BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF iientrg M. Sag* 1891 .A.i%%%^^ ' f4^'M MAR 2 8 2004 DEC 1 6 1950 T^ I 9 inog Cornell University Library JC21.M22 D6 1901 Dissertations on early law and custom / olin 3 1924 030 429 322 g^ M Cornell University 'SB hj Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030429322 EAELY LAW AND CUSTOM WORKS BT TSE SAME AUTSOR. I. ANCIENT LAW : its Connection with thb^aelt HisTOEY OF Society, and its Eblation to Modbbn Ideas. 8to. 9<. 11. LECTURES ON THE EAELY HISTORY OF INSTITUTIONS, in continuation of the above WOBK. 8vo._9«. III. VILLAGE COMMUNITIES jilN THE BAST AND WfiBT. 8vo. 9». IV. POPULAR GOVERNMENT. I. Peospects op POPULAK GrOVBKNMENT. II. NATURE OF DBMOCEACY. III. Age of Pbogbess. IV. Constitution of the United States. 8vo. It. 6d. V. INTERNATIONAL LAW. f 8vo. 7s. 6d. DISSERTATIONS ON EARLY LAW AND CUSTOM BY SIE HBNEY SUMNEE MAINE, K.C.S.I. LL.D. F.E.S. AUTHOR OF 'ANCIENT LAW' *VILI,AGB-COMMUNITIEa IN THE BAST AND "WEST* BTC. BOREIGN ASSOCIATE MEMBER OF THE INSTITUTE OF FRAHOB NEW IMPBESSIOK LONDON JOHN MUEEAY, ALBEMARLE STEEET 1901 T An ^. \?,'i.oiL4.' PRINTED BY SFOTTISWOODE AND CO. LTD., NEW-STREET SQUARE LONDON PREFACE. Two COURSES of lectures, delivered by the Author while he had the honour of holding the Corpus Professorship of Jurisprudence in the University of Oxford, have been already published with the titles * Village- Communities in the East and West,' and ' The Early History of Institutions.' The substance of the present volume was originally contained in lectures which formed part of various other courses given by him at Oxford ; but in some cases the form has been materially altered. The Author continues in these pages the line of investigation which he has followed in former works. He endeavours to connect a portion of existing institutions with a part of the primitive or very ancient usages of mankind, and of the ideas asso- ciated with these usages. In his first four chapters he attempts, with the help of the invaluable series [6 J PEEFACE. of ' Sacred Books of the East,' translated under the superintendence of Professor Max Miiller, to throw some light on that close implication of early law wilii ancient religion which meets the inquirer on the threshold of the legal systems of several societies which have contributed greatly to modem civili- sation. In the chapters which foUow, he treats of another influence which has acted strongly on early law, the authority of the King. In the later por- tions of the book he examines certain forms of pro- perty and tenure, and certain legal conceptions and legal classifications, which have survived to our day, but which appear to have had their origin in remote antiquity. In a few words at the commencement of his Seventh Chapter, the writer has explained his reasons for prefixing to his later chapters a discussion of some ' Theories of Primitive Society.' The substance of Chapters V., YL, IX., and XI. has already appeared in the ' Fortnightly Review,' and the bulk of Chapter VIII. in the ' Nineteenth Century ; ' and the Author has to express his thanks to the proprietors of those periodicals for their per- mission to republish his contributions. CONTENTS. OBAFTRB VAGB I. Thb Sacreb Laws op the Htudtis .... 1 n. BELiaioiir AND Law 26 III. AircESiOB-WoBSHip 62 IV. AWOESTOE-WOBSHIP AlTD IlTSEBIIAirCE . . . . 78 V. KoxAi SuccBBsioir aub the Samo Law . . .125 VI. The Kino, is his eelatiow to Eaklt Oiriii Jtstice . 160 Vn. Theobibb of Primitive Society 192 Vni. East Ettropeaw House OoinnimiTiBS . . . . 232 IX. The Decay op Fbubax Pkopbrty in France aitd Engiand 291 X. Olasshtcations op Property 335 XI, ClABSIPICATIONS of LEOAL BtFLSS .... 362 INDEX S93 EAELY LAW AND CUSTOM. CHAPTER I. THE SACKED LAWS OF THE HINDUS. The study of the sacred languages of India, which has given to the world the modern science of Philo- logy and the modern theory of Race, began virtually in the study of sacred Indian law. Sir William Jones, who, though he was not absolutely the earliest of Anglo-Indian Sanscritists, was the first to teach the West that there was in the East such a language as Sanscrit, and a literature preserved in it, does not appear duiing his Oriental studies in England to have suspected the existence of the treasure he was destined to disinter. He seems rather to have sought the key to Eastern knowledge in two spoken and highly- cultivated languages — Arabic and Persian. But he accepted a Judgeship in a Court of Justice newly esta- blished in Bengal, under an Act of Parliament which reserved to native litigants the application of their own laws and usages in aU questions of inheritance B 2 THE SACRED LAWS OF THE HIITOUS. chap. r. and contract ; and, from a much earlier period, it had been the practice of all the Indian Courts to attach to themselves Moolvies and Pundits — that is, native professors of Mahommedan and Hindu law — ^for the purpose of advising them on the legal rules, of which these experts represented themselves to be the deposi- taries. The correspondence of Sir WUliam Jones re- peatedly expresses his suspicions (perhaps not always quite just) of the fidehty and honesty of the native advisers of the tribunals. ' I can no longer bear,' he writes in September 1785, 'to be at the mercy of our Pundits, who deal out Hindu law as they please, and make it at reasonable rates when they cannot find it ready made.' He therefore formed a determination to acquaint himself personally with the sources of the law from which they pretended to draw their opinions. With Arabic he was already famUiar, and he therefore required no assistance in his studies of Mahommedan law ; but for the purpose of mastering the virtually unknown language in which the Hindu law was contained, he found it necessary to visit during his vacations several of the decaying and decayed seats of learning in which knowledge of it was still pro- fessed, and he organised a staff of Hindu scholars to aid him in his Sanscrit studies, and to record their results. The plan for improving the administration of Anglo-Indian justice which finally commended itself to him was one for the preparation of a Digest CHAP. I. THE SACRED LAWS OF THE HINDUS. 3 in English of Hindu and Mahommedan law, whicli should need no Pundits or Moolvies for its interpreta- tion. Much to their honour, the Indian Government of the day, formed of Lord Comwallis and his Council, accepted his offer to preside over the undertaking, and his staff of native experts, considerably increased, was taken into the Grovernment service. On his monument by Flaxman, in the chapel of University CoUege at Oxford, he sits surrounded by his company of native literates, amid conventional Indian foliage, bareheaded, in the open air. It was in fact from these native Hindu teachers that Sir WUliam Jones learned, and the learned and curious aU over the West were gradually informed, that in a part of the world just coming under the British sceptre there existed an ancient language, the elder sister of the classical languages so honoured in the West, a series of poems which might not unjustly be compared to the Homeric epics and the Attic drama, and laws twice as old as the legislation of Solon and the Twelve Tables of Rome. It is impossible now — now that India has become more commonplace as she has got nearer ; now that, here at all events, she is associated with frontier wars, budgets, opium, aind grey shirtings — ^to reproduce the keen throb of intel- lectual interest which the literary portioil of these discoveries sent through Europe. But Sir William Jones was even more of a jurist than a scholar, and B 2 4 THE SACRED LAWS OP THE HINDUS. chap. i. nothing seems to have surprised and interested him more than the assurance of his teachers that, in the ancient language he was learning, there survived legal writings asserted to be of sacred origin, of vast an- tiquity, and of universal obligation among Hindus. The oldest of them was said to have been dictated by Manu, a divine being who had been mysteriously asso- ciated with the creation of all things ; and it was de ■ scribed as the acknowledged basis of all Hindu law and Hindu institutions, the fountain of all civil obligation to more than a hundred millions of men. The book was actually extant, and the translation of it which he gave to the world, with the title ' Institutes of Hindu Law, or the Ordinances of Menu, according to the Gloss of CuUiica,' was the first-fruits of his labours on the Digest which he had planned. He seems, in fact, to have regarded it as standing to this projected Digest much in the same relation as the Roman Institutes to the celebrated Digest of the Emperor Justinian. It does not seem to me possible to doubt that the account which Sir William Jones gave of the Book of Manu in his Preface to his translation was a rationalised version of the statements made to him by his native teachers, who seem all to have belonged to one particular school of Hindu learning, accus- tomed to hold Manu in especial honour. Sir William Jones considered this personage, who, in the treatise CHAP. I. THE SACRED LAWS OF THE HINDUS. 5 called after him, sits ' reclining on his arm, with his attention fixed on one object, the supreme God,' as a real individual human being, and the personal author of the legislation attributed to him. Sir William Jones compares him to the Cretan Minos and the Egyptian Men, partly on account of the con- sonance of names. As I have just stated, he sees an analogy in this law-book to the Institutes of the Eoman Justinian, but he assigns to it the prodigious date of 1,280 years before Christ. In the light of newer knowledge, which nevertheless might not have existed but for Jones, we can see that these statements of his require correction. There is no doubt that, if Manu is to be compared to a book known to Englishmen, it should have been to a book a good deal more familiar to them than the Roman Institutes, the book of Leviticus, For Manu, though it contains a good deal of law, is essentially a book of ritual, of priestly duty and feligious observance ; and to this combination of law with rehgion the whole family of Hindu writings, to which the book of Manu belongs, owe some remarkable characteristics on which I am desirous of dwelling. It is not at the same time to be supposed that the combination is peculiar to the Hindus. There is no system of recorded law, Kterally from China to Peru, which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance. The law of the Romans has 6 THE SACRED LAWS OF THE HI]!fDUS. chap. r. been thouglit to be that in wHch the civil and Pontifi- cal jurisprudence were earliest and most completely disentangled. Yet tbe meagre extant fi-agments of the Twelve Tables of Rome contain rules which are plainly religious or ritualistic : — Thou shalt not square a funeral pile with an adze. Let not women tear their cheeks at a funeral. Thou shalt not put gold on a corpse. We are told by Cicero (' De Legibus,' 2, 25, 64) that several of these rules contained in the Tenth of the Roman Tables were taken from Greek originals. He attributes the Greek rules to Solon, and explains that they hmited the costHness of the ancient ritual of funerals. The opinions of Sir William Jones produced great effects both in the East and in the West. One result which followed from them I must pass by with notice very unequal to its practical importance. The Anglo- Indian Courts accepted from the school of Sanscritists which he founded the assertion of his Brahmanical advisers, that the sacred laws beginning in the extant book of Manu were acknowledged by aU Hindus to be binding on them. The impression in the mind of the English judicial officers — an impression shared, I infer from its language, by the English Parliament — manifestly was that the sacerdotal Hindu law corre- sponded nearly to the English Common Law, and was at least the substructure of all the rules of life followed CHAP. I. THE SACRED LAWS OF THE HINDUS. 7 by Hindus. It is only just beginning to be perceive4 that this opinion had a very slender foundation, for it is probable that at the end of the last century large masses of the Hindu population had not so much as heard of Manu,^ and knew little or nothing of the legal rules supposed to rest ultimately on his authority. The original range of operation which it is possible to allow to the sacerdotal laws has been much narrowed by very recent investigation. Some years ago, on my return from India, I stated in a book on ' VUlage Communities in the East and West ' (pp. 52, 53) the opinion which I had formed after personal inquiry among Indian judicial officers. ' The conclusion,' I said, ' arrived at by the persons who seem to me of highest authority is, first, that the codified law — Manu and his glossators — embraced originally a much smaller body of usage than had been imagined ; and next, that the customary rules, reduced to writing, have been very greatly altered by Brahmanical expositors, constantly in spirit, sometimes in tenor. Indian law may in fact be affirmed to consist of a very great number of local bodies of usage, and of one set of customs, reduced to writing, pretending to a diviner authority than the rest, exercising con- sequently a great influence over them, and tending, ' A high authority informs me that there are few, if any, re- ferences to Manu in the Sanscrit literature other than the legal treatises. These last quote a ' Manu,' but the writings quoted under that name are not those now extant. 8 THE SACKED LAWS OF THE HINDUS. CHAP. r. if not checked, to absorb tbem.' Since then, my con- clusion has been greatly fortified by more systematic examination of the phenomena. There is in India a province, the Punjab, the country of the Five Rivers, which was the earliest seat of the Aryan Hindus on their descent from their original home into the Indian plains. The laws and institutions of this province have quite lately been the subject of an exhaustive official inquiry (' Punjab Customary Law,' edited by C. L. Tupper, Calcutta, 1881). Among several results of great interest which seem to me to have been reached, one is that we have in the Punjab the Hindu institutions very much in the state in which they were before the Brahmanical expositors took them in hand. The traces of the religious ideas which profoundly influenced the development of what is known as the Hindu law are here extremely slight ; and few things can be more instructive to the legal archseologist than the comparison of the Punjab rules with those worked out in Brahmanical schools far to the south-east. This Punjab Hindu law ex- hibits in fact some singularly close resemblances to the most ancient Roman law. There is also evidence that the stream of Hinduism which at some time or another flowed over the southern peninsula of India was extremely superficial.