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MAINE,
tions
Sir
HENRY SUMNER.
at
Disserta-
Chiefly selected
SuMNER Maine.
1883.
New York
DISSERTATIONS ON EARLY LAW AND CUSTOM. Chiefly selected from Lectures delivered at Oxford.
By
Sir
l\:
Holt
LAW.
Holt
Dissertations
on
Early
New
York: Henry
&
Co., 1883.
CUSTOMS.
tom.
Dissertations on Early
Chiefly selected
Oxford.
New
&
Co., 1883.
nV
TIIK SAM/'J
Its
AUTHOR.
tlio
ANCIENT LAW.
Idt-as.
Connoctioris with
its
Kurly
liclatiou to
Modern
VILLAGE CO.MMUNITIES
WEST,
to
IN
liich
arc
from
Lectures
8vo, $3.50.
AUSTIN.
or,
LECTURES ON JURISPRUDENCE;
By
work
The
John
tlie late
By Robert Campbell,
8vo, $2.50.
of Liucolji's
Inn, Bairisler-at-Law.
DISSERTATIONS
OH
EAIILY
LAW AND
CIIIEKI.Y
CUST03I
SKLECTED FKOM
Sir
^.
^
NEW YORK
M
I
/"
AUTHOJi'S EDITION.
CONTENTS.
CHArTKft
I.
or the Hindus
....
.
PAGB
1
II.
Law
i>r.
III.
Ancestor-Worship
Aj?^CESTOR-"SVoRSHir
i52
IV.
V,
and Inheritance
78
]2-'3
VL The
'
IGO
102
2.!2
Vn.
A'^
-.
Vin.
IX.
The Decay
England
of
X.
Classifications of Property
,\^T)
XL
....
.362
LM)EX
....
393
PEEFACE.
Two
COURSES of
lectures, delivered
by the Author
Corpus
titles
Village- Communities in
'
Institutions.'
The
substance^
given
l)y
him
at
Oxford
l)ut
in
some
cases the
altered.
in these
former works.
of
existing
or very
He endeavours
institutions
connect
]nrt
portion
with
of the
primitive of
tlie
ideas asso-
Ill
[()]
I'RKl'ACK.
of
'
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
meets the
on
to
modern
civili-
book he examines
and
legal classifications,
some
'
XL
Fortnightly Review,'
'
Nineteenth
Century
'
I.
The study
Indian law.
Sir
William
West
that there
was
as Sanscrit,
does not
He
to
cultivated languages
Arabic
and Persian,
But he
own
all
TIIK
HINDUS.
ciiAP.
I.
and contract
and, from
all
:i
had
to tlieniselves Moolvics
and Pundits
that
is,
native
for the
professors of
legal rules, of
which
The
'
'
to be at the
mercy of our
and
it
Pundits,
who
deal out
Hindu law
as they please,
make
it
at reasonable rates
find
ready-made.'
He
therefore
Mahommedan
law
unknown
in
it
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
results.
of
itself to
CHAP.
I.
ill
Eno-lisli of
law, which
Much
Government
his Council,
of
tlie
day, formed of
On his monument
by Flaxman,
Oxford, he
literates,
ill
sits
the open
It
was in
fact
Sir
all
informed, that in a
British
West, a
impossible
now
as she
now
now
grey shirtings
lectual interest
which the
But
Sir
William
ciiAl'.
I.
The
oldest of
Manu,
a divine being
asso-
and
it
was de-
basis of all
Hindu
to
Institutes of
Hindu
had planned.
it
He
seems, in
have regarded
Difjest
much
in
the
same
relation
as the
Roman
Emperor
Justinian.
It does not
seem to
Sir
me
account which
of
Manu
in his Preface
translation
was a
to
made
him
by
to
who seem
all to
have belonged
honour.
Sir
William
CHAP.
I.
reclining
his
attention fixed
on one
object, the
supreme God,' as
a real
individual
human
being,
As
have just
stated,
he sees an
Roman
it
the prodigious
There
is
no doubt
that, if
Manu
to be
to
Englishmen,
famihar to them
than the
Roman
Institutes,
it
the
book of Leviticus.
a
contains
essentially a
book
;
of ritual,
of
priestly
and
to this
Hindu
writings, to
on which
am
peculiar to the
literally
Hindus.
There
is
emerges into
and observance.
TIIK
SACKED LAWS OF
to
In^ tli;it
TlIK
HINDUS.
CHAP.
I.
bocu
(lioni:;lit
and Tontifi-
cA
most completely
disentangled.
tlu'
Thou Thou
with an adze.
Lot not
women
on a corpse.
('
We
the
are told
by Cicero
De
Legibus,'
2, 25,
G4)
Roman
He
attributes the
of funerals.
The opinions of
effects
Sir
One
result
notice
its practical
The Anglo-
book of
all
Hindus
to
be binding on them.
in the
mind
of
an im]3ression
shared, I
from
its
Hindu law
corre-
was
'
CHAP.
r.
hy Hindus.
knew
to
little
or nothing: of the
rules
supposed
rest
ultimately
on
his
it
authority.
is
The
which
recent investigation.
I
Some
West
after
my
stated in a
book on
'
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
"*
Manu and
smaller
his glossators
embraced
rules,
t
much
;
been imagined
spirit,
sometimes
to consist
'
Indian law
of a very great
number of
and
A high authority
Manu
informs
me
if
any, re-
ferences to
treatises.
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
("
examination
a
the
plienomena.
the
Tlicre
is
])rovinee,
tlie
l*unjab,
Kivers,
wliicli
was the
earliest
of the
Aryan
Hindus on
their descent
exhaustive
official
Punjab
Customary
1881).
Law,'
edited
by
L.
Tupper,
Calcutta,
Among
to
which seem
me
Punjab the
in
The
known
as the
Hindu law
worked out
in Brahmanical schools
hibits in fact
some singularly
Roman
law.
There
is
also evidence
Hinduism which
at
some time or
was extremely
'
superficial.^
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.
Hindu
forefathers et'er
knew it in anything
Sanscritists,
Some other
the theories
preface.
now
accepted
in
propounded in
William Jones's
of Manu's
The probable
antiquity
law-
un-
known
no trustworthy dates
relativel}'"
but
it is
now
believed to be
modern
almost
is
of a
more or
less treating
of law.
applied
sally
This opinion
by
Professor
Max
accepted
by
Sanscritists
is
The
one of
law-book of
Manu
in verse,
and Yerse
memory
very
has to bear
used.
when writing
is
is
unknown
or
little
But there
object.
another expedient
is
This
Aphorism or
popular wisdom
or in old proverbs
and
it
is
ticularly the
Court of Madras, and The Scientific Study of the Hindu Law, parThere may be a question whether the practical fii-st.
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
little
<if
nuHlicinc
not
necessarily cUrkly,
by
tliesc
two agencies.
great
maxims has
and some-
it is
maxims
well
known
to English lawyers,
As
medical
practitioner
once carried
his professional
that
con-
est
medicamen
in hortis.^
In Sir
Lord Coke's
Reports
'
in verse
if
was
in existence
and he gravely
remarks that,
Now, the
by Max
verse
proofs
themselves
is
that
Manu, which
and
is
wholly in verse,
law-books
2
much more
as
Hindu
(such
Apastamba
Gautama,^
ii.
of
Max
Miiller's
vol. Lx.,
Baud-
CHAP.
I.
11
modem
In
Hindu
is
scriptural) litera-
says
Max
Miiller,
there
no work written,
and the con-
like
Manu,
a characteristic
therefore, in
mark
of post-Vedic writings.'
Manu,
modern
Hindu Apocrypha.
the book
in
its
Nor
believed that
we have
(preface
original form.
Dr. Jolly
The
and
discussion
attributed
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
B.C.
is
now cited
a.d.,
book
as
400
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
(See Nelson,
'^7.)
'
Scientific
p.
It is as
though
it
Bannockbnrn.
The book
itself,
however, purports
and
suppose that a
At
its
out-
now shown
to be older,
to
have
When
nise the
origin.
Hindus
is
surveyed in
plausibility
of the
modern
still
theories of its
No
one
is
treatise,
and
less the
aggregate
of treatises,
man
or
of an individual mind.
The
literature
is
the gradual
found in India.
They
porations of
men
Per-
to be
found
far.
The conception
CHAP.
I.
IIIXDUS.
13
to
unknown
either in its
or, if originally it
was a
tended to shape
itself
The
would now
it
followed
and, as
it
went on
it
hereditary
-is
clearly reflected in
to
go to a
man
'in
whose family
it,
it
is
is
hereditary,
who
himself possesses
and who
i.
i.
1.
On
is
directed to
(Apastamba,
i.
i.
7.
12).
in
The Hindus
still
a school consisting
loc.
cit.)
And
according to
14
as
Tin: SACHKl)
LAWS OF
TIIK
HINDUS.
CUAP.
I.
thcv
>li<l
ill
ilio
lays
down
that,
on
and
in failure of the
llie
pu})il
take
deceased's
it
for religious
works
it
'
may
himself enjoy
tliis
14, 3).
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
or clan of Homerida?, of
whom Homer
progenitor,
was the
'
divine
eponymus or
in
whose
member
Homer
is
no individual,
as they constill
A
'
nearer
analogy
is
many
Literary fosterHistory'-
of
Institutions,' p. 242),
was an
and
it
Brehon
lore.
CHAP.
I.
15
However
may
surprise ns
that
tlie
connection
by the ancient
fatherhood,
Irish
and
as closely
tracts
resembling natural
leave
laid
the
Brehon
no room
for
It is expressly
down ^
that
created the
;
same Patria
Potestas
as actual
paternity
and the
literary foster-father,
foster-
son.
While
shooting
and eml)roidery
the
Brehon trained
his
foster- sons
lore of the
it
He
was part of
On
modern
which Professor
Max
^ 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
ii.
349).
16
,
TIIF,
IIIXDUS.
ciiAP.
i.
extant body of
Hindu
sacerdotal
legal
writings.
by
l>rabnianic families,
writ-
he says in his
printed in Morley's
l)y
for
the fact
that
there
all
Brahmanic
had
their
lies
still
no
Sutras are
some
is
As
regards the
Manava Dharma
Shastra, the
Manu
Hindu
fre-
translated
by
Sir
sacred
Manavas,
after a
Manu
literature,
but men-
as
somebody
ever comit
different
Manu
posed a law-book
(which
doubtful),
would
extant code.
Manu and
the
Apastamba, in
vol.
ii.
CHAP.
r.
17
per-
still
later Narada, is
held
by some
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.
was,
and
everything which
true
is
From very
tation or
to
difficulties
in the interpre-
of their theory.
Sometimes
Somereceived
they
fiiiled
to
supply a basis
for
One
the
passages in
'
the
of
'
Scriptures.
If
you
says
Apastamba,
why
have been
lost.
be inferred
from usage.
not,
however,
per-
custom
Hell
'
he
who
follows
fit
for
(i. iv.
12. 10).
With
still
in use
;
and
c
it is
IS
TIIK SACi;r.l)
LAWS OF
TllK
III.\1>U.S.
ouAi-.
i.
iiiCaiicy
of syste-
matic
tlioiin-lit.
As
the lunnan
and
acciimiilatiiiu'
at
by the
rnlino"
J>ut as the
mass of
this
it
by
successive expositors,
gradually specialises
itself,
and
subjects, at first
general
conceptions,
from
one
the
In the history of
specialisation
is
Law
that
which
what
man ought
to
do from what he
ought to hww.
ture,
A
the
includino-
World or Worlds,
last head,
first
falls
under the
what
man ought
to
know.
Law-books
first
branch, what a
this
man
should do.
for
an Aryan
They contain
more about the
punishments.
They
Hindu of
CHAP.
I.
HI.VDUS.
19
as
a
as a householder (or. as
for
that
is
assumed
man
in old age
life
runs throuoh
"
disappears
The
and
Brahman
three
higher
Brahmans,
feet to
Kshatriyas,
Yaisyas,
come and
;
sit at his
is
be instructed in
sacred learning
it
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
closes his
days
self-denial
It is of
life
which
prescribed for
him
in full detail.
as a
'
might at any
that in-
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
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
amounting
ture and
its
to abject servility,
bestowed on the
litera-
inculcated
skill to
by
immature minds.
is
The
that of Asceticism,
The duty
for
of adopting the
it,
ascetic
life,
following
discussed
'
referred
to
in
all
at
much
length,
by Manu
it is
Having thus
through
remained,'
let the
written,
twice-born
man
who
When
the father of
become
flaccid
and
his
him then
repair
Abandoning
all
food eaten
and
all
him
CHAP.
I.
21
to his sons, or
to attend
him
him
not,
on account of
this frail
and feverish
Witli
an angry
abused, let
man
let
him not
in his turn be
;
angry
nor
let
.
'.
him
.
utter a
Delighted
own
soul,
let
.
him
.
.
next
made
Self-existent,
declared
to God.'
It is
men
devoted
still
comparatively
common
practice
'
in
Hindu
to retire into
religion,'
as administered in
makes provision
many
notliLug
by
itself
custom, consider-
is
him
is
at the
moment
of his death.
Nevertheless,
there
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.
ul
as a scVulai"
|)i\u't icf.
many
early societies.
l)y
The
witnessed to
the ancient
or enstom of so
many
on power qnite
the power
archal
fails,
as mncli as
on
j)arenta<^e
and when
there are
many
authority
departs.
is
In the
Hindu law of
Succession, death
commonly contemplated
life
;
is
his substance
liable
among
his children
nay,
being even
(though
be forced into
retirement
by
his sons.
There
is
when
Hindu
more ancient
state
at
large
the
The
'
seniors
'
not in-
whom
the sept
must make
some
provision, are
There
period of
is
which
is
CHAP.
I.
01'
THE
IIIXDUS.
23
still
There
is
by
enemies or generally in
atically
system-
labour or arms.
The
place from
men
shown.
And
many
made food
of them.
Nevertheless,
many
communities, especially
old age
those
of
Aryan
speech,
show us
invested
]Mr.
Free-
man
(in his
'
Comparative
list
73) has
given a long
classes or institutions,
set
old.
by advancing
societies
Homeric equivalent),
and Sheikh
irpecr-
^lonseigneur.
and
Old
Man of the
and
Mountain.
So great a number of
titles, civil
ecclesiasticaJ,
and suggest
was a
definite sta^e in
There
is
a story of a
New
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
At
first
Pmt
at a Liter period a
new
raises
them
to be
comes
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
enlarged, compared,
is
enabled
single
than
tlie
is
contained
life is
in
separate lives.
Yet
individual
always the
and
at
some time or
other
it
individual
its
prowess.
It
for their
very existence
was out of
CHAP.
I.
25
life.
Almost everywhere
in the
advancing portions
we
of the
has been
made
the
civil-
West
House of Lords.
assemblies,
to
known, from
their
The Second
in^
Chamber
nowadays assumed
to have a veto
the
;
legislation of the
initiative
events,
decided beforehand
measures
such
as
and
finance.
On
The nearest
law--
possessed,
real
must be
effective
and
virtual
monopoly of the
initiative in legislation.
26
CHAPTER
TI.
The most
me
to
throw
little
light
Some system
of actual
must
and
it is
that
Punjab.
if
not the
They
first
regarded, as a
;
and
lawyers
who were
first
of
all priests.
Nobody,
example, will
Roman
many
his facts in
CHAP.
II.
27
inflexible formulas
priest.
lield his
own
;
who
professed to be
layman
and ours
owing
it is
difficult to see
cised as
much
ment
Roman Empire
to
it
administrative system to
a
if it
very doubtful
now
tinctly as the
Hindu law
observe
how
the
law-books
afl^ected their
must be used
by
at the outset
is
preference to
'
law.'
This
lot
be
made up
of
to
direct reward or
punishment in Heaven or
Hell, as
28
KKI.IliloN
\M>
I.
AW.
CUM-.
II.
|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-
forms
are,
as eternal, hut
as essentially transitory.
beside
my
purpose,
what may
of
tlie
liave
Hindus, and
more how
doctrine.
may
be examined
by
itself
to
me extremely instructive.
times, appears to
and
created
but
during:
tcrvals
aggregate of existence
conceived as indestructible
and
of
The sum
life,
life
or soul,
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
cn\r.
ir.
29
forms,
Men, animals,
different
The same
does
life
or soul
pervades them
another.
Existence
stages
still
not
end,
but
its
successive
are
terminable
and
transitory.
dies, his
;
When
spirit
man
contaminated by impurity
from
with
jQnds
Avill
the last
of these
it
escapes
to
clothe
itself
it
after another,
and
at last
embodiment
probably be
in
frail
human
or sickly.
them
for
long ages
but
it
it
will
carries
them back
to earth, to reappear
'
among
the prosperous
Men
of
all
castes, if
they
fulfil
imperishable
Afterwards,
when
man who
in a
strength,
aptitude
for
learning,
wisdom,
order.
he
dwells
1)0
HKl.KilON
AMI
l.WV.
oiiap.
il.
:i
tlic
otluT* (ApMstninltM,
<;o(ls
11.
"2.
:n<l
l\).
Kvcn the
in
llriivcn,
who
arc look(Ml
upon
as not miicli
tlieir store
It
is
l)v
favour
'
of
the
Bralimans,'
says
Vishnu (xix.
Tlie
"22).
that the
Wheel mentioned
is
in the
AjKistaiuha
a favourite
image with
writers.
They
round. with
life
Heaven
at the top
and
Hell at
common
in the East
but
who appear
is
to attach to
it
significance.
In
the
Buddhistic
cir-
Wheel-pictures,
Buddha
He
only
a possibility
would doubtless
Ex-
form of
See Note
'
Wheel-pictures.'
CHAP.
ir.
ol
who
all
'lies
is
the dwelling of
city,
living
who
is,
'
like a
this topic in
I
much
sublimity.
shall
which
is
shadowed forth
beliefs
in these
I
which
have
and that
direct
in-
direct
however,
all
referred
briefly
law
treatises,
though
and
slightly.
In the more
recent
writings
as
modern
Manu)
imagination.
is
Heaven, as
is
not unusual in
;
religious systems,
Hells, or, as they
but
tlie
called, the
of
detail.
They
are
twenty-two
in
new
would be
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.
as the
Avhorc
souls
wander
sword-leaved
Ibivsts
tlie
proliably
;
much
first,
These
last
me
infliction of
ments by
civil rulers
The
as
posthumous punishment,
may
them
berg
with
The sojourn
of punishment
its
is,
have
said,
length
is
cal
magnitudes.
for
example, a Brahman be
slain,
as
many
as
which
his blood
soil
makes on the
of India
that
is
to say,
on the bumt-up
so
many
thousand years
CHAP. n.
33
xi.
the slayer
must pass
in Hell
is
(Manu,
208).
The
duration of punishment
and indeed on
trine of the
Hindus.
The
frightful
Buddhist pictures
known.
They
immemorial
its
in the great
dependent kingdoms,
punishment.
The
series
of Purgatories
however, at last
life
which
may
bring
it
again to humanity.
have already
stated
my
purity by
and
its
purgation
by
punishment
same system of
religious
thought.
But
in
;
these
are
blended together
and
human
as
body.
It
is
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').
loss of caste
'
hodies of
am])hil)ious
animals
(A^islmn,
h}'
a prodigious
number of
others,
mentioning the
class
There
but
perhaps
look
natural fitness in
arbitrary
some of them,
or
others
like
assertions
wild
guesses.
a broad passage
stealer into
an iguana
may
and natural.
It has
Primitive men,
animals,
man
to
the
brute.
They appear
to have
been
impressed
by the
difference
between living
CEAP.
II.
30
tilings
and everything
else,
Some very
interest-
savage characteristic
and
it
how
tales
is
constantly changing
its
into another,
original shape.
is
a story
owes
its
popularity to
faithfully
following the
operations of a
that
dream
much
literally
But
the
Their special
Whether he
will
become a
woman, a Brahman,
on himself
deeds have
He
own
dis-
made him
declared
by these
writers in language of
much
solemnity.
If a
man
by due penance, he
will
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
indi.s-
tinsjui8haV>le
from divinity.
l>y it>
Tho
-wliolc
tlicory
and
complete explanation
balance of good and
which
evil
it
in this
world.
l)efore
I'hc
last
King of Burmali
liad
IxTn a
monk
remained
to his death
An
scientilic.
to the
his
countrymen.
The king
but added,
There
is
some
features of those
first
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 Sanction
Understood
modern
in the oldest of
inflicted in
these books.
in fact
to
be
though
it
may
CHAP. n.
0/
about
it.
Thus
modern law-
book
is
that
is,
by the various
is
taken
by Penances.
You
are to punish
where.
most unftiith.'
and to walk on
dead.
in a particular direction
is
he drops
In another he
fire,
to
into the
as a target to the
enemy.
is
to extend liimself
on both
Brahman
to have boiling
spirit
cacy of penance
it
still,
formed.
'
'
Gautama
(xix. 2 )
is
polluted
by
men unworthy
'
Apastamba,
15;
Gautama,
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"
a decil
shall not
it, h('oiu.S(
do
t/ic
it.
Some
(l,C(l
t<}i(iU
excellent o])inion
is
This opinion
is
from the
that
llin<lu scriptures.
is,
what would
How
ties to
we should
call
Law
that
is,
by sanctions or penalfirst
make
its
appear-
It appears in connection
with
His authority
more or
less
The most
ancient of the
King and
his
functions
tises
is
latest treais
It
may
be ob-
CHAP.
ir.
39
In what appear to
me
to
director.
'
He
is
to complete
If
any
persons,'
says
Apastamba
v.
10. 13),
'
take
them
The King
shall consult
who
He
if
shall order
them
to
forcible
means, except
men
of other
may
two
summed up
;
in
rules
he
is
he
is
to keep the
four castes, and the four orders of Student, Householder, Hermit, several duties
;
their
other words, he
is
to enforce the
whole
social
sacerdotal lawyers.
The
who
in the passage
from Apastamba
is
domestic priest.
to contemplate
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
llinl
;i
mere mortal.
liiiinaii
Xn
lit'
wlin
I*>nt
Ji])|K':irs in
sliapo
'
(^Maim.
personal
\ii.
iv.
N).
lie
lias
lost
in
actual
j)o\\it,
Jnst punishment
whose un-
whose heart
addicted to sensuality.
By
faithful
(Manu,
vii.
xxx. 31).
From
tises
law
becomes true
in
civil law,
enforced
by
penalties
imposed
this
itself.
The
first
'
to last
Corporal
punishment,'
it
is
written,
;
'
must not be
resorted to
in the case of a
Brahman
At
might
satisfy the
promisingly
is
it
declared.
Punish-
CHAP.
11.
41
ment governs all mankind pimiisliment alone prepunishment wakes when their guards serves them
; ;
are asleep
if
the
guilty, the
the sea.
The whole
;
man
is
kept in order
by punishment
and cruel
giants, birds
by
just
correction
several enjoyments'
(Manu,
loc. cit.).
The
full
consequences of juridical
law-book
as the extant
Manu, which,
besides a great
rules,
mass of sacerdotal
mostly, as
decay.
it
later
treatise,
Narada,^
is
almost
The
toned
by the good
whom
book proceeded.
The
portions of
it
which deal
false wit-
which should be
attributed to the
^
modern Hindu.
'
No
relatives,
no
The
'
Institutes of Nai-ada
Jolly.
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
\o
lu>ll
is
al)oiit to
dive into
tlie
tre-
mendous darkness of
suspense
\vlien
in
Hell.
ancestors arc
in
thou art
i-onie to
ponder
their
mind,
"
Truth
truth.
is
the soul
Strive to
of
man
aecpiire
by speaking the
truth.
Thy
whole
lifetime,
up
in
to the night in
die,
vain
if
There
is
no
nor
is
there a greater
One must speak the truth, when asked to bear testimony The somewhat analo43, Jolly).
gous passage in
Manu
(viii.
112)
'
is
defaced
by the
In case of a promise
it is
made
Brahman,
no deadly
The
difficulties
so-
called Sacred
European scholarship
Hindu
litera-
Law.
ture
If the
first
translated into a
it
Xarada,
law-book of
a familiar type,
CHAP. n.
43
Apastamba,
set
down
at
Whole Duty
or accidental.
of a
Hindu
it
Sir
William Jones
made famous
long as
under the
And
so
diffi-
culty in determining
of law.
pp.
17,
A
18,
Ancient Law,'
showed the
hesitation I felt in
making use of
I can
for archaeological
purposes
but
now
ment
in the structure of
Manu.
The whole of
it
the
literature to
which
it
belongs sprang,
;
would now
from some
appear,
in part
to
determine (though
bodies
it),
of local
of Indian
but chiefly
last exer-
The
by
far the
most important
influence.
Its crea-
tors, far
hymnology, devotional
theological speculation,
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
of
re:[ulatini;-
Conduct hy uniform
rules,
was
men
than on
men
The
help the
be<iinnin;!:
no
Nothing
-svhich
me
to be
of AVestern
Europe,
if
the Canonists
had
Common Lawyers
and
Civilians.
The
s^'stem
This in
tem with
its
its
cruel punishments,
had much
to do, as
may
be
Thomas
(Becket).
Then
sin,
it
would be probable
graver
and
CEAP.
II.
45
ecclesiastics,
they
system of
civil
tions enforced
by the Courts.
all its
ideas,
and though
it
its
it
Hindu
laws.
In the
them
it
may have
of
been
borrowed
from several
different bodies
usai]fe,
start.
lite-
On
on the derivation
reli-
gious
beliefs.
One example
threw
less lio-ht
on the
beffinnino- of
besfinnino; of
lawyers.
the
But
it
is
men who
were
much
H't
Kr.I.Hilii.N
AMI LAW.
ciiat.
ii.
wore also
in
some sense
]irirsts
tuik'Ii
Wiiat
we
Indian society of
lia<l
:iii
of
a class wliicli
It
abso-
lute nionoj)olv of
Icarninij:;.
incliidnl
llic
only
j>ricsts,
authorities on taste,
show
Brahmans aimed
at
commanding
a great deal
all their
and that
brinrj-ino;
under
They were
a
their
and.
A
;
King
thus
two
it
is
Doubtless,
Brahman and
effects
Kino;
;
was often
amid the
for,
obscurities
seem to emerge
first
established
overthrown
civil
much
less
power.
On
cnAi'.
II.
47
tlmt a
union of physical,
ency.
intellectual,
it
At
would be
the
literature
It is
as
self-indulgent
ecclesiastical
aristocracy.
not easy, I
must admit,
to describe
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
They
'
he must not be
it is
written
are
the
Gods
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
and scarcely
first to last
happy
life.
life
passed from
terrible possibilities.
;
man
in
youth
is
48
as
Itl'.l.Milo.N
AM)
lie
l-.\\V.
cilAl'.
II.
inarrii'*!
lu)usfli()lli'r.
is
conntU'ss
consijxn
breadi
may
him
in
(loLTradation
oi* |>;iin
in
It
oM
is
;il;'('.
lio
is
to Ix'come an
tliis
ascetic or a licrmii.
possibly to
combinaself-abase-
and
nuMit
that
may
its
be attributed.
As
le(jal
system, as a system,
its
present authority to
common law
of India
it,
l>elief
which underlie
as
Some
of these ideas
tion
but on the whole the evil has prevailed over AYe can find in this most ancient
still
the good.
ture the
litera-
exercising
forces
])ernicious effect
of the
caste prejudice
which
the
wounded Sepoy
mutiny of the
mercenar}^ troops
which
still
country,
and contributes to
periodical famines.
But in
close contact
"III
CFA.P.
II.
40
is
nowadays
an
ever-growing
body of thought
Western
scientific
method
its
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-
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
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
life
contained in the
lief
at
one another.
humous punishment
o-ation of sin
in a series of hells,
The breach
the law-
afflicts
unless
he be
by proper penances
severer
in his lifetime,
Two
to
life after
to
the
to-
traces
of
this
two-fold
CHAP.
