help,'

the

remedy of private
;

reprisals
is

property of an adversary

and there

much

ficant evidence that the early tribunals

had no power

of directly enforcing their

own

decrees.

The man
for his

who
law
acts,
;

disobeyed the order of Court went out of the


his

kinsmen ceased to be responsible


and thus he carried

and the kinsmen of thosQ who injured him bealso irresponsible


;

came
lence

his life

in his hand.

We

cannot then doubt that the vio-

and bloodshed which the law licensed under


of Courts of Justice, and that their earliest

certain circumstances were generally rife during the


infanc}''

service to

mankind was

to furnish
it

an alternative to
Their value
all

savagery, not to suppress

wholly.

and beneficence were therefore probably

the

more

conspicuous while as yet their power was imperfect

and

their operation irregular.

But
at

gi*adually, as the
itself,

sovereign power of the State developed


Avas

and

more and more placed

the disposal of the


efi^ectual.

tribunals, their decrees

became inflexibly

c c 2

f^SS

CLASSIIK ATIDNS OF

I.i;(;\l,

Uri.KS.

chap.

xi.

Olx^-diiMico to thoin
j)li('it.

cnmc

to

lie

UTilicsitalinijj uiid

imoi

ami

mass of halnts ami


]>i\(>t
is

iilcas

were foniicd

wliifli \\\c

rcntrc and

miijiu'stioninfj!; ()l)S(rvol'

nnro of law.
a!id
(^f
tl)'

This lonnatioii

law-ahidin^ hubits.

tN)iis'<ni('nt

hanisluiieiil oitlic pcjial sanctions

law into

tlic

liack^round, arc the secret of

many

transf(^rmations of juridical theory.

\\c Lave seen

that the

'

lec^al

order' of

tlie

lionian

Twelve Tables,

testifying; to the primitive

importance of procedure,
lost its

survived loDg after


the
in

it

had

meaning

but in

Roman
is

State,

always relatively well ordered and

the end the type of order and peace, the force

which

the motive-power of law early retreated into

the distance.

The

classification of the

Koman

Instifirst

tutes, assigning the

Law

of Actions not to the


is

place but to the third and last,

one testimony to

the formation of a habit of obedience to the law so

confirmed as to be unconscious

but another and

more

striking piece of evidence

is

the rise of the conis

ception of the

Law
its

of Nature, which

in truth

law

divorced from
of sight,
if I

penal sanctions.

The

retreat out
is

may

so speak, of the force

which

the
in

motive-power of law, has been even more complete


the

modern than

in the

Roman world

partly because

the decrees of Courts of Justice are everywhere inexorable, but also doubtless from the long ascendency
of theories directly or indirectly descended from the

Roman Jus

Xaturale.

The great

difficulty of the

CEAP. XI.

CLASSIFICATIONS OF LEGAL RULES.

389

modern Analytical
gives

Jui'lsts,
its

Bentham and Austin, has They had


to

been to recover from


its

hiding-place the force which

sanction to law.

show

that
;

it

had not disappeared and could not disappear


that
it

but

was only

latent because

it

had been transtheir as-

formed into law-abiding habit.


sertion, that
it is

Even now

everywhere present where there are

Courts of Justice administering law, has to


idea of a paradox

which
by

it

loses,

many the