^ The southern Hindu has ' Much attention is deserved by the two works of Mr. J. H. Nelson, A View of the Hindu Law as administered by the High CHAP. I. THE SACRED LAWS OF THE HINDITS. 9 always been regarded as a lax Hindu ; but the truth, seems to be, not that he negligently violates the Hindu sacerdotal law, but that neither he nor his forefathers ever knew it in anything like its integrity. Some other views, which are not now accepted by the most learned Sanscritists, had their origin in the theories first propounded in Sir WUliam Jones's preface. The probable antiquity of Manu's law- book was much exaggerated. Its true date is un- known : in Indian Hterary history there are almost no trustworthy dates : but it is now believed to be relatively modern — almost the most modern of a large family of Sanscrit writings more or less treating of law. This opinion is the result of a test first applied by Professor Max Mliller, and now univer- sally accepted by Sanscritists as conclusive. The law-book of Manu is in verse, and Verse is one of the expedients for lessening the burden which the memory has to bear when writing is unknown or very little used. But there is another expedient which serves the same object. This is Aphorism or Proverb. Even now, in our own country, much of popular wisdom is preserved either in old rhymes or in old proverbs ; and it is well ascertained that Court of Madras, and The Scientific Study of the Bi/ndu Law, par- ticularly the first. There may be a question whether the practical evils pointed out in these books are now remediable, or, if they are remediable, by what methods they should be removed : but of their existence I do not think there can be any reasonable doubt. 10 THE SACRED LAWS OF THE HINDUS. ch4P. r. during the Middle Ages much of law and not a little of medicine was preserved among professions, not necessarily clerkly, by these two agencies. A great deal of old German law compressed into maxims has been preserved, and it is probable that the Latin legal maxims well known to English lawyers, and some- times spoken of as the quintessence of wisdom, were really aids to recollection. As to Verse, the ordinary medical practitioner once carried his professional knowledge with him in the versified Latin rules of the school of Salerno — that curious body of medical precepts which begins with the grim warning, ' con- tra vim mortis non est medicamen in hortis.'' In Sir William Jones's day, an abridgment of Lord Coke's ' Reports ' in verse was in existence ; and he gravely remarks that, if the verse had been smoother and the law more accurate, every student might have been advised to use it. Now, the Sanscrit law-books are sometimes in aphoristic prose, sometimes in verse, sometimes in a mixture of both ; and the canon established by Max Miiller is that, in India at all events, books of aphorisms are older than books of verse ; and the clue being once found, many more proofs disclose themselves that Manu, which is wholly in verse, is much more recent than the Hindu law-books (such as Apastamba and Gautama,* ' Apastamba and Gautama are translated in vol. ii. of Majc Miiller's Scuyred Books of the East, Vasishtha in vol. ix., Baud- CHAP. I. THE SACKED LAWS OF THE HINDUS. 11 wJiich are wholly in aphoristic prose), and even more modern than books (like Vishnu and Vasishtha*) which are partly in prose and partly ia verse. ' In the whole of Vedic (that is Hiadu scriptural) litera- ture,' says Max Miiller, 'there is no work written, like Manu, in the regular epic sloka, and the con- tinuous employment of this metre is a characteristic mark of post- Vedic writiugs.' Manu, therefore, ia spite of its great modem reputation, belongs to the Hindu Apocrypha. Nor is it believed that we have the book ia its origiaal form. Dr. Jolly (preface to Vishnu) speaks of the ' abundant evidence ' for its haviag undergone modifications and entire trans- formations ia successive periods. The result of all this literary investigation and discussion is, that no book has had so many dates attributed to it as the book of Manu. Sir W. Jones placed its age at 1280 B.C., Schlegel at 1000 B.C., Elphinstone at 900 B.C., Monier Williams at about the fifth century B.C., Max Miiller at not earlier than 200 B.C. But the high authority of the late Dr. Burnell is now cited for so late an age of the origiaal book as 400 a.d., and it has even been attributed in hiyaaa in the same volume, and his most important chapters in West and Biihler's Digest of Hindu Law. This 'writer is 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. Buhler's Introduction. Vishnu is translated by Jolly in vol. v. of the Sacred Boohs. * Ibid. 12 THE SACKED LAWS OF THE HINDUS. chap. r. its present form either to the eleventh or the four- teenth century of our era. (See Nelson, ' Scientific Study of Hindu Law,' p. 37.) It is as though it were thought doubtful whether a particular work were composed at the fabulous date of the Taking of Troy, or at the historical date of the Battle of Bannockburn. The book itself, however, purports to be coeval with the creation of the world, and I suppose that a Hindu holding the opinions now considered orthodox would be bound to claim for it an indefinitely high antiquity. At the same time, its audacious pretension to be of divine origin is out- done in some of the writings now shown to be older, for the so-called Code of Vishnu professes to have been dictated by one of the Persons of the Hindu Trinity to the Goddess of the Earth. When this sacred legal literature of the Hindus is surveyed in its entirety, it is impossible not to recog- nise the plausibility of the modern theories of its origin. No one treatise, and still less the aggregate of treatises, is the production of an individual man or of an individual mind. The literature is the gradual growth of schools of learned Brahmans, which are still found in India. They are companies or cor- porations of men devote'd to sacred learning. Per- haps the nearest analogy to their work is to be found in the labours of the Benedictines. But the com- parison must not be pushed too far. The conception CHAP. I. THE SACRED LAWS OF THE HINDUS. 13 of a celibate order appears to have been unknown to the early Hindus. Each school was either in its begionitig an actual family, or, if originally it was a mere collection of voluntary pupils sitting at the feet of a teacher, it tended to shape itself upon the model of the family, as the only known form of permanent association. The distinction between one school and another probably consisted in the particular set of authorities (as it would now be, the particular stand- ard books) which it followed ; and, as it went on from generation to generation, it was recruited partly by voluntary adherence and partly by hereditary descent. The double process is clearly reflected in the text of one of our oldest authorities, Apastamba. The student desirous of being initiated into sacred learning is to go to a man 'in whose family it is hereditary, who himself possesses it, and who is devout in following the law ' (Apastamba, i. i. 1. 11). On the other hand, the pupil is directed to consider the teachers of his teacher as his ancestors (Apastamba, i. i. 7. 12). This view of the relation of teacher and pupil has by no means died out in India. The Hindus still regard ' a school consisting of a succession of teachers and pupils as a spiritual family ' (Dr. Biihler, loc. cit.) And according to the letter of the law recognised by the Indian Courts, though not perhaps according to the actual practice, teacher and pupil stUl inherit from one another, just 14 THE SACRED LAWS OP THE HINDUS. chap. l. as they did in the remote days of Apastamba, who lays down that, on failure of the nearer kinsmen, ' the spiritual teacher inherits, and in failure of the spiritual teacher a pupil shall take the deceased's wealth, and use it for religious works for the deceased's benefit, or he may himself enjoy it ' (ii. vi. 14. 3). There are analogies to this sacredness and strict- ness of literary relations in the literary history of two societies with little or no intellectual likeness to the Hindus. Mr. Grote's theory of the Homeric poetry, taken ia a mass (ii. 176-178), is that it was the aggregate production, not of one man, but of a gens or clan of Homeridae, of whom Homer was the name- giving ancestor, real or supposed, the ' divine or semi-divine eponymus or progenitor, in whose name and glory the individuality of every member of the geTis was merged.' ' Homer is no individual, but the divine or heroic father of the Homerids, the ideas of worship and ancestry, coalescing, as they con- stantly did, in the Grecian mind.' A stiU. nearer analogy is one which, like many others, occurs in the ancient legal literature of the Irish. ' Literary foster- age,' I wrote in a former work ('Early History of Institutions,' p. 242), ' was an institution nearly con- nected with the existence of the Brehon law schools and it consisted of the various relations established between the Brehon teacher and the pupils he received into his house for instruction in the Brehon lore. OHAP. I. THE SACRED LAWS OF THE HINDUS. 15 However it may surprise us that the connection between Schoolmaster and PupU was regarded as peculiarly sacred by the ancient Irish and as closely resembling natural fatherhood, the Brehon tracts leave no room for doubt on the point. It is expressly laid down * that it created the same Patria Potestas as actual paternity ; and the literary foster-father, though he teaches gratuitously, has a claim through life upon portions of the property of the literary foster- son. Thus the Brehon with his pupils constituted, not a school in our sense, but a true family. While the ordinary foster-father was bound by the law to give education of some kind to his foster-children — to the sons of Chiefs instruction in riding, shooting with the bow, swimming, and chess-playing, and instruction to their daughters in sewing, cutting out, and embroidery — the Brehon trained his foster- sons in learning of the highest dignity, the lore of the chief literary profession. He took payment, but it was the law which settled it for him. It was part of his status, and not the result of a bargain.' On the whole, few literary theories of modern mintage have more to recommend them than that which Professor Max Muller first gave of the large * The literary foster-father has the poTirer of pronouncing judgment and proof and witneas upon the foster-pupil, as has the father upon the son, and the Church upon her tenant of ecclesias- tical lands {Ancient Laws uf Ireland, n. 349). 1 6 THE SACEED LAWS OF THE HINDUS. chap. J. extant body of Hindu sacerdotal legal writings. They were gradually evolved by Brabmanic families, real or artificial. ' The great number of these writ- ings,' he says in his letter, first printed in Morley's Digest," 'is to be accounted for by the fact that there was not one body of Kalpa- Sutras binding on all Brahmanic families, but that different old fami- lies had their own Kalpa- Sutras. These works are still very fi'equent in our libraries, yet there is no doubt that many of them have been lost. Sutras are quoted which do not exist in Europe, and the loss of some is acknowledged by the Brahmans themselves.' As regards the Manava Dharma Shastra, the Manu translated by Sir "William Jones and asserted by his native teachers to be the basis of all sacred Hindu law, it is a late redaction of the legal doctrine of the Manavas, a gens or clan called after a Manu fre- quently mentioned in Sanscrit literature, but men- tioned by the writer of the extant book as somebody diffierent from himself. If the old Manu ever com- posed a law-book (which is doubtful), it would certainly not have been composed in the metre of the extant code. The theory upon which these schools of learned men worked, from the ancient, perhaps very ancient, Apastamba and Gautama to the late Manu and the * Now to be read at p. 1 of the Introduction to Apastamba, in vol. ii. of the Sacred Books. CHAP. r. THE SACRED LAWS OF THE HINDUS. 17 still later Narada, is perhaps stiU held by some per- sons of earnest religious convictions, but in time now buried it affected every walk of thought. The fun- damental assumption is, that a sacred or inspired literature being once believed to exist, all knowledge is contained in it. The Hindu way of putting it was, and is, not simply that the Scripture is true, but that everything which is true is contained in the Scripture. From very early times, the Hindu doctors appear to have been conscious of difficulties in the interpre- tation or application of their theory. Sometimes books of authority contradicted one another. Some- times they failed to supply a basis for received doctrines or for immemorial religious practice. One of the earliest of expedients was to suppose the loss of passages in the most ancient portion of the Scriptures. ' If you ask,' says Apastamba, ' why the decision of the Aryas presupposes the existence of a Vedic passage, then I answer, All precepts were originally t aught in the Brahmanas, but these texts have been lost. Their former existence may, however, be inferred fi-om usage. It is not, however, per- missible to infer the former existence of a Vedic passage where pleasure is obtained by following the custom ; he who follows such usage becomes fit for Hell ' (i. iv. 12. 