III.
ANCESTOK-WOKSinr.
still
53
standing
third,
and perhaps a
older religion,
quite
by
itself,
in these treatises.
This
is
the
Worship
Hindu law
The most
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
their succession.
This
is
of the greatest
importance to
all
advancing
is
societies.
Ancestor- worship
taken by scholars.
It is
House or
Family
an Ion, a
it
Komu-
an Eumolpus.
be visibly
it
symbolise to them
have sprung.
by
sacrifices
or,
and
at
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:;.
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
him.
tors wor>liipiH(l
i!;randfather,
the father
first,
then the
The
remembered,
may
of these ideas.
may
be gathered
its
own
ancestor-worship which
'
Primitive Culture,'
tribes.
spirits)
of their tribe,
making
the
great
fence
around them
all
others
is
Amatongo.
Their
is
father
dead
all
Amatongo
is
indiffer-
that
is, all
Speaking
worshipped by
CHAP.
111.
ANCESTOR- WORSHIP.
55
know
the
who
are dead.
But
their father,
whom they
in'
knew,
is
the liead
by
whom
why
says
knew him
We
do
Manes- worship,'
ii.
Mr.
Tylor
('
Primitive
Culture,'
108),
'
is
religion of
mankind.
not
difficult to
The dead
ancestor,
now
passed
from them
still
suit
and service
The dead
chief
own
rity,
by helping
friends
ness in the
Book of Vishnu.
Hindu
is
dependent on
accurate observance.
What
is
more remarkable
after
long ages,
')G
ANCKSToit-WoitSIIII'.
ciiAi'.
111.
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
exact
who
All
sacred cake.
main
Roman law
law, but
Hindu
them
liturgy
and
sacrificial
order
of
Hindu Ancestorunderstanding of
worship.
It
must be added,
Inheritance.
It
who
call
the whole
Hindu pantheon.
'
common
saying
among
us,'
that
man may
be pardoned for
is
his
social duties,
but he
for ever
cursed
if
he
fails to
his parents,
and
to present
offerings
CUAP.
III.
ANCESTOR- WORSHIP.
57
due to them.'
shipped,
are
in
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-
The most
and the
solemn oblation of
rules for
it
made
at a funeral,
by
30).
all
The
first-fruits
all
meals,
they confer
is
the
first
modern writer
book
'
in his
little
brilliant
La
Romans.
Almost
all
attention
processions
moved along
the
were formed.
These
Gods
Sarvadhikari,
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.
was
to (he Lares
and
tlu;
IVnatos.
Tljcir
day
lararium or jx'iutralia,
who
it
in
the
days
liad
before
the hearth.
At
llieir
and
its
family
mixed
itself
with
all
is
argument which
La
is
Cite Antique.'
Ancestor-worship
still
much
human
race.
We who
l)elong to
Western
civilisation
scious of this,
Sacrifice to
was
certainly not
unknown
to the
Hebrews
it is
and
And
Thou
have
shalt
God ...
my
house
...
them ...
CHAi>.
m.
A>X"ESTOR-\VOKSIIII\
59
I
thereof in
my
the
mourning
nor have
;
taken away
dead.'
But
it
has
been
generally
Hebrew
Scriptures
^
;
contain
few
Mahommedanism
a fanatical
Mahommedan, may
extreme
may have
power of a
may have
But
all
sects of
Hindus, and
by Hinduism,
The
The
Fifth
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
"
'
60
ri'vivivl
ly
ANCKSTdK-Woiisiiii'.
ciiAr. in.
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.
example of a commusj^stem
to this
of rehgious
its
The evidence
is
of
antiquity
and of
dant.
its
prevalence
among them
is
extremely abun-
the
The most*
ancient
A fairly trustworthy
earliest prose
chro-
documents in
Shu -King
to
B.C.
from
government
cestor,'
'
and the
hymn
'
in the
Here are
harmonious
ancestor.
him with
CHAP.
III.
AJS'CESTOR- WORSHIP.
61
may
. .
of our thoughts
the former
From
men
set us the
example how
to
night,
and to be
I refer to a
paper
man
be more severely
felt.
in fine
new
clothes,
must be
burnt.
handsome
must be
of the deceased, and again for their services in ascertaining the lucky day for burial.
to the seventeenth
. .
.
From
the tenth
day
whether
who
new
crowd
in, in
the
wake of
their
and which
is
and again.
To omit
them would be
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.
have
l;i(l
rcvc-
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
llu-
Tiic price
hif^hCvSt
sum
tlicv
think
it
possible to extract.
It
ends
in
scllinix their
Finallv,
will repeat
whole of
('
this
Primitive Culture,'
108)
'Interesting problems
are opened
out to the
of a great people
who
Nowhere
the
connection
The worship
not interrupted
deities.
The
memorial tablets which contain the souls of his ancestors, little thinks that
he
is all
obedience,
may
The
is
one which
CHAP.
m.
ANCESTOR-WORSHIP.
63
and whose
titles
and grandfather
though
witli
officially
placed on
their
As
is
so often happens,
what
is
jest to
one people
millions of Chinese
Charles
Lamb,
would not
The
who
practise
to
it
appear
community,
its
ground
more famous
it,
faiths.
Confucianism
and
their priests
perform
its
ceremonies.
Sir
Alfred
them by
it
acts of State
but
it
may
be doubted whether
would venture on
Among
the
dimly seen
the
later
64
AXChlSTOR-WOUHinr.
CHAP.
111.
hiuvriKiUil law-Avritors
seem
Tlie ritual of
(lxxiv,
and
Manu
to tlie
slirad-
'Let an
offcrinjr
made
for
at the beii;inning
dhd
it
must not
he
besfin
oflerinji;
it
to
ancestors,
who
with an
Hindu gods,
though they
rites,
and
sacrifices,
by pilgrimages and
part,
festivals, in
by Hindus
in
immediate ancestors
is
certainly far
more
continuous.
a
learned
other ci-ime
may be
On
the other
Roman
evidence con-
still
CHAP. ni.
ANCESTOR-WORSIIir.
G5
There are
losins; their
divinity.
distinguishable
origin,
which
is
with
the proper
ofoblins
rites *
who moaned
at the Nativity,
The ancestor-worshipping
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
of disposal.
Ajax
to
his remains.
iii.
Compare
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
4,
is
the penalty for it 1 What is the atonement " For that deed there is nothing
which there
:
is
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
birds,
feeling,
holy Zarathrusta."
We
though not in
its full
strength
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
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\
survive.
(/odes of
One
'
curious
relic
may
Ix'
found
is
in
(lie
Tliorc
a classification of
then sulxlivides
trreater
gods
Manes
Roman
affects
yards.
partially shaped
by
desfree in
which
it
is
not
now
ascertainable.
Almost
on the
Novel,
This
of
Novel
Roman law
Modem
investiirators
it
their
CDAP,
III.
A^'CEST01MV0RS1II^.
67
special business
tlie
and unconsciousness
men
'
The
idol,'
writes
and idolatry
religion
form of
We
how
imperfectly civilised
man
we cannot wonder
savaofe,
human mind.
to be dead.
The
however,
knows well
the
body appear
Morning
after
morning
sleep.
rise
from
custom of
Among
longer.
power
good or
But
it is
powerful
spirit
fi8
AN('KST)K-\\n|;siii|'.
niKw
Civilisation
iii.
from
diMui-uc"!
("
Origin
of
and
Itlicd. 18(S2),
In liarof"
nionv
witli
this
nian-
world, liavc
('
l^-inciples
liuman peoples,
nearly
all
we
find tliat
of
them
liave a belief,
vague or wavering,
or settled and
dead man.
Within
almost co-
we
supposed to exist
death.
a considerable
is
period
after
Nearly as
numerous
show us ghost
for a
subsequent interval.
Then comes
more
the narrower
settled
and ad-
permanently
exists,
show us
a persistent
further restricted,
a class of peoples
though by no means
small,
we have
And eventually
most
leaders
decided, becomes
of con-
The
CHAP. ni.
ANCESTOR- WORSIIir.
C'J
thought
meets
it
its
who have
drink,
disappeared from
whom
it
loved,
;
They eat,
and speak
as of old
life
fre-
Power.
This
is
when
he best remembers.
feeling,
is
In such a
and
the
lirst
impulse of the
is
which are
the
of the
Hindu
I
to
his
ancestors
with the
made
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
dictions
between
tlie
reli<^ious
doctrines
How
and
to ancestors lv ritual
Avitli tlie
sacrifice to
be reconciled
Nothing seems
that, as a
man
has
made himself by
the
dies
he leaves
next, pure or
He
when
that result
entailed
by the
result of his
acts in
some past
the
state
according to
result
here.
These
down
'
eloquent
language.
;
Single
each
man born
single he dies
single
clay
faces
Con-
tinually, therefore,
by degrees
let
him
collect virtue,
an inseparable companion
he will traverse a
with
"virtue
(Manu,
do
iv.
it
240).
What
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,
him away
Time
his
is
no one's
When
Time
by which
present existence
is
snatches
him away
forcibly.
He
by
is
a thousand shafts
he will not
time
out,
am
quoting finds
a solution in
that
relatives
mourn
for him,
'
As both
will follow
it
him
what does
relatives
But, as long as
spirit finds
his relatives
no
rest,
whose duty
and
has
it is
to offer
up
to
him
Till
the
Sapindikarana
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
iii.iii
who
.
inti> thi'
ahoile
lis('iiiltii(lic(l
s|>irits.
IVrloriii
(N i>him,
xx. .'U-.'()).
siiju-rstitioiis
iiiij)ossible
to
;
belief
more nakedly
walk
;'
maintains
at the
it
because there
is
autliorlty for
it.
It is
same time
solved in a different
way by
the latest
Hindu law,
dead
effect of sacrificing to a
is
The
There
is
one
peculiarity
of
ancestor-worship
insti-
deal of interest.
The
first
'
Lubbock,
traced in
'
descent amongst
the
savages
is
female
line,
do not know of
an}'^
Female ancestors
in the
direct line
are
now worevidence
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
Christ, the
accomplished
is
and
'
meritorious
'
ances-
tor celebrated
manifestly a man.
The worship of
till
much
'
later
hymns.
'
We
Fang Nien
'
We
have
dreds
them, for
and sweet
present to our
sacrificer
forefathers,
in another
father,
hymn
is
made
to say,
filial
son.
...
I offer this
sacrifice to
my
my accomexisting
plished mother.'
still
At
Apastamba
16. 3),
the manes
and greatthe
sacrifice
grandfather
is
whom
offered.
The
'
rite is to
half of the
day
is
the
fifth.
it
on the
day, sons
will be
born to him
(1
A\('KsT(i;-\ViiU.^lIll\
CU.V1-. 111.
listin_Li'ui>luil
t)|]">|ii-iii^-,
and
nii
lie
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
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
Then
on partieidar days
of certain
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
is
been mvited.
On
is
certain
other
sacred
days,
the
Anvashtakas, he
mother
and
lastly, says
the writer,
'
an
intelligent
is
man
'
an
expression which, as
it
'
appears to me,
and
and
of
The order
me
CHAP. in.
AN'CESTOK-AVOKSIIir.
70
and
to
first
worshipped
l)y
wherever ancestor;
and
worship are
as old as
any others
are
and indeed
import-
probably
the
oldest,
attach
small
only.
as
we cannot doubt
somfetimes
called
lence
usa2:e,
among some
part of
'
mankind of
Mother-law,'
this savage
it
is
im-
Did the
ancestor-worship
religious inter-
pretation
of,
or a religious system
?
founded upon,
M. Fustel de Coucustom of
'
Mother-
seems to
me
sionally as
if
he thought that
the characteristics of
the so-called
this
high-priest,
and
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
wtn'shippi'd
more
tlian
it
may
life ?
figure in
it
during his
I
was
he,
sIioav
or
to
his
sleeping
children.
This opinion
fortified
by the recent
must
repeat, of the
Aryan
Hindus
their origin.
among the
But
it
is
a comparatively
It has
given to
by the priesthood
in
the provinces
to
the south-east,
many
of
whose
communities of Hindus.
tion of the
'
Family is
kinship
is
Roman phrase,
agnatic
;'
is
only.
There
usages
these
Roman
law,
and
their differences,
differ,
throw very
CHAP. in.
ANCESTOR-WORSHIP.
light
<
valuable
on the
more
famous of the
two
systems.
a tendency to consolidate
its later
the
tendency
sj^stem as
was
to dissolve
it.
Looking
at the
Hindu
a whole,
we can
growth pro-
ceeded, the
sacerdotal lawyers
under a strong
who
Avere privi-
Brahman.
female kinsmen,
Some
traces of a
movement
and a very
learned.
Law
and
in
has
shown
that,
wherever
Spiritual Benefit
that
most
is
strongly held,
women and
Roman
it
the descendants of
is
women
remarkable that
Praetor,
was
a philosophical system,
same
effect in.
of the ancient
as its chief
Roman
family, governed
by the Father
78
.\\(
KSTOK-WOKSini' ANIt
Ml KKIT AMI:.
CIIAPTKR
IV.
The
after
close connection
death
sacrificial rites in
lonir
been
known
to students of classical
considerable
proportion
of
the not
very plentiful
Athenian Orators
heritance,
is
frequently
as in-
Decide between
he says,
'
which of us
tomb
'
(Isa?us,
'
Or. vi.)
spirits
'I beseech
men
the
do not
suffer his
ii.).
sacrifice at
number,
costliness,
and
importance of these
the
among
Romans, and
cn.vp. IV.
ANCESTOIl-WORSIIir AM)
INll KUITAXCI':.
70
The
best ex-
argued, of the
facility
is
with which a
strano^er can be
made
a son
The
later
may
sho-\v^
us that in the
ideas of inheritance
and offering
enough.
It is natural
Wherever
viving members of a dead man's family could do anything to better his lot in the world after death,
it
it
before they
The mediaeval
Christian
Church held
perty
;
this
it
Upon
of our
this doctrine
jurisall
Ecclesiastical
which
instance before
could be distributed
and
this jurisdiction,
coupled
and of Administrators
in the case of
Intestacies, has
Probate.
of
'
The new
La
Cite Antique
is
determination of the
whom
the obJations,
80
:unl
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
of
tlic
l(val I'amlu'on.
I^c
<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
I'cniembercd dead
who had
reality.
just
passed
their
away
into a
from
late existence
ness of the
Roman
still
is tlie
burden
The
upon
Ningpo and
Buddhist Temples
')
what
the
is
expenses to which
Chinese are
'
put by
One
well entitled to
There
is
no doubt
heavy cost seriously urged as a reason against imposing a duty on legacies and successions.
The ex-
CHAP. IT.
81
pensiveness of religioiis
arises
among Hindus
involves of feasting
The
at all
who
the
'
grandfVither,
and
to be enterfall
Pure,
mind, and
of
who know
number
Gautama,
entertain.'
'
the Vedas.'
'
He
an uneven
the rule of
is
him
feed as
many
as he
able to
Some
make
own
The food
eaten at a sacrifice
is
by persons
Losing
grift
offered to o-oblins.
power
to procure
wanders about in
this world, as a
cow
'
that
Apas-
tamba,
17. 8).
We
societies
have
now
to consider
and
reUgious practice.
The
first
w^ill
instance of a trans-
give
is
S2
ANnCSTOU-WOKSlIII' AM)
Ml i:ivMTAN(
ol'
i;.
cilAr iv.
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'
and powerful
is
and one
lloyal
India
tliey are
not specially
to
wealthy.
describe
them
as a scrvinrr
class, their
occu-
in the
Mahratta States
humble functions
is
whose
old law-
books
is
still
a priest
else,
director
more
than anything
to
though with a
visible
tendency
counsellor.
others,
He
lives,
however, by the
bounty of
by
their charitable
and pious
gifts,
more par-
of
sacrifice.
It is
'
(J. D.
Mayne,
the
modern
law, as promulgated
by Manu, might be
'
to Brahmans.
Every step
of a man's
gifts to
life
Brahmans.
Every
sin
which he committed
CHAP.
IV.
80
mio'lit
The huge
endowments
not a dead
show that
Now
pious liberality
by
in
common
in
home
of the
Aryan
such a
the
Punjab.
Every man's
less limited
rights
body
group
else
is
property
can be alienated.
The
like
avow
of co-ownership and
'
their
partisanship of
'
partition.
In
partition,'
says Gautama,
viii.
there
is
4).
The
(ix.
priniii.)
:
still
Either
let
them
live
togetlier,
or,
rites,
if
they desire
let
them
live
apart
since
religious
duties
are
is
multiplied
therefore
in
right
The more
for domestic
separate households,
sacrifice,
more occasion
the
more
204)
cites
my own
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
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
;
and
tlie
Irish evidence
seems
dis-
lari!:ely
extended Separate, as
Jn reading the
Brehon
writer
tain
tracts,
you remain
in
means
to lay
down
in favour of
anybody, or whether
it
is
only to
l)e
The strong
pro-
Church primarily
such rulings.
that there
is
a radical difference
between
tlie
Brahman
pious endowment by
Brahman began
it,
strictly at
it.
home
he was wedded to
because he lived by
it
its
own
It fed
CHAP.
IV.
00
needy
at its gates.
was ever
much
elevation and
oiFensive
are
constantly
the
contempt,
sometimes
for all
amounting
classes
to loathing,
and
other castes
it,
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
ancient societies.
It
of thought
we have been
suplife
The dead
man was he who had been the living dreamer, only that he had now passed permanently into the life of
dreams.
It
sacrifice
among
ancestor-worshipping peoples,
for
most intense
desire
*
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
tlu
powi'rful
tlu'
races of
st)ck.
mankind,
aiitl
sju'cially
those of
Aryan
these
iileas,
or of
in
iutcrmixed,
the
le<:;al
of the Hebrews,
As
is
by ancestor-worship
is
to be
found in the
It cannot, of course,
its integrity,
it is
everywhere.
One
feature of
found
to have
number of
ancient
sacrifice
and
forefathers.
We
and
its
cannot, as
it
we assume
that,
when
it first
which he
CUA.P. IV.
87
the
when
but
it
human
race began.
He
is
is
The
is
physical
paternity
fully
him
word
On
relations,
who
can
effica-
of
'
thus of Baudhayana,
whom
'
Sanscritists, Indian
and
as
law-writers.
Like
many
Baudhayana permits
childless
Aryans
after death
funeral oblations,
by the
sons
affiliation
of eleven kinds of
Illegitimate sons,
the illegitimate
of relatives
'
Society')
below.
SS
ANCKSTOH-WORSlllI' AND
Ml KKITANCK.
all
chap.
iv.
ciTi'iiioiiy,
arc
allowed to take
sons.'
1
lei;itiiiiale
will
arliriii;il allilialioii
some
iis
heariiiL;'
on
jnliei'i-
nlil
which
rests
si'cms to
me
douhtful -whether
forms of society
mature.
First of
fices
all,
is
not likely to
who
who
by
preference,
mans and
contracted under
their sacred
law prescribes.
is
And, among
sous,
most
on
the
his father.
Here, however,
of
prevent
its
With the
legiti-
of marriage,
riages
CHAP.
IV.
89
Hindu law-writers
purchased bride
tuated
;
others,
effec-
by violence or by
to be
these unions
;
would
and the
married before
it.
Among
eldest
is
all
preferred.
The
is
by
his
birth,
the
satisfied.
But the
privileges of inheri-
when
still
very unlike
it.
his father
this
is
the
priestly
reason.
More
some
similar advan-
and some-
times
stated.
alternative
modes of providing
for
him
are
Of two
ancient authorities,
Gautama
defines
his privileges in
00
AXCESTOK-\V()i:sllll'
AMI
Ml
KlllTAN'CIi:.
chap,
iv,
:nlinittin<j:
that
rriiiionx-niturc
i;ivi's
:ulvaiita;^cs
(>(|ual
in
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
;
brethren
must
On
is
the
division
should be equal
among
which
may have
Next
for
spiritual
the greater
number
of the
ancient
Hindu law-writers
At
maxim, pater
^
est
quern
demonstrant^ but
all
'
again
when
come
to
CHAP.
IV.
91
the son
and claim
'
his succession,
It is
is
of his
'
appointed
daughter.
an interesting
From
cognate,' a
in
among
all
the
first
more
or at
the family.
The
whom
women
he would
sacrifice
would be
woman, and
But
pro-
who had no
appoint
'
or nomi-
nate a daughter
who
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
'
may appoint her, and her husband may have own naturally-born son converted into the son of
The
sacerdotal formula of
:
appointment
'
is
his
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
Ilimhi usage of
them
The daughter
but a channel
child,
worship,
to
him
his property
household.
At
first
there
w^as
always,
should
their
operation
is
much
ness,
limited.
An
Athenian
a
might have
;
son raised
up
to
him by
daughter
object
this
was by devising
or,
to speak
more
strictly, the
to
a person selected
her.
marrying
CHAP.
IT.
93
on coming of
maternal grandfather
it
and took
is
name, becoming
(/cvptos) of
his
own
This
essentially the
same method
practice
must have
barbarous
among
portion
of
the
enormous body of
when
sons had
failed.
According to
others, they
But between
was an intermediate
male children.
point
Edward
who was
his
her
son,
was
entitled
to
succeed his
maternal grandfather.
vail either in the
forum of arms or
;
but
it
nected with
tlie
94
Tlu'
ANCKSTOK
WolvSlIll'
ANH
tlic
it
Ml
liKlTANc K.
cilAi-.
iv.
vh'wC intiTi'st of
lliiiilii
appoint mcnt,'
in the
<>'i<'
<'"'
|'<>ints
its
at
women
to
inhcril
made
way
into
tlio strict
airnatic
systems of
amonij^
tlic
kiiishij)
and succes-
sion which
prevailed
more advancccl of
of
^[am^
wliile
show
is
The son
is
of a
man
son so
the commentator)
liow then,
if
any inherit
who
is
closely
own
soul
?
'
As
the
when
once.
But
at
Among
:
tlie
ancient
Hindu
Baudhayana seems
to have
wholly
women
to inherit
Apastamba
list
of
both
sons.
the
it
is
when
is
But
this
of the rule.
The daughter of
man who
left
property
heiress.
She
a
her Greek
name
(iiTLK\r}po<;)
indicates,
'
CHAP.
IT.
95
'
person
the property.'
As
have said
marriage
itself
to his
which connects
all
with
to
be disrules,
it
presently.
In
these Athenian
The
law.
away from
the
is
not
usage.
The
Hindus
some
('
instructive
variants
of the
Athenian rules
vol.
ii.
pp. 75,
81,
usages,
the
daughter,
when
no sons,
;
inherits a limited
when
she marries.
It
is
be adopted by his
The
'
appointed
'
ii.
318.
on
ANCKSTdK
\\(>i;silll'
CUKV.
IV.
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
alto<rctli('r iictitioiis.
know no
l)c
])art
lliis.
of
or
tlio
ancient
demanding
to
who
investi'j:ate
the
of ortr.iniscd
is
human
Law.'
society.
entangled
'
my
Ancient
130.)
sp long before
us.
This
a strange house.
stitution
at
importance as a private
is
in-
of course
well
known
Empire,
to students
it
and,
among
the
Romans
of the
de-*
became
politically important in a
high
It is
more
and
than a
educate
in the
name
it,
to adopt a
child
is
to nurture
it
for
i.
by Will. But
;
French
Code
(liv.
tit.
8,
c.
1),
Adoption survives
as
an institution
a childless
man,
restrictive condi-
may
who
will
This famili-
CHAP.
IV.
A>'CESTOR-WORSIIIP
AND INUERITANCE.
97
Winds us
of fictions.
it is
The
in ancient communities,
strained
to the
alien in
was permitted
to enter
it
voluntarily.
No
somewhat diminished.
is
The theory
most
may
a stranger, at
is
generally a blood-relation of
list
some kind
of
known
Roman
that
is,
cognatic
'
kinsmen
women.
may
Hindu law-books.
'
There
Mayne,
in the English
it
through
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
Avilii
Adoption, and
suspect, served
object even
more
cou)-
They
arc startlin<r or
per-
haps simpler
more natural
to ancient
tliought
These
fictitious
'
sons
are
called
'
by
Gautama
and the
say
son born
'
secretly,' the
son of an un-
bride,'
It is sufficient to
the father
whom
They
children.
are
all,
to use
modern words,
illegiall
the
women who are under the shelter of the household, or who are brought under it. These women
status of their children
is
and the
settled
by the
well-
known
rule which, in
Roman
it is
law,
would
settle the
status of a slave.
Here
phenomena of primitive
even the Slave
in
is
CHAP.
IT.
99
in
family.
We know
it
Rome
on
and
mon
to
contrivance of
last resort, in
side, these
are
On
desperate
from a
terrible
total failure of
must
be,
strong
whose
have
survived.
list
very
ancient
authority,
Apastamba, gives no
lays
of them, protests
Manu
161)
man
10()
ANTESTOR-WOKSIIII' AND
IMH;i{IT.\N"('i:.
chap.
iv.
n l)oat inntle
of
wovon
who
only coiitomptihlc
po[)ularity
sons.'
cannot
(loiil)t
tliat
ol"
the
j^r()\vin<j^
of Adoption, as a nutlioil
was
tion
modes of
affilia-
Let ns
now
who can
failure
is
there any
escape possible
in the
sacrifices?
might be averted by an
which has
known commonly as
in its
is
by the Hindus,
Under
it,
a son
bom
man
of his wife
over
many
faint
branches of the
human
race.
We
it
come upon
forms
but
still
recognisable traces of
in
CHAP.
IV.
101
The
dead
Levirate, under
is
born to the
man from
his brother,
that his
to
out of
Israel,' is best
known
St.
Englishmen from
second
'
chapter
of
Matthew
(v.
24
et
sc(j.):
Master, Moses
said, If a
man
die,
having no children,
raise
marry
his wife
and
up seed
to
his brother.
Now
first,
ren
and the
when he
left
having no seed, he
his wife
also,
and the
all,
unto the
died.
And
after
them
had
the
woman
In
all
her.'
is
declared to be impera-
die
and have no
her husband's
her.
And
it
name
of his
The
is
obligation
and
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
tlic insti-
is (lcscril)e(l
'
by the ohlest of
whose
lu'ar a
tlie
is
Hindu
hnv-writers.
A woman
may
hus1)anil
deail
son to
licr
brother-in-law.
(tliat is,
On
(a
failure
of
brother-in-law,
may
obtain
offspring
Sauotra
*
an
'
Agnatus or
'
Gentilis
'),
Samiinapravara
(that
is,
one of the
same
husband), or
one wlio
Some
declare
widow
will necessarily
that, as in the
Book
a brother-in-law,
though he notices
But
sion even
more revolting
it
to
modern
shape which
takes
m the Levirate.
The
child be-
wife,'
says
CHAP.
IV.
103
Gautama
11),
'belongs
to
the husband.'
defined
as
always be a kinsman.
to
band,
list
it
And,
again, in his
'
son be-
would appear,
sacerdotal feeling
earliest
but we must
bear in
mind
that
its
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
made
little
difference
It is
between the
assumed that
an old
man
draw
in asceticism
and the
moment
104
^VXCESTOli-WOKSlIir
AM>
l.Mli:i;iTA.\CK.
ciiAi'.
IV.
he
;n':il
States of (jrccre.
("
IMiilarcli
Tn
I'l-lms/ 2C))
relations
between
brilliant
Lacedtunionian
ol'
Cleoof
nviinis.
and
(A'
the
way
in
which the
<>\d
men
on the
assuredly
some
institution
till
like
that
of the
male
the flower of
life.
At Athens,
the
Hindu form.
like
daughter
but
if,
intestate,
he
(or eVt/cXT^/jos),
who makes
She
but
lia'l
it
to
marry
The right
;
seems in
fact to
there
was
marry the
heiress.