10). With the aid of such expedients, of which several are still in use among learned Hindus, the theory has survived ; and it is to be observed that c 18 THE SACKED LAWS OF THE HINDUS. chap. i. such a theory, firmly held during the infancy of syste- matic thought, tends to work itself into fact. As the human mind advances, accumulating observation and accumulating reflection, nascent philosophy and dawning science are read into the sacred literature, while they are at the same time hmited by the ruling ideas of its priestly authors. But as the mass of this literature grows through the additions made to it by successive expositors, it gradually specialises itself, and subjects, at first mixed together under vague general conceptions, become separated irom one another and isolated. In the history of Law the most important early specialisation is that which separates what a man ought to do from what he ought to know. A great part of the religious litera- ture, including the Creation of the Universe, the structure of Heaven, Hell, and the World or Worlds, and the nature of the Gods, falls under the last head, what a man ought to know. Law-books first appear as a subdivision of the first branch, what a man should do. Thus the most ancient books of this class are short manuals of conduct for an Aryan Hindu who would lead a perfect life. They contain much more ritual than law, a great deal more about the impurity caused by touching impure things than about crime, a great deal more about penances than about punishments. They are intended to guide the faithful Hindu of the three higher castes fi-om birth to death, CHAP. I. THB SACRED LAWS OF THE HaT)US. 19 and give Mm full directions for living first as ^a student of holy books, next as a householder (or, as we should say, a citizen), and finally — ^for that is assumed to be the proper lot of every man in old age — as a religious ascetic or a hermit/ This remarkable distribution of life runs through the whole series of sacred legal writings, and only disappears when they become mere law-books. The Brahman alone teaches, but the entire youth of the three higher castes, Brahmans, Eshatriyas, and Vaisyas, come and sit at his feet to be instructed in sacred learning ; it is not even certain from some passages whether the lowest and most despised of castes, the Sudras, are always excluded. This is the period of Studentship. When it comes to an end, the instructed Hindu returns to his family and to civil affairs. He is then the Householder. But, when old age is beginning, it is assumed in these books (whatever may have been the actual practice) that he withdraws from active life and closes his days as a Hermit or Ascetic, following a code of self-denial which is prescribed for him in full detail. It is of course to the second of these periods, that of life as a Householder, that we must look for whatever hght the sacred laws of the Hindus may throw upon the ancient ' The Student, who had completed his novitiate, might at any time become an Ascetic, but the regular course of life is that in- dicated in the text. n 2 20 THE SACEED LAWS OF THE HINDUS. chap. r. history of law. The first of them, Studentship, is remarkable, as disclosing the true secret of the hold of the sacred literature on large portions of the Hindu race, and of the respect paid by it to the teachers of the race, the Brahmans. For the education of the young Hindu is not merely an education in the holy texts and doctrines; it is a training in reverence, almost amounting to, abject servility, bestowed on the litera- ture and its professors in about equal proportions and inculcated by a system of rules adapted with extreme skill to immature minds. The third period, however, that of Asceticism, is the one which on the whole seems most unintelligible to the modem reader of these books, and it merits some special attention before this chapter is closed. The duty of adopting the ascetic life, and the rules for following it, referred to in all the law tracts, are discussed at much length by Manu in the sixth chapter. ' Having thus remained,' it is written, ' in the order of Householders, let the twice-born man (" twice-born," that is, through the study of the Vedas), who has before completed his studentship, dwell in a forest, his faith being firm and his organs whoUy subdued. When the father of a family perceives his muscles become flaccid and his hair grey, and sees the child of his child, let him then take refuge in a forest. Abandoning all food eaten in towns, and all his household utensils, let him repair to the lonely wood, committing the care of his wife CHIT. I. THE SACEED LAWS OF THE HINDUS. 21 to bis sons, or accompanied by her, if she choose to attend him . , . Let him be constantly engaged in reading the Vedas, patient of all extremities . . . Let him bear a reproachful speech with patience ; let him not, on account of this frail and feverish body, engage in hostility with any one living. With an angry man let him not in his turn be angry ; abused, let him speak mildly ; nor let him utter a word referring to vaia Ulusory things . . . Delighted with meditating on the Supreme Spirit, sitting fixed in such meditation, without needing anything earthly, without any companion but his own soul, let him live in this world, seeking the bliss of the next . . . A gourd, a wooden bowl, an earthen dish, or a basket made of reeds, has Manu, son of the Self-existent, declared fit vessels to receive the food of men devoted to God.' It is stUl a comparatively common practice in India for the aged Hindu to retire into ' religion,' and the law, as administered by the British tribunals, makes provision in many places for the case of a Hindu who has embraced a religious hfe, and ceased to participate in any kind of secular business. There is nothing by itself surprising in the custom, consider- ing the tremendous series of experiences which the devout believer in Hinduism is led to expect as await- ing him at the moment of his death. Nevertheless, there is reason for thinking that the withdrawal of the 22 THE SACEED LAWS OP THE HINDUS. chap. L aged from activity is more ancient than the Hindu theological system, and has existed independently of it, as a secular practice, in many early societies. The Patria Potestas, which is witnessed to by the ancient law or custom of so many communities, was founded on power quite as much as on parentage ; and when the power fails, there are many signs that the patri- archal authority departs. In the Hindu law of Succession, death is not by any means necessarily the occasion of inheritance ; the contiagency quite as commonly contemplated is withdrawal from secular life ; the householder quitting his family and dividiug his substance among his children — nay, being even liable (though this is a violently disputed point) to be forced into retirement by his sons. There is some evidence, moreover, that, when the larger asso- ciations of Hindu kindred, the Joint Families, were in a more ancient state than that in which we see them, they recognised three classes of persons as entirely helpless and therefore dependent on the group at large ; the children, the unmarried daughters and widows, ,and the old men. The ' seniors ' not in- frequently mentioned in the Irish Brehon law, and stated to be persons for whom the sept must make provision, are no doubt aged men. There is reason, in fact, to believe that at some period of human history a revolution took place in the status of aged men, not perhaps unlike that which is CHAP. I. THE SACRED LAWS OF THE HINDUS. 23 still proceeding in the case of women. There is abundant testimony that tribes, long pressed hard by enemies or generally in straits for subsistence, system- atically put their members to death when too old for labour or arms. The place from which a wild Slavonic race compelled their old men to leap into the sea is still shown. And the fiercer savage has often in many parts of the world made food of them. Nevertheless, the ancient records of many communities, especially those of Aryan speech, show us old age irivested with the highest authority and dignity. Mr. Free- man (in his ' Comparative Politics,' pp. 72, 73) has given a long list of honorific names belonging to classes or institutions, which indicate the value once set by advancing societies on the judgment of the old. Among them are, Senate, yepova-ia (the Spartan Senate), Sr/iioyepovres (its Homeric equivalent), irpecr- ;8eis (Ambassadors), Ealdorman, Elder, Presbyter, Monseigneur, Seigneur, Sire, Sir, and Sheikh ; and Mr. Freeman closes with the Old Man of the Mountain. So gieat a number of titles, civil and ecclesiastical, are evidence of a very strong sentiment, and suggest that this exaltation of old age was a definite stage in the ascent to civilisation. There is a story of a New Zealand chief who, questioned as to the fortunes of a fellow-tribesman long ago well known to the enquirer, answered, ' He gave us so much good advice that we put him 24 THE SACRED LAWS 01" THE HINDUS. catp. r. mercifully to death.' The reply, if it was ever given, combines the two views which barbarous men appear to have taken at different times of the aged. At first they are useless, burdensome, and importunate, and they fare accordingly. But at a later period a new sense of the value of wisdom and counsel raises them to the highest honour. Their long life comes to be recognised as one way of preserving experience. The faculty of speech, which separates man from the brute, and the art of writing, by which the society capable of civilisation is distingiiished fi:om the society condemned to permanent barbarism, are simply methods by which experience is enlarged, compared, and transmitted, and by which mankind is enabled to have more of it than is contained in single separate lives. Yet the individual life is always the original source of experience, and at some time or other it must have been perceived that the more the individual life was prolonged, the larger was its contribution to the general stock. This seems the best explanation of the vast authority which, in the infancy of civilisation, was assigned to assemblies of aged men, independently of their physical power or military prowess. It probably sprang up among communities which had no writings to learn fi:om, and who were conscious that the . importance of the arts which were necessary for their very existence was out of all proportion to the average shortness of CHAP. I. THE SACRED LAWS OF THE HINDUS. 25 life. Almost everywliere in the advancing portions of the ancient world we find that the old, generally- organised in assemblies, had a large share of the public powers, and there is a survival of these ideas in the minimum limit of age which has been made the condition of a seat in the artificial Second Chambers which have been constructed over most of the civil- ised West as supposed counterparts of the English House of Lords, But these modern Second Chambers reverse to a great extent the functions of the ancient assemblies, known, from their names and otherwise, to have originally consisted of old men. The Second Chamber is nowadays assumed to have a veto in the legislation of the Chamber which has the initiative ; but the ancient Senates, in their primitive condition at all events, decided beforehand what measures should be submitted to the Popular Assembly, and if they legislated themselves, their enactments had reference to special departments of State, such as religion and finance. On the whole, they were rather admioistrative than legislative bodies. The nearest analogy to the very important control over the law- makiag power which they once possessed, must be sought in the indefinite but most real and efiective authority which an English Cabinet enjoys through its virtual monopoly of the initiative in legislation. 26 BELIGION AND LAW. ckap. ri. CHAPTER II. RELIGION AND LAW. The most ancient of the books containing the sacred laws of the Hindus appear to me to throw little light on the absolute origin of law . Some system of actual observance, some system of custom or usage, must lie behind them ; and it is a very plausible conjecture that it was not unlike the existing veiy imperfectly eacerdotalised customary law of the Hindus in the Punjab. But what they do show is, if not the beginning of law, the beginning of lawyers. They enable us to see how law was first regarded, as a definite subject of thought, by a special learned class ; and this class consisted of lawyers who were first of all priests. There are signs of the ancient identity of the two professions in the earliest recorded usages of several races, Celts, Romans, and Greeks. Nobody, for example, will understand the ancient Roman lawyer, with that obstinate adherence of his to texts which has characterised his profession during so many centuries, and that method of stating his facts in CHAP. II. RELIGION AND LAW. 27 inflexible formulas which has only just died out in this country, unless it is realised that the jurisconsult sprang from the pontiff or priest. AU through the Middle Ages the lawyer who was avowedly a priest held his own against the lawyer who professed to be a layman ; and ours is the only country in which, owing to the peculiar turn of our legal history, it is difficult to see that, on the whole, the canonist exer- cised as much influence on the course of legal develop- ment as the legist or civilian. If the Roman Empire had merely transmitted its administrative system to Western Europe, and if it had not bequeathed to it a coherent body of codified secular law making con- siderable approach to completeness, it is very doubtful whether the general law of the West would not even now reflect a particular set of religious ideas as dis- tinctly as the Hindu law reflects the sacerdotal con- ceptions of the Brahmans. It is necessary, first of all, to observe how the priestly character of the Brahmanical authors of the law-books affected their view of conduct, a word which must be used at the outset in preference to ' law.' Shortly, this view is intimately affected throughout by their belief as to the lot which awaits human beings after death. This lot will be made up of various experiences, some of which correspond to direct reward or punishment in Heaven or HeU, as conceived by the Western religions. But the Hindu 28 EELIGION AND LAW. chap, n. belief concerning the posthumous state of man, and the Buddhist belief which has mainly sprung from it, differ from the most widely diffused Western beliefs in that the Transmigration of Souls fills as large a space as direct reward and punishment, and in that rewards and punishments in all their forms are re- garded, not as eternal, but as essentially transitory. It is beside my purpose, I should observe, to consider what may have been the most ancient faith or faiths of the Hindus, and stUl more how far the religious ideas reflected in the books before us represent their existing religious doctrine. In the works of which I have been speaking, the early manuals of law, belief has reached a definite stage, which may be examined by itself and which seems to me extremely instructive. Hindu theology, from very remote times, appears to have regarded the universe as having been destroyed and again created, and as destined to be destroyed and again created ; but during the enormous in- tervals between these destructions and creations the aggregate of existence is conceived as indestructible and as incapable of increase or diminution. The sum of life, in particular, is always constant. This essence, life or soul, is regarded as running ia a continuous stream through all animate, perhaps we might say through all organic, nature ; but it is always re- turning on itself — never ending, still beginning. This stream of life is divided into portions or parcels, CHAT. n. RELIGION AND LAW. 29 which are temporarily detained in external forms, but which are constantly passing from one form to another without losing their identity. Men, animals, holy sages, and the gods themselves, are not essentially different from one another. The same life or soul pervades them all, clothing itself in one form after another. Existence itself does not end, but its successive stages are terminable and transitory. When a man stUl contaminated by impurity dies, his spirit passes through a series of purgatories ; from the last of these it escapes to clothe itself with one animal shape after another, and at last it finds embodiment in a human frame, which at first will probably be fraU or sickly. But, after a second birth through the study of the Scriptures, the virtuous at death pass straight into Heaven, where their stock of virtue will keep them for long ages ; but it will gradually wear out, until some remnant of it carries them back to earth, to reappear among the prosperous and the powerful. ' Men of aU castes, if they fulfil their assigned duties, enjoy in Heaven the highest imperishable bliss. Afterwards, when a man who has fulfilled his duties returns to this world, he ob- tains by virtue of a remainder of merit birth in a distinguished family, beauty of form, beauty of com- plexion, strength, aptitude for learning, wisdom, wealth, and the gift of fulfilling the laws of his caste or order. Therefore in both worlds he dwells in 30 EELIQIOlf AND LAW. chap, n. happiness, rolling like a wheel from one world to the other' (Apastamba, ii. i. 2. 2 and 3), Even the gods in Heaven, who are looked upon as not much more than men of extraordinary virtue, will in time exhaust their store of merit and pass out of blessed- ness. 'It is by favour of the Brahmans,' says Vishnu (xix. 22), 'that the gods reside in Heaven.' The Wheel mentioned in the above passage from Apastamba is a favourite image with these writers. They figure existence as a wheel spinning round. Religious pictures, representing the circle of life with its various compartments, with Heaven at the top and Hell at the bottom, and with human and animal ex- istence at the sides, are common in the East ; but though they are not unknown to Hindus, they are more frequently found among Buddhists,^ who must have borrowed the symbol of the Wheel from an older Hinduism, and who appear to attach to it a special spiritual significance. In the Buddhistic Wheel-pictures, Buddha is depicted outside the cir- cumference, in the attitude of benediction. He only has escaped from the weary cycle of existence, and stands alone in Nirvana, apart from gods and men. The assumption of such a possibility would doubtless be regarded by orthodox Hindus as atheistic. Ex- alted religious feeling takes with them the form of meditation on Brahma, the Atman, the Infinite, the * See Note A at the end of this chapter, ' Wheel-pictures.' CHAP. n. RELIGION AM) LAW. 31 Self- Existent, the 'immortal and spotless,' who 'lies enveloped in matter and is the dwelling of all living ' creatures,' who is, 'like a city, divided into many streets.' Here and there they express themselves on this topic in language of much sublimity. I shall have occasion to explain in the next chapter that one particular religious system of the greatest antiquity which is shadowed forth in these books stands quite apart from the beliefs which I have been examining. It is very probable that these beliefs were themselves compounded of divers more ancient parts, and that direct reward or punishment, and in- direct reward or punishment by transmigration, did not originally belong to the same body of doctrine. Heaven and HeU and the Transmigration of Souls are, however, all referred to in the oldest of the law treatises, though briefly and slightly. In the more recent writings (some of them, however, not so modem as Mauu) these subjects occupy a great space, and have been vastly amplified by gloomy and fan- tastic imagination. Heaven, as is not unusual in religious systems, is but faintly sketched ; but the Hells, or, as they would more properly be called, the Purgatories (since they are essentially transient), are described with the utmost minuteness of detail. They are twenty-two in number, each applying a new variety of physical or moral pain. It would be a mistake, I think, to suppose that they were created 32 RELIGION AND LAW. chap. H. by a single imaginative effort, like the circles of Dante's Inferno. They rather belong to widely separated grades of the conception of punishment. Such places of retribution as the twenty-first of these Purgatories, where souls wander in sword-leaved forests ; the nineteenth, where they stray over rough and uneven roads ; the fifteenth, where they sink in stinking clay, are probably much older than the first, or place of darkness ; the fourth, or place of howling ; or the places of burning, parching, and pressing to- gether, which stand tenth, eleventh, and twelfth. These last seem to me not older than the infliction of regular (but originally v ery cruel) criminal punish- ments by civil rulers possessing organised authority. The torture chambers of princes have very strongly influenced the conception of posthumous punishment, as may be seen by comparing what remains of some of them — for example, of tbat in the fi:ee city of Nurem- berg — with a picture in which some painter of the fourteenth century gives form to the popular ideas concerning Purgatory and Hell. The sojourn of the sinful soul in each of these places of punishment is, as I have said, always terminable, but its length is expressed in language suited to astronomi- cal magnitudes. If, for example, a Brahman be slain, as many as are the pellets of dust which his blood makes on the soil — ^that is to say, on the bumt-up soU. of India — so many are the periods of a thousand years CHAP. n. EELiaiON AND LAW. 33 the slayer must pass in Hell (Manu, xi. 208), The duration of punishment is imagined by the Bud- dhists with even greater extravagance ; and indeed on all these subjects they seem to have outdone the doc- trine of the Hindus. The frightful Buddhist pictures of torments in hell are tolerably well known. They are mostly of Chinese origin, and probably exagge- rate (but do not more than exaggerate) the criminal justice administered from time immemorial in the great organised Chinese Empire and its dependent kingdoms, in which the highest importance seems always to have been attached to the deterrent effects of punishment. The series of Purgatories is, however, at last worked through, and the soul or portion of life emerges to begin a course of transmigration which may bring it again to humanity. I have already stated my opinion that the purgation of sin or im- purity by transmigration, and its purgation by punishment in hell, did not originally belong to the same system of religious thought. But~in these Hindu law-books they are blended together ; and the sinful spirit, released from purgatorial pains, has still to pass through a succession of animal or vege- table forms before it is again clothed with a human body. It is hard not to smile at the grotesque particularity of detail with which such writers as Vishnu and Manu depict the transmigration of souls. ' Criminals in the highest degree enter the bodies 34 KBLIGION AND LAW. chap. n. of all plants successively. Mortal sinners enter the bodies of worms or insects. Minor offenders enter the bodies of birds. Criminals in the fourth degree enter the bodies of aquatic animals. Those who had committed a crime affecting loss of caste enter the bodies of amphibious animals ' (Vishnu, XLiv. 2). These general statements are followed by a prodigious number of others, mentioning the class of creature into which particular sinners enter. There is perhaps a natural fitness in some of them, but others look like arbitrary assertions or wild guesses. One who has appropriated a broad passage becomes a serpent living in holes. One who has stolen grain becomes a rat. One who has stolen water becomes a water-fowl. But what is to be said of the transformation of the stealer of silk into a part- ridge ; of the thief of linen into a frog ; of the cattle- stealer into an iguana ? I may venture at the same time to suggest that what seems to us most difi&cult to understand in these beliefs once appeared simple and natural. It has been observed that savages look upon the transmutation of one creature into another as almost an easy, everyday process. Primitive men, living constantly in the presence of wild animals, preyiag on them and preyed upon by them, do not seem to have been struck by the immense superiority of the man to the brute. They appear to have been impressed by the difference between living CHAP. II. RELIGION AND LAW. 35 things and everything else, but to have considered the forms of animate being as separated from one another by a very slight barrier. Some very interest- ing inferences have recently been drawn from this savage characteristic ; and it has been pointed out how in those survivals of a very ancient world, fairy tales and myths, one creature is constantly changing into another, and slipping back into its original shape. The most popular child's book of our day is a story of metamorphosis ; but that story of Wonderland owes its popularity to its faithfally following the operations of a dream ; and one must here remark that much of the material of ancient superstition is Hterally such stuff as dreams are made of. But these Hindu law-books have wrought up the ancient belief into a moral and theological philosophy of the greatest precision and amplitude. Their special principle is that man's acts and experiences in one form of being determine the next. Whether he will in a future existence become a plant, a reptile, a bird, a woman, a Brahman, or a semi-divine sage, depends on himseK He goes out of the world what his own deeds have made him ; and the impossibility of dis- sociating the past from the future is declared by these writers in language of much solemnity. If a man departs modified by voluntary sinfulness or involun- tary impurity, and if he has not expelled the taint by due penance, he will become one of the lowest s 2 36 EELIGION AND LAW. chap, n creatures ; if he dies purer than he was born, he may reach the highest stage of humanity or become indis- tinguishable from divinity. The whole theory is saved from contempt by its power of satisfying moral cravings, and by the apparently complete explanation which it offers of the unequal balance of good and evil in this world. The last King of Burmah had been a monk before he ascended the throne, and he remained to his death an eminent Buddhist theologian. An Englishman was lecturing him on the military, scientific, and commercial superiority of the English to the Burmese, not without some intention of hinting that this pre-eminence was due to the purer faith of his countrymen. The king politely assented, but added, ' There is no doubt that you must all have been very virtuous Buddhists in some former state of existence.' With these explanations, some features of those writings which are at first sight very perplexing be- come comparatively intelligible. Thus, they are chiefly called law-books because they contain rules of cmiduri stated with the utmost precision. But what happens to a man if he disobeys the rule ? This is the principal question to the modem jurist. What is the punish- ment, or, as the technical phrase is, the Sanction ? Understood in the modern sense, it is hardly noticed in the oldest of these books. It is in fact to be inflicted in another state of existence, and therefore, though it may be asserted, no directions can be given CHAP. n. RELIGION AND LAW. 37 about it. Thus the place which in a modem law- book is taken by the Sanction — ^that is, by the various penal consequences of refusing to obey a law — ^is taken in these writings by Penances. You are to punish yourself here, lest a worse thing happen to you else- where. These penances are set forth in the most un- compromising language and in apparent good faith.