The same
cnAP.
IV.
105
principle
whom
had
to
a portion.
The
object, of
possible,
daughter's
children
An
occurred
sister.
when the
sister,
children
left
portion the
to the estate.
This
and
this limitation
the
remote
age
females only.
sister
from
Let
me
repeat that, in
This
is
the explanation of
M. Fustel de Coulanges
(Cite
Antique,
p. 83),
He
observes that
lOG
(lutii's
AXC'KSTOU-WOHSllir
.\.M>
IMIKKITA.N'CE.
CIIAI\ iv.
of thr
lu'.'iri'st
kinsman,
\\r
liavc illiistniLioiis
ilic
last cliaptcr
of
>nk
(!"
I'oiitrivani-cs lor
continuto
ing
tlio ianiily
to bcconu' nuix'
modes of succession
proju'i-tv.
A
i)al)K'
moaning of
is
this
group of
institutions.
The
Lc'virate,
which
Niyoga
seed
to
up
it
by the
Originally, I understand
him
to lay
came
form of Polyandry.
all
would
as I
have
said,
;
only a
but I will
is
not
my mind
law.
at all events,
by the
Hindu
particular society
male
issue,
whether through
worship of ancestors
or otherwise.
See Note B,
'
Polyandry.'
CHAP.
IV.
107
There
impossible.
fictions,
no daughters.
The accepted
by.
which
aged or
to be done, that
lot placed in
Now
all
ancient opinion,
Niyoga
is
is
It
seems to
me
rites
would be performed by
widow
The very
differ-
There was a
its
more
first.
Aj)astamba
condemns
Baudit.
108
M:inn,
(IX.
rity,
chap.
iv.
in
;i
Inter
])\\i
ai^i',
tlcclarcs
it
is
only
lit
Tor cattle
(!.').
()(!),
Xaratla, a
still
almost
|>er\a(i('(l
hy the modern
takes
it
as a matter of course.
I
have stated
that, in
my
Avhii-li
came
to a
maternal grandfather,
widow
to
produce a
son to her deceased husband through the Levirate has helped to confer on her the life-interest in her
and has
vested in her by
My
dependence of inheritance
topics are too far re-
moved from
it
In
would be neces-
them portions
in the an-
The
gift to a
woman
or the provision
for her
right of succession.
alternative
modes
CHAP.
IV.
AXCESTOR-TTORSIIIP
AND IXIIERITANCE.
109
movable pro-
perty of a family.
writers scarcely
Baudhayana,
it
woman
could
inherit.
Apastamba brings
in
the
daughter not
But
still
women
a visible connection
Under Athenian
law,
when
must be
ancient
either
system which
I liave described.
to be
deemed an
'
advance
'
of
legacy
to
to settle a
portion
is
'
satisfied
'
by a legacy.
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
])ortion
on
which
their brothers
would receive
on
a division
and
in India,
when
the })ro])erty of a
joint-family
is
distributed, the
*
with
a liability to
maintain
'
women
and widows.
left
Nowhere, so
far as I
made even
The
real
prejudice or reluctance
against allowing
them
to
whom
married in infancy, any rights over the kind of property, such as land,
lives
But a provision
is
for
them by
but
actually
movable and
fair,
would be a
violation
We have now
come
and these ancient expositors of the Brahmanical sacred law, they would take up for discussion (1) the
CHAJ'. IV.
Ill
paternal ancestors,
if
succession of collaterals
his paternal ancestors.
that
^
is,
of
tlie
descendants of
subjects,
and
and
on the whole
its
Englishmen
are less
and, indeed,
it
may
be said in
all
succession
by law,
ments or
wills.
principally
said to be
on the
decline.
The
rights
among
children according
is left
to settle the
succession of
more
distant relatives.
It
shows the
re-
am exammiug from
now
^ 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
cu.\r. iv.
provide
on
failun'
nearer claim-
and
the
fellow-piiitil,
and
of the King,
now
save
in
the
direct
line
of descent or
blood relations
brief
modern Hindu
law.^
I
They
spiritual inheritors
;
whom
in cases for
which
in
reasoning,
and
free
from covetousness,
assumed purpose of
which
is
to give a
modern
'
sense.
'
text attributed
to
Baudhayana
defines
'
Sapinda
as
the
paternal
grandfather,
man
is,
by a
woman
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.
113
lan-
It is to
and
clear
enough on
It
is,
subjects to
which they
attach importance.
were
little
interested in
it.
The
truth seems to
me
to be that
providing a son
when
legitimate
sons
had
failed,
to the appointment
of sonship,
probable
to adoption
at
first
It
is
that
sacrifice
to
artificial
But
all
India.
They
Hindu
Age
in
which we now
live,
As
matter of
all
fact,
of
Nowadays,
if a
man
has
no legitimate
sons, he has
I
114
either
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
quires
it, ill
what form
should be
the
<^iven.
Such
ij^reatly to
modern importance of
facts wliich co-opeinfertility
rate
"witli
the law.
liiiih
There
is
marked
Hindus of
among may be a
am
is
informed)
there
is
a great
deal of the
same
which
the
making of
The
law-books
is
the
'
Mitakshara.'
is
The most
Usage,'
thus described
by Mr.
p.
J.
D. Mayne
('
51)
men through
of succession
The
where
same preference
males
is
shown
'
CHAP.
IV.
115
mental, secular.'
of the Chief
Court of the Punjab here coincides with the conclusions of the official inquirers,
'
kinship
is
wholly agnatic'
Hindu usage.
Tables, and
it
which prescribed
always
cognates
OrjXeCcju).
{TrpoTLjxacrdai. tov<s
ano
Indeed,
if
may
may
so put
it,
the
common
general
law of Greece.
to
this
males in India
is
specified
by Mr.
Mayne.
('
Hindu Law
and Usage,'
p. 428).
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
cal
lawyers of
province
the
l)aya-r)ha<:;a
and
Daya-lvrania-Sani;raha
doctrine.
arc
They
disjilay
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
sacrifices,
and what
shipper?
is
the precise
this is
amount
reflected
on the wor-
and
to
me
to
be that the
itself,
and in
all
the stream of
it
leo^al
doctrine in
the
same degree.
Originally,
woman
to offer a sacrifice
'
which we
shall not
in
female
ii. vi.
15. 18).
'
man must
the
fare
by himself
'
Hindu
doctors.
Even were he
die
with
CHAP.
IV.
117
'^
relative.'
All,
excepting his
icife,
'
him
on the path of
Yama
of the
tlie
Thus
not
most
ancient, times,
men
and
also their
One
tem.
made
Another
which
may
The modes
and therefore of a
result,
Such a prospective
drawing with
it
not
to
produce or
might
further,
would
This, in fact,
of authority in Bengal.
It is a
number
or
of reLakinsfolk
as
possible,
including
2
cognates,
39.
Vishnu, XX.
lis
tlirouuli
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
suitjtosetl })rincii)h's
original sinij)licity.
tlie
distinctions
betwei-n
off
together Avith
be studied in
the
especially in the
works of Mr.
J.
D. Mayne and of
Professor Kajkumar
I
Snrvadhikari.
my
back
there
by Hindus
only, such as
now
I so far
strengthened by ancestor-worship.
But
its
it
seems to
growth,
me
later
upon the
secular
The
religious
is,
develop-
ment.
of
on the whole,
more authority
in
CHAP.
IV.
119
is
more
I
At
system of the
Daya-Bhaga
as
more archaic
which led
treatise.
The
ideas
are
more or
collection
after
has
been
by the
religious transformation.
of principles
a-s
known
It
Equity.
Roman
jurisprudence;
modern ContinenThese
Law
of Nations.
were
tit
finally
considered
by the
Roman
lawyers to
tion, the
in with a
Law
a serious influence
to our
own
days.
At an
the
120
AXCKSTOH-WOUSmi' AM)
Kdict
Ava.s tli()UL;h(
Ml KKITANCK.
ciiaI'.
iv.
I^';ptcM*'s
Gcn-
tiiini, a s'.ipjiosc'd
part o(
niaiikiiiil.
of
tin'
of
tlu'
Koiiian Kquity
we cannot
to
know anywas
tlie
tliinir.
tliat
the Edict
Roman
it
on a view of kinship
all.
Now
as
at all events,
tracts
and
compare them
states of the
and the
later books, a
among
the
Romans when
This at
all
The
but
it
same modifications
Roman
law, and
became
it
the
own
CHAP.
IV.
llil
in
it
1
its
There
are
modern
may not
be suspected of
religion.
its
Roman
was pro-
ideas.
]22
lllNDf
I'ATIMA
I'OTlvSTAS.
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
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,
;
'
'
'
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
five
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
hat
doul)t
(with
Ml-.
I-.
II.
MiiiLiaii)
is
])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.
aristocracies
CHAP.
y.
125
CHAPTER
V.
When
Bruce and
Edward
I.
of
to the Scottish
Crown,
fief,
and in
One
man
day a system of
that under
which the
between
eldest
male relative
;
is
but there
is
no
clear connection
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
llu'
^lalmmiiu'ilnii
scliciiu'.
system
sions.
is
-to
It is a
tween
number of
whose
groupin<2;
'
nobody
I
seems to
me
to
agree with
Sir
it
must have
easily
grown up among a
herds
Rumsey
('Mohammedan Law
sively
arise
shown
that
its
from the
fact that,
knowledge of
later
Mahommedans,
some simple
On
the
is,
authorities
of the Pro-
them
The
difficulty is
Mahommedan
Cognates.
Inheritors
known
as the Sharers.
CHAP. V.
127
more authentic
to a religious
Mahommedans
Some
is
of
its
much
less
it
but neverthe-
essentially a
It is
property.
little
King
an important
not
auxiliary of the
Brahman, they
are
chary of
First of
advice to
all,
him
he
is
inculcated on him.
(ii.
But Even so
1)
tells
old an authority as
Apastamba
x. 25.
'
The
palace
it
In front of
That
is
At
little
town
to the
sides, so
what passes
inside
and outside.
In
them
up
who
Yedas.
But
live better
128
TIIK SAI.IC
LAW.
ciiai'.
v.
MIscwIrtc
dice, *in
\\n\y
lie
is
tauglit
how
to
vil)liit:ika
wood;'
to
deputies
how
all
t(^
reward successful
Gauis
master of
;'
and
in
But there
is
nothing about
way
in
to thrones, unless
a trace of a rule
torious king,
'
when
to
for
show
marked preference
The
truth
is,
sion to Thrones,
we have
to
CHAP.
V.
129
to
The
real or
among
the
chief scourges of
mankind
in the countries in
much
contracted
itself
was only the other day mixed up with one controversy of the kind which might be taken as a typical
example of its
class.
sure
how
We
heard of the
from Cabul,
of
a State-prisoner
m India,
who
of Abdurrhaman
the
Khan, long an
exile in Russia,
most
distinct
of Cabul* Candahar^
after inflicting
of Ayub
by the
Khan, who,
on
sufi*ered for
seventy-eight years,
Vas
and
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.
ohsciirei'
names of
Alululla
'Ian.
(Ka
I,
of Shore
Ali
Khan,
lii^
ainl
ajtparent,
I
whom
leu;itiniate
princes
all
de-
scendants of Dost
l^ritish
Mahomed Khan,
whom
up
the
set
for
IIow
w^as
that so
many
cessors
of the last
is
Hardly one
of them
entitled
to thrones to
after
hard struggle,
Dost
eldest son.
and he
brother,
but supplanted by a
much younger
the
for question-
Abdurrhaman Khan,
now
all,
reign-
ing Ameer,
is
but the
thought, of
is
Ayub Khan, on
CHAP.
V.
131
younger than
his brother
Musa Khan
these princes
How
then come
?
one another
How
is it
that there
is
no
rule, as
we should
say)
Crown
The
is
West
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
succes-
And
disputes
is
neglected or forgotten.
first
When
political
sovereignty
shows
it
itself
which
shows
by no means the
is
earliest
constantly seen to
persons, but in a
or a Clan.
Sept,
is
has
name of
own
it
is
hegemony, the
political
ascendency of some
commonwealths.
royal or ruling
But
in
\'V2
\un\\. srccKssioN
and
tiii;
sai.ic
\..\\\.
ch.vi-.
v.
:i
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
and
tlici'c is
an cxainjtlc
of
tliis
claim
in
since
the
Emperor
Some-
a-
known
historical hero, as
was
tlie
most
illustrious of all
royal families,
was not
much
as
a struggle
what
between
The reason of this is, that there which mankind were at first less
on which
their usages
on
were
less at one,
headship.
We
are so used to
some form or
which regulates
CHAP. V.
133
have spoken.
Yet Primogeniture
I
to
which
as a
political institution
may
human
did not
at first appear
with
its
it
rules
sides
we
fruit in
civil
wars.
The
in
civil
sides.
The mad-
ancient,
method
day Natural
it
Selection.
The competing
fought
out,
and the
Now
this is
134
KOYAI. SUCCKSSION
AM)
OHAP.
V.
|)l()t
\n
of'
Atlialie.'
Athaliah,
tlic
'wicked
woman,'
son
Kini;' Alia/iali
was dead,
tlic
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.
:
his throne
had
which
of
t]ie
I will
The
atrocities
Seraglio were
other day
by those committed
MandaI
lay
have
little
who
in the course of a
relative,
single
but undoubtedly,
when
choice
sacres
there
is
no
may unhappily
human
race
and the
evil of dynastic
little tolerable,
that
men seem
Such contrivances
CHAP.
V.
135
still
more ancient
put to a
them
is
to obtain the
community
to the succession
An
elective
its
later
form, survived
Poland, and
of the
Roman
or
till
the begin-
Freeman puts
trace of
it,
There
even
a,
it
in
conve-
is
to
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
it
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
war which
ihr
later
and
from
on
vrrv
puiiit
Iict
and
his father.
owes nothing
in its
to
lies
of !^ome favourite
]>alacc-intrigues
war.
and in
Yet another contrivance, probably much older itself extremely rational, was once very wddely
field
is
of operation
among
This
It
still
survives
among
the
his brother,
reifflned
who had
for
uncle,
Abdul
Aziz,
left
Where
the
system
may
it
we
find
mentioned
first,
The
Irish
Scottish
mature
and the
latter
elections.
CHAP.
V.
137
Its
till
princes have
ease.
begun
heir-
The
The
seclusion
all his
which he
is
which
by the reigning monarch, and with the harem, make it too proif
he
is
allowed to succeed.
Chief,
But
and
still
more of
only in quite
The
is
a rule of
II.,
the
Ottoman
attributed to
Mahommed
nineteen
by
his
Mahommed
III.,
who massacred
of his
drowned twelve of
to be pregnant.
male kinsman
now
bears
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;
Prinio^cnitiuv as
wo know
I'anistry,
rut
tills
later
advance on
was
it
not
at
all
when
one of
was
lirst
lollowrd, and
tainties linger
sucli
about
it still.
was
tliroiiLi'h
country
came
war
war
as
its
consequence.
The Royal
involved
House or
England
Sept,
whose disputed
headshi})
in these calamities,
Hugh
who
in
by
The progeny of Hugh Capet, continued exclusively through males, is not extinct at the present moment,
after nine centuries
;
direct
line
of descent, came
an end in 1328.
man
whole
line of
tion of
who
successively ascended
the
CHAP. T.
139
No
kmgs
left sons,
left
and one
left three.
Now Edward
England,
who
title,
'
Crown by an independent
Isabel, the
was
a Capetian
she-wolf of France
of
Gray's well-known
Ode.
the
On
who
died without
a
male
the
issue,
our
Edward
It is
III.
put in
claim
to
French
Crown.
usual both
with French
and with
seems to
me
to be based partly
on ignorance of
certain
peculiarities in
as clearly recognised
now
are.
to be continued
have
failed.
word
It is
is
son to her
remarkabk that
^
11)
UtY.M-
SUCI'KSSION
\M>
Till:
SALIC
l,\\V.
ciup.
V.
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;-
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
of private property,
"were to prevail
under
were
still
uncertain.
It
is
prohable,
III.
then,
that
the
in his
argument
day to be
of
as
Edward
untenable as
have represented
but that
it
answered to some
which were
more or
less current.
and in
fact in
Louis X.,
who
is
left
a daughter, an
Assembly of
Notables, which
General of France,
Crown descended exclusively to males and through males. Thus the question of law was fully and fairly
raised
;
and
it
promptly
it
fell
uris-
diction
by which
It
was put
From
the
III.
commencement
of active hostilities
by Edward
CHAP.
V.
141
and
left
this
hundred
now
call
it,
produced, the
tendmg royal
houses, the
race-
the
New Rome,
into
fierce
and seditious
factions.
The
of France,
on their
arms,
down
the
British
at
first
in
of Amiens, the
question
of
giving
up
this
title
part,
may
bury.
With
this
a dispute
in
first heartily
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*
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
the
Electress
tiie
Sophia of Hanover.
P>ut,
in
other
countries
war of a
to affect
vitality
enough
As
down
s^^ring
continues.
It
French
Bourbons, represented
by the
Bourbons
is
spnmg from
is
them.
King
Alfonso of Spain
a
Don
Carlos,
whose
pre-
males.
The
conflict of title
Chambord and the Orleans princes is of another kind and of a more modern type. All of them are full
CHAP.V.
143
Bourbons
politics, is ultimately
to the
Crown, and
placing
sanction.
istence of such a
law
showed
III.
itself during
the con-
troversy between
Edward
name.
As
it
was
at first conceived
it
was
called the
first
Salic law.
It is
when men
the Salic
What were the ideas about law which were common in this country
fifty
years after
may
i.
be gathered from
2,
Shakespeare's
'
Henry
is
V.,'
act
scene
where the
English argument
admits the
it
applied
Edward
III.
and his
rival.
Now
the
House,
is still
in existence,
was supposed
to confer
on Philip of Yalois
his title
Ml
to
tli(>
TIIK
SM.K
LAW.
cim-.
v.
ln)tli
Sliakcsp(;are
is
])orrowi'il
from
tlu>
I-jiLflisli
clironiclcrs tlicrc
tines iml
ono
all
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
there
was
uood
di-al
of scanfhil in
in
;
little
dismay.
Montesquien
the discovery
the
;nid
dictated by an angel to
Pharamond, the
first
Frankish
The
Salic
law
mi<j:ht in fact
be best
most
it
some
;
but
the
'
new English
'
edition
clearly
Salic
is
re-
interest to
p. 169.
CHAP.
V.
145
male kinsman
if his
was through a
that,
female.
first
to be observed
at
we
much
greater
House of England
or the Royal
House of France.
One
of these was
it is
as old as
mankind
itself.
own
chief dies,
his brother
In the fourteenth
is
a far-off echo
dered king
brother,
is
who
title
(according to
widow of
his predecessor.
lir
KnVAl, Sl'CCFlSSIOX
AM>
TIIK S.M.IC
I\\V.
ruAP.
v.
licil
out of I'urojx'
if,
a century
l)ocomo
later, this
nu-tliod of sucrcssioii
had not
lliat
Europe
tliroui::h
'I'ln-ks.
'onstantinople hy the
Ottoman
lowed
but
Sultanati- in theii-
hands
fol-
all
trace of election
by tbe
]ieo|)le,
if
it
ever
existed,
was
lost.
As
would pro-
times, as its
main
of
life.
Koman
election,
which
Italy.
still
theoretically survived in
Germany and
of the
certain
officers
number
From one
of these,
whom we know
royal family
elective
is
our
own
the
descended.
The parentage of
of the
as
'
acclaim
general
Imperator
fall
of the
Roman
settled
a tendency to
families,
CHAP.
V.
147
life.
the
new
Romans
and the same result followed in the pracof the Imperial dignity to particular the
tical limitation
families, of
whom
last.
direct suc;
Roman
Empire,
fell
in
1806
but in our
own day
election
it
and
Royal House.
When,
England entered
into
women
the
West, because
it
had been
soldier.
to
them
in
a petty Irish to be a
was intended
fighting
man
all
his
life.
But
the monarchies
which we
call
feudal,
there
was no
settled
chil-
rule excluding
women, and
still
less their
male
dren.
nearly
III.'s time.
The
148
\lO\\\.
SrCCKSSIO.N
AMI
Tin; S\M(
I,
AW.
ciiai-.
v.
country
li;i(l
hccu
<l('snljitf(l
tlio
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
betw^een
most
flourish-
clusions to
which a long,
us.
intricate,
and
difficult in-
P^uropean
Now among
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
cnAP. V.
149
we now
Roman
Imperial territories.
we
avert
by barbarous races
Tanistry
and
it
inheritance
we look to their ideas concerning the of property, we find the same uncertainty
if
which we observe
in the feudal
monset
of
much
The
greatest
races
of mankind,
when they
or
first
kinship
is
They
it
;
are in
or they
are
retreating
from
it.
Many
of
them
in certain
women
whether
women
them
a place in succession,
is
the survival of an
now
results
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
tlu;
failed.
bnt
traiiMiiit
male
issue.
to
one kind of
household labour
for
example,
in
the
is
real
a set
my
opinion, clearly
admit
women and
confine
land
Indeed,
'
it is
'
agnatic
ance,
women
The
idea
is
is
is
mode
of providing for a
;
woman
by giving her
a marriage-portion
deemed
to
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
CHAP. V,
151
that,
There
therefore
strong
probability
among
breed
Aryan
who
all sorts
perty.
the descendants
of
women
certain contingencies.
mon-
by the feudal
are a late
spirit to the
descent of crowns.^
They
now mixed
The claim
Edward
as
it
presents itself to
my
mind,
is
not,
why
fiefs is
did
that
is
Normandy
Thus,
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
to
tlu- (liroiic
of
l-'raiicc
iiiiilc
issue,
|>i-()\
\\\v riiliiiij^
classes of
llic
iuccs
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
Frenchmen of
tliat
day fought so
It is tliis.
peculiarities in the
Capet which,
if
The
Sept, or, as
it is
exists,
although not
much
out.
it
less
than 000
Hugh
over
it
point of extinction.
The
direct descendants of
Hugh
Then
had no legitimate
children,
Henry
But the
fertility
of
Henry
III.,
Henry
CHAP. T.
153
Hugh
Capet.
line
The
being
still
to hold good.
Of
the Bourbons
who
The
are descended
own
day.
eldest
branch
'known
as the
Count de Chambord,
of
all
the
Bourbon Houses
prolific,
represented
Italian
Don
Carlos.
All
these
the male
issue,
descended exclusively
through males, of
Hugh
These
may
way
who came
in with the
No doubt
matter of
the
there are
belief.
are
The most
is
that of
House of David,
Kings of
it
154
UOYAL
SDlVl'lSaiON
AM>
Till:
SAI.K
LAW.
chap
v.
who
not
numy
years
names
in these jrenealou'ieal
under a
like
be but
little
descent. that
1
It
must
at
am
may
be found
among
among
male descents
very
rare,
tions, a notable
peculiarity in the
the
fourteenth century a
phenomenon which
is
still
rarer
and
still
more impressive.
The kmgs
sprung from
Hugh
years.
Through aU
remote
to call in a
collateral,
an uncle or great-uncle
is
or a cousin.
How
unusual
such a succession we
test.
CHAP.
V.
155
hundred years
and we
through
since,
conspicuous in
shall
find
that
their
women may
be numerous.
Go
two hundred
years back and you will see that the fewness of male
men
of eminence
much
back,
increases,
it
and
if
you go
three
hundred years
becomes
extraordinary.
ject belongs to a
called)
perfectly investito
it
I think, however,
is
not too
on the whole
tinue itself (if
is
it
continue at
all)
through women in
securities for a pure
comparative obscurity
and
extreme.
The
rule
is
The
cussed by Mr.
Hayward
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,
At
tlic
simic
tlio
iiiiisi
not ho
jiullXi'd
hv
Tlu'V were
coinparativelv poor
make
hca'l aLiaiiist
even
tlu'
This, then,
There
is
nothiiiuf,
even
in
the franu; of
mind
wliicli
know
or
remember nothing
all
existed from
for ever.
time and
in
tliat
ought
to continue
But
all
an age in
Avliich historical
in
know-
ledge
was
wliicli the
mass of mankind
by usage, such
a hal)it of
;
and
male
even
has
we cannot doubt
affected
that men's
by
impressive.
say,
call
to the
throne
much
to
less
kinsman through
on the
French law
solidified.
women.
subject
Amid
of succession
at all events
thrones, the
woidd
CHJiP. V.
lb
by
the
that land
or, as it
was once
should
This
;
was
but
it
may
and
it is
Lex
first
foundation.
The supposed
their descendants
Salic rule,
excluding
women and
many
States,
;
countries in which
women were
at
In
constitutionally governed
female successions
the rule
by
when the younger branch of the Bourbons obtained the Crown of Spain, they introduced
woman,
bvit
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
Prussian kingdom,
now
Salic
and in
158
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!;
uj)
in
their
Thoy say
of
women and
their issue
was the
If
of Frenchmen.
liad
the
was con-
which im})eratively
a
King should be
not so very
Frenchman.
But
uncommon
spirit of
Frenchmen
French national
Xo
much through
Originally con-
round
through feudal
CHAP.
V.
159
the
King
whom
But owing
to the
land
who
first
The King
from
of
was a Scotchman.
first to last
who
closed the
dynasty in the
last century.
and
social
kingdom.
And
in this
way
French
French national
spirit.
the populations
Revolution
in reality
it is
much
older,
and
may
be
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
we come upon
call
the King, he
The King
is
often
or military chief.
priest.
and chief
seldom
justice
But,
fails
to be a judge,
may
we
are
familiar.
The examples
give must be few
among many.
The monuments of
Many
similar collections of
it
is
to be ob-
CHAP.
vr.
JUSTICE.
161
They are in
fact
Brahmans
in
doubt
at first
They
are further, as
or rather bodies
dealt
with
all
at
last
treatises
dealing with
law
from the
far
rest.
In these ancient
law-books,
in
so
as
is
authority of a
King
assumed.
He
sits
on the
throne of justice.
He
him.
He
Some
much
else of
immemorial
gentleman in a high
who
of
it
has
devoted his
to preparing a
new book
Manu.
should
He
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
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
by the
many
tlieir
of
th(!ir
cliarac-
altered,
and indeed
wliole
sacerdotal
we
Kings
or King's sons
significant
King
There
is
necessarily
judge,
it
is
lawful for
him
to have a professional
are
lawyer
for
an
assessor.
many most
most unexpected
law
and
hmt
is
Court of Justice
one of th^m.
The
fi'om
ancient
gods.
first
The
of their order
m the Desert.
But, in point of
fact,
both systems
is
relatively
Homer.
CHAP.
VI.
CIVIL JUSTICE.
163
The Homeric
is
King
is chiefly
it
But he
also a
judge, and
to
assessors.
by divine
or
from on high.
is
'
These sentences,
our
defjLLCTTes
which
'
the
Teutonic word
dooms
are doubtless
drawn from
is
that
It
is
plainly a
later
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
who
is
counted
palm-tree of Deborah in
came up
to her for
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
^linwii ly
\\iv\
IJi ari3
('X|>iv>sly chariri'*!
ol'
Sanuu'l
v:\\\\
In
tlie
more mature
the
kingshij)
wliich
succeeded,
nio-t
military
in
functions of the
Kini;'
ai-c
jUMniinrnt
Saul
tht' jn<licial
Solomon.
is
There
justice
i<leas
about
on which
moment
that,
have had
for
mankind.
It
would seem
tion of justice
though
all
or
some part of the law might have been was always supposed
called a supplementary or residu-
to be
what may be
ary jurisdiction in
the
King.
The
law, however
it.
Just
modern
law
is
ideas
somewhere a
servility to
legislature
amend
it,
so even that
immemorial
CHAP.
VI.
JUSTICE.
165
usage which
King.