^ In one place, the penitent is told to mutilate himself and to walk on in a particular direction till he drops dead. In another he is to throw himself three times into the fire, or to go into battle and expose himself as a target to the enemy. For one great crime he is to extend himself on a red-hot iron bed, or to enter a hoUow iron image, and, having lighted a fire on both sides, to bum himself to death. For the comparatively venial ofifence of drinking forbidden liquor a Brahman is to have boiling spirit poured down his throat. Other penances are extraordinary jfrom the length and intricacy of the self-inflictions which they suppose. The old books hint a doubt here and there as to the effi- cacy of penance : what good can it do, they say, since the evil deed itself remains ; still, they add, the autho- ritative opinion is, that the penance should be per- formed. ' Man in this world,' writes Gautama (xix. 2 ) , ' is polluted by a vile action, such as sacrificing for men unworthy to offer a sacrifice, eating forbidden * Apastamba, i. i. 15 j Gautama, xxii. ; Vishnu, xxxiv. XXXV. 38 RELIGION AND LAW. chap. n. food, speaking what ought not to be spoken, neglect- ing what is prescribed, practising what is forbidden. They {i.e. some Brahman authorities) are in doubt if he shall perform a penance for such a deed or if he shall not do it. Some declare that he shall not do it, became the deed shall not perish. (But) the most excellent opinion is that he shall perform a penance.' This opinion is then supported by copious quotations from the Hindu scriptures. The remarkable thing is, that no one of these writers seems to feel, what would be our doubt, whether anybody could be got to per- form the severer penances. How then does what we should call Law — that is, law, civil or criminal, enforced by sanctions or penal- ties to be inflicted in this world — first make its appear- ance in these books ? It appears in connection with the personage whom we call the King. His authority is more or less assumed to exist in the oldest of these treatises, but, all taken together, they suggest that the alliance between the King and the Brahmans was very gradually formed. The most ancient of the books give comparatively narrow place to the royal authority, but the space allotted to the King and his functions is always increasing, until in the latest trea- tises (such as Manu) the whole duty of a King is one of the subjects treated of at the greatest length and with the greatest particularity. It may be ob- served that, with the increased importance attributed CHAP. ir. RELIGION AND LAW. 39 to the King, there is a change in the sacerdotal view of his relation to the law. In what appear to me to be the most ancient portions of these books, the King is only represented as the auxiliary of the spiritual director. He is to complete and enforce penances. ' If any persons,' says Apastamba (ii. v. 10. 13), ' transgress the order of their spiritual director, he shall take them before the King. The King shall consult his domestic priest, who should be learned in the law and in the art of governing. He shall order them to perform the proper penance, if they are Brahmans, and reduce them to reason by forcible means, except corporal punishment and servitude, but men of other castes, the King, after examining their actions, may piinish even by death.' In a later treatise (Yishnu, III. 2) the duties of a King are suromed up in two rules : he is to protect his people ; he is to keep the four castes, and the four orders of Student, House- holder, Hermit, and Ascetic, in the practice of their several duties ; or, in other words, he is to enforce the whole social and religious system as conceived by the sacerdotal lawyers. The further progress of change consists in the farther exaltation of the personage who in the passage from Apastamba is called the King's domestic priest. In the end, the law-books come to contemplate an ideal tribunal composed of the King, with learned Brahmans as assessors. The later writings clothe the King with right divine. He is 40 RELIGION AOT) LAW. chap. u. formed of eternal particles drawn from the substance of the gods. ' Though even a child, he must not be treated lightly, from an idea that he is a mere mortal. No ; he is a powerful divinity who appears ia human shape' (Manu, vii. iv. 8). But he has lost in actual personal power. He can only act with the advice of his Brahman assessors. ' Just punishment cannot be inflicted by an ignorant and covetous King, who has no wise and virtuous assistants, whose un- derstanding has not been improved, and whose heart is addicted to sensuality. By a King, wholly pure, faithfiil to his promise, observant of the Scriptures, with good assistants and sound understanding may punishment be justly inflicted ' (Manu, vii. xxx. 31). From this point the law set forth in these trea- tises becomes true civil law, enforced by penalties imposed in this world by the Court itself. The Brahmans themselves no doubt from first to last claim a considerable benefit of clergy. * Corporal punishment,' it is written, ' must not be resorted to in the case of a Brahman ; he at most can have his crime proclaimed, or be banished, or be branded.' At the same time the abstract doctrine of punish- ments or penal sanctions found in Manu (vu. 17 et seq.) might satisfy the English jm'ists who make the sanction the principal ingredient in a law, so uncom- promisingly is it declared. Jeremy Bentham could hardly complain of such language as this : ' Punish- CHAP, n, RELIGION AND LAW. 41 ment governs all mankind ; punishment alone pre- serves them ; punishment wakes when their guards are asleep ; if the King punish not the guilty, the stronger would oppress the weaker, like the fish in the sea. The whole race of man is kept in order by punishment ; gods and demons, singers in heaven and cruel giants, birds and serpents, are made capable by just correction of their several enjoyments' (Manu, loc. cit.). The full consequences of juridical doctrine like this do not, however, appear in such a law-book as the extant Manu, which, besides a great deal of civil law, contains a mass of sacerdotal rules, mostly, as it seems to me, in a state of dissolution and decay. A still later treatise, Narada,' is almost wholly a simple law-book, and one of a verj'^ interest- ing kind. The ancient Brahmanical system has been toned down and tempered in all its parts by the good sense and equity of the school of lawyers from whom this book proceeded. The portions of it which deal with Evidence appear to me especially remarkable, not only for the legal doctrine, which (though the writer believes in Ordeals) is on the whole extremely mo- dern, but for the elevation of moral tone displayed in its language on the subject of true and false wit- ness, which should be set off against the unveracity attributed to the modern Hindu. ' No relatives, no ' The ' Institutes of Narada ' have been translated into English by Dr. Julius Jolly. London : Triibner & Co., 1871. 42 RELIGION AM) LAW. chap, n. friends, no treasures, be they ever so great, are able to hold him back who is about to dive into the tre- mendous darkness of Hell. Thy ancestors are in suspense when thou art come to give evidence, and ponder in their mind, " Wilt thou deliver us from Hell or precipitate us iatoit?" Truth is the soul of man ; everything depends upon truth. Strive to acquire a better self by speaking the truth. Thy whole lifetime, from the night in which thou wert born up to the night in which thou wilt die, has been spent in vain if thou givest false evidence. There is no higher virtue than veracity ; nor is there a greater crime than falsehood. One must speak the truth, therefore, especially when asked to bear testimony ' (Narada, pp. 42, 43, Jolly). The somewhat analo- gous passage in Manu (vni, 112) is defaced by the often reprobated qualification, ' In case of a promise made for the preservation of a Brahman, it is no deadly sin to take a light oath.' The dif6.culties imder which the student of the so- called Sacred Laws of the Hindus has so long laboured have been almost entirely caused by the transitional character of the book which was first introduced to European scholarship as the original source of Hindu Law. If the sample of this branch of Hindu litera- ture first translated into a Western language had been Narada, it would have been regarded as a law-book of a familiar type, and the traces of sacerdotal influence CHAP. n. RELIGIOIf AND LAW. 43 which are to be found in it would probably have been neglected. If, on the other hand, the book first made accessible had been Gautama, or Baudhiyana, or Apastamba, it would probably have been set down at once as a manual of practical religious conduct, the Whole Duty of a Hindu ; the law contained in it would probably have been considered adventitious or accidental. But Manu, which Sir William Jones made famous in Europe, neither falls wholly under the one description nor wholly under the other. And so long as it stood by itself there was the greatest diffi- culty in determining its place in the general history of law. A good many years ago (' Ancient Law,' pp. 17, 18, 19), I showed the hesitation 1 felt in making use of it for archasological purposes ; but I can now see that I underrated the sacerdotal ele- ment in the structure of Manu. The whole of the literature to which it belongs sprang, it would now appear, fi:om a double origin ; in part from some body of usage, not now easy to determine (though the recent investigation of local bodies of Indian custom has thrown some light upon it), but chiefly from the Hindu scriptural literature. The last exer- cised by far the most important influence. Its crea- tors, far back in antiquity, did not start with any idea of making or stating law. Beginning with religious hymnology, devotional exercises, religious ritual, and theological speculation, some of their schools were 44 RELIGION AND LAW. chap. n. broTiglit to Conduct, and to stating in detail what a devout man should do, what would happen to him if he did it not, and by what acts, if he lapsed, he could restore himself to uprightness. Grradually there arose in these schools the conviction that, for the purpose of regulating Conduct by uniform rules, it was a simpler course to act upon the rulers of men than on men themselves, and thus the King was called in to help the Brahman and to be consecrated by him. The beginning of this alhance with the King was the beginning of true civil law. Nothing which thus happened seems to me to be very unlike what would have happened in the legal history of Western Europe, if the Canonists had gained a complete ascendency over Common Lawyers and Civilians. The system which they would have established might be expected to give great import- ance to the purgation of crime by penances. This in fact occurred ; the preference of the ecclesiastical sys- tem with its penances over the secular system with its cruel punishments, had much to do, as may be seen from the legendary stories, with the popularity of St. Thomas (Becket). Then it would be probable that, in the case of graver sin, the ecclesiastical law- yer would invoke the aid of the secular ruler to secure the proper expiation ; and this again occurred in the form of entrusting the severer pimishments to the secular arm Finally, if the sole advisers and instru- CHAP. n. EELIGION AND LAW. 45 ments of the European King in the administration of civil and criminal justice had been ecclesiastice, they would have been driven in the long run to construct a system of civil and criminal law with proper sanc- tions enforced by the Courts. But the system would have been deeply tinged in all its parts with ecclesias- tical ideas, and though it would possibly have bor- rowed some or many of its rules from older usage, it would have been very hard to detect their sources and their precise original form. Here we have one of the chief drawbacks on the historical usefulness of the sacred Hindu laws. In the course of their growth they have probably absorbed much customary law from without ; but even in the earliest of them it probably has been changed in transmission, while in the latest it may have been borrowed from several different bodies of usage, irreconcilable in the principles from which they start. On the whole, the most valuable portions of the lite- rature are those which throw light on the derivation of certain branches of law from a set of entirely reli- gious behefs. One example of this derivation will be discussed in the next chapter. I said that this ancient literature threw less light on the beginning of law than on the beginning of lawyers. But it is of course to be understood that the men who conceived and framed it were much more than lawyers. All the world knows that they 46 EELIGION AND LAW. chap. n. were also in some sense priests ; but they were much more than priests. What we have to bring home to ourselves is the existence in ancient Indian society of a sole instructed class, of a class which had an abso- lute monopoly of aU learning. It included the only lawyers, the only priests, the only professors, the sole authorities on taste, morality, and feeling, the sole depositaries of whatever stood in the place of a science. These books are one long assertion that the Brahmans hold the keys of HeU and Death, but they also show that the Brahmans aimed at commanding a great deal more than the forces of the intellect, and that all their efforts came to be directed towards bringing under their influence the mighty of the earth of another sort, the conquering soldier and the hereditary king. They were to become partners with princes in their authority, their advisers and assessors. ' A King and a Brahman deeply versed in the Yedas, these two uphold the moral order of the world ' ; thus it is written in one of the oldest of the books. Doubtless, the alliance between Brahman and King was often sealed, and produced great effects ; for, amid the obscurities of early Indian history, the fact does seem to emerge that, although religions doubtless at first extended themselves by conversion, they were established over wide areas and again overthrown much less by propagandism than by the civil power. On the whole, the impression left on the mind by the CHAP. n. RELIGION AND LAW. 47 study of these books is, that a more awful tyranny never existed than this which proceeded from the imion of physical, intellectual, and spiritual ascend- ency. At the same time it would be altogether a mistake to regard the class whose ideas are reflected in the literature as a self-indulgent ecclesiastical aristocracy. It is not easy, I must admit, to describe adequately the intensity of the professional pride which shows itself in all parts of their writings. Everybody is to minister to them ; everybody is to give way to them ; the respectful salutations with which they are to be addressed are set forth with the utmost minuteness. They are to be free of the criminal law which they themselves prescribe. ' A Brahman,' writes Gautama, ' must not be subjected to corporal punishment, he must not be imprisoned, he must not be fined, he must not be exiled, he must not be reviled or excluded (from society).' Their arrogance perhaps reaches the highest point in a passage of the law-book of Vishnu, where it is written that 'the Gods are invisible deities; the Brahmans are visible deities. The Brahmans sustain the world. It is by favour of the Brahmans that the Gods reside in Heaven.' Yet the life which they chalk out for themselves is certainly not a luxurious and scarcely a happy life. It is a life passed from first to last under the shadow of terrible possibilities. The Brah- man in youth is to beg for his teacher ; in maturity, 48 RELIGIOIf AND LAW. chap. n. as a married houseliolder, he is hedged round with countless duties, of which the involuntary breach may- consign him in another world to millions of years of degradation or pain ; in old age, he is to become an ascetic or a hermit. It is possibly to this combina- tion of self-assertion with self-denial and self-abase- ment that the wonderfully stubborn vitality of the main Brahmanical ideas may be attributed. As I have shown, the sacerdotal legal system, as a system, owes probably much of its present authority to its adoption by the Anglo-Indian Courts of Justice as the common law of India ; but some of the points of belief which underlie it, as they do the whole Brah- manical literature, make the most durable part of the mental stock of every Hindu. Some of these ideas are not wanting either in religious or iu moral eleva- tion ; but on the whole the evil has prevailed over the good. We can find in this most ancient litera- ture the germs of many superstitions stiLL exercising pernicious eflFect — of the caste prejudice which forces the wounded Sepoy to die of fever rather than take water from his low-caste fellow- soldier or his Eng- lish officer ; of that terror of pollution which, twenty- five years since, led to the frightful mutiny of the mercenary troops ; of that rejection of meat and drink which still limits the food supply of an over-populated country, and contributes to its periodical famines. But in close contact with this frame of mind there CHAP. u. KELIGION AND LAW. 49 is nowadays an ever-growing body of thought stirring with the leaven of Western knowledge and Western scientific method ; and the juxtaposition of the two makes the government of India by the English an undertaking without a parallel in its novelty and difficulty, and in the amount of caution, insight, and selt-command demanded from Its admi- nistrators. 50 'WHEBL-PICTUKES. NOTES AND ILLUSTRATIONS. Note A. WHEEL-PICT URES. Buddhist wheel-pictures are, as I have said, com- moner than those of the Hindus, and have been fre- quently figured. Mr. Grant Duff's kindness has, however, suppHed me from Madras 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 follow- ing curious legendary account of the origin of the Buddhist pictures : — * In the twenty -first story of the Northern Bud- dhist collection of legends called the " Divydvaddna," there is an account how Buddha's disciple, Maud- galydyana, used occasionally to visit heaven and heU, and when he returned to earth he would describe the different sights which he had seen. * Buddha said to Ananda, " Maudgalydyana will not always be present, nor one like Maudgalydyana ; therefore a wheel must be made with five divisions and placed in the chamber of the gate." The mendi- cants 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 WHEEL-PICTURES. 51 the hells, animals, pretas,^ gods and men. Of these the hells are to be made lowest; then the animals and pretas ; and above, the gods and men — i.e. the four continents, viz., Piirvavideha, Aparagoddniya, Lltta- rakuru, and Jambudvipa. In the centre are to be made desire, hatred and stupid indiiference : ^ desire in the form of a dove, hatred in that of a snake, stupid indifference in that of a hog. And images of Buddha are to be made pointing out the circle of Nirvdna. Beings are to be represented as being born in a supernatural way, as by the machinery of a water-wheel, falUng from one state and being pro- duced in another. AU round is to be represented the twelve-fold circle of causation^ in the regular and in the reverse order. Everything is to be re- presented as devoured by Transitoriness, and the two gdth^s are to be written there, — ' Begin, come out, be zealous in the doctrine of Buddha, Shake off the army 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. ' 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." ' ' Ghosts or goblins who suffer from perpetual hunger. * The well-known three ' faults ' of Hiadu philosophy. 3 See Colebrooke's Essays (ed. 2), vol. i. pp. 453-455. * Dharma and Vioaya. E 2 52 AKCESTOK- WORSHIP. chap. iir. CHAPTER III. ANCESTOR-WOKSHIP. I HAVE said that the rules of life contained in the most ancient of the sacred law-books of the Hindus are strongly affected by two systems of religious be- lief which were probably at one time independent of one another. Although welded together by the Hindu sacerdotal lawyers, the purgation of sin by post- humous punishment in a series of hells, and the pur- gation of sin by transmigration from body to body, are distinct solutions of the same problem. The breach of the rules set forth in the law-books afflicts the law- breaker with a special taint, which, unless he be cleansed from it by proper penances in his lifetime, will cling to his spirit after death, and can only then be purged away by far severer expiations. Two separate views of the life after death would appear to have contributed the theory of successive special Pur- gatories, and the theory of Transmigration, to the maturer Hindu system which has joined them to- gether. But besides the traces of this two-fold religious speculation, there is plain evidence of yet a CHAP. III. AJS'CESTOK- WORSHIP. 53 third, and perhaps a still older religion, standing* quite by itself, in these treatises. This is the Worship of Ancestors, which has shaped the entire Hindu law of Inheritance. The connection between Ancestor- Worship and Inheritance is not, however, peculiar to the Hindus. The most ancient law of a considerable number of the communities which have contributed most to civilisation shows us the performance of some part of this worship as a duty incumbent on expectant heirs and as the condition of their succession. This rude and primitive belief has thus very strongly influenced the branch of jurisprudence which, as link- ing the generations each to each, is of the greatest importance to all advancing societies. Ancestor- worship is not here to be understood in the sense in which the expression has usually been taken by scholars. It is not the cult of some long- descended and generally fabulous ancestor, of some Hero, the name-giving progenitor of a Race, a Na- tion, a Tribe, a House or a Family ; an Ion, a Romu- lus, or an Eumolpus. Nor, again, can it be visibly connected with the superstitious reverence of savage? for their Totem, even though it symbolise to them the living creature from which they conceive them- selves td have sprung. In the case before us the ancestors sought to be propitiated by sacrificp,s and prayers are ancestors actually remembered, or, at all events, capable of being remembered by the 54 ANCESTOE- WORSHIP. chap. iu. worsliipper. Proximity in time is essential to the wor- ship of which I am speaking. There are signs that, according to the early ideas of many communities — communities, for example, so far removed from one another as the Hindus and the Irish — a man living as a member of a Joint Household or Family could at most expect to see at some time during Ufe three generations above him and three generations below him. In accordance with this expectation, the ances- tors worshipped are three : the father first, then the grandfather, and then the great-grandfather. The reverence paid to remoter ancestors, not personally remembered, may be believed to be a later off-growth of these ideas. Their original character, and the nature of the feelings associated with them, may be gathered from the account of its own ancestor- worship which Canon CaUaway {apud Tylor, ' Primitive Culture,' ii. 106) attributes to a group of South African tribes. 'Although they worship the manyAmatongo (ances- tral spirits) of their tribe, making a great fence around them for protection, yet their father is before all others when they worship the Amatongo. Their father is a great treasure to them even when he is dead ; and those who have grown up, knew him thoroughly, his gentleness and his bravery Black people do not worship all Amatongo indiffer- ently — that is, all the dead of their tribe. Speaking generally, the head of each house is worshipped by CHAP. ni. ANCESTOR- WORSHIP. 55 the children of that house, for they do not know the ancients who are dead. But their father, whom they knew, is the head by whom they begin and end in their prayer, for they knew him best We do not know, they say, why he should regard others besides us : he will regard us only.' ' Manes- worship,' says Mr. Tylor (' Primitive Culture,' ii. 108), ' is one of the great branches of the religion of mankind. Its principles are not difficult to understand, for they plainly keep up the social relations of the living world. The dead ancestor, now passed into a deity, goes on protecting his family and receiving from them suit and service as of old. The dead chief still watches over his own tribe, still holds his autho- rity, by helping friends and harming enemies, still rewards the right and sharply punishes the wrong.' Ancestor-worship, the worship of father, grand- father, and great-grandfather, has among the Hindus a most elaborate liturgy and ritual, of which the out- lines are given in the law-books, and with special ful- ness in the Book of Vishnu. In the eye of the ancient Hindu sacerdotal lawyer, the whole law of Inheritance is dependent on its accurate observance. What is more remarkable is that the same close interdepend- ence of ritual and inheritance exists in the eye of the modern Anglo-Indian Judge, who, after long ages, strives to interpret the old books and to apply their doctrine to the case before him. There are few more 56 ANCESTOK-WOESHIP. chap. in. curious meetings of the Past and Present than when an English Judge, in the High Court (let us say) of Calcutta, carefuUy weighs the exact amount of Spiritual Benefit derived by a deceased Hindu from the sacrifices of a descendant or collateral, and the exact degree of blessing reflected on the kinsman who has ofiered the sacred water and the sacred cake. All the main juridical conceptions of the Roman law of Succession are to be found in the Hindu law, but the terms expressing them {suus hceres, agnate, cog- nate, actio de familicL erciscundd, and so forth) mostly translate into phrases taking their meaning from the liturgy and sacrificial order of Hindu Ancestor- worship. It must be added, for the full imderstanding of the subject, that the Hindu worship of ancestors does not merely afifect the Hindu law of Inheritance. It influences the everyday life of that vast majority of the people of India who call themselves in some sense Hindus, and indeed in the eyes of most of them their household divinities are of more importance than the whole Hindu pantheon. ' It is a common saying among us,' says the author of an instructive treatise on the 'Law of Inheritance' (Professor Rajkumar Sarvadhikari) ' that a man may be pardoned for neglecting all his social duties, but he is for ever cursed if he fails to perform the funeral obsequies of his parents, and to present them with the off"erings CHAP. in. ANCESTOE-WOESHIP. 57 due to them.' Ancestors, as divine beings to be wor- shipped, are referred to in the Vedas, and stand rather obscurely, under the name of Pitris, in the background among the Hindu gods ; but every day^ in the dwelling of a Hindu the shradda is oflFered to father, grandfather, and great-grandfather ; and the offering is made with special observances on particu- lar days and on particular occasions. The most solemn oblation of all is made at a funeral, and the rules for it are already set forth in minute detail by the oldest of our authorities (Gautama, xv. i. 30). The first-fruits of the earth, the first portions at all meals, all anap^aX and primitice, are the special share of these ancestral gods ; the special blessing which they confer is length of days and the unbroken con- tinuity of the family. M. Fustel de Coulanges was the first modern writer to bring into full light, in his brilliant book ' La Cit^ Antique,' the hitherto little observed importance of the private or family worship of the Greeks and Romans. Almost aU attention had been concentrated on the greater Gods of these societies. In their honour, temples were raised, oxen were led to the altar, processions moved along the streets, religious confraternities were formed. These were Gods of Nations or Tribes, Gods born of primi- tive observation of Nature and primitive reverence for her, Gods sprung from wide- spreading emotional ' Sarvadhikari, Hindu Lav) of Inheritance, pp. 83 et seq. 58 ANCESTOR-WORSHIP. chap. m. movements, like Dionysus and Cybele. But they lived far away in their own Olympus, and the real effective worship of the Roman was to the Lares and Penates. Their clay or metal images stood in the lararium or penetralia, in the innermost recesses of the house, and represented forefathers who in the earliest days had actually been buried in it before the hearth. At their head was the eldest of them, the Lar Familiaris. This private worship, like the public worship of the greater Gods, had its ritual, its liturgy, and its priesthood within the circle of the family ; and the intimacy with which it mixed itself with all family relations is the staple of the striking argument which fiUs ' La Cite Antique.' Ancestor-worship is stUl the practical religion of much the largest part of the human race. We who belong to Western civUisation are but dimly con- scious of this, mainly on account of the Hebrew element in the faith of Western societies. Sacrifice to ancestors was certainly not unknown to the Hebrews either as a foreign practice or as a prohibited idola- try. ' They joined themselves unto Baal-Peor,' it is written in Psalm cvi. 28, ' aiid ate the sacrifices of the dead.' And again in Deuteronomy xxvi. 14 : ' Thou shalt say before the Lord thy God ... I have brought away the hallowed things out of my house ... I have not transgressed thy commandments, neither have I forgotten them ... I have not eaten CHAP. in. ANCESTOR- WORSHIP. 