We
own
owe
King some
are
in
jurisprudence which
Chancery
traced to
may
be
it,
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
Practically
them
One
is
the Enoflish o
law, followed
the
English-speaking
peoples
by
ourselves,
planted by Englishmen, by
Central States
of the
all
Northern and
to a
by the
millions of India.
it
The other
is
the
Roman
law, whether
take the
we
call
common
descended from
ancient
1
it.
But the
law of
It
Rome
is
this.
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'
beloniriii^ to a
iJut
it
common and
undiTwcni
very
wliicli
have
l>een sjK'akini:;.
Tlir judicial
})o\vers
oi'
tiiose
the
estahlisliment
of
tlie
Ivoman
Pnvtt)r
;
known
as tlie
itself
the assump-
more modern
Auguste
illus-
to the
change as
metaphysical conception.
large a part of the
What
has descended to so
is
modern world
Roman
Roman law
distilled
through the
mankind
as the per-
Enghshmen
is
extravagance of praise,
to be sought in this
most
necessarily
OHAH. VI.
CIVIL JUSTICE.
167
Germanic
King and of
his
relation
to
civil
justice.
Our
own Queen
and in one
been so
much broken
societies
as
Germanic
caused elsewhere
ideas.
legal
there
is
is
no community
much
done
as
for
Kmg
to justice,
we
can turn to a
constructed at
from Jut-
throw of the
island.
Roman
is
This
drawn by a German.
Scholars
are
now
pretty
much
agreed
that
it
belongs
its
to
the fifth
century
after Christ,
and that
preparation was
codification of
II.
Roman law
Nothing
is
108
TIIK
Kl.Nt;
.U'STIt'lC.
chap,
vi,
ilclusiDii,
so
lon/j;
ami so
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
lilb
of"
men
avIio
not altogether
Salian
Franks.
It
with
cattle,
man
nuist
follow
who would
It
]unish
a "wrong
or
enforce a right.
written in
reflects
fifth
it
accuratel}^ the
way
in
century spoke
contain interdialect
still
Latin.
Some
in
of the manuscripts of
a
lineations
very old
Teutonic
which,
excite the
among
philologists.
With Kings
Kmg
CHAP. VI.
JUSTICE.
169
landed property.^
This Court of the Hundred, which administered
the Salic
among
'
the Germanic
'
natural
prehistoric
and bloodshed,
among
to
this
Germanic
It
has
bequeathed
country a
(as
it
territorial description,
the Hundred,
or
is
Wapentake
'
and
Mr. Gomme, in
volume on
Primitive
sites at
which
to be
They seem
and in the
east of
England.
institution
The Hundred
our country,
De
terrd
{Sailed) in mulierem,
'
transit,' &c.
The word
Salica
'
is
certainly
an interpolation, as
may
MSS.
Hessels.
(London
17t'
Tin:
Ki\(;
and
k.\i;i,y
civii-
.irsTifK.
cmai-. vr.
a^aiu
t)
till'
villairo
coiiiiiiuniiiL's
under
llicir
newer
a|>|H'ai-s in ilic
Salic
Law,
looks at
iirst sit^lit
like
an
nothing to do.
The
freemen
livinj^
is
the Hundnnl.
The President
and hears
1
the
name
of the Thuuj^inus or
its
Thiugman.
will say
no more of
tliat it is
a disease not of
Uut
it
own
decisions.
date, this
may
be suspected that, at a
still earlier
most
distinctive
all
tended to
tablished
what we
should
tion
call
men from
into
their
redress.
own
regulate the
method of
The
CHAP.
Ti.
CIVIL JUSTICE.
171
If he
not abide by
were
killed,
his
all
deterred by
But
at this
Law
puts us on
At
the first
King appears
to have nothing to
do with
it
by a
class of officers
We
find,
had
ao^reed to abide
it
;
by the
litio'ant
would enforce
if
the
successful
went
to the Kino-
first
feeble
Teutonic countries
it
popular justice.
this justice,
It has
it
but then
has conferred on
the faculty
it
without which
we can
scarcely conceive
its
existing.
arm
to strike,
and there
employed
to enforce the
com-
1712
Tin;
KiNt;
anh
i:ai;i,y
civii,
.u'STICe.
ouap.
n.
maiuls of
fjrowinu:
tlu*
jud^t'
in
closenoss,
l>ctAVoon
Wr
Kiiiijfs
jmsscss in
(\i])itu-
Frankish
hetween the
Kinii;
popular president
Hundred Court,
is
the
Thinuinan, disappears,
Royal authority
is
therefore
we
find
Count
power
to enforce
nature,
appeal to the
The
presi-
changed.
in the
the
King's name,
administering a
the ruins of the
dis-
own amid
everywhere into
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.
JUSTICE.
173
tained,
from
this power,
cessor.
Two
first
show themare in
on the threshold of
civilisation.
The Popular
same institution
community
The King
as military leader
he
is
fightmg
is
men
judicial authority
which
is
my subject.
disputed,
is
do not enter
upon
questions,
now much
whether the
King
and
or the Popular
Assembly
time,
research
is
assembly of tribesmen.
fact that the
Taking
it,
however, as
two
together,
we may remark
follow.
law of progress
In such communities as
Athens and
Rome
ideas
are
the
great
examples
of a
in that
part
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.
who
ufnnvs.
and
all
into decrepitude.
this
Are
any reasons
re<xiirds
for
the
which
-we are
concerned
Aveakness
judicial
may,
I
institutions?
One source
political.
of
and
great
number
Even
in
up the people
rope
to the
member
draofsred CO
the
aloncr o
vermilion- stained
which
was
the
streets of
the laggard
marked by
it
to a fine
and their
fee,
recol-
on the famous
the three
and
at the
popular tribunal.
('
History of Federal
Government,'
i.
CHAP. Ti.
JUSTICE.
175
throwing
political
privilege
and
aristocracies.
Much
fact, lost
through
it
payment
in person
which
class,
de-
manded.
spread
those
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
of old
German
origin,
and
really signifies
to
discharge any
duty in
popular
Teutonic tribunal.
But the
difficulty is easily
its
unis
/
Although
is
pedigree
much
a survival of fi^CM.1^
I
yet
summons
complacency.
What, however,
the
when
the place of
meeting was
at
when
there were
no roads in
the eastern
Roman
roads,
when
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
tlic
IiiikIi'ciI
Court had
Livmiiiu' existence,
ami
iiji
to
llic
lime
when
it
was converted
Experts,
we cannot
tliat
trace
any
of
full
relaxation
a<j^e
of
tlic
severe rule
every
man
and
five
must
be present.
has done so
lil)crty
much
in life
to continue the
country.
Hundred
men
Never-
to be very burden-
some.
In the Confirmation of
III.
Magna Charta by
Henry
in
1217, there
is
County Court
shall not
('
Const. Hist.'
summoning
absentees.
and fining
interest of
He
adds that
it
summons.
it,
This multitudinousness,
all
if I
may
so describe
of
CHAP.
VI.
CIVIL JUSTICE.
177
far
its
down
Feudalism attained
number
of persons
who
The
principle
is
expressed in a phrase
be tried by his
man must
the
entire
in
the same
degree
above.
of relation
If a great vassal
Crown had
all
to be
parts of the
which the French King was the overlord which deprived our
If,
and
it
was
provinces of France.
on
had to be
French
same
the
seigneurie.
The
inevit-
result
was
that
feudal
all active
Courts
duties
Roman
in
law,
memorable
absolute
influence
diffusing
notions
specially
of the of
his
rightful
legis
over
justice.
Quod
principi placidt,
hahet vigor em
this
was
Roman
juris-
prudence.
It
may
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
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<^-
TIk' freeman
wlio oui>]it to
were
insufficient.
The
tril)unals
were thus
Meantime we
know
King
anrl
the
King's justice
at their
expense;
w^as any-
them an advantage
Popular Local Courts.
far too long
in
competition
with
the
is
The
and
intricate to be told
here
but the
habits of the
there
is
some
it
more
because
that,
is
often overlooked.
do not suppose
when
an aggrav^ation of the
justice.
It
difficulties
who went
to the
who came
to the litigant.
CHAP. VI.
179
believe
upon
that these
personages.
rally perished.
Roman
Per-
much
their
state to
command much
when
the
belief in
was
or, if
Franks.
If I were called
upon
records of which
for,
the
value
is
whatever
may
be
by the
theorists
who
explain
all
national charac-
teristics
by something
most ancient
Irish laws
at
an
earlier stage
of barbarism.
I.
Now,
'
237.
Erstes
.
Geschiift
Grimm
neuen Konigs war sein Reich zu umreiten.' quotes Gregory of Tours, 4, 14, Deinde ibat rex per
'
civi-
He
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
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
company
at tlic tenants'
expense.
It
was,
in
fact,
common
dues, but
of the barbarous
to collect his
as
Chief or Kinff,
went himself
The theory of
impossible to say
facts,
how
corresponded with
the
by
We
find
highly glorified
and
state of those
'
who
The King
Book of
Rights,'
'
attended
by
the
King
him 100
steeds,
100
;
100 cups
entertain
in return for
for
him
two months
Ana-
him
to
the territories of
T}Tconnell.
He presented
to the
King of Tyrconnell
CHAP. VI.
CIVIL JUSTICE.
181
20
steeds,
which the
nobility oi
Munster
for
then described
as
proceeding through
stowing
gifts
on the
rulers,
ment
of
in return.
more
historical reality
gifts.
The
as
practice,
plainly the
same
the
cutting
denounce
There
itinerated in the
for the
same
purpose.
described
The Eyres
'
by Palgrave in his
(i.
Commonwealth'
286).
statutes
were
in
as
Ehzabeth
descended
from the
is
But there
other
Two
historical
18-
Tin:
KlNt;
AM) KAKl.V
IVdiii
l\ll,
.USTU'i:.
ciiAi-.
\r.
Imw
constructed
(lnciiiiH'iil;iry
trstiinoiiy
ac-
IleniT
is
II-
:i'>'l
Kiii^' 'lolin.
Kin<:;,
NCitlici'
in
<!"
tliciii
orcoui'se
very ancient
and
lioili
tlicrc
may have
but
tlieir
restle.sfsness,
thouirh
it
may have
for
been
1
excessive,
was
certainly not a
new
royal habit.
notice,
in
because
reign
English
Sir
})olitical
but
l-jiglish
judicial
history.
'
Thomas Hardy's
Itinerary of
King John
that
King
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
on the 10th
at Bristol,
on the 13th
at
at
on the 20th
at Porchester,
27th
29th
Kin"-
at
Knep Castle, and on the 31st at Lewes. The must of course have made all these journeys on
a
horseback over
Roman
when
roads.
the
King goes
more
CHAP.
VI.
CIVIL JUSTICE.
183
distant and
more impracticable
leaves the
tract of country.
On
the
June 4th
28th
is at
lie
meantime to
Hertford, Doncaster,
Richmond
in Yorkshire, Bowes,
ham.
What
is still
at
much
little
known and
as impassable a
is
must be
understood that
am
than usual.
life
King
John
I believe, so incessantly
movement, and
for so
many
We
ally
how
the itinerant
King gradu-
The
change may be
eyre.
The
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
n^presontcd
The
transition, lunvever,
was
liasteiied
in
our
own eountrv by
wliieli
I
eliange of
Pmt
life
of
all let
us notice
how
this
ambulatory
ancient
As
have explained,
They had
to
to
incur
many dangers
all
while
travelling
and fen
They had
aids of a
the circum-
modern Court of
like a
;
They had
often
They
modern
jury, to decide on
And
then
CHAP.
VI.
THE
this,
XmG
AND EARLY
CIVIL JUSTICE.
185
after
all
might
be called
upon
them go
to
and
service exacted
so severe that
The burden on the poor man was the Church interfered in his favour, and
But while
all
emptying the Popular Courts, the King was constantly perambulating the country, carrying with
him
existed.*
The justice
Avhich
Kashmir and
Jummoo,
jurisdiction,
and
also
one of the motives which produced the it. Here is an account of what still
the system he follows. Gholab
a sovereign
Singh, the
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.
lirst jilaa'
coinili.U', .siucc
he
It
always
executed his
own
decrees.
was
Iiiia
the thiWiT
It
the
was
pr()l)al)iv
tlian
that
of
llic
|(j)iilai*
trihuniil,
ruption
and
it
pivcise legal
to
the experts
who
King
in his progresses.
we now
call
King and
cedure.
his advisers
its
pro-
whUe
waning
first finally
attamed are in
we
asso-
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
clo.sed his
hand on
it
said, "
No
firet
Even
till
this did
he waited
the
man had
and opened
his
'
case.'
hand ; then, taking the money, he The civil and criminal aises,' it is
and perhaps have
CHAP. Ti.
JUSTICE.
187
to be inseparable from
uniformity,
down
The
itinerant
inflexibility,
and
irresistibility.
It
may
almost be laid
that in
England
is still
King
among us by
far
dimmer and
far
in the
first.
When John
of the royal
King
for
some
known
Common
litigation
about with him by the King in those surprising progresses of which I have spoken.
Hence gradually
approached each
difficulty in de-
King
as
he-
had perhaps no
came
before
him
before he
went away.
difficulty
in
was
volume of his
Commonwealth
'
by
and
188
Tin:
Kl\(.
AND
llAKl.V
IVll,
.U'STICK.
ciiav.
vi.
lie
had
Ix lui-c tlu'
Ardihislioj)
of Cnntorlmrv and
tion from
llnii-y
tlu' Kiii^-.
had to (nlh)w
;iiid
II. ac*ro>s
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
'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.
tlie
necessity for
He
15,
Magna Charta
at
lunmy]')
mede on June
liad
he
Meantime the
judges of the
did ever since
Common
till
as they
the Court of
Common
Pleas
was
at
With
justice
King
to civil
comes
to
is
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
locahsed in
London, and
CHAJ. VI.
JUSTICE.
189
modification of these
These
last
have
which marks
their
some
failing to
ad-
of the newer
If
to France,
you
find
little
these
reversed
comparatively
number of
like the
local
courts,
various tribunals.
lish
Eng-
but the
zeal
Roman law
by
On
the
however
and
in France
in England.
The
Roman
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
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
about
it,
we know
that,
it
theoretically
at a
came
much
by Tudor and
Stuart.
Meantime
justice,
law and
this
costliness.
The
CKAP.
71.
191
Chamber,
rity
its
whence
an effectual juris-
The depth of
fell
dis-
credit into
marks the
decline
and
law.
The
its
and in nearly
all
civilised
societies
inheritance
192
TIlKl)UIH.S
1)1'
rUlMITlVK SOC'IKTY.
riiAi^TF.i;
VII.
(in
1S61)
I
piiblislicd
work (on
having
indicate
some of the
reflected
earliest i<leas
of
mankind
as tliey are
in
modern thought.'
It
my
absolute
human
and
must
confess a
I
when
have
attempted
push them
fog.
me
I
in
mudbanks and
others,
opposed to
history
I
arbitrarily assumed,
When
began
several
years
background was
by a
priori
theories
CHAP.
vii.
193
thesis of a
law and
state of Nature.
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
is
by the
eldest
valid male
ascendant
ance of
Roman law
was
my
book on
earliest
by the
indeed
in
The Roman
law, as a
modern
societies,
but
we happen
have unusual
facilities for
this law,
and
is
the law
was
ship of which
Other
and
legal
rule,
less
perfectly
known
to us than the
Roman from
the scantiness or
me
IPI
to
suixijfi'sl
cini'. VII.
on
tlic
I*a1riarclia]
of"
iinxlol
had
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
The
evidence appeared to
me
very
much
and strength
as rliat
in a
now unknown
the
inquiry,
*
ancestral
but
I stated
was
to
know where
it
to
what
races of
mankind
was not
allowable to lay
down
which they
patri-
model
'
('
My
is
book was
and
it
needless to
all this
new
lights.
We now
law
of the race.
in
known
becoming;
more
trustworthy subject
CHAP.
VII.
195
The
earliest
monuments
of
The
inaccessible, is gradually
Still, if
which
examined
the
I should
mamtain
first
four
>
two zealous
and L.
McLennan
on the
society
by
it
to form opinions
human
all
events consider to be
I
am
I
new
facts
and
theories,
and of showing
at the
J. F.
'
McLennan addressed
to
me
in
I
been conducted
sons
may
196
study
tniUT.
THKORIKS or IMMMITIVItill
iittt
Six IKTV.
chap.
vil.
1>it
ivlucin
siiu-i'.
as
will
I
ajtpcar
iVnm
ri'iuarks
tlio
the
followinir pniros,
am
investi-
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
of considerable antiquity.
it
So
far
as
we can judge,
first
occurred
to
the
great
Greek observers
and
philosophical thinkers
Plato
i.
('
Laws,'
(' Politics,'
2) both enun-
ciate
the
first
briefly,
the
last
with so
much
detail
It
may
be proper here
l)y
them
it
on mere conjecture.
actual observation.
They both
profess to base
on
he
calls
name BwaaTelat
ships
').
('
chieftainships
Jowett,
'
lord-
social state of
barbarians.'
It
CHAP.
vir.
197
much
greater races
far
whom nobody
suppose
deny
to
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,
fate of
much
else in
Greek
corre-
alive
by
its
its
place
condition of mankind.
may
'
be said to be
owing
Commentaries
of Gains,' which,
ancient
Roman
law, enabled
into
among them,
am
not
Roman law
has not
108
thcorv.
THKOIJIKS
Ol"
I'KIMITIVK SOCIKTY.
riiAP.
vn.
It
lins cncoui'jiLittl
lli<'
1h licC lli;it
i(
rdiMTcd
ton
Now
))otli
IM.'iIomihI
lt:irit
Aristotle clrnrlv
iulr<l
to dcscrilie a
lii^lily
liarous condition of
Intlio
tlic racr.
I'lcy
illustrate
lia<l
wives and
another.'
cliildren,
luit the
to
one
the test be
a})})lied
of analogy to the
of
animals.
lie
protection are
an equality.
it,
The strange
who
1)orn
is
taken under
it
the stranger
who
is
brought
under
under the
But when
all
an end to
power or participation
This
is
in
protection
is
at
an end.
But
when
Roman
names of Patria
Potestas,
Manns,
Emanci-
mean
precisely the
is
same things), an
impression of recency
CHAP.
Til.
199
to that
now opposed
Aris-
that
of
men
discernible in the
twilight
of history
have somehow
grown out of
isolated families
Homeric Cyclops.
it
As
show themselves,
is
out of blood-relations,
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
early societies
they were.
An
indefinite
number of
causes
may have
recombined,
'
it
was on the
Castes,'
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
uroii]),
not
the
from
the
smaller.
Founded, as
was the
i*atriarehal theory,
now
savage races,
it
deduces
unorganised Horde.
find
it
do not
easy to bring
home
I
by McLennan
by ^lorgan.
But
think I
may
lay
down
that
men
but
passed through
Family,
Patriarchal
or
other,
was
reached.
The
modern
]iromiscuity.
differ
These two
most
original
inquirers
through which
of development passed.
Totemism
in the
CHAP.
Til.
201
with
sisters as a
and name of
the
all
members of the
are
tribe belonging to
same
generation)
all-important
to
Mr.
\
Morgan's theory.
in considering
human
and
as
continually modified by
progressive regulation, as
lifting itself
to
,^
me
hold that
the
at
human
series
society
went everywhere
Mr.
through
same
of
changes,
McLennan
any
commencement
useful to remark
me
is
capable of being
more simply
stated than
it
usually
by
these writers
The
now
savage
societies,
is
which
their habit of
teristic is
stated to be that
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.
al-
A human
being
same man, no
human
What
therefore
is
meant
is,
existed,
could not be
think
it is
imnot
human
is
human know-
led o-e.
It
circumstances
men
is is
from
matter
matter
as
certainly remarkable
that,
soon
as
intelligent
it
curiosity
was directed
to
the
question,
paternity in parentage.
Probably
it
was so directed
very early
there
is
a strikmg
remark of M. Fustel
CHAP.
YTi.
203
de Coulanges, that to
creation
states
is
the
his
moderns.
distinctly
that
was
combating
was
and so
little
ex-
sexes.
It appears to
^
me that,
AW'
TO
fii)
nvroc
ov
<T, jjirJTep,
7rpo(T(f)i\ii
awv
j^opu'*
tov
(j>v(T(ivTa
twv
ovc'
Trarrior fifJOTwy
yuaXtaS
KEirov
vpi^tt)
TovTo, Kal
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.
wliirli
liaxc hccii
ctrtaiii
<)]cii
s|t(';ikiiiu'
rcasonaldy well
Ixitli
iiuinln'i'
ol
arc
to con.sidci-
uiUNcrsal
tlu-oi-ji's
of
tlic
genesis
ol'
society.
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
It
much
of the
is
Patriarchal theory
them
it
as
an older
all
state.
difficulties quite
as grave or graver,
unfortunate class
now found in
infertile
great European
wholly
explanations of the
phenomenon may be
at the
same time
do
An
visited
the
West
CHAP. vn.
205
such
McLennan
condition
far
greater objection
passions, a passion
all
the \^
thus strongly
theory,
which
vir"^
this
difficulty at
greater
length.
I
would by
itself
which cluster
'
society.
'
The imtrifle
is
a mere
the efforts of the Planters to fox-m the negroes into families, as the
fall
produced
infertility,
and
fertility
to the slave-owner
through the
that,
It should be
added
inde-
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
Oli.vr.
vu.
to
'
tlio
imj'i'rfivtion
of
tlic
.iiclja'oloi^ioiil
record.
ATicicnf,
Wliat
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.'
and
is
remarkable that,
name
Mr.
associated with
it.
Darwin appears
to
me
by
his
own
tive
Avliich
'
cannot be
dis-
tinguished
('
/
from
AVe
may
conclude
Descent of Man,'
all
know
of
the passions of
intercourse in
a
If
of nature
is
probable.
...
we
is
look
far
enough back
stream of time,
it
primeval
gether.
man
as
he
now
that primeval
men
with
many
whom
other
men.
... In primeval
times
men
would pro-
CHAP.
vir.
207
monogamists.
at
that period
have
lost
all instincts,
common
yoimg
the
offspring'
(p.
367).
With
his usual
candour Mr.
Darwin
admit'^,
hesitation,
conclusions of writers
who have
his,
followed a different
attributed
to
belonged to a
in his intellec-
later period
tual
in his instincts.'
It
a difference in the
and,
of the
archaeological evidence,
call in the
it
would
seem reasonable to
testimony of those
who
When
and
would be possible
absolute
to deny,
or to shrink
from,
the
'
book (the
;
Descent of
it
Man
in
which
and yet
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
analogous
to
which
to
l>c
Plato
united.
jiiid
Aristotle
(oreij::n
The
lal)onivrs in
the licM
ns.
\Ioi'<^an
of biological training;
fonneil
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
'
modern English
theories as ])rematnre,*
Nos
(du male
;
le
tout
formant
paternelle
(Letourneau,
('
'La
Sociologie,' p. 379).
Societes,'
ii.
Dr.
Le
l>on
L'LIomme
ct les
2S1)
'
Dans
les societes
animaux
Ces
faits et
(pii
se
rapprochent
le
plus
il
de notre
prematura
faits,
est
couime des
lois scientifiques.
Rassembler des
grouper, et hasarder
il
prudemment quelques
tli6ories g^nerales,
sujettes
revision
voila a
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
"
TKAP.
Til.
209
espece,
temps plus ou
au moins
c'est-a-dire
the result
enough
to
sexual jealousy.
But
sexual jealousy,
indulged
through
Power, might
however, the
human
race
may
still
be believed
to
how
are
we
phenomena of
first
time
them
mankind?
absolute
The
inference
that
they point to an
received
promiscuity must be
for
with
the
evils
draw with
practised
it
it
may
dren in
to
much
lie
uncertainty.
me
to
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
of men.
lv
It
is
lie
canst; assiirnod
McLennan
(W
tlio
a riiut ctnisn
it is
caj)a])lo
We nuist
l)y tlie
ivnicmbei'
that
greatest j)art
so-called polyganions
two sexes
in
numbers.
as to the
by
observation,
bii'ths are as
At
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.
and
Let us suppose a
community
is
in
which
There
is
no
question
that
monogamy might
religion,
agre
be
substantially
or
by a morality
CHAP. VII.
211
that
source
but on
tlie
Tvliole
we should
expect
its
parts, be
polygamous.
thesis
Again,
let
and
we understand
of
religion,
it,
sanctions
morality,
or
law
but
practices wit-
among
savages,
had here
now
habits,
or
in
justifications
religion.
Institutions
still
condition might
had
of an institution
proves
nothing as to the
elapsed since
it
may have
was
produced by circumstances.
Now
portions
that,
human
history,
of the
human
race
a
is
disproportion of females as
in a high degree probable.
McLennan,
female
as is
well
known, explained
lence
it
by the
of infanticide,
confined
children.
if
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
twiliulu
of liistory.
^rcat
of
wo
of
it,
a state of
movement.
by enemies or searching
for
more abundant
food.
No community,
wdien
first
original seat.
It is
ma
these
w^omen.
by boat-loads of men
of
and
it
conjecture
the
aborigines
and
their present
homes with
In
fact, it
may
be said to
it is
singular
how
often,
is
dim glimpse of
similar
institutions
CHAP.
Yir.
213
caught elsewhere,
like the Irish,
amid
An
even
more
may
admit
tlie
of
so
on
which
McLennan
dwells
only
communities
lost their
will
call
monument
of the scale on
which
been
this loss
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
town of Makhenunem.
They smote
the
and made
prisoners
women
and
all
505,349
Bulls,
and
Women
Line 25.
made
slaughter
among
all
tliat
Land
of Lobardu.
All the
Line 27.
my
made
great
shiughter,
taking
all
the
women
prisoners.
Bulls 22,110.
21
TiiKOKir.'^
ov rKiMiTivi:
sociirrv.
chat. vn.
I.iiu' .:.
I'rnin
M;iklii-lit rkci-t,
took
:ill
tlie...
mi^U?
Line
inatlo a
i^i'i-at
slanL;hti'r aL;aiiist.
I
those
took
all
their wives,
their hortses.
luills
.").\."):)().
I'l
all tills
insrriiti()n,
which
is
loiif]^
one, there
is
onlv on
line
takinir the
ful.
men
readiiif^ is
it
douhtleaves
^\'ith
on
mv mind
common
rule of tribal
victorv was
take
:
only
the
AV(jmen.
The men
perhaps
but the
women and
well-known exhortation of
battle.
Greek
1
c^enerals to
must be allowed
to be
more
on the
earth,
must further be
if
only
for the
purpose of keeping
if
unreIt
and bloodshed.
CHAP. vn.
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
be impossible
suffered
from
this disproportion
if
we
are
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
grouping of mankind?
;
is
and
is
that,
unless
we
bring
home
implied
impossible to under-
McLennan and
Morgan The
within
which the
conception of kinship
theories
grew up.
The counterages,
of
Power.
the
On
this,
assumption,
will
merely
known
to us
Power.
It is a special
jurists Sovereignty,
2\C)
Tiir.oKiF.s
or
ri;iMii'i\
r.
sm
ii;rv.
cuu'. vn.
Kinsluji
known
In
tlio
ricans.
next
])liic(^
llic
l':iiri:irili:il
Icil
tlicorv
RU])]V)S('S tliaf
llic
nuitivc wliidi
I
to
tin'
exertion
Ik'
eouiilcr theories
assume
tlie
ahevancc durinu"
lon^"
a^cs
of
1o
sexual
lieiicvc,
jealousy.
Now
it
is
of coiu'se possiijle
upon
eauscd
unknown
to
men
originally, or
but
if it
be
is
one of the
heigbt of
intellec-
man
in tlie
tual vigour,
his instincts
was
most uncontrollable of
of the animal in him,
phenomena appear
me
to
show themselves
student, then,
The
called
of social archasology
who
is
is
upon
Family constituted by
through Power
of
itself
modern
him.^
origin
He
survival
'
in
See Note
A to this
Chapter, on the
Audaman
Islanders.'
CHAP.
VII.
217
at
primct facie
nature.
is
human
Admitting
it
to be probable, as he
bound
to do,
mankind have
at
some time
this
women than men, and allowing that scarcity of women would probably result in
such
through descent
inferior in
men would
would be
be at a great
It
liable to infecun-
from
disease, certainly
from the
relative
small number
of mothers.
which,
if I
how it was that all the societies may use the expression, attained to any
the Family.
writing's of
Nothing
is
more unsatisfactory
in the
ac-
their
Paternity.
it
Morgan
was mtroduced by
McLennan
arose
-IS
THhXtKIKS
rUIMlTIVi: SOilKTV
CHAT.
vil.
ImiI
the
n-iiili is
that a
liavi:
acted,
and must
society,
still
trndinir alwavs to
make
tlic
most jiowcrlul
poi'tioii
of
admit
And
why
it
is
that,
when
tlu;
reapju-ars
not as
as
the
Family
in
is
which Kinship
that the
why
it
Family so often
who
is
alive to
much
series
He
to
will
Thus he
will be indifferent
many
will
the school of
McLennan and
and
but for
many
courses of
own
area.
So
far as I
am
aware, there
is
nothing
its
growth which
is
CHAP.
YII.
219
formly
deep in
if
not sunultaneously.
human
might no
result, in
accompanyit is
but
in the
to end.
we
and evidence
to be in favour of the
commencement of
vived to historical times have grown without interruption out of their original condition.
'In most of
'
Ancient
Law
was
'
(p. 128),
'
an ascending
series of
at first constituted.
Tribe of the
a series of concentric
point.
The
elementar}^ group
by
common
ascendant.
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
down
collection
ol"
j>orsons niiitrd
hv conniKHi docciit
familv
?
<
frtnii
ihc
]ii'()i;\'iii-
tor of an nriLfinal
M'
he
cci-taiii.
that
all
ancient societies
them-
Antecedently,
societies passed
is
it
through a stage of
?
more
cir-
or less modified
cumstances
in
they
women
any stage of
growth.
than others
must
for
of other tribes.
The
the
great
reason
doubting
the
Aryan
so
race
it
is
that, as
it
cessful,
of races.
Cjf
of this evidence
it
which wandered
furthest, or
some
its
CHAP.
Tir.
221
ton ""lie,
for a
fied promiscuity.
way
or the other
let
it
Only
is.
be
I
'^
have
'
recently stated
in the following
words
first
The
greatest races of
appear to
is
reckoned exclu;
sively
They
it
;
or
from
it.
Many
women and
;
the de-
scendants of
women
a place in succession
is
and the
is
now exemplified
which traced
it
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
now commanded
by
it
almost entirely to
^
the
labours of Mr. J. F.
p. 149.
--'-
ciiai-.
vh,
!\IcI'.'iin:ui.
aiiil
'
He
is tlir :iiith(ir
'
of
'
llic
Irniis' Iv\(^n;nii\-
l-jidoiraniy
of
limits of a partl"'
ticular
trilial <'ircl('
tlic last
imlirnt
iiiLi'
ciisloni of
cci-taiii
inarryiiiu^
within
tliat
circle.
The
fact
tiiat
heyond
tlic
Prohibited
L)c<!:roes
womaji whose
himself was
the
same ancestor
Avith
to students of
Hindu
law
but Mr.
women.
with
that
'
The
first
remark "which
have to make
McLennan's theory of
social advance,
is,
me
'
exogamy
and
'
endogamy
Is there
'
to one another.
not at
'
the
same time
exogamous
it
and
'
endogamous
is
by looking
of a
at the ancient
Roman
Any
marriage
Roman
widely different
was
invalid
But
again,
any
CKAP.
Tir.
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
;
Thus Roman
;
society
there
was
limit.
woman
members of
marry
there
within his
own
is
caste.
Here again,
I
is
do not pre-
to have an extended
is
'
ex-
ogamy.'
My
suggestion in fact
limit within
myself,
this field,
have
re-
Thus
are
They
'
exogamous
'
no man
will
marry a woman
;
and much
-'1\
TIIF.ORIKS
OF
tliis
rKlMIl'IVi;
SOCIITV.
cii.M'.
vm.
has
Ik'i'II
madi'
ol"
facl.
i
^touj)
ol"
ii
vest
Cliinoso social
lias
on
tlio
spot,
Mr.
elaiiii(>si>ii,
'
ioiiiid
that
tlw'v
Mxtcnially they
with
are
endopinious
tril)e
rcfiisc
inan-iaLic
any
;
siirroimdinn:
tlicy
refuse
marriai^^c
('China ivcview,'
No. 2).
limits, outer
These
and
inner,
may
still
be dis-
On
'exogamy'
is
enforced by law.
There
some of
whom
marry.
The law
rests partly
on considerations of
On
mous
limit,
within which a
man
or
woman must
perhaps
But
in
Gennany
by
certain
forfeited
a marriage
in spite
limits
and in France,
CHAP, vu,
225
by the
though
which
The Church,
'
it
may
'
be added,
exogamous
rule
member
marry.
I
of a great Continental
bound
Exogamy
in the
great
part
in
the
system of
definite
Morgan
Gens
'
and
McLennan
the
common mark on
persons.
is
more
like a
;
human
beings
it
men
cannot
women
husbands.
Consequently
is
aggregate.
realised
may
McLennan's
conception, 1 understand
is
him
to
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
ver\- unlike
ilie
'iitriMrcliiil
or
I'lie
'\"cl(i|ie;in
l-miih' ns-
smncfl
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
ex-
onfaniy
On
Morffan, thoufich
(^rig-inally
lived
toi^ether
])romiscuity, does
not
He
men very
early
human
I
society were
understand
it
it),
the
'
'
(the
is
not a primitribal
tive gi'oup,
societies
I hav^-
McLennan,
should
'
does seem to
me
endogamous
as
CHAP.
VII.
227
well as an inner
it
exogamoiis
'
circle of
consanguinity,
ment, whicli
McLennan' s.
far as it is
of
them
and formed
The
difficulty
which seems to be
is
by candid
opare
disevi],
that primitive
men
an
If
is
antiquity of
human knowledge
it
about
it.
Indeed
it is
is
true.
Some no
of serious
evil
is
I think,
made by Morgan
made of
when
human
ailments.
at
modern medicine
or
may have
is,
minimum
is
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
Even
therefore
the ad\anta<rc
now
one,
I
it
miii^lit
he heyond
price to primitive
mankind.
th.e
cannot see
discovered
use of
fire
constitutions were
by the
stern pro-
or the tribe.
It is this
by men
of science
but
if
check on mankind
intelligence
It
operation.
to
now
understood.
229
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.
|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
'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
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
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.
men,
late
but the
own
civilisation is far
from
satisfactorily settled at
present.
The
early
usages of
the
now
civilised
their traditions,
is
and above
all
but
it
depended
upon,
where
history runs
definite
into
poetry,
and
practice has to
if it
really exists.
What we most
the
actual
CHAP.
viiT.
233
servers of
reasonably pure.
made
and
hope to show,
most
recent.
life
of the
Hindu
com-
the
earliest
civilised
West may
But there
are
some
serious
social facts,
and
A great
in India
non- Aryan.
not always
is
non-
is
really
an unknown
its
extent.
religion
West
is
and
working upon
it
with ever-increasing
AVhat-
do not certainly
at
who
are
There
is
234
KAST r.rK'TKW
llolsi:
coMMrMTIHS.
iisa_i:;o
ciiAi". VIII.
tlio
of a
])('o])l('
so
HIikIus, and so
tlii'
loni;-
sisttT-connniiiiitics of
Aryan
i^rouj).
No
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
over so
all
In
the
countries
now
or lately
under Mussulman
forms of
dee])ly intercstin"'
come
com-
or lava.
This remark
nuist be confined to
medan
faith.
archajologist, a
moment
is
of
its
conversion
it
lives
civil
law which
The
modern phraseology, we
should
call
Marriage.
But
a society
may
possibly
embody
CHAP. Vin.
235
deduc-
assumed
to be sacred.
known
it
to modified or unmodified
Aryan
the
is
custom, and
definite
is
division
On
it
Aryan
usage,
and
probably
reflect
collective
enjoyment
nowadays
profound
still
an
interest.
Again,
the
is
barbarous Aryan,
following
Aryan custom,
He
has
most
extensive
Table
of
is
Prohibited
Degrees.
not only
that
is,
his
law perIt
Mahommedanismis
vert in relieving
restraints of the
its
success as
a proselytising religion.
230
l*iit
diAf.
viii.
when* coinninnitics
iK'Vi'i*
subjoi-t
to l\riissulmaii
tlic
rule
l:ivi'
Ikvii
convcrtrd to
Miissiilinaii
is
of the doiniiiaiit
ii-
Malininiiu'danism
to li\
and
sti'rt'<>tv|ic tin
arc
l)arlarotis.
or:;anisi'd
A
in
lar:^\'
uiiiiilitr
of
tliciii
arc
socially
oi*
l>v
the reality
j)Os.sibly
the
fiction
blood
tlicy
may
]ii_<;hor
what
is
more probable
the
quest
may have
some of them
a ])rimitive
barbarous
condition.
When,
liowever,
much
in
tends to
The members
naturally
Again,
community of
implies
common
;
discharge of legal
exactions
of
the
demands
and
thus
the
fiscal
Mussulman
as
many
shoulders as possible.
CHAP. Tin.
237
of individuals
is
by
the
of these
natural
existence of communities of
influence
of
One
tears
them
to pieces
and
and nothing
is
harder
and poor
But a Mahom-
medan Government on
both by
its
acts of
its
commission and by
sins
of
omission,
by
irregular taxation,
and by
its failure
to provide
retards or
The
in
Turkish provinces
practicable
perfect
us a nearly
the
Aryan
2J)8
KAST KniorKAN
IIOISI"
(OMMIMTIKS.
loimd
it
<
ii
mv vm.
Turkish
Soiitli
Ijujtirc.
siiu-o
it
is
ninoiiL:;
all
ihc
occurs in
|L!;rca(o.st
ooninletcncss
st<)ck arc
whcrcNcr
<>r
mm
like
<!'
tin-
South
SIa\()iiian
now
M iissuliDaii
incessant,
jjovcmnient, or
where
the
Mdiilcnciii'ins. they
have
lal tlicir
!<trnXjlcs
The inij)ortance
easily nnck'rslood
hv
call
what
may
perhaps venture to
and
jiolitical
enil)ryolog3\
They
are a living
singularly large
number
of
nations.
The Roman
the Paterfamilias,
despotic chief.
But
it
wholly
for-
of
still
certain
associations
in
of
related
families
which
had something
common
life.
more on
re-
but practically in
Roman
Romans
name,
were vestiges
among
had no
special
collective
the
Agnati,
or
re-
cir.vr.
Tin.
239
same ancestor.
Again,
that
is,
common
Nothing can be
more
interesting than
Roman
law.
House
Community
of
the South
Roman
answers
still
more
is
closely to the
itself a living
institution.
Tn what
of savage
way
it
is
related to certain
associations
it,
families, like it
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
his
may
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
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"
'
the
hmi;"
'I"h'
arliitrarily
lJn.->i;in
sej)araleil,
the
\'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-
Ixtnd
kinship, though
still
some extent
in feeling, is feehle
and indistinct
the
fictions for
The
related
no longer hold
able
common fund
they
it
have portioned
periodical!}?'
;
it
out, at
most they
redistribute
sometimes
are
They
on the
I>iit
i]g:'oprietorship,
in
Romans
absolutely survives
or
would
sur-
Here there
is
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.
241
which they
are found
is
The
specially
Montenegrins,
Bulgarians.
and the
now
Slavonised
On
by
side,
complex common
it
Even
there, however,
weak and
village
and
Lower Bengal.
The House Community then
is
an extension of
the Family
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
these
institutions
examination by an eminent
writings are
still
man
b^''
of learning, whose
obscured
generation of Englishmen.
The name
least
of Pro-
which,
to
now
of
all
times,
we should
expect
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
a sinnniary of a
Frdor Deinclic.
Xotliinii\ in
my
They
way
in
wliicli,
amid
pi-iinitive
society of
Aryan
relations
by community of blood.
Political
They thus
embryo
:
disclose to
us
Power
in
the
first
beginnings from
They
by
as
new
materials of the
condition of the
men
a state of barbarism.
all
as
By
natural family
'
is
meant
descendants of an ancestor
alive,
while a house
community
is
cnAP.
Tm.
243
from a
common
wished
ancestor de-
ceased.
carefully
examined
as could be
community
who
again
show no
signs
of being
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
Without reverence
for old
'
men
there
is
no
A
an
father,'
maxim,
'
is
like
A less
The reason
why
the devil
Still
knows
much
is
that he
is
is
so extremely old.'
furnished
that the
by the fact observed by Professor Bogisic, South Slavonians, like the Romans, maintain
and Cognatic rela-
Thus
common
ancestor
are
they are
241
kinsiiKii
cilAT. viii.
t)l'llR' lilllo
tlif
doscemlnnts of
fi'inalo ivlativos.
is
Now
tlic roco^iiitioii
of animtic relationslii|)
clial
jo\ver
;
eitluT exists
tliere
is
once existed
l)een
in
coininnnity
may
uo
once
])aternal
is
a^uution,
there
must
ahiiost certainly
nal
])ower.'-
The
in
between the
exactly what
we observe
Joint Family.
The
family,
when
it
by the swarming
the house
expands into
community
the
The
time immemorial.
inter-
and they
illus-
I learn of the
Power
from correspondence with Professor Bogisic that the Father is stronger among the Russians than among
among
the latter
it
is
stronger
it is
inland.
He
man
say
where fathers
are
everything
when they
marr)'
called Emancipation.
CHAP.
Till.
245
power
itself
as
have frequently
insisted,
shows
when
death of
first steps
The community
at
sight
is
governed, and
would
in fact
whether he
aristo-
government to be democratic,
or monarchical.
common
Every daughter
to
of
a marriage
when
she marries
when he
the community.
a voice
iii
its
government.
The assembly
over,
of
kinsmen
work
is
neighbourhood of the
affairs
common
dwelling.
of the
community
and
every
tions.
man may
Nevertheless, as a rule,
;
the old
men who
debate
old
;
far
more weighty
than their
it
indivi-
dual voice
would
seem that
it is
24(")
r.AST
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
were habitually
youths
Imth
ilic
oM men ami
to tlie
wouM
who
jtrohahly
fall
and
mature
warrior
is
foremost in arms.
aspect, however, tlie
is
Under another
of the
government
all
community
monarchical, and at
is
times
its
Doits
He
The
:
ad-
hands
be
allots
he presides at the
;
common
meals
he reprimands
for faults or
he
is
all rise
on
his entrance
no
no
till
he appears or
The
acts,
council
it is
it,
but
and
its
jurisdiction
is
when new
The
women of
the community,
it
;
a house -mother
who appoints
whenever
it
is
CHAP.
vilT.
24:7
and
is
always
subordinate to him.
is
in the
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-
dim
Sometimes the
wholly
elective,
of the Chief or
King seems
and
;
its
by personal
ditary,
fitness
sometimes
but then
it is
men,
woman
in certain eventualities
phenomena have
But
while
it
uncertainty,
shows
it
arises
intelligible cause
from the
and a very
First,
;
life.
the chief
is
elected
by the
collective brotherhood
if ever, fails to
choose a
member
common
*J
18
ouw.
viii.
ol"
]riin(ii''nilui'<'.
lis intlio
clination
la>t cliift'.
would
Itut
ot'
lu'
to choose
it>
veneration for
and
its
sense of
the value
strujj]fle
experience as
a tnciins
it
of success in the
last administrator.
strong
is
woman
at its
head
who
case
is
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
of the
is
house-mother takes.
woman
men
The leading
case mentioned
by
my authorities
girls
is
where a consider-
Of
course,
no such reason
have had
choosinof a woman
to rule could
dawn
is
of history.
The
CHAP.
VIII.
249
blood
the
woman
introduced.
these
mena suggest
woman might
Sometimes,
the
it
widow
more
particularly over
house
is in-
capable of alienation.
The nature of
;
this alienable
property varies a
good deal
thus, with a
community
with
and
it
is
tillers to
distillation.
remark-
communities
makes
inalienable
very
:
Roman law
that
is
to say,
it
consists of land
It
by
250
o.M Ml
MTI KS,
(iiai-.
vmi.
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
l>ut these
some new
ideas, not
and technically
Romans
placed
all
the objects
the
articles
among
the favoured
to the epoch at
They were
at first
unknown,
rare,
I still
some
and
if
the last
words,
objects,'
be understood
CttAP. -viil.
251
may-
liouse
and consumed
all
But
as production
as intervals
step in dignity as
commodities exchangeable
at a profit.
and,
if
We
belongmg
to the lower.
The
which
Roman
res
mancipi
would
almost
it
everywhere
likely that
its
is
Roman
primitive
community
of
cattle-breeders
as eminently exchangeable,
and
may
originally have
Peculium
the
was
name which
Romans gave
to the permissive
252
KAST KrilOriVW
HiU'Si:
COMMrNiriKS.
slave.
t
rii.\i'.
vm,
<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-
choose to cxcTcise
and
sous,
even
by
late le^ishition.
tlie
These Shivonian
and
tlie
experience of
Slavonian communities
j^ivc
members of
more
had
iinportaiit influin
one so sternly
Roman.
The
had
this effect to
and
it
seems to
When
the house
there
community
is
is
in
:
its
primitive
is
and natural
in
state,
;
no pecidium
there
is
none
Montenegro
that, as
the
community
it
members,
is
;
their labour
that a
member workinor
But, as in India,
tend to grow up
CHAr. viTi.
253
by
of war
is
retained
by the
taker,
to sur-
a sentiment observed to be
I will
mention afterwards,
it
Doubtless
it
primitive groups
calls for
a topic
which
much
within
my
present limits.
will,
however,
briefly note
The
like
the
South Slavonians,
is
primarily a comare
entitled
to
Jhe daughters
its
bring
about
their
marriage
before
any son
share of the
stock
on
the
rare
occasions
2">4
.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
amount
us to
gift ')
of
money
held by
or goods (which
morning
collec-
tive group,
dof<^
Hindu
Stridhan,
by
a peculiar line
Like
all
in a condition
have
not
adopted
Mahommedan
institutions,
the
socially organised
from a consider-
able
outside.
To
this
'
exogamy,' in the
owed hardi-
hood,
and
at the present
moment
common
residence of so
many
persons of both
'
CHAP. TUT.
255
may
be said to be only-
The South
extremely
requires an ecclesiasti;
dispensation
regarded as disreputable
and,
tolerably followed,
it
The
distaste of the
is
South
largely
Mahom-
medanism,
religion
;
as
I before stated,
its
is
an
'
endogamous
and thus
it
derives from
limited
Mahommedan
the Christian
rules, is
constantly found
admitting
women
are concerned
but
more in common
and legitimacy,
to
theirs.
the
Slavonians
the
are
said
by Professor Bogisic
rules,
resent
application
of
Mahommedan
in
JoG
ciur.
viir.
ori<:^in.
t<>
tin*
(if
woiiun,
I inlor
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
that an
unmarried
ihuiii;liter
is
finally
and exclusively
McLennan exogamy
and
'
endogamy
'
chiefly for
to be
fiction
heretofore
among
by the
assumption of
common
descent
is
Kinship
is
by Adoption, and
community
is
man
Entire sub-
families
are
communities
;
and occa-
to the brother-
CHAP. Ylli.
257
among
labour
the elders of
is
whom
no longer
exacted or expected.
It
community
a
shall be
precaution
But
purposes
on the same
are
numerous other
relationships
which
which
shown by
their ancient
law to have
])een
common among
end of Europe.
Thus the
which operate
as a bar to intermarriage.
among
the
it
But
Europe
forms of
fictitious
consanguinity hitherto
set of rules
'J5S
KS.
chap.
viii.
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
as
a(l(pti(>n is
an
artificial
creation
ol" |)ar('iita<(o
retains
which
it
probably
in those
Slavonian
wore
In-came
the.
;
central })rinciplc of so
is
many
onlm-s of kniglithood
it
Church, and
Prohibited
is
Table of
Degrees.
illustration of the
artificially
to
Here we have
fiction
upon
The
consanguinity
ecclesiastical gossipred.
A man
whose
life is
endanan
If
what
is
called gossipred
the
even by
treachery.
and
is
in fact
and particularly
blood-feuds.
When
momentary
reconciliation
cnAr.
VIII.
259
it
is
common
stability
by
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
to
life, it
must have
House Communities and Natural Families which make up the bulk of South Slavonian
I stated that the
the
community dissolving
lies,
into a
But
mt)de of dissolution.
When
a natural family
breaks up,
room
is
made,
we
call Inheri-
tance
countries
as, for
example,
Mon-
But
where,- as in
Turkey,
to its
2ft0
r.AST
r.ri:t)ri:\.\
iiorsi:
((MMr\iTir.s.
cnw. vm.
l-ladi
son
(ifilic fair.ily,
hoKl, takini^
possi!ssions
law
upon him
at
elsewhere,
Per-
anew
at first
foiMune.
sight seem to
liorough English
Yet
lies at
the root of
The
death.
to leave the
family
to
home
it
add to
or waste
it.
at
jxitria
serving his
his
commandments,
that
all
have
is
and
this is
law.
a
Which indeed
shall be the
is
much
it
it
diversity of
is
usage.
son.
the eldest
we know
in
CHAP.
viir.
261
tlie
as a civil institution,
and
in
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
to
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,
assumed
this
The
says
number
Professor Bogisic
more than
than the
which
is
greatly less
number
of persons
have come
a variety of changes.
The
the
land, instead
is
divided
shifting
families,
lots
among them
3
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
;i
Ice
live
sale
The
tic
;
of brotherall
lu'ciMiie
i^reatly
it.
weakened
sorts of
in
have
cnfct'hlcd
have
heeii
is
admitted,
the
tradition
of a
common
South
(^ri;:;in
dim
or lo>t.
the
Slavonian
countries
to
become
is
^nvMip of
esstmtially
Community
the
eacli
ruled
by
chief.
Southern com-
at
but
in conjecturing that
had
a great deal to
is
do with
it.
power
dominion, needed a stronger and more compact organisation to protect their possessions, institutions, and
faith,
sionally
of their
times,
In comparatively recent
complain of irregular exactions from their Turkish on the whole t:.e Turkish Government has masters
;
CHAP,
viii,
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
House Communities
is
no
doubt as to the quarter in which they find their most It is not barbarism which they dangerous foes.
civilisation.
the influence of
modern codes
in
undermining or
destroying them.
The same
in force
newer laws introduced into the Slavonic lands dependent on the Hungarian Crown.
lieve these statements, as I
I
the
families
by the
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
detineri,^
'
Xo
will,'
was
and Professor
2f)4
(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
npplicil in li;iriii<)nisi
tluMM wliicli
jir(M'in])l()V('(l
.
to rccniitilc
is
wo contralegis-
It
\^'V\
IVoiii
justly objected
tlic
laws
tliiM^iTtirallv itrocccd
is
same
lator,
who
assumed
to
by
accidi'Ht,
from
liistiM'ically dillerent
Iciidency of
is
in sliort
as bodies ot
the inference
may
sap
all
associations founded
on consanguinity.
The
hood
is
its
natural com-
mimism.
He
and strenuously
demand
account,
of his relatives to
(-)r
brmg
it
into the
common
perhaps he
common
stock
as
would be
in a
capital
member
or a declared
enemy
of the brotheris
hood.
And
CHAP.
vm.
265
commonest, the
indulging
it
are greatest.
are of
There
wealth
is
is
;
more
easily obtained,
and
its
preservation
j
easier
and there
of
ustice
are
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
havmg
left its
mark on law
and
for
of division
between
proprietary rights
and
it
has
been thought to
Communism.
fact the
But
this preference is
as characteristic of the
Roman law
as of the
French
Code
and in
proved so
fatal to the
11.
attributable
activity of
The
the
likely to furnish us
mode
in
-GCt
hiai-.
vm.
social
;iii<l
iM-itprictary or^iiiiisatioiis.
I
lu'liove to
\ illa^'tj
hv older in
lliaii
ii
ilic
Coniiniinily of
llirow
li<j;;lit
IJussians.
and
liciiri'
helps
liltle to
of
all
liistorico-K*pd
pi-oldcms,
One
tlie
sii^nilicant state-
ment
is
liowever made,
tliat
on
Austrian military
frontier,
hinds lieM
of he
despotic
eliaracter,
hardly distiuguislied
owner of the
oriLiinally
common domain.
for a theory of the
growth of Aryan
one drawback
;
have
selec
it
has generally
been against a
it
has just
common Mussulman foe. Fortunately, now become possible to place by their side
facts,
gleaned by an Indian
Aryan
These
results, ob-
by
home
CHAP. yra.
267
the
Alfred Lyall,
that he
the gentleman
whom
am
referrmg,
archseological research
and thus
of
in
Raj-
putana,
may be
Aryan usage
in the stage
fol-
most conveniently
lows
a
I
called barbarous.
For what
am
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
of blood
nor
sists
is
its
kernel con-
of Aryans,
still
purest breed.
Though
the pretension
is
resisted
by
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.
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
hy
Mahoiniiu'dan
c'DiujUost.
Some
ol
lliciii
lo\vt.'d
their
enlti-
necks to
vators
iuto
ill
tiie
iM-aecfnl
tlic
now
called from
all
them
of one
of their
No
princesses were
much
Agra
and Delhi
pore
;
and
as
alliance
with them
price.
is
still
regarded by
point,
Hindus
ever,
above
all
The lowest
no
how-
which
states
owe
more
m the highest
As
said
before,
irood
plentiful in
CHAP. Tin.
2G9
by
One
of the
most
learned,
is
about India
Rajasthan,'
the
call
is
that which
we
is
;
not,
however, feudal
it
is
pra3-feudal or tribal
at the
may
be detected in
references to the
it
now
shown
comes from
feudalism,
illustrating,
perfect form.
and
operation
them
may
270
I'.\<T
KniolMlAN
lltUsr.
(OMMINITIKS.
chai'. VIII.
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
experience of the
desolatini!;
present day,
liow
wide
invasions, pestilences,
and
the
^reat social
of
catastrophes,
shatter
to
pieces
framework
apparently of real
local
first
common
elans, still
body
but
many
are
been and
still
all
of
to
them or
any place
portions of
in
The
not to
as
common
Yet
is
in Central
it is
broken in
in
fact.
Each
fugitive or emigrant
the
memory
of the
stock
from which he
would think
incest to
marry
a son or daughter
Thus, wherever he
CHAP.
Till.
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
the fugitive
is
at
new
order of
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
eupatrid tribe.
It
seems to
me
race.
But,
may
Wars were probably as bloody and frequent among the forerunners of the Romans and Athenians as among the Rajthey operated on a smaller
puts,
more destructive
Thus the
It
is,
fugi-
however,
no more incredible that an Athenian family settled m a particular locality of Attica should have been at
its
original tribal
home,
exile at Corinth or
Megara
of lunnnn
f^cvit'tv.
all
we
imist
l('k at
wrouir
It
iMid
of
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
whom
he
has settled.
we must
Such
way
'
in
always
'
founded.
in
modern times
great
men
men
of
which not
who
followed his
share in
pedigi'ee
prodigious antiquity
to a great extent
still
genuine*
For
literature in
Rajputana
retains that
which
we may
CHAP. Ylll.
273
exploits,
and above
is
all
which he
These bardic
o-enealogies
may
point
Not only
eponymous heroic
followed
who
him
in the
come
in time to be reckoned as
is
kinsmen.