59 thereof in my mourning ; nor have I taken away ought thereof for any unclean use ; nor given aught thereof to the dead.' But it has been generally allowed that the Hebrew Scriptures contain few allusions to this wide-spread practice ; " and any con- tact with it which may be found in Christianity or Mahommedanism is due to accidental causes. A wild Turkoman, though he passes as a fanatical Mahommedan, may occasionally worship at his an- cestor's grave, as did his forefathers in the extreme East, and here and there a locally reverenced Christian saint may have succeeded to the supposed miraculous power of a local heathen divinity who, in his origin, may have been a deified ancestor. But all sects of Hindus, and all the multitudes affected by Hinduism, worship their ancestors. The ancient religion lately * The Fifth Commandment, which promises length of days aa the blessing earned by hononi'ing father and mother during their lifetime, may be compared with the very ancient Chinese litur- gical odes in which the long duration of the family is described as the special reward for honouring dead parents with sacrifice. See the fine Chinese hymn, taken from the ritual of Ancestor- worship, and translated by Dr. Legge (Shih-King, Sacred Books of the Mast, vol. ui. pp. 348, 349). ' With happy auspices and purifications thou bringest the ofierings 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, duration unlimited. The spirits come and confer on thee many blessings. . . . Like the moon advancing to the full. Like the sun ascending the heavens. Like the everlasting southern hUls. Never waning, never falling. Like the luxuriance of the fir and the cypress. May such be thy succeeding line ! " ' 60 ANCESTOE-WOESHIP. chap. m. revived by State authority in Japan at the expense of Buddhism, and known as Shintoism, appears to be a form of ancestor- worship ; the Chinese universally worship their ancestors ; and these, with ancestor- worshipping savages, make up the majority of the human race. The Chinese are the great example of a commu- nity earnestly devoted to this system of religious belief and observance. The evidence of its antiquity and of its prevalence among them is extremely abun- dant. Let me quote what is probably the oldest and the newest testimony on the subject. The most ancient Chinese records are the earlier portions of those famous collections ia prose and verse, the Shu- King and the Shih-King. A fairly trustworthy chro- nology carries back the earliest prose documents in the Shu-King to the twenty-fourth century before the Christian era, and the oldest liturgical odes of the Shih-King are thought to be contemporaneous with the eighteenth century B.C. The second of the pieces in the Shu-King speaks of Yao retiring from government ' in the temple of his accomplished an- cestor,' and the first i3nd most ancient hymn in the Shih-King, which celebrates a sacrifice to ancestors, represents the practice as even then old. ' Here are set our hand-drums and drums. The drums resound harmonious and loud, to delight our meritorious ancestor. The descendant of Thang invites him with CHA.P. ni. ANCESTOR- WOESHIP. 61 the music that he may soothe us with the realisation of our thoughts . . . From of old, before our time, the former men set us the example how to be mUd and reverent from morning to night, and to be reverent in discharging the service.' For the most recent evidence I refer to a paper published in 1882, and manifestly based on mission- ary information.^ ' Great (in China) are the expenses entailed by the dead on the living. In no land can the loss of a kins- man be more severely felt. The body must be dressed in fine new clothes, and another good suit must be burnt. A handsome coffin is essential, and the priests must be largely paid for funeral services at the house of the deceased, and again for their services in ascer- taining the lucky day for burial. . . . From the tenth to the seventeenth day after death, the priests, whether Taoist or Buddhist, hold service in the house to pro- tect the living from the inroads of hosts of spirits who are supposed to crowd in, in the wake of their new friend. . . . Many famiMes are permanently im- poverished by the drain to which they are subjected, and which is likely to recur again and again. To omit them would be to incur the anger of the spiteful dead, who are now in a position to avenge themselves on the living by inflicting all manner of sickness and ' ' Ningpo and the Buddhist Temples,' hy Constance Gordon Gumming {Century, Sefitelnber ISS2f). 62 ANCESTOE-WOESHIP. chap. iu. suffering. . . . The priests pretend to have had reve- lations from the spirit- world, showing the unfortunate dead to be tortured in Purgatory, and that he can only be extricated by a fresh course of costly services in the house. The price to be paid is fixed at the highest sum they think it possible to extract. It ends in the family raising every possible coin, and even selling their jewels, to procure the necessary sum.' Finally, I will repeat Mr. Tylor's reflections on the whole of this marvellous system of belief and practice (' Primitive Culture,' ii, 108) : 'Interesting problems are opened out to the Western mind by the spectacle of a great people who for thousands of years have been seeking the living among the dead. Nowhere is the connection between parental authority and conservatism more graphically shown. The worship of ancestors, begun during their life, is not interrupted but intensified when death makes them deities. The Chinese, prostrate bodily and mentally before the memorial tablets which contain the souls of his ances- tors, Httle thinks that he is aU the while proving to mankind how vast a power unlimited filial obedience, prohibiting change from ancestral institutions, may exert in stopping the advance of civilisation. The thought of the souls of the dead as sharing the glory and happiness of their descendants is one which widely pervades the world ; but most such ideas would seem vague and weak to the Chinese, who will CHAP. in. ANCESTOR-WOKSHIP. 63 try hard for honours in his competitive examination with the special motive of glorifying his dead ancestors, and whose titles of rank will raise his deceased father and grandfather a grade above him, as though with us Zachary Macaulay or Copley the painter should have viscounts' coronets officially placed on their tombstones. As so often happens, what is jest to one people is sober sense to another. There are 300 mUHons of Chinese who would hardly see a joke in Charles Lamb, reviling the stupid age that would not read him, and declaring that he would write for an- tiquity.' The relations of Ancestor- worship to other reli- gions held in honom' by those who practise it appear to have varied much from community to community, and from time to time within the same community. In China it seems to have more than held its ground against the other more famous faiths. Confucianism is deeply implicated with it, and the creeds of Buddha and of Lao-Tze have assimilated it, and their priests indifferently perform its ceremonies. Sir Alfred Lyall has amusingly described the liberties which the Chinese Government takes with war-gods and river- gods, promoting and deposing them by acts of State ; but it may be doubted whether it would venture on any serious interference with the service of the dead. Among the Hindus, the ancestral deities are but dimly seen amid the Vedic gods, but the later 64 ANCESTOK-WOBSHIP. chap. hi. sacerdotal law-writers seem conscious of a rivalry be- tween them and these greater divinities. The ritual of axicestor- worship given in the book of Vishnu begins with sacrifice to the gods (lxxiv. 1), and Manu expressly says (in. 205), ' Let an offering to the gods be made at the beginning and end of the shrad- dha ; it must not begin and end with an offering to ancestors, for he who begins and ends it with an oblation to the Pitris quickly perishes with his pro- geny.' Nevertheless, although the greater Hindu gods, like the greater divinities of the Greeks and Romans, have their temples, rites, and sacrifices, though they have their special devotees, though they are honoured by pilgrimages and festivals, in which multitudes take part, the worship offered every day by Hindus in their private dwellings to their immediate ancestors is perhaps more genuine, and is certainly far more continuous. I have already quoted the statement of a learned contemporary native lawyer, that every other crime may be forgiven to his co-religionists, but not the neglect of ancestral sacrifices. On the other hand, the comparatively scanty Roman evidence con- cerning the sacra privata would seem to show that they dwindled in importance and popular respect. In Cicero's time the charges for them were still a heavy burden on Inheritances, but they seem to have followed a course of change not unusual else- where, and the payments for them were in the nature CHAP. m. ANCESTOR-WORSHIP. 65 of fees or dues to the College of Pontiffs. There are signs, too, that the household gods were losing their divinity. The Lares became hardly distinguishable from the Larvae — a word of the same origin, which is said to have at first meant spirits not laid to rest with the proper rites * — and indeed from the Lemures, mere goblins who haunted tombs. The ' Lars and Lemurs,' who moaned ' with midnight plaint ' at the Nativity, are thus not improperly coupled together in Milton's * The ancestor-worshipping peoples appear to have agreed in thinking that the gravest consequences depended on properly dis- posing of the bodies of the dead. But there was no such agree- ment as to what was the proper mode of disposal. There is a startling contrast between the last prayer of Ajax to 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 and birds do eat his remains. Compare Sophocles, Ajax, 826, et seq. with the Zend Avesta, iii. 4, 30 {Sacred Books of the East, vol. iv.) : ' " O 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 second year, what is the penalty for it ? What is the atonement for it ? " Ahura Mazda answered, " For that deed there is nothing can pay, nothing can atone ; nothing can cleanse from it ; it is a trespass for which there is no atonement for ever and ever." ' And again, at vi. 4, 44 : "'0 Maker of the material world. Thou Holy One, whither shall we bring, where shall we lay, the bodies of the dead % " Ahura Mazda answered, " On the highest summits, where they know there are always coi-pse-eating dogs and corpse-eating birds, holy Zaxathrusta." ' We can sympathise with the Greek leeling, though not in its full strength ; but it would be hardly credible that a vigorous and comparatively civilised nation once tollowed the Zoroastrian usage, were it not for the stubborn survival of it among the Paraees, whose ' Towers of Silence ' ai'e among the first objects which strike the eye of the traveller on landing in Western India. F 66 ANCESTOR- WORSHIP. chap, ni, verse. But though this most ancient religion died, its effects on civil law remained, and indeed stiU survive. One curious relic of it may be found in the Codes of the Christian Emperors. There is a classification of ' Things ' which divides them into their kinds, and then subdivides ' things which are not the property of anybody ' into Res Sacrse, Res Sanctae, and Res Religiosse. Res Sacrae are things consecrated to the greater gods ; Res ReUgiosse are expressly defined as things dedicated to the spirits of the dead, the Manes ; and some part of the Roman rules relating to this last class of things stUl affects our law of church- yards. But, farther than this, there can be no doubt that our law of Inheritance is stiU partially shaped by the old worship of the Manes, though the exact degree in which it has been influenced is not now ascertainable. Almost all the English law on the subject of the descent of Personalty, a great deal of Continental law on the same subject, and some part of our law of Realty, has for its foundation the 118th Novel, or Novella Constitutio, of Justinian. This Novel is the last revision of the older Roman law of Succession after death, which was formed by the fusion of the rules of inheritance contained in the venerable Twelve Tables with the Equity of the Praetor's Edict ; two streams of law profoundly influenced at their source, as no reader of M. Fustel de Coulanges can doubt, by the worship of ancestors. Modem investigators who have made it their CHAP. ni. ANCESTOE-WOESHIP. 67 special business to search for the earliest forms of mental conceptions among the present ideas of savages have based a theory of the origin of ancestor- worship upon the phenomena of sleep and unconsciousness as they present themselves to men not yet escaped, or barely escaped, from savagery. ' The idol,' writes Sir John Lubbock, ' usually assumes the human form, and idolatry is closely connected with that form of religion which consists in the worship of ancestors. We have already seen how imperfectly civilised man realises the conception of death, and we cannot wonder that death and sleep should long have been connected together in the human mind. The savage, however, knows well that in sleep the spirit lives, even though the body appear to be dead. Morning after morning he wakes himself and sees others rise from sleep. Naturally, therefore, he endeavours to rouse the dead. Nor can we wonder at the very general custom of providing food and other necessaries for the use of the dead. Among races leading a settled and quiet life this habit would tend to continue longer and longer. Prayers to the dead would reasonably follow from such customs, for even without attributing a greater power to the dead than to the hving, they might yet, from their diflferent sphere and nature, exercise a considerable power, whether for good or evil. But it is impossible to distinguish a request to an invisible being from prayer, or a powerful spirit t 2 68 ANCESTOR-WOESHIP. CHAP. UI. from a demi-god ' ( ' Origin of Civilisation and Primitive Condition of Man,' 4th ed. 1882). In har- mony with this theory, the various societies of man- kind, in their relation to belief in a spirit world, have been thus classed by Mr. Herbert Spencer (' Principles of Sociology,' p. 322) : ' Taking the aggregate of the human peoples, tribes, societies, nations, we find that nearly all of them have a belief, vague or wavering, or settled and distinct, in a reviving other-self of the dead man. Within this class of peoples, almost co- extensive with the whole, we find a class, not quite so large, by the members of which the other self of the dead man, definitely believed in, is supposed to exist for a considerable period after death. Nearly as numerous is the class of peoples included in this who show us ghost propitiation, n.ot only at the funeral but for a subsequent interval. Then comes the narrower class included in the last, the more settled and ad- vanced peoples who, along with the developed belief in a ghost that permanently exists, show us a persistent ancestor- worship. Again, somewhat further restricted, though by no means small, we have a class of peoples whose worship of distinguished ancestors begins to subordinate that of undistinguished. And eventually the subordination, growing decided, becomes most marked when the ancestors were leaders of con- quering races.' The theory fully developed, appears to be that the OHAP. m. ANCaESTOE- WORSHIP. 69 dead aa^ believed by savage men to live tbe life wbicli they themselves live in dreams, a life very like that of their waking hours and yet unlike it. It is thought that in death, as in the visions of the night, the spirit meets its everyday companions and kinsmen, but that it meets, besides, others who have disappeared from the living world, and especially those whom it loved, feared, or hated. They eat, drink, and speak as of old ; the only difference between their world and that of life is perhaps that they melt into other forms with an ease and rapidity which are new, but which have ceased to surprise. In this region, the visitant most fre- quently meets the dead whose life had most contact with his own, and specially the Father armed with his Paternal Power. This is the figure which, when sleep leaves him, he best remembers. In such a state of belief and feeling, the first impulse of the kinsmen whose chief is seen to have finally departed for the spirit- world, is to provide him with food and drink, perhaps with arms, ornaments, and attendants, for his new home, which is to be so like his old one. In these impulses the bloody funeral rites, which are still described in the Homeric poems, are supposed to have had their origin, and another survival is the sacrifice of the Hindu to his ancestors with the 'water and the cake.' I myself certainly think that the theory has been made to account for more than it will really explain by some of the eminent wiiters 70 AXCESTOK-WORSHIP. chap. hi. who have adopted it ; but there is some interesting evidence that, so far as the early Hindus are con- cerned, it goes far to show the origin of their an- cestor-worship. There is manifest perplexity in the minds of the sacerdotal law-writers at the contra- dictions between the various religious doctrines underlying the law. How is the doctrine of benefit to ancestors by ritual and sacrifice to be reconciled with the theory of transmigration and of the purgation of sin by punishment after death ? Nothing seems clearer to them than the principle that, as a man has made himself by his acts, so he leaves this life for the next, pure or impure, sinful or sinless. He dies when that result is entailed by the result of his acts in some past state ; he goes into the next state according to the result of his acts here. These principles are laid down in solemn and sometimes eloquent language. ' Single is each man born ; single he dies ; single he receives the reward of his good, and single the punishment of his evU deeds. When he leaves his corpse like a log or a heap of clay upon the ground, his kindred retire with averted faces ; but his virtue accompanies his soul. Con- tinually, therefore, by degrees let him collect virtue for the sake of securing an inseparable companion ; since, with virtue for his guide, he will traverse a gloom, how hard to be traversed!' (Manu, iv. 240). ' What thou hast to do to-morrow, do it to-day. OHAP, in. ANCBSTOK-TVOKSHIP. 71 What thou hast to do in the afternoon, do it in the, forenoon, for death may come at any moment.' ' When a man's mind is fixed upon his field, or his traffic, or his house, or while his thoughts are en- grossed by some beloved object, death suddenly carries him away as his prey, as a she-wolf catches a lamb. Time is no one's friend, and no one's enemy. When the effect of his acts in a former existence, by which his present existence is caused, has expired. Time snatches him away forcibly. He will not die before his time has come, even though he has been pierced by a thousand shafts ; he will not live after his time is out, though he has only been touched by a blade of kusa grass' (Vishnu, xx. 44). If this be so, it is a rigorous logical conclusion that nothing which the living can do will help the dead. But the writer I am quoting finds a solution in what seems to us the most unnatural of principles — ^that relatives of the dead ought not to mourn for him, but never- theless should offer the sacrifices. ' As both a man's good and bad actions wiU foUow him after death like associates, what does it matter to him whether his relatives mourn over him or not ? But, as long as his relatives remain impure, the departed spirit finds no rest, and returns to visit his relatives, whose duty it is to offer up to him the funeral ball of rice and the water libation. Till the Sapindikarana has been performed, the dead man remains a disembodied 72 AN^CESTOE-WOESHIP. chap, m spirit, and suiBFers both hunger and thirst. Give rice and a jar with water to the man who has passed into the abode of disembodied spu-its. . . . Perform therefore the Shradda always, abandoning bootless grief (Yishnu, xx. 31-36). It is impossible to state the ancient superstitious belief more nakedly ; if the ghost be not supplied by his mourning kinsmen with food he will ' walk ; ' but the law-writer before us evidently finds the doctrine unaccountable, and maintains it because there is authority for it. It is at the same time to be observed that the problem is solved in a different way by the latest Hindu law, which declares that the efi"ect of sacrificing to a dead ancestor is to deliver him from one special purgatory, the ' Hell called Put.' The doctrine of direct post- humous punishment has to this extent absorbed the opinion that the perturbed spirit revisits his ancient haunts. There is one peculiarity of ancestor-worship which recent speculations on primitive human insti- tutions invest with a great deal of interest. The ancestors worshipped appear to have been at first always male ancestors. ' Although,' says Sir John Lubbock, ' descent amongst the lowest savages is traced in the female line, I do not know of any instance in which female ancestors were worshipped.' Female ancestors in the direct line are now wor- shipped by the civilised Chinese, but the evidence CHAP, m, ANCESTOK-WOKSHIP. 73 shows that the posthumous honours paid to women are of later origin than the worship of men. In the oldest of the Chinese sacrificial odes, plausibly dated at not much less than two thousand years before Christ, the ' accomplished ' and ' meritorious ' ances- tor celebrated is manifestly a man. The worship of female ancestors does not appear till a much later division of the hymns. ' We have our high grana- ries,' runs the ode called the ' Fang Men ' — ' We have our high granaries, with myriads and hun- dreds of thousands and millions of measures in them, for spirits and sweet spirits, to present to our forefathers, male and female ; ' and again, the sacrificer in another hymn is made to say, ' great and august father, comfort me, your fiUal son. ... I ofi"er this sacrifice to my meritorious father, and to my accom- plished mother.' It is thought that the still existing practice of placing spirit tablets of wives along with those of husbands in their shrines had by this time begun. So too in the most ancient Hindu law- books, the funeral oblation is confined to male an- cestors. At this rite, says Apastamba (ii. vii. 16. 3), the manes of one's father, grandfether, and great- grandfather are the deities to whom the sacrifice is off"ered. The rite is to be performed in the latter half of the month of which the luckiest day is the fifth. ' If he performs it on the fifth day, sons will be born to him ; he will have numerous and 74 ANCESTOR- WOKSHIP. chap, ul distinguislied offspring, and lie will not die childless.' But if he performs it on the first day of the half- month, the caution is given that the issue of the sacrificer will consist chiefly of daughters. When, however, we come to writers of a much later era, like -Vishnu, we find a distribution of the sacri- fices which is very significant. Vishnu gives us a summary of the whole ritual of ancestor-worship as practised at the date of the treatise called by this name (Vishnu, chap. Ixxiii.) First of all the sacrificer is to worship the (greater) Gods. Then on particular days — the ninth days of the dark halves of certain months — ^he is to consecrate an offering with proper hymns and scriptural texts and present it to three Brahmans present, who represent his father, grandfather, and great-grandfather. The liturgy and ritual which he is to foUow are indicated, head by head, and it is essential for the virtue of the sacrifice that a company of Brahmans should have been invited. On certain other sacred days, the Anvashtakas, he is to sacrifice to his mother, his paternal grandmother, and his paternal great-grand- mother ; and lastly, says the writer, ' an intelligent man ' — an expression which, as it appears to me, is always used of a doubtful point — ' must offer shraddas to his maternal grandfather, and to the father and grandfather of him in the same way.' The order of celebration seems to me to follow the historical order, OHA.P. in. ANCESTOR- WOBSHIP. 70 and to show that the ancestors first worshipped by the Hindus were the father, grandfather, and great- grandfather. It is clear then, I thiak, that wherever ancestor- worship arose, Paternity was fully recognised 5 and as the texts relating to this worship are as old as any others in the sacerdotal law-books, and indeed are probably the oldest, I attach small import- ance to casual expressions found here and there in these treatises which have been thought to show that their writers preserved traditions of the savage custom of tracing descent through females only. Stm, as we cannot doubt the existence and preva- lence among some part of mankind of this savage usage, sometimes called ' Mother-law,' it is im- possible not to ask oneself the question. Did the worship of the dead bring about the recognition of paternity, or is ancestor-worship a religious inter- pretation of, or a religious system founded upon, an already existing institution ? M. Fustel de Cou- langes, without referring to the custom of ' Mother- law,' certainly seems to me to express himself occa- sionally as if he thought that all the characteristics of the so-called Patriarchal Family were created by the worship of ancestors which was ever celebrated in the recesses of the household ; and that from this worship sprang the Father's Power as its high-priest, and also the denial of kinship to persons no longer 76 ANCESTOE-WOESHir. chap. nr. able to participate in it, as the married daughter and the emancipated son. It may well be believed that ancestor-worship, by consecrating, strengthened all family relations, but in the present state of these inquiries the evidence certainly seems to be in favour of the view that the Father's Power is older than the practice of worshipping him. Why should the dead Father be worshipped more than any other member of the household unless he was the most prominent — it may be said, the most awful — ^figure in it during his life ? It was he, according to the theory which I have described, who would most frequently show himself, aflfectionate or menacing, to his sleeping children. This opinion is fortified by the recent investigations into the customary law of the Punjab, the earliest Indian home, I must repeat, of the Aryan Hindus after their descent from the mountain-land of their origin. Ancestor- worship does exist among the Hindus of the Punjab. But it is a comparatively obscure superstition. It has not received anything like the elaboration given to it by the priesthood in the provinces to the south-east, many of whose fundamental doctrines are unknown to the Punjabee communities of Hindus. Nevertheless, the constitu- tion of the Family is entirely, to use the Roman phrase, ' agnatic ;' kinship is counted through male descents, only. There is a very strong resemblance between these usages and the most ancient Roman law, and their diflferences, where they differ, throw very CHAP. m. ANCESTOR-WOKSHIP. 77 valuable light on the more famous of the two systems. The truth seems to be that, although Ancestor- worship had at first a tendency to consolidate the ancient constitution of the Family, its later tendency was to dissolve it. Looking at the Hindu system as a whole, we can see that, as its historical growth pro- ceeded, the sacerdotal lawyers fell under a strong temptation to multiply the persons who were privi- leged to offer the sacrifices, partly in the interest of the dead ancestor, chiefly in the interest of the living Brahman. In this way, persons excluded fi-om the ancient family circle, such as the descendants of female kinsmen, were gradually admitted to par- ticipate