The pedigree
lengthened sometimes
through unintentional
error,
at
or poetical exaggeration.
family tree
is
carried
heaven.
The proudest
but a real
human
.As
Sir
pure clan
is
The most
investigations
Lyall's
in
manner
some years
274
KS.
riiAP. viil.
societies wort'
refund
<>1
l>v (lescenl
rnmi
li;iil
llic
smiiic :ui-
tlu-m wliidi
an\- juTniaiiciicc
<//
or soUditv
flu'V were.
assiiiii('(l
lliat.
An
iiKlcfmiti'
inmiluT ofcansi^s
liit
iiiav liave
llicir iii-
wlicrcvcr
wason
'
an
is
ass(tci;iti()]i
df kimlrcil.'
<r
An
lint
iiiii>nn'
IcilK-or
elan
not
a lioily
kinsmen,
ho'U' fornicfl
Not only
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
tion of masterless
men
them
and
to rearrange
new
tribe,
and
his
custom as to
on setting up a
name
Where an Englishman,
by naming
his
settling perforce in
Botany Bay, or
In this
way new
hegemony of some
a
successful
social
rela-
and
always with
mechanism of
Ancient Lav:,
p. 31.
CHAP.
Yiri.
275
family-
The leading
faint
origin,
Sometimes
it
will
happen
new
it
association
is
is
Rajput extraction.
great
many
of the stories
grees
and
this is the
be-
ginning of
many
the
more august
At
same time
it is
not to be supposed
that
all
associations of
men
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.
And
in outline, or break
117^1
FAST r.rn(iri;\\
iioi^i:
(dMMrMTir.s.
wo
mw.
'^vi
vm.
rfpixxluction of sn)ups
iit
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
tlic
condition
of mind whicli
ancient Irish
socioty.""'
'I
lie
jii-ohlcni
which
iiiiisl
have ohtruded
The fundamental
assumption
that
all
men
is
if it
your brother.
for
holding to-
territorial sovereignty, is
new and
in-
influence.
The
British
Government of India
territorial sovereignty as
men
are
grouped together.
The
known
to the Calcutta
8.
CHAP.
viir.
277
but to
all
some striking
illustrations
of the
unpopularity of
It is con-
the
Rajput clans
low-caste Mahrattas
Mussulman
apostates
all
is
justice.
We
have
heard what
Camerons and
McCallum More,
who
rule over
many
Campbells than
tribes
like upstarts
sprung
Among
ment
to
the
more
men who
ogamy
but he
as sanctified
by usage and
religion.
The pure
which
also surrounded
by
a circle within
*27S
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
jinn-
dans,
tlieir
wliicii
weakened
l)v tlie
necessity for
obser-
dyinij,'
out for
Kajput
is
a positive
advantage to be i^rouped
tribal
lie
in the
same
oi
vaii'ue
and extensive
or septs
families
whom
He must
he
may
is
(jnis.
When
enough
to serve
included in
it
strung
on
a curtain rod
the chances
a manifest
advantage in the
being perhaps
it
At
the outset,
little
more than
stage
a horde of brigands,
may
;
suffer
women
within
its
circle
and
sorts
of fictions are
At
its
development
it
will again
sufFerj
because
all
CHAP.
viir.
279
one
in-
will
upon
as akin to
The
is
the
most convenient of
all.
impure clans
is
the determination'
work
in their formation.
The odour
it,
of vulgarity which
has
now
its
contracted makes
primitive importance,
fiction of a
is
neither
better family
entitled to.
really
What was
a foible
has
now become
among
a force.
societies
is
still
Ly all's
started
that,
'
the different
stocks congregate
to form a tribe
by
force of circumstances,
tribe,
and tend
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,
by no means
consists in
ib
liSO
KAST KlKol'I.W
l|iir>i:
(OMMINITIKS.
ciiai'.
viu,
inrni*nroil,
is
n^t
writtni about
l>v tlu'
may
family on
promotion
j)ra('-
tisos tlic
most
riiiitl
a))stin('nc('
fi-om
all
j)Mrhcular kinds
sorts of actions,
niaiM'iair*'
<1
scru[)ul^nsly
carcrul
alxuit
tlic
its
dau^lit(M's,
and
mony
of domestic worship.
cnpiLiCs a l>ralunan
and thus
tlic
entire
shelter of
Brahmanism,
The
effect of these
remarkable observations
is
to
differs in
much more
consistent with
some of the
the perplexed
many
roots
is
in a great
grown.'
retainers,
fact of success,
which
arise
unhappy usages
CHAP.
viir.
281
all
mankmd. a genume
It
clan,
having
pedigree,
outset.
It
may
spoil,
also be
exogamous,
pliysical
vigour
and caused
it
might be a
it
fact
by
itself,
we have
gone,
would be a plausible
But now we
see
it.
how
such a
men around
It starts a
all
crystallisation
by which
and assemblages
in its
neighbourhood or within
The
all
original
sorts
it
communities of
forms
:
taken
of
is
safe
and
But evidence of
'
many
'
different kinds
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;
Semites,
always hclievinn
in
juu'itv
of paternal
iiero
some god or
THE GENS.
283
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
dctin-
male
tliiuk
aiiccslor.
lliat
<i('iis
For ivasons
at
ijfivcn in ("liajtttT
II..
tin-
loitnan
was
prohaiilr.
thi'
thou^li sniiir of
niul
otliiTs
_i"ontos
to (loul)t that,
hccn fictitious,
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.
'
;
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
'
'
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
If
an
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
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
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
that they
288
luiist
Tin: cKNs.
|)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
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.
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*
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
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
CHAP. IX.
291
CHAPTER
IX.
IN
FRANCE
AND ENGLAND.
Considering the immense space which the first French
Revolution
filled in
immediately succeeded
surprising at
first
sight
concerning
its causes,
course,
for
virtually inex-
the
the
Con-
Assembly.
Yet
it
is
only in comparatively
recent
historical wealth
have been
critically
examined.
The
way
to
him
in Paris
the
undisturbed since
292
1>K('.\Y
or
I-KIDAI,
I'HOI'KUTV
I\
tiiAP. IX.
in
llic
of
'I'error,
of
Gencrnl
Security.
'
lint
yon
sai<l
'
liavc
classical
heir writers?
ol" 171)1.'
'No,'
was the
reply, 'that
is,
is
the dust
There
One
canse of
it
o-eneral explanations of
and the
French Revolution
the nearness of
De
Tocqueville,
who
first
dug
propel Iv
section of
the
state of sentiment
in
one
French
society,
where there
is
scarcely a
single family in
which
a near relative is
tion
in"^ is
Another, and a
traces
its
much
political
and
CHAP. IX.
FRANCE
all
AIs'D
ENGLAND.
293
;
dnring which
this blood
was shed
and hence
it it
as
no more
is
than
the
grown on
destroyed.
Between
unwillingness
to
find
the
its
light,
critical
examination of
much and
the rela-
But of
work on
tions
New
France, on which
De
aid
Tocqueville was
by the
one
proceeding.
Two
('
interesting
books,
'),
by
M.
Chassin
('
by M. Doniol
dalite
'),
are
Origins
of Contemporary
which
in-
M. Taine has
stalments
lately published,
he has given us
its
great
literary merits,
with
De
294
HKCAY OF
I'l'.l
DAI,
IMlKniUTV
IX
cilAP. IX.
of
wliicli
it
pros
proof.
M.
rahiers are to
tliouu^li
1
found
in tlie I'icimIi
Arcliives
])ut,
in 1781),
am
acquainted with
that
pul)lishe(l,
fuller
than
many
years
ago,
hy
comparatively recent,
it
to considerable results.
<iiscovered.
Some new
have been
some already
Among
or
passages
in
the
Revolution
may now
be better under-
two deserve
especial
remark.
The
which
it
gathered
it
stability
which
mani-
The
into
drawn
the
movement
throujfh
the
action
of
and
first
was a furnace
of revolutionary agitation.
OHAP. IS.
295
the peasants had for one of its effects a condition of the country which, no doubt, has often perplexed the
became hermetically
guillotine
closed,
and escape
from the
writers,
Some
in explaining this,
classes,
who
at first
This
extremity of detestation
for
is
The comto
of Terror
a re-
and similarly an
testify to
of incidents,
which
feeling, are
now shown
had a
special rather
in tlie
work
early
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
rooni
hurniiiL:,-
was
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
the
that the
gaged
in never-ceasing litigation
The majority of
understood,
the
little
French nobles,
should be
had
or no analogy to
what we
A certain
num;
little
or no land let
The multitude
classes indistin-
another in Old
France
lived
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.
'
les titres
trois
quarts
de France,
que
le
paysan a besoin de
aim6.'
CHAP. IX.
297
servicies
we should
'
say,
They had
also their
And
they had
nondescrif)t sources
Now
Some maintained the leo-al doctrine which o had made great way in France at the period when feudalism was
'
reall)^
strong
No
lord,
no
land.'
On
presump-
tion
was always
dues,
lished
by
prescription.
But another
school,
no doubt
interest
among
the educated
titres,
and
argumg
that no feudal
had a
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,
on
tlie
stri'nu;t]i
on the
strenu'th
otlier.
lia<l
In
any event,
tlie
llie
title-jleeds
of
tlic
heeome of
i^reatest
importanee.
and
obvious enough.
in
At
date
it
lost
its
value
the
eyes of the
peasantry,
irrievances
because more
The
legislation
away the
greatest
The
Legislative or Second
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,
who abounded
were
wards engrafted on the Code Napoleon, which for ever prevented the revival of feudal ownership in
France.
The
much more important than has been commonly supposed, and had much gi'eater influence over the
course of the Revolution.
tion ceased to
When
be a social movement,
lost
the
cnAP.
IX.
299
new
problems.
felt,
ances were
tions?
between
bear?
If I were to say that the first
French Revolution
of
great
part
the
soil
of
France
state-
paradox.
Those
practical
to be certainly an inconvenient
it
property,
its
history,
Bondmen
or Slaves, a condi-
population
after the
and confiscation of
its soil
son
all
ii:(\Y
or
I'KrPAi,
i'i;(M'i:i;tv
i\
(hm-.
ix.
in
wliidi
iii(i>l
eatod,
met on
Use of
of"
the
in
collections
the
vii.
writin;::s
j>]i.
4Sl
The Conrjneror
all
is
dcsci'ihcd
ol"
as
the hin<l
ihc realm
own hands
estate,
in
man
all
of and in
the
same.'
He
soil
of ][ngland
among
heirs
'
and
'
Each of them,
him-
uttermost parts
'
'
trusty
the king
the wars,
called a tenant
of knight- service.'
who were
domain,
his
'
to
this
which he kept to
himself,'
he cultivated by
at the courts
of his
it,
making an
CHAP. IX.
301
entry of
lord's
yet
still
in the
power
away and
;
called tenants-at-will
by copy of
truth
bondmen
at the
beginning
now
called
them
out.'
Manors being
which
no more than
at times to be
by him
Baron
;
appointed.
This court
is
called a Coi]rt
and herein a
man may
sue for
;
shillings' value
and
upon the
The
tract
on the
'
Use of the
Law
'
appears to be
wrongly attributed
to
shown
that he had
much sounder
it
writer
The
of the origin of
the one which, on
is
un-
autliorities
on
Yet
it is
least
drawback on
is
that
it is
by substituting
it
of plausible fictions,
instructive
political
gives a
wrong point
to
some
lessons,
302
IN
cu\r.
IX.
(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
can
lc
slatcij
in
tlie
space
at
our
coiii-
lias settled
down
into
com-
Roman
been constituted,
it
formity of the
Roman Empire.
be a reproduction of
of
men
settled
on a
and form-
ing what
we Englishman
Fief.
a Manor, and
what
in
group which
is
from the
:
tract passing
as follows
Manor
entirely as
mode
was
as
much a political as a
even in
its
CHAP. IX.
303
political
The Lord
council.
;
is
The
free tenants
the
yepovaia,
the
senate, the
The
villeins
are the
mass of
the people
gross.
The
Baron,
is
now
taken precedence of
other public concerns, but in which those public concerns continue to be discussed, the lord presiding,
still
'
M. Eenan
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.
'
qu'il possedait
eminemment
les
dons de sa
la relever
attouchements
quand
On
etait
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.
lo he
dcircd away
rrussia
I'reiicli
ilic
h\
i\
liiiu'lv
stroke
oji'
stati'sinaiislii|)
hclnn"
coultl
bepii a
iiiilitarv
despotism, were
in
r.iilitr in
nature
tA'
I'enl.
liny
of the
villaiie
comnionwealth.
Some
of them
lord,
n^ay
and some
The Lord,
superiors and
is
answerable
its
neighbours.
little
is
He
is
the manager or
governor of the
free tenants.
society,
norial court.
He He
arbiter of its
is
the land of
it
the
Manor
under
his
the
name
of his
domain.
Much, however, of
him
from
all
Immediately under
him
who
which involves
Manor
it,
much
is
hands of the
CHAP. IX.
305
this
Villeins.
much
more backward
days the
life
societies
and and
social
twelfth centuries.
sorts of dues
The
owe
his
among
;
others,
domain
they
;
may
no
one of them can succeed to the land of another without his assent
;
is
that the
Yet
lio;ht
it
may
confidently be laid
research,
down
that, in
the
of
modern
it.^
remember
serfs
Russian
much
ter,
plan-
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
he does I
bis person.'
806
inrasiuv
iniu-li
<r
IK
\V
<>F
I'KlliAl,
I'KOIM'.HTV
IN
CIIAI*.
IX.
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
the
word
slaves,
Tn
the
tvi>i("il
fdrni
whicli
less
have
described,
than Manors,
The
lord
of an exalted
Manor.
mandy and Bnrginidy, the Counts of Toulouse and Champagne his domain consisted of Paris and of These continental instithe old Duchy of France.
;
been the
the
case, ivith
difference.
early
Anglo-Norman kings
Duke
of Burgundy, between
themselves
and
their
subjects,
militar}'- service
man
Conquest,'
694).
We
group backwards to an
body
of
men democratically
in
which the
free tenants
had
as yet
no
lord,
the
village
*
community.*
its
gradual
and
See Not
to
this
Village Communities
Manoi-s,'
CHAP. IX.
307
were
all
familiar.
The
in its
is,
Why
did the
Manor
France?
Why
did
its
transformation
is
end in one
an epoch of history?
Why,
It
in another, in a
landed property?
is,
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
a single service of
by authentic
evi-
among the incidents of English copyholds. Young, who travelled just before and just
Arthur
after the
them
are
by the
Select
on Copyholds which
are,
There
no doubt,
French
of
tenure,
tenant,
implying an extreme
degradation
the
to
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,
1k'
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
lirst
of
liis
country-
men,
I believ*',
spondence
his authorities
England grievances of no
of the
political significance
whatever.
in<Tenious illustration
existinf>"
of the
He
supposes a
capitalist
England
His
beginning
negotiations
the
him
that ^lanors
abound
is
Northern counties,
estate
is
mostly copyhold.
is
On
further
subject' to
arbitrary fines
that a
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
CHAP. IX.
309
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
series
must be
chaser
to
is
paid.
warned that
make improvements on
in these eventualities.
his
He
is
further
warned
that,
death,
by
it is
a fact
picture of
is
Rubens, the
'
Chapeau de
Paille,'
which
the
gem
valuable racehorse of
their
its
seized,
M. Doniol's
a
solicitor
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
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.
pussiMc. and
is
custom
lie
tli(>
to a dinner, wliicli
at its best.
wortli
more than
M. Doniol concludes by
could buy such a property.
h(^ld
which he
specifies
have a
;
existence and
others e(junlly
are
many
House of Conmions.
is
Nevertheless, as
a certain fallacy in
illustration,
account.
all
For purposes of
copyhold land
is
he assumes that
services.
The
it
truth
is
may
in
the southern
liabilities are
seldom of
much importance
The
reasons which
may
to be the
CHAP. IX.
311
would be that he
inconvenient kind of
entitled
no more
to
the
all.
Very
be enforced,
is
it
will
be,
that
copyhold
tenure
which
and that
soil.
it
is
restraint
It is to
cogency,
is
As
recently
as
to
up
to the
French States-General.
'
Roger North,
The Lives of
by acting
as the steward of
subject of manorial
that
.S12
I'lJdl'KIiTY
IN'
nivr.
ix.
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]
awa\'
tlic
i'<>val
ttiniri's
liad
iirNcr
relieved the
poorest laiid(unri's of
tliat
nation IVoin
tenure ouuiit
(4" tlic
Mere
the
is
volcano
]ut
iH^fore
is
there
compassion-
ivlativcly small
one as well as a
numl)or of manors
jiartially
-vvhich
had become
alto<^cther or
extinct in England.
if
XoAV,
of
consisted of agricultural
class which,
Manor
under
which North
describes,
and
if,
in this
must
no similar convulsion
for
want
of explosive material.
As
CHAP. IX.
FKA^X'E
AND
EIS'GLAXD.
313
oppression
of
How
which the
outline
similar in
England and
How
institution to
become a grievance of
to this question
The answer
branches
;
many
some of them I
of the long
much
and
and without
using
of a
much technical language, but the few may not be out of place here.
consideration
m the
and of England.
In both countries, a
the mass
of the
concerns, had
courts, the
Manor
and
by the
but practically
hailli.
attorney, or
The French
signorial court
is
is
extinct,
Mariage de Figaro.'
is
Yet
a sketch of a
way
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-
betray in ovcrv
ilocay.
|):irt
nt'
A
of
ccntui'v
siiifi'.
it
the
i-jiL^lisli
is
;
Mmikh- couit
llic
si;i,iiori;il
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
powers wliich
lie
King.
The
had
but
lost
usurped
all
serious
administrative functions
it
had
its
ancient autho-
and
activity.
The
in the
to the different
action
confin-
ing
it
scribinff the
manner
of
the
in w^hich
little
it
should be exercised.
societies
The heads
manorial
long
CHAP. IX.
315
tion.
rolls
homage
(that
is,
the
Thus,
if
we turn
to page
239 of
Mr. Scrope's
'
we
made on
'
the goods of a
no tenant
is
in
any way or
for
any reason
all
such
rules,
made
to
answer to
"the
Kino^ for
privi-
Some
way
among
all
which
in its origin
must have
so-
must be
The most
sisted
destructive influence
exercised
by the
higher
was copyhold.
31G
ti'chnirally
iiii!^
DKCAY
callcil
()!'
naiiAl, I'KoI'KUTY in
ciiAi'.
IX.
6oca;;"i',
was
tliiis
always cxlciid;
at
tlu'
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
What
French
Kiuii^
;
the Coin'ts
Fnneh
They were
ori<.:;inally
as
and
nobility, in
Roman
law,
all
by
insisting
on
from
subordinate jurisdictions.
Yet
there
is
no doubt
Although,
was
'
'
CHAT, rx
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
most strongly
There
is
French
is
nobility
of the
gown
'
had acquired in
feeling
is
privileges.
The change of
connected with
by
which
in the
ownership of the
soil.
to controvert this
view
yet I
doubt whether in
states of society
an unmixed
evil.
Our
fact
associations
certain
them a
amount of
They had
legislative
in
inherited,
and
niS
judirial
DKCAY OK
Fi;ri)\I.
IMtol'KIiTV
I\
.nvi-. ix.
of
when
Their
they wore, as
we sliouM
say, uncoiistitiitional.
.iliiiost
in llic
way
of
liiLih-liaiidi'd
ion, are
apt
nidavoiirahly with
wliicli
has
so long
made laws
for
Englishmen.
But, as courts
extremely remarkable,
that
more
for
having much of
independence
we
characteristic of legislatures.
The very
defects of their
AVhile
was
any
in
while the
filled
by men who
offices.
down
to the
day when
met
since 1614,
Parliaments and
all
French institutions
to
powder.
CHAP. IX.
319
which helped
spirit
growth in
this
country of that
of discontent which
exploded
I
among
that
is
the
French
of
has proceeded
late.
It
upon the
but
one of
its
economical causes
may
be noticed here.
it
class whigh,
must
had
been originally
order in
nobility
much
France.
The forerunners of
power
in
had
settled or risen to
some of the
wealthiest,
provinces of the
Roman
empire
no doubt great
relative opulence.
condition in comparatively
modern
times.
Now
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
oidv
1h'
coni))aiV(l
with
oni*
I''
ji'esont
coal
and
iron,
Her
soil,
her climate,
i"or
and
(h)ubtless
specially fitted
those
KoU
'
'wools of England'
in the to
call
made
all
points
of the
Mediterranean vseaboard.
and,
when
the
the
Enghsh
lords of
it
and acquiring
for
But the French noblesse seem to have "reat scale. o never been able to buy up the holdings of their
former
villeins.
A
;
certain
volumes
CHAP.
IX.
321
immediately before
it,
Arthur Young,
travellers,
ex-
amazed
at their multitude.
And
were
was
nobility, ruined
all this
by the court
life
at Versailles.
But
mass of
monopolies
when
But
]3erhaps fiction
Turn
Bride
of Lammermoor,'
the opinion
extend
and one
this to a
may
be able to bring
home
to oneself the
insti-
which they
to
lived.
If
that,
we turn
bulk of the
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
It
is
own
land,
now
to be left to
Commons
who
The
true answer
is,
that a
copyholder
is
Xo
It
much
then-
own known to
and indeed
it
is
fact
now
their
by accepting
from
the lord
of the manor.
CHAP. IX.
323
who were
hirino" their
it
stocked
but
all
rio:hts
in
England
at the
end of the
century in precisely
nental countries.
and
The unusual
but
it
the
Some
have
laid
as a general principle,
is
founded on a
is
This no doubt
is
one which
is
closely
connected with
The
sacred-
and
it
strongly
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
Tn
tlic
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;'
to
abolished
receiving
them
their
money-value.
The
distinction did
some honour
to
but no doubt
it
was founded on
for
historical
error.
There
is
no reason
equally
orisdnated in agreement.
AVhat, however,
in a certain
truer now.
The
title
of the
Lord
of the
Manor and
the
title
of
more deeply
country.
often, personally, or
;
the
CHAP. IX.
325
else.
to manorial rights,
It will be
economy and
property
Enghsh popular
sively pervaded
by the assumption
that
all
takes, they
perhaps in
less valuable
respect of the
established institutions.
is
be
so,
that
we owe
wholly to be extliis
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
kept
l(o
iniu'Ii
till'
liackni'ouiitl.
iiiitl(s('i*\
iiii:;
and
of
tlicrcforc
imi.
it
at Iciil
It,
belongs to
i\\o i'i\il
liistoriaii to lr'mi;- to
liulit otlicrs
iirc
with
llic
illr
wliolc struct
h.-is
of
Irciicli
gestotl,
society.
H'
'InccpirN
stroiiLiIy
siil;-
and
otlicrs
alter liini
will
probably
dciiioii-
enormous
French
Court and
tastes
its
constant indulgence of
military
had
at
peasantry as
is
Southern States
The
which
itself,
I
it
Fief.
Left to
all
insti-
tutions.
In our
in
extreme
organi-
its ecclesiastical
Commune. But, as we move eastwards through the German and Sclaadministrative subdivision, the
plainly
discernible
institutions,
CHAP. IX.
327
as
until in India
emerges in
its
a brotherhood of self-styled
Everywhere,
more or
less
stubborn resistance
to change
well-intentioned rulers,
case can only look
.
who from
on nations
as miscellaneous aggre-
most aim
at the
Nobody
is
phenomenon only
fit
Xo
Frenchmen
But
Many
which
friction
the despair of
science,
who would make History a had produced among the peasantry such
him anywhere
King and
in
his
usurping agents
who was
And
even
now
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,
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^
tutions cnatod
itsilf.
329
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
known
histor}''
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
S'lO
VIM.Alii:
.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
<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
\'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
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
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
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,
IJoniaii
l;i\v
Law.'
ji)).
.'Wi
it
lut
from
i
wliicli
?
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
;
' '
Roman
rilla',
still it
seems
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
' ' '
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:-(
the
illciinir''
'>
<>1
lii^^
]M'rs(n
'
(fo.
208A).
Tlic only
cht'fuin
ilifVi'n'iK'c in tlic
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
of law.
the
Among
ancient
is
that which
Roman
nee Mancipi
that
is,
and Things which did not require for their transfer the
conveyance of Mancipation; there
is
the mediaeval
West European
the
still
and the
there
is
Roman
movable property.
We
know
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
two great
classes of Things.
becominir mov-
nioval)le
wooden frames
German
and, in more
modern manuimmovables
ance
'
fixtures,' as
'
we
call
them, the
'
on the whole,
basis
on those
'
principles of
simplicity or fitness or
are associated
'
'
Nature
and
Natural
it
is
pro-
CHAP. X.
CLASSIFICATIONS OF PROPERTY.
into
66
them
movable
and immovable.
We
Roman
know,
legal
and
first
including
Land,
Slaves, Horses,
else
;
speaking communities
England,
improved
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
classifi-
mean
some
of
we cannot but
earlier
see that
there
still
accepted historical
classifications
were
modern.
old as
The most
draw
this
kind of
distinction, is that
Yet
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
may
been reserved
pasture
;
l)y
it
(in
;i
later
of soeiety) for
sliare of this
domain was of
l^s value
him
All
;
follo^vs
oldest)
stat.^
ment
are plainly
and they
Teuit
in the ancient
Lex
Salica,
is
in
an
nearer our
own
the
distinction between
allodial
between
and feudal
is
The
allod in
probably
CHAP. X.
CLASSIFICATIOXS OF
mOPERTY.
oo9
it
as equivalent to or dii*ectly
man
took in
which he belonged
tribe,
joint-family, village
facts
community, or nascent
city.
But many
facts
appear
to
me
or
show
area,
now
call
a fraction
The
shares of the
among
the
distribution in turns or
by
lot,
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
had not
and the
England
free
fifty
over
traces
among
of an
the
Roman
peasantry
older
all
nations have
dug
as
Roman was
really
to his neigh-
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
beca!ue ai)pro[)riatc(l to
affected tbc \eg;n\
of
mucb importance
world.
in tbe
at
fir.st
tbe possession
of
tlie
freeman.
Down
indeed
to
tbe
first
by Frencbmen
modern history
Nevertheless, the
is
of allodial land
ing of land
It
l)y
servile or
by very humble
classes.
bequeathed
at
death between
the children or
all
the sons, to
bad sunk on
all
enjoyment
by
Roman
dominus or Teutonic
lord.
All peasant
CHAP. X,
CLASSIFICATIONS OF PROPERTY.
341
till
German peasant
estates
down
of
in
its
We
have traces
of Kent, and
Gavelkmd
much copyhold
when
land
time
socage was
But
Law
is
coloured throughis
that,
when
individual
enjoyment,
it
is
primarily im-
partible or indivisible.
The
law, resting
on
though occa-
from
it
by sovereign
authority,
is
by noble
classes.
The
allodial
which
is
tenure of
serfs.
The
was
cer-
one, that
became the
We know
thus
much
feudal system, of
342
|):irt,
ri.ASsii'U'ATKiNs oi'
I'Koi'r.irrY.
(it\p.
\.
tlmt
it
Tlic hiinl
oji
tlio
IxtnliM* lines
tlic
IJoiiiMii
l)y
iiiid
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
Empire by the
Germans.
Among
these, society
compact grouj^s of
member
if
subject to a si)ccies
bv some member of
Chiefs or
by the
these
And
Kings were
in the
habit of buying
or
by
gifts.
Nevertheless, with
all
is
still
How
was the
V
legal
Romans
Avould have
of feudal land.
you
find yourself
among
new
CHAP. X.
CLASSIFICATIOXS OF PROPERTY.
646
Perhaps
it
Roman and
all
An
which
it
implies
but,
to take only
one phase of
no sub-
version
striking
of an
can be more
is
Roman (which
the
as essentially im-
note, as a fundamental
difference
between immovable
is
and
movable proand
ad
infinitum,
may
be
division.
They
different legal
belonging to one
of
into
ownership
decay,
which,
in
after
had
revived
our
But there
a
is
no symptom that a
call a series
Roman
of estates
that
is,
number
of owners entitled to
and
a very
gi'eat legal
thinkers
344
t(
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
Avitli rii^lits
of
way
or
a rliilit
of drauiiii;' water
left
The impression
on
my
mind hv
records
is
\arietv of passai-es in
that, if a
mental view
rinlits
he would
it
in turn,
at
Thus
far
and
tail
female,
England,
persons,
and
all
This
long
series
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,
till
When,
several .cen-
sought
rela-
tions, it
true
as
CHAP. X.
CLASSIFICATION'S OF rROPERTY.
345
One
particular agency
by which
and the
am
marked by
much
still
popular.
of land
The Beneficium, or
Benefice, an assignment
as the
reward
to
allowed on
all sides
this great
change in the
Whether the
benefice
was always
in-
as M. Fustel de Coulanges
is
that
it
was
House of
there
as
in
reason to think
was, at
events,
Roman Empire
of land4aw.
estates of
it
it
In
its earliest
better opinion)
was not
but
it
was
still
Roman
I still
One
it
modification of
Roman landed
;
the Emphyteusis
and
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
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
ohl CfOthic
word
or
^jivJ
cattle.
The term
is
])ro}erty,'
just as
meaning.
Gnv
some-
stated that
suspected
feodum
'
to
M. de Laveleye,
property.
Plausible as this
it
is,
as a basis but
Law.
It
ancient a
Law
of Movable Property
may
deeply affect
Law
of Land.
Xow, we know
that
among
the
CHAP. X.
CLASSIFICATIOXS OF PEOPERTY.
347
chiefs
were
the companions
arms
as pay.
It
vails at this
in
moment at the Court of a Kaffir chieftain North Africa. Now, let us conceive this system
In the
first case,
land in-
If,
then,
we
assume
that, at
more gradually
to
my
mind, at
else
all
events
explains
hereditary
;
better
than anything
now understand
why,
why
even when
select the
son
who was
why,
to inherit
why
or
he could
cause
it,
after the
else
;
somebody
a horse,
it
suit
of
armour, or a herd of
a successiort of
why
it
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
we might expect
we were
i)ermitted a
view of
first
and
we may
so call
dependent on
I Avill
cattle
and tenure.
I
not
now
but those
who
will
examine
it
number of
explained by
as affecting; to offer a
imd
duties,
some proprietary,
Avhich
made up what we
call feudalism.
The mailed
spoken of in
if
who
is
much
he were
may
be shown
CHAP. X.
CLASSIFICATIONS OF PROPERTY.
349
the
to
have obtained
from
all
sorts
of quarters
Western Europe.
Byzantium;
worn
it
his horseshoes,
by
We
are
now
only conit
to
We
must
Roman
Competing with
more
potent,
of barbarous
that,
or primitive
cannot doubt
the Benefice or
Feud became
race
men
of primitive
Aryan
had
As
little
Western world, during the dissolution of the Carolingian Empire, contributed to diffuse succession
by
^50
\
illtMi;i_iX<'
CLASSIFICATIONS OK I'HOl'KKTV
(iivp.
x.
on the
olIuM*.
The
iiiiliiiliclil
(|;iil\'
diMiu-ciiinliiral
liis
to .'Iiistcr
ol"
i-oiind
ilicir
liaij
<m*
some
soldier
rortiine
who
<1"
taken
the
caused
men
to he
heasts
Imrden.
I'n-
not charac-
Konian
l*]in])ire,
even on
the eve of
its fall.
Tliere can be
no greater delusion
and
Af.
mc
his
last
events, even
still
was
surer
full
of
and
splendour.
lint
no
ruin can
Lord
it
entertained
it
by Euroa very
is
really
but
it is
very
an area of
fertile
crowded
for a<res
by an industrious population.
covering,
The
true secret
is
of
re-
slowly
take to be
tlie
desolation caused
by the
chiefs
I
think
CHAP. X.
CLASSIFICATIONS OF PROPERTY.
as rich as
351
but
its
was
Roman
Empire.
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
considered here.
One
arose
which
to
from
assimilating
I
immovable
property
movable, was,
plicate
the
law of land.
country
stated,
it
by exception.
Among
us,
the
many
it
proposals
for reforminor
since
Bentham
may
its farthest
in
often
more
veyance.
horse.
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
to
lie
recoUock'd,
first,
that
tlie
primitive
all
thintrs
Land
belon_ii:ed to
it
village-community before
household
the
even when
it
brotherhood retained
over
it,
and
it
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
community, according
by
a
fives
widely diffused
among
it
primitive races.
As
private conveyance,
Roman
and
society
when
this ancient
was
the
first
livery,
by
it.
Nevertheless,
re-
most successful
in
modem
to a
experiments have
verted
principle
CHAP. X.
CL.\SSIFICATIONS OF PlTOPERTY.
353
In France,
^v^ith
and in the
territories
I.,
incorporated
the
Empire of Napoleon
Code
called
by
his
reo'isterino; sales
and
In some
of the Germanic countries there was long: a disinclination to adopt these expedients
;
now
is
Con-
tinent, and, as
most
perfect
it
was
longest.
The
commendation from
certain
juridical writers
those
of
the state
can
here
give
but a brief
description
is
of
the
mechanism.
into a
divided
number of circumscriptions
of no great area.
who
are to
is
and
land.
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
lands once
lliat
licl<l
sinulc im-oixtI v
lliiit
.11.
once
])Ut
bclicvf
the historical
system,
wliicli
])y
j)i'aetleall\'
the most
hen
the
ivu'istcT
has
been
thenceforward
recorded in
it,
and
it,
ever}''
transfer or
under
sell
pain of invalidity.
Whether
a person wishing to
it is
the business
is
It
absolutely
easily
accessible,
The
systems
new
foreign
;
and
it
manifold
compensated by the
its
many
As
to the great
is
mass
a general ad-
mission
tion,
among lawyers
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
has
its
counterpart,
estates of a limited
number
of noble families
still
and
further com-
by the
liberty of transfer
with us
in the preliminary
the rio-ht to do
it
but
by a tenure
of
we should
say, in copyhold.
is
My
not to pass an
or
to
weigh
I
one
system of
registra-
which
of
A
all
mon
all
to
bodies of jurisprudence.
is
What
has no
is
to be
in fact exercising
title to
who
?
show
Is he to be at the
him
OOO
riili's
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
consists in
iloctrincs
///
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
man mortgages
volume of
rules
is
number
of
creditors, in
satisfied ?
Tlie
by which
all
systems try to
quite enormous.
is
But
it is
very
a perfect system of
is
strong tendency
as
it
to revert to the
doctrines of
Possession,
Roman law
Usucapion,
before
and
ownership
grew up.
The
mortgage of
marked
disposition
among
munity,
or cause
'
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
trifling:
CHAP. X.
CLASSIFICATIONS OF rKOPERTY.
357
Usucapion, or Prescription.
At most,
there shall be
seller of
land to
As
formalities, or compelling
and
you
w^ill
be
satisfied
after
them.'
follow
is
German
in
approximating
much
it.
of Germany, though
it is
to
The
intricate
and
in
principle spontaneously
itself to the
human
race.
established,
some of the
shadow.
ship,
space in the
Roman
jurisprudence
very
if
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
gage
an(i
lriniitive pul)lieity
The
all
jmhlic registransactions
ter at
some
must be
registered
much
corresponds
which
may
consent
to
tliem
by the general
recollection.
The primitive
was
insisted
to refuse
of
The decay
In niodern
luflia
CHAP. X.
CLASSIFICATIOXS OF PROPERTY.
oo9
buyers and
their bargain
the
is
un-
favourable to
these archaic
and thus
transfers.^
In the his-
same
results
were most
or
Roman
more and
more miscellaneous, we
history, a
in the Mancipation
its
abolition
by
Justinian,
Yet even
Tradition,
when
it
became the
sole
Roman
institutions out of
which
it
grew.
mere contract
it
Thmg
^
which was
its
subject.
This
is
a peculiarity
Registration
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.
to jht-
tlu IJoiuaii
law nf Transfer
<>ii
of
its
Ikmiiu^
founle<l
j)rin<'i|l('
Kni,'lisli
alaiuloiu(l.
Tho other
is
fact to
whith
wish to
lall
atti'iitioii
hi;::hly
insvructivo.
T]uI
tendency of German
juritlical opinion,
which
have
dani:er
of over-
Legal
uianv of
them have
their rocits
in the
most
solid portions of
for ages
under the
protecti(iii
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
as
Bentham and
write
false
is
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
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
in land registration is a
The
legal notions
which
described as decay-
belonging to what
of jurisprudence
perishable
;
may be
suggests
itself
prudence
Evolution.
.)Oli
CLASSIFICATIONS
ol"
IJli.AL
KILHS.
ciiAi'.
xr.
ciiArTi:i;
\i.
Almost
(if
tlic first
thing which
tliat
tlie
is
Icanit
hy the
stiirlent
Ivoiniiii hiu'
is,
chissical
jiirisls ol"
IJome
of
Law
Law
may
of Things, and
tlic
Law
is
of Actions.
now
taught
amongst
us,
ment disputes
he
as to the
meaning of
this classification,
may
lias
given
It
would seem,
in
fact,
much
the place of
minds of the
last generation of
EngUshmen.
is
it
The
an altogether
modern phenomenon
lect of the
and, before
began, an intel-
on
number, or
Avith
any other
CHAP
XI.
363
it
The improvement
view was
of such theories
is,
great
Domat to discommandments
'
forth
in
Matthew's Gospel
neighbour.
love
to
God and
'
love to one's
Law
of Persons,
Law
of
Things, and
Law
equally
famous propositions.
came to
English jurispruaffected
by
this as-
but
to deal
At
were obdoc-
Roman
in
removing
ZCi
tlirni.
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.
aLii'i'c-
on
(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
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
may
volume of
his
'
On
more
practical interest
civilised world,
Code must be arranged somehow, and few would deny that the more
;
for a
But the
heard, are
agreed in depreciating
all
the
Roman
classification
and
classifications
de-
CHAP.
XI.
3G5
is
scended from
it,
sur-
prisingly strong.
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
'
Institutes of Justinian
'
con-
defence
of law.
distribution
My own
that the
tion
is
legal classifications
Rights.
legal
may
the
Romans
ele-
had not
had not
mentary.
Roman
There
are,
which the
meaning of
approached
;
'
right
'
is
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
llic
lutiiiaus
if tlicy
blamo
;
f)r
not
lla\ill^
clc.-irlN'
roucciviMl
Kiirlit
])o:nt as
uiihap})y
'
but
le_a;al
tlio
truth
is,
and
it is
very
idea of a Kight
was veiy
lawyers
slowly evolved.
it
Roman
became
fore obscure.
doubtless through
first time,
'
Austin.
object,
therefore,
to
the contemptuous
due
to
who
Law
of Persons,
Law
of Things, and
Law of Actions,
view of
;
we must
try to bring
home
to onrselves the
and
then we shall
see, I
new
arrano;ement
cnAP, XI.
00/
object
may have
been a
grer.t feat
of abstraction.
The
original
;
Roman
it
bnt
light
ideas regarding
The
thouofh
respect,
Roman
Institutes,
is
relativtsly
modern.
There
is
no reason
to
suppose
that the
Roman
on
it.
It
was confined
ad-
of
it,
which
was the
text.
Prtetor,
law into
Actions.
Law
of Persons,
Law
of Things, and
Law
of
The Twelve
of
have no trace of
this classification
compendium
principle
Roman
law.
so
When
the study of
Roman law
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',
h'l^al
order.' that.
the actual
hefort;
nrdiT of K'ual
the chiss.
toj>ics
ill
Tlic asccudcncy
of
its It
tlie
ehissificatioii
in
of
rise
dissatisfaction
with this
schools,
'
leg'al
order.'
says
Mr.
Hammond,
the
end of the
the time
till
;ifter
iiii))ortance of the
graduaUy made
their
all scien-
systems of jurisprudence.'
It
ever,
become
plain,
that
in
the thread of
human
more than
merely antiquarian
CHAP. XI.
369
The arrangement
shown
Roman law
retical basis.
first
theo-
The contents of
all
known
;
in a general
way
but
we
are
now
This
steps in a
on summons
to the defendant,
later
to
its
employ the
Teuearly
way
into our
own
law
the
essoins,'
for not
attending.
is
commonly
be-
it
went
at
The Third Table contained rules as to Deposits. We need not go further, and all which must be recollected
is
Roman Code
treated first of
afterwards,
dealt
all
Deposits
Let us
now
B B
oTO
tori.'in
cuw. w.
jurisprmK'nci*
tn
ilic
Ifoiuaii
Coininon
Law
c()nstruct(<l
mil of
of"
tin-
of the accrft'mn
nucleus.
Ic^ial
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
peared.
beij^an
first
with
a title
manifestly corre-
sponding to the
given
in different
danda.
Avith
The
Pro-
Second
cedure in Court.
Title
;
place
after Procedure, as it is
which
it
and Tutelage.
a general
classifica-
form of the
is
It
well es-
legal litera-
and that
it
codification,
but
whether
it
At
first
sight there
is
no
'
CHAP.
XI.
371
is tlicat
is
ecclesiastical
The
real
body
Law, de
in jus-
close correspondence
and
latest
discerned running
less
than nineteen
From
men,
it
this brief
summary
history
was
Ot
Have we any
clue to
At
first sight it is
less capable of
'
Plea in
Abatement
and goes
372
i^
m.Kv. xr.
to
all
tri'ttt
l)iil
wliicli
at
convenience of an
alj>hal)i'tieal
Tlic
siispicioii.
however,
tliat
soMio
the
liirlit
called
is
not new.
ICver
since
earliest
*
and
j>urest
the Prankish
Lex
it
Saliea,'
been seen
tliat
the
the Institutes,
to a Court,
The
Summons
Roman
n(;xt
The
Roman
Table.
The
tame
birds,
and so
forth, succeed
taken up
to Theft,
constantly
Code.
The
title
Roman
the middle
'
of the Salic
Law
is
reached
it is
numbered
fifty,'
fides factas
CHAJ. XI.
373
plentiful food to
fact
modern German
erudition.
The
to
Law
begins, as did
the
a
Roman Twelve
legal eye
what
modern
Law
that, like
the
to Theft
in
;
insignificant of subjects
but that
Roman
Law
of Contract.
These resem-
but
it
Roman
'
legal
order.'
On
the
on the
other,
it
Lex
jurisprudence.
Again, the
Lex
Salica
is
Roman
it is
Roman
law, of
which
known
anything.
Theft.
Law
deals with
Twelve Tables
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
<lfas\ii
tVoin
tlie
more land
common
makmg
up
for unskil-
Roman arnmgement
I
always seemed to
me
for
to preponderate, independently of
new
material.
-^
an opinion.
hit these
new
By
itself
way.
extraordinary prominence
principal Irish law-book,
in its prefac{^
gives to Procedure.
The
l^retending to be a
to
of the world,'
law of Distress.
Roman
Table, de in
vocando.
Distraint
it
is
and probably
CHAP. XI.
375
it
was the
The
trace in
Roman and
in
more abundant
Teutonic law
remedy of forcible
reprisals that
you used
But,
>
to
though
further
amount of correspondence
is
manifest, n<
resemblance to the
Roman Twelve
Tables
The
subject discussed
in
it
may
cer-
part of law
is
Mor under
must on the
there
any
signed classification.
All
we can
dence
the
is
and
this is
an important proposition
regarded the
that
of
Irish
Brehon lawyers
mode
'MCi
rL.\SSIFICATIO.\S
OF
UT,.\\.
Kl'MCS.
cnAr.
ii.
all
to
iiH'
tli;il
tlic
k('\'
to these mysteries
may
Ix'
I'oiind in
those
known
name
of Codes.
One
lation of Sir
of
Manu
is
by orthodox Hindus
'
to he the
'
very collection of
sacred laws
which Manu,
to
whose
the
'divine
as he
'
no way answer
the
They
are contained
is
a treatise on
on the
art of govern-
mixed
;
and
Roman Twelve
of ritual.
j)arts
The Code
Manu would
in fact
by
itself
reflec-
was not
of propositions on
life
The
at all inclined
CHAP. XI.
377
tnat vast
Hindu law-books
for them.
antiquity which
Follow-
Max
Miiller,
maxims expressed
in
language so concise as to
finally to their
fasten themselves
Aryan
to
have
undergone a further
Ritual, of
which
Roman Twelve
Tables,
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
'
'
is
it
much
in the
same
light in
which
now
administered in
Narada
is
both
Manu
names
are nothing
Hindu law-
ckn.
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
;
|)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
suj)j)osed
cialised, until
became
on
civil law,
writer, eoni})osed a
tlje
enuit
Manu
by
to
Xarada,
who made
its
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
to 4,000.
who
Code.
Men
life.
human
ing of
The
has
recently
that
its
writer
is
much
Both
more of
his
Manu, and
work
much more
The writer
of
Manu
CHAP. xr.
379
still
is
contemplates the
as a sup-
On
the
wholly on the
racter
civil sanction,
and his
religious cha-
shows
For
my
The
classification
may
be seen by ex-
it
is
ob.^erved
I will describe
from the
last,
since
it is
plainer in the
more purely
it
legal treatise.
will be
li>
20
*
:
eight constituent parts of a legal proceeding
The
are the
for
o80
(
ciiAr. xi.
HK'diciu'c,
N<tii-j>;iviiKMit
of
Wall's,
Sale
willioul,
I'urcliasc.
l'.i-('a<h
ol"
^I'dcr,
'(tntcsis alxuit
dl'
Man
aii<l
ilc,
the
(
Law
(tl"
Abuse and
Assaidt,
ianil)lin<i;,
Miscellaneous
'
)isputes.
This distribution
rii;t>rously
on the whole,
treatise, ex(',e})t
The
inrclianisin of a
first clal^orately
Court of
'lustice
described.
The
seats himself
on the throne
;
l)ut, tliou^^h
throughout royal
justice, the
King
is
of his Chief
Judge or Assessor.
will
subject of Evi;
dence,
includes Ordeals
and
heads of dispute.'
is
The order
in
that in wliich
quoted
with
of a Debt,
is
and
acci-
Evidence.
This
may
CHAP. XI.
381
dentfil
Hindu
like the
itself in
to be
shows
Manu, and
it
is
conceivable
diffi-
that
it
may have
'
head of dispute
'
vany
its
The
fication
principle
strike
and meaning of
as
me
obvious.
The compiler of
Narada or
his
original
men do
quarrel,
and he
mode
in
which
their quarrels
may
not a
and
Court of Justice.
exists
The
great fact
is
that there
now
an alternative to private
reprisals,
a^mode
Hence
in front of everyits
mechanism, of
facts.
its
procedure, of
its
tests of alleged
institution
he
is
led to distri-
human
beings
nS'i
CLASSIFICATIONS OF I.KOAL
Kl'I-KS.
riiAi-. xi.
;:,i\i'
Tims
Partncrslii|). tlic
t\\u\
I\)!iatioii arc
at
coiisidcnMl
<!'
iiiattcfs
alxmt which
fact,
ie.s
men
certain piMiit
ei\ ilisatioii
do, as a
liavc difrerciices,
and
and
liahilit
rise,
an;
tle
as guides
towards detennininui;
i:ivc
indirnient
(ailed
which
wlien
npon
to adjudicate on qnarrels.
It
appears to
tlie
me
wliole of
Avhich
cited.
They
all
seem
to
trd)ute substantive
law into
'
heads of dispute,'
The
steps of procedure.
of the
contributing
to
have been
to the
is all
the
more
Frankish,
Roman,
the subjects
these
'
heads of dispute
it
seems to
me
CHAP. xr.
383
at the
that
it
do not
at all
is
in a certain degree at
seems to
me
that there
must have
At the reasons of the special importance of Deposits we can only guess, but I have
of the Salian Franks.
already stated
my
Thefts
belongs to
and
social advance.
We
Roman
exactly
law of
their
plentifulness of capital,
freer multipli-
from
cheapness.
It
is
curious
though Theft
is
in the
possibly
The
is
that the
all
Aryan
one another.
The evidence of
"tSl
CLASSIFICATIONS OF
I,K(;A1,
1(11, KS.
(IIAp.
xi.
tlu' |)r(>l)al)iliti('.^
tlif
or (Icpriid
<>ii
infrr-
cncc from
juMidia.
tlie
construction of
is
'I'here
wlmle
\"i\i(l
litci-at ni-c.
Icchinilic,
which
iiives tlie
most
ini|i"cs>ii>ii
of the jxiwcr
mav ahnost
1)V
is
;
be said
tliat in
the
Iceland revealed to
us
Konrad ^laurer
and
there
no institution worth
all
it.
Court
society is
moulded round
all
ideas
centre in
prose.
It is
to every passage,
life.
And
follows
its
becomes
it,
clear that
it is
we understand
and
to
this
commanding
altitude.
We
over,
is
go
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
it
fell
administered in
it
by
tribunals which
they
ill-
de.scribe.
When
is
a province hitherto
specially
governed
first effect
CHAP.
xr.
385
discontent;
ordinarily
is
neither
satisfaction
nor
the sudden adoption of new, but an extraordinaryinflux of litigation into the British Courts,
which are
always
at
once established.
is
it
The
a while,
when
is
new
litigiousness
obtain an unto
mixed
is
blessing.
draw
that already
drawn
Justice
when
more
settled parts
of British India.
The commands of
the
British
more
com-
mands
far
ful
more
most power-
Mogul Emperors.
The law
c c
is
obeyed in India
it is
much more
380
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
subjoct to
this
jurisdiction to
dci^i'cc
Iiicli
we
in
(^ourt
may
be measured
authority,
bv
(Mrcumstance related to
ill
me on
f];'ood
that
many
young Romans of
Cicero's
day the
cantilena
r)Ut Avith
us, I
need scarcely
that
fallen into
the background.
to
be uncertain, or
when
most of us, who are not lawyers, ever come into contact
No doubt
;
there
but
it
On
CHAP. XI.
387
of the
We may
to a
would
long sur-
their object to
suppress.
The
barbarism
is
shown by
call
its
remedy which we
'
Germans
on the
signi-
self-help,'
the
remedy of private
;
reprisals
is
property of an adversary
and there
much
had no power
own
decrees.
The man
for his
who
law
acts,
;
came
lence
his life
in his hand.
We
service to
mankind was
to furnish
it
an alternative to
Their value
all
wholly.
the
more
and
But
at
gi*adually, as the
itself,
and
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
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
law into
tlic
many
that the
'
lec^al
order' of
tlie
lionian
Twelve Tables,
importance of procedure,
lost its
it
had
meaning
but in
Roman
is
State,
which
the distance.
The
classification of the
Koman
Instifirst
Law
one testimony to
confirmed as to be unconscious
more
is
ception of the
Law
its
of Nature, which
in truth
law
divorced from
of sight,
if I
penal sanctions.
The
retreat out
is
may
which
the
in
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.
389
modern Analytical
gives
Jui'lsts,
its
sanction to law.
show
that
;
it
but
was only
latent because
it
Even now
which
by
it
loses,
history.
The primary distinction between the early and rude, and the modern and refined, classifications of
legal rules,
is
and become,
So
as
Bentham
Law.
had
Roman
Institutional writers
Law
Nobody
is
should
know
So great
is
the ascend-
ency of the
Law
the look
cedure
see the
It
law
technical forms.
would
There are
men
390
still
(inr
xi
aliv(>
who nvolUrt
lliiit
the Iciidcncy
ol'
towards
ai'ti^f
iiu'iit
the
_i;Teat iiiove-
1S.'12. first
sh(>w'd itself
iicss
ill
ail
ciuTLiclic rcsuscitatimi
of sh'ict-
pK-adinu". so that
by
mode
of stating
them
to the Courts.
state of things
Salic law.
Tlie effects
'New Rules
it
of Pleading' wore
felt,
given to
by
a society
which regards
it
only as
Adjective Law.
law
I stated before
is
Roman, but
"world.
that
it
Doubtless, before
can be
field
of law,
As
Romans un-
CHAP.
XI.
391
of
legal
They considered
juris,
is
the parties a
bond or
Obligation,'
as
which
the
name
;
for
well as
duties
the
right, for
duty of paying
As
'
the
Romans
no more and no
less
But
it
was the
we can
over
all
detect in
Roman
legal phraseology
is,
I pre-
Roman view of law. Although, however, the of the Roman Institutional manuals did not
law as somethingit
distinct
as
Law
Law of
Things.
to
The exact
and
relation of these
two departments
writers,
here
but anybody
who can
bring
home
to himself
r>02
ciiAi'.
xi.
coiu'Optioii
trroat
it
(r
Law
in
of
ThiiiL^s,
at.
all
events,
;
was
:i
acliievcincnt
Ix'en
nicntal
ahslraction
t!;('niiis
and that
wlio
first,
li
must have
tliat
man
ol'
of Ic^al Lc
discerned
Law
niiiiht
thouLi^^lit
rhisticc
aj)art
which
ailiiiinistcred
Jiid
persons to
whom
they administered
on the other.
INDEX.
[393J
; '
INDEX.
ACTIONS
place assigned to it by Roman Jurists, 388, 389 Adams, H. C, his Historical Studies referred to. Note A, 330 Adoption, practice and importance of
ACTIONS,
law
of,
'
ANCE8T0B among Greeks compared with Hindu worship, 57, 58 among Hebrews referred to, 58 among Hindus, sense
; ;
its Athens, 96, 97 survival as an institution on the Conpriictice of among Hintinent, 96 dus and in India generally, 97, 154 Roman usHge of referred to, 198 Aged men among Hindus, withdrawal of into 'religion,' 21, 22; status of, 22 et acq. Agnatic kindred, 238, 239 Agnation, system of, among Romans among words rereferred to, 198 ferred to, Note A, 283 Alice in Wonderland referred to, 35
at
Rome and
;
'
'
to be regarded, 53 proximity in time essential to, 54 reverence paid to remote ancestors later in point of time, 54 its elaborate liturgy and ritual, 55 law of Inheritance dependent upon, 55 a* it affects daily life, 56 distinction between general and daily worship, under name of Pitns referred 57, 64 to, difficulty of reconciliation 57 between it and Purgatory and Transmigration, 70. 71, 72; honours not originally paid to women, 73, 74 Vishnu's summary of, 74 its existence in the Punjab, 76; in reference
in
it is
; ;
which
of,
338
et
seq.
its difference
it
from the
to funeral rites, 81 its effect iipon law, 81-83 analogy between such
; ;
passed into
effect
val
Church, 84
offspring,
desire,
the, worship of referred to, 54 Ancestor-worship, incumbent upon heirs in most early communities, 53 theory of its origin, 67-70 subsequent to recognition of Paternity, 75, 76 its tendency to dissolve the family, 77 its connection with Inheritance, 53, intense desire for male off78, 79 spring created by, 85; among Chinese, described, 60 et seq. expense of, 61 honours not originally paid to women, 72, 73 in reference to funeral rites, 80 intense desire for male offspring created by, 86 among Christians and Mahommedans merely its relation to Conaccidental, 59 fucianism and Buddhism, 63, 64
; ; ; ; ; ; ;
Amatongo,
male
that
85
;
this
spiritual
of
effect
'
li'Jl
JNDKX.
ANriKJJT
to
iiiiicr.vl
riii'M,
8l;
int'iis
dcsiro
llr.u'tnd, Ills
li'fjiil
for
iiijilo offi|iriiip,
86
Am-ioni Socioiut),
ft Sfif.
IGO
Anduntiin Ihlandcrti, tho, account uf, N.it A.2'29et wy. Aivi-'tHinlxi, liHW-Itook of, quoted, l.'<, rcferml 17, .10, 7a. 81, 89. 94, l'J7 lo. 43, 1(17. lO'.l, 116
.
Aphorisms,
its
iwii on Villoimigo Note ,\, 333 Itnihmanism, system of, iiHsuporslifion, vi|j\lily, and perjxtual growth, 48, 49 Hrahmans, sat-riHl sohuolHof, alluded to, \2rf *fy. relations liet ween teachers and pupils, 13 likeness to ]|i>meric ('la?is and Irish Brehon Law
;
3H
hid
treat
((uotcd,
30.') 71,
rcfiTPfd to, 9, 10 ApjHiintnM'nt, esplaiiiitii n>f. 91 sneerdotal formula of, 91 customs akin practice of amonp; Athenians, to, 92
cient liiw-liook.s,
; ; ;
the,
of,
.S'h(.oIs, 14,
1.0
theory of in. niediaival law, 93; theory upon wliich Edwanl III. of Kngland Itaned iiis claim to throne of offn-t of upon riglit of FniuiH', 93 women to inlierit, 94 Uiudu testimony as to female right of inheri9'J
;
:
alluded to, 82; compared with that enooura(j;ed by early Christian ChurcliH^, 84, 85 Brahnianical legal authors, priestly character of, as affecting their books,
27, 28
.School.';, the, referred to, 15 Brehon laws, the, alluded to, 84, 348, 375, 376 Brilish Constitution, the, referred to,
Brehon Liiw
14,
tancf, 94
his view and illustration of Patriarchal theory of Society reftTrc<l to, 196, 198; his treatise on Barbarian Customs alluded to, 197 Austin, the jurist, his speculations on
Aristotle,
'
Note A, 285
'J3roken M;in,' the. Sm Fuidhir Bro-sses, Ue, President, his Lettres Kcritcs d'ltalie' referred to, Note B,
'
legal
Classification
mentioned, 364,
to,
389
Austrian Cotle, the, referred
265
124
Buddha, Buddhi.sm,
Biihler,
BACON,
43, 107.
'
Lord,
his
'
Abridgement
'
Baudhavana, Law-l)ooks
109,
of,
referred
to,
30, 31 preface in Sacred Books of the Eiist quoted, 87 Burning of the Ch/iteaux,' me;ining and object of, 296 et seq.
Dr.,
his
'
'
112
'
upon
affiliation
'
Beaumarchais, his Mariage de Figaro alluded to, 313 Belgian Constitution, the, referred to. Note A, 285 Benefictum, the, .stage in the history of land law marked by, 34.5 its simi;
CAHIER.S,
.sons
the, neglect
of informa;
tion contained in them, 291 reafor this neglect, 292 et seq.; examination of these reasons by De
Tocqueville, 292
collections of
them
disInrity to the Emphyteu.sis, 3-45 pute as to application of, 345 called the Feodum, 346 Beniham, the jurist, referred to, 351,
; ;
referred
to, 3
Callaway,
261,
263
Bonitarian Ownership.
See Possession,
this di.esolution
law of, and 343 Boulnois and Rattigan, MeFsrs., their Notes on Punjab h-.w referred to,
'
'
204
n.
to,
its
115.
Chancery, English Court of, referred 166; its origin mentioned, 190;
;;
INDEX.
CHAS8IN
identity with, and difference from Court of Star Chamber, 190 Chassin, Mods., his 'Le Genie de la Revohition referred to, 293 Chronicles, 2nd Eook of, referred to,
'
395
EXOGAMY
134
Cicero, his
De Legibus' quoted, 6 Classificatory Relationship, theory of, referred to, 201, Note A. 289 Colebrooke, Lieutenant, his ' Asiatic
' '
Cowell, Professor, quoted, Note A, 50, 51 Cox, Sir George, his opinions referred to, 198 Gumming, Miss C. G., her 'Ningpo and the Buddhist Temples' quoted, 61; alluded to, 80
DANTE,
'
Niebuhr, 197
English Court of, former relation of the King to, 187 Commune, the, its displacement of the Fief, 326 Communities, barbarous Arj'an, information about most valuable, 233 difficulty in obtaining such information, 233 Comte, Auguste, his philosophy alluded to, 166 Consanguine marriage, practice of, alluded to, 201 Copyhold Commissioners, the, their work referred to, 310, 322 Copyhold, tenure by, actual origin of, 302 et seq. Copyholder, the, diiference of status between him and the tenant-farmer, 322 Coulanges, Fustel de, M., his opinions generally referred to, 66, 7'), 80, 105 ., 118, 120, 203, 317, 350; his La Cite Antique specially referred to, 57; his opinion of the iJeneficium alluded to, 345 County Courts in England, system of, referred to, 189 Court Baron, in England and on the Continent, the, its analogy to Homeric Agora, 303 Court of Justice, the, its paramount authority in the eyes of early codemakers, 380, 381, 383; its position in ancient Iceland described, 384
'
'
Common Pleas,
Inferno of, referred to, 32 Mr., his 'Descent of Man quoted, 206 alluded to, 207 Daughters, provision for among Athenians mentioned, 109 Daya-Bhaga, the, referred to, 116-118,
Darwin,
120
Daya-Krama-Sangraha, the, referred to, 116, 120 Deuteronomy, Book of, quoted, 58, 101
'Distribution of Life,' theory of among Hindus described, 19 et seq., Note A,
290
Divorce 198
among Romans
referred
to,
Domat,
referred to, 363 Domatchin, the, his position in the House-Community, 246 mode of appointment of, 247 sometimes a woman, 248 Dominion, Roman usage of referred to, 198 Doniol, M., his La Revolution Fran;
'
^aise et la Feodalite referred to, 293, 294 ; his view of the disadvantage of
'
English Copyhold referred to, 308 Drew, Mr., his Kashmir and Jurti'
moo
its paramount tendencies as illustrated by British India, 385 et seq. its early authority enhanced by its tenderness to barbarism, 387 Court of the Hundred, the, referred to,
;
168 et seq.; peculiarity of, 170; penalty for disoljedience to, 170 relation of the King to, 171; duty of attendance at, 176
;
Mr., his Origins of English History referred to, 261 n. Emancipation, among Romans, referred to, 198 Emphyteu'-is, the. See Bcneficium Equity, Roman law of, referred to, 119 Essoin, the. See Snnis; also 369 Euripides, Fragment on male parentage referred to, 203 n.
'
'
ELTON,
nop)
INDKX.
KXOOVMY
223 etff^.; lliiulu. 223; Kom.uis, 223; pmolico of nnioiig \Vr.iiTn iiAtions, 224 ft ffq. Kxopuniy, prnotieo iimnii); Siufli 81avi>iiiiinx, rt'Milt of. '2h\
;
G'ArPAMA,
[
10. HI;
n.trt
iliivnl l>y
128; alluded to, 43, .57, 107. 109. irjw.. Note A. 122 '(ioiiH,' the. account of. by Alessrs.
102.
103.
of Mi.i*s. Mcl^cinian iiml Mni-jiaii. J2. ilifVi rriici' of virw l>ciwicii tlwiii. 22G Jlnrdan's theory
in tln><rii->
; ;
referred to,
jmftniMc on
Kvtoii. Mr., his
tlio wliolr.
re.sorti-ohcsi
227
roforrf<l to,
"iSl, IS2
Note A. 283; aiiiong Konians, 239, Note A, 283 fieiis I'abiu, the, nfened to. Note A, 288 Germanic king, the, his relalion to civil
justice, 167 '/ xeg.
Ciernuiiij',
Lex
life,
Salii-a
of,
referred
;
to,
167
1G7
its
relation
I^.V^IILY."
'
tlu>,
'.1.\
plop.tl
fmm
the
to daily
168
341
Goninie,
Mr.,
his
'Primitive
Folk-
Feodum,
Beneficiuin,"
for
See A Hod, the Feud. the. Feudal dues, abolition of, in France,
Mools' alluded to, 169 Gordon, Sir Arthur, his obsen-ations in Fiji alluded to. Note A, 331 Gossipred, pnicliee of, among South
Slavonians, 257, 2.58 Gotra, the, referred to, Note A, 286 Government of India, Records of, quoted, Note A, 229 Graf, tlie, asf deputy of the king, alluded
to,
many
origins
of,
341.342.349
Feudal
rule. amonp early Irish, observations ujKin, 348 F'eudali.sm, confusion lietween property and sovereignly created liy. 148 F'ictitiou.f sons, origin of name. 98
;
172
repugnance to
of,
iu Iliiuhi
Fidei-commissa, law
Fifth
'
alluded
to, 34.5
Griinin,his'DeulscheRechtsalterthiimer' referred to, 179 m. Grote, Mr., the late, his theory of Homeric poetry referred to, 14 hi.s History of Greece referred to, 179
; ' '
the, alluded to, 59 n. Finances' of old French law, the, alluded to, 308 F'ines, the. See Finances' Fratricide among Mahommedans alluded to, 137 Freeman, Mr. E. A., his Comparative Politics' referrc-d to, 23; his 'History of Federal Government referred to, 174; his Norman Conque.'-t' re' '
HAINILET,' play of, referred to, 145 Hammond, Mr., his preface to
American edition of Sandars'
stituU-s of
Ju.stiiiian'
Inquoted, 368;
' '
'
'
and alluded to, 305 Hardy, Sir T. D., the late, his Itinerary of King .John' alluded to, 181, 182 Hayward. Mr. A., his Biographical and Criticjvl Essays' referred to, 155 7i. Haxthausen, his books upon law and
'
ferred to. 306 French Civil Code, the, referred to, 96,
16.5.
usage referred
Hell, torments
to,
194
of,
of,
Buddhist pictures
265
of,
316
their authoritj' over the Fief, 316, 318; reasons for their later tenderness to signorial right, 317
of, referred to, 155 Heriot, the, definition of, 309 Hesse-Darmstadt, Land registry of, de-
33 Heredity, theory
scription,
353
et seq.
French Revolution, the first, referred to, 265. 291 some causes for, 294 Fuidhir, the, described, 270
;
Hessels, Mr. See Kern, Mr. Hindu doctors, legal theory of, stated, 17 ; legal writings, their vast an-
;;
INDEX.
HORDE
tiq'iity
397
120; as affecting tho portion of daughters among Romans, 109; among Mahcmmedans, 235 as applied to South Slavonian provinces, 259 et
;
discovered by Sir
W.
Jones,
Sacred Law, gradual growth of, enlarged upon, 12; SacredLaw-Books, why so called, 36 most valuable drawbacks to, 4.5 portions of, 45 Horde, the theory of, stated, 199, 200 opposed to patriarchal theory, 199; as advanced by McLennan and Morobjections to stated, gan, 200, 201
4
;
seq.
Ireland,
Brehon law of, referred to, 162 Brchons of, their similarity to the Brahmans. 162
Irish
Book
Isajus quoted, 78
'
House chief, the. See Domatcliin House Communities and Natural Fa' '
milies,'
JAMIESON,
'
2o9
Aryan race, 237 its completeness in South Slavonian proits analogies among vinces, 238, 241 the Romans, 238 et seq. ; its correwith the Celtic sept,' the spondence Hellenic yevos,' the Teutonic kin,' the Hindu Joint-Family,' 239, 240 its distinctness from the Village-Community of Russia and India, 240 an extension of the 'Family,' 241; its relationship to the Family identical Jointwith relationship between
institutions of
;
; '
' '
Mr., his communications to the China Revisw' quoted, 224 Jebb, Professor, his 'Attic Orations' quoted, 95 u.
Joint-Families, system of, alluded to, connection with Village-Com22 mimities,' 241 of India referred to, 120, 152; reasons for decay of, 263 Jolly, Dr., his translation of Vishnu referred to, 11 and n. Jones, Sir W., his 'Oriental Studies' referred to, 1-6 his plan for im. proving the administration of AngloIndian justice. 2, 3 his translation of Book of Manu referred to, 4, residt of his conclusions, 376, 379
; ' ;
; ; ' '
'
'
'
'
'
6, 7
monarchical, 245, 246; its rules of common property correspoiidiug with the res mancipi and the res ncc mancipi of the Romans, 249 ct seq. different development of in Northern and Southern Slavonic provinces, 262; development into a Village-Community in Russo-Slavonic provinces, 261 result of this development, 261 et seq. decay of the system, 263 et seq.
;
;
re-
ferred
189
to,
119: Natural e,
House
310
of
Commons,
Com307,
to,
second
mentioned, 357
IMPURE
of,
Feudal Court of, in France, reto, 177; popular Courts of, their gradual change into committees of experts, 177 et seq. advantage of justice at king's hands over described, 178 et seq., 184 et seq. Justinian, Code and Digest of, correspondence of its legal classification witli that of 'Twelve Tables,' 367; his 118th 'Novella Constitutio referred to, 66
ferred
; '
279
seq.
among
Rajpoots,
description of, 274 ec seq. Inheritance, law of, as it affected women among Athenians, 94, 95 Atlienian aod Hindu-Punjab rules of compared, its implication with ancestor96
;
KliRN
and Hessels, Messrs., their edition of the Lex Salica referred to, 169 m.
;
King, the, functions of, 38 et seq. ; his divine right, 39 his relation to the
'; '
308
KIN(iI>OM!t
l?r.ihm.n,
r>9
;
i.Mi:.\.
Hnt)imin tli I'OKinniii); xf civil liiw, ^\, iHlluonro of h\n iiii]>ri<n)c iuiiIimrity ijx)n law ami ukm^c, ICi-l rt xri/. KinpliiniN. tln. niljiint'il to tlio niiiio form as tlie Miinoiv, 30G
tem, 374 acciinliMg to early Irish law. 374 rt seq. accorilinx to Hook of Mann, 370; aceonling r> Hook of
:
TAND
J
law. noman, tlic, n-ftrred to, 342.313.344 I^nnd Rcvn^-lraiidn. Omtincntal systems
of, onlHrju-d
U{vin.
3.')3,
3.5(5
rt srq.
Narada, 379 rt M'q. principle nod ni<-aning of tlii-t Hyxtuni, 3K1 arrangement of primitive ('(Hies i>xplaineil by tliiH system, 382 rt arq. study of in MiddUt .Ages alliidi'd to, 368 diHtincliuiisbcl ween ancient and modern arriinijenients, 3S9 ct nrq. Legge, I)r., his contribulionN to Sacred Books of the Kat' ([UotcMl, 59 m. Letouniean, l>r., his J,ji .Socjologiu f|ot<(l, 208 and n.
; ;
'
'
to,
the,
moaninp
:
of, Gft
o."
Liw,
oal
first
appoaranc'ii
in I?nilimini-
Roman and Knf,'lisli books, 33 systems as dividing the civilised world referred to, 16.5 Gregorian, Hermogenian Ctnles, 367; Justinian,
;
tans and Athenians. 100, 104, 10.0; 101 Leviticus, Book of, compared to Book of Manu, 6
among Hebrews,
Lex
Tlieodosius2nd, Code.s "f, referred to. 367 Roman, its division into law of persons and law of things 391 Dig. XXX. 84. 6. and Cod. vi. 37, 11,
; ;
Lubbock,
.Salica, the, referred to, Note A, 332. 338, 346. 372. 373 Sir John, his 'Origin of Civilisation' etc. quoted, 67, 68, his Prehistoric Times' quoted, 72;
'
Note A, 230
Lyall, .Sir A., his Asi.atic Studies' quoted. 270, 272, 274, 275. 279; alluded to, 63. 199 m., 267, 277, Note A, 284. 285
'
Twelve TaMes' referred to, 109 n. of alluded to. 3, 6. 66, 75, '16, 337, of Nature, Greek 367, 369, 388 philosophical conception of referred to, 119 I/iwyers. origin of, according to Hindu ancient, identical Sacred Books. 26
'
; ;
MACAULAY,
Lord, his'Hi.story of
L'Homme et les Dr., his Soci^tcs quoted, 208 Legal conceptions, their instability re'
'
England' referred to, 319; his statement about the poverty of India noticed, 350 Macfarlane, Dr., his paper in '.Journal
of Anthropological Institute referred
'
to,
Note A. 289
Churta, 188
effect
Magna
of
sealing of,
Rules, classification of, according Justinian and to 'Institute."' of Gaius enlarged upon. 362 et .ser/. this arrangement exploded according
;
strited,
Mahommedanism,
its effect
upon com-
many modern jurists, 364; this system not regarded as perfect by Roman jurists, 367 renewed support the system has received in America, 365 difference of arrangement in other Roman Codes, 367 Twelve Tables," 369 a.ccording to according to Edict of the ft seq. according to Lex Praetor,' 370
to
;
;
munities subject to Mussulman rule, but not to that faith, 236 Maine, Sir H., his 'Ancient Law' quoted, 192, 199, 200, 219. 294
;
'
'
referred to, 43, 78, 79, 96, Note A, 331, 332 theory of primitive society in his 'Ancient Law,' 193 et seq.; his Early Hist, of Institutions quoted, 14, 84 referred to, 276 his Village Communities quoted, 7 ;
'
; '
'
Salica,
372
et
seq.;
this
arrangesys-
alluded to. Note A, 329 Males, excess of females over referrMi to, 210 disproportion of females to
;
'
INDEX.
MALMESBURY
as borne out referred to, 211, 214 by inscription in Berlin Museum, 213 ; preference for succession by, in India, exGreece, and Rome, 111, 115
; ;
199
PATEBNITY
his 'Studies in Ancient History' referred to, 195; his 'Primitive Marriage' alluded to, 239 Mill, Mr. John Stuart, his speculations
;
256
feeling
in
Bengal
on legal classification mentioned, 364 Missi, system of, explained, 183; and
alluded to, 189 Mitakshara, Digest of the, alluded to, 114, 118 Montesquieu referred to, 144 Moolvies, the, alluded to, 2. 3 Morgan, Mr., his contributions to United States' Survey of Rocky Mountains referred to, Note A, 331
' '
Journal of the Anthropological Inquoted. Note A, 230 et seq. Manavas, Clan of, its legal doctrines referred to, 16 Mancipation, system of, subordinate to system of Tradition,' 352, 359 public conveyance by among Romans,
stitute
'
'
'
362 Manor, the, original nature of described and referred to, 302, 303, Note A, differing results from decay of 329 in France and England, 307. 313, 319 et seq., 326; its survival in the Court of the, difference parish,' 326 from Signorial Court, and reasons for, 313, 314, 323, et seq. Lord of the, his status referred to, 304, 319, 324 Manors, Court Rolls of, in England compared with Continental Land Registries, 354
;
late, his theorit-s referred to 195, 203, 209, 211, 21'2, 218, Note'A, 286, 287, 288, 289; his Ancient Society alluded to, 2S9 Mother- law,' usage of, referred to, 75
'
'
'
NARADA,
377
Book
;
of,
description
of,
cf seq.
its distinction
from
to,
Book
of
41, 42,
tinction
from
a,
'
Mann, Book
70, 83, 94,
4, 5, 7, 16,
of,
Note A, 123
242
Nelson, Mr.
J.f H., his View of the Hindu Law' and Scientific Study of Hindu Law referred to, 8 n., 1 2
' ' '
;
'
suggested double origin, 43 its combinadates of, 5, 9, 10, 11 tions of law and ritual, 5 Manus,' Roman usage of referred to,
its
;
quoted, Note
A.,
123
story
of
New
Zealand
Chief,
men-
tioned, 23
198 Marriage,
Mahommedan law
of,
of
re-
to,
quoted,
Icelandic
101
151 n. North, Roger, his Lives of the Norths quoted, 316; alluded to, 311 et seq.
Maurer.
Konrad,
his
to,
re-
SBarehes referred
384
his
test
Max
Miilior,
Professor,
for
;
OBLIGATION, Roman
of referred to, 391
'
legal theory
the,
date of Hindu Books referred to, 9 his theory of Hindu legal writings referred to, 377 quoted, 15, 16 his contributions to 'Sacred Books of the East referred to, 1 n.
; ; '
Orphan Heiress
referred to, 104
'
in
Attic law,
his
'
114, 115,
J.
McLennan, Mr.
therrics
124, 160
n.,
F.,
lo
refin-rod
106,
Note
B,
Sir F., his Rise of the English Commonwealth ' referred to, 181, 187 Paternity, recognition of, account of, according to McLennan and Morgan, 217; true account of, 218
'
PALGRAVE,
400
TATRIA
Patriiv rolostas,
V2-2
flio.
INDKX.
RUTH
lu,
r<forrr<l to,
19S; Nolo A,
of I'owor'
2l.%,
'
I'linjab,
8, 2t>
' ;
th>orv,
;
diffloulllos
'JOJ
ili'Vi'lopntnit
8(!xuivl
of
'
tliruugli
Jcjilouoy,
tlio,
95 Pure tribes among IlajputH, duHcription of, 272 l'ur^;alorie, Hindu, doMcr:i)lion of, .'(0
'
on
rcforreil to,
rt til/.
tlu'ir
Iiohtlio
to
tlu'
r.i>bility
prior
to
Rcvohilion, 294
rt
Pocnlium, Ivommi
UIRITARIAN
luded
to,
owiiershi].,
the, al-
313
KUMAR RAJProfessor,
herit;jnce
'
SARVADHIKARI,
his
'
Hindu Law
;
quoted, 66
the,
of Inreferred to,
67
n.
Pleading,
Now
rules
of,'
198 alluded
to,
390
PlutAroh, 'Lives' quoted, 104 Pollock, Mr. F., his Notes on Early Eiiplish Land Ljiw' referred to, Note A, 334 Polyandry, pmctioo of referred to, 106,
'
origin and high system of, 267 and disintegrating organising forces at work among, 269, 277 ct seq. observations of by Sir A. Lyall referred to, 267, 269 Rajputana. See Rajput Clans. Real Property, Conveyance of, alluded
social
Note B, 123. 200 Popular Assembly, the, relation of the king to, 173 Popular Court of Jus;
to,
351
173
Popular institutions, source of weakness of stated, 174 e( i>e(]. Possession, law of among Komans alluded to, 356, 357 See Usurpation Prescription, law of. Primogeniture, system of referred to^
133; dangerous example of, 38 et seq. Pnxligal Son, parable of, illustration afforded bv, of primogeniture and
132,
1
'
Relationship, 'agnatic' system of referred to, 114, 115, 140, H5, 160. 152; 'cogtiatic' system of iefeiTed to, 97, 114, 139, 145, uf, 161 forms of among South artificial Slavonians, 256 et seq. Relatives, collateral, modern rules for succession of, 114, 115 Renan, M., his 'Souvenirs d'Enfance' quoted, 303 n. his observations among Berbers of North Africa alluded to, Note A, 331 Roman Empire, its system of regal succession referred to, 1 46
;
;
.
Prohibited degrees, Mahommedan and South Slavonian, tables of, 255 special table of as r^gJirds Confraternity in Slavo-Greek Church, 258 Property, legal Classification of reRegistration ferred to. 335 ct seq. of, Act of Indian Legislature referred succession to among Mato, 359 n. transfer of in homm^ans, 126 India, see Property, lU^gistration of Proverbs. SfC Aphorisms Psalm cvi. quoted, 58 Puchta, the jurist, referred to, 264 Panalnan Marriage alluded to. 201 Pundits, the, referred to, 2, 3
:
Roman
nature and
effect stated,
367
Roses,
R'lyal
of, referred to, 141 succession, among Hindus, no law for, 125, 127, 128 Oriental systems of, their confu.sion, 129 et seq.; among Hebrews and Oriental nations, conflicts between chiefs and 132
;
Wars
and
'
illus-
Rumspy,
to,
Mahomreferred
'
Ruth, Book
'
INDEX.
SALIC
401
'
Stubbs, Professor, his Constitutional History' referred to, 176 Succession, collateral, on the Continent and among ancient and modern
Hindu.s, 111, 112, 113; Hindu law of referred to, 22 Sunis, tiie, meaning of, 175 referred
;
Book
of,
quoted. Note A,
See Penances Sanction, the. Sapinda, the. See 112 w. Bride of LamScott, Sir Walter, his his mermoor referred to, 321 'Kenil worth' referred to, 181 the Manor Scrope, Mr., his History of of Castle Combe' quoted, 315 See Lord of the Manor Seigneur, the. Senates, the ancient, referred to, 25 Settlement, Act of, referred to, 142 Shakespeare, his play of Henry V.' referred to, 143 Shintoism, system of, alluded to, 60 Shire Courts, the, alluded to, 169, 189 Shradda, the, daily offering of, 57 Siculus, Diodorus, referred to, 115 n. See Court Baron Siguorial Court, the. uterine, marriage system of, Si.sier, described, 105 Slavonijin provinces, rise of feudalism
' '
the, referred
to,
TAINE,
'
'
M., his 'L'Anarchie Spontanee referred to, 295 his La Revolution referred to, 296 n. his
' ' ;
'
'
Origins of Contemporary France referred to, 293 Tanistry, system of, referred to, 137, 145, 342, 349 Territorial sovereignty, unpopularity of in Central India, 277 Theft, prominent place assigned to it in early Roman and Prankish legal
classifications, reasons for, 374 Thingman,' the, described, 170 Thuuginus. See Thingman
'
'
among, 265, 266 Socage, tenure by, referred to, 341 theory of deSociety, Patriai'chal scribed, 193, 196 et seq.; origin of, Patriarchal theory to be adopted,
215, 219 Sons, artificial, creation of, absence of in modern India, 117; consequences of dissatisfaction with, 117 Sophocles, his 'Ajax' compared with Zend Avesta, 65 n. Souls, transmigration of, referred to, 33 et seq. South Slavonians, their distinction between agnatic and cognatic relationships, and their respect for old age, 243; position of women among as to marriage and property, 253 et ieq. Spencer, Mr. Herbert, his 'Principles of Sociology quoted, 68 Spenser, Edmund, his observations on Ireland referred to, 180, 181 Stanley, English House of, referred to,
'
Tocqueville, De, liis observations referred to, 314; his theory of the peasant hostility *^o the French nobility referred to, 376 Tod, Colonel, his Rajasthan ' referred
'
269 Totem, the. Note A, 286 Totemism, practice of referred to, 200 Tapper, Mr. C. L., his Punjab Custoto,
'
quoted. 8 Tylor, Mr. E. B., his 'Primitive Culture alluded to, 54 ; quoted, 55, 62
'
mary Law
'
UNIVERSE,
'
Hindu conception of described, 82 et seq. Use of the Law,' tract upon quoted, 300, 301; erroneous account given in of the origin of Manors and Copyhold tenures, 299 et seq.
of,
Usucaption, law
VARRO,
his
'
De Lingua Latin^
of,
referred
to,
quoted, Note A, 283 Vashishtha, Book of, referred to, 1 Verse, as determining dates of Ancient Law Books, 9, 10 Villa the, use of the word by Ger'
'
D D
402
ronnic Ir^al
S.li,rt.
IMtKX.
ZTTRirn
ilntA.Hnii>n,
nnd
in
I.
ex
NUK
iho.
A. 33'J
tin
of, reforrcil
Villn-.'
iitiilrmtotHi
:\:\'i
niiionp
HoiimiiH. Notf. A.
Vill;^<'
W(<Mt and lliihh'r, McsHrH., ihoir rolVrrccj to, (jeHl of Ilintiii i/iiw
'
Hi1
//.
cxiHtfUco rnmoni; North SlavoniHim, 241 (wmd to. 327. Not* A, 3J<. rt i>fq. Villoina, tlic, tloM'riptiun uml (afuH of,
(.'oniniiuiiiy,
Uio,
its
Wheel,
.'id
Women,
propitrty
1(11);
of,
iiceordiiif!;
lo
(iiiut.'imii.
.SO.S
Vi.ilinu.
to,
11,
3-J,
fit,
ArOUNd. ARTHUIl,
J3,
17.
referred
to,
307, 321
for
the
Lex
ZUIIIOH, Land
tion of,
Registry
of,
descrip-
^ica
363
el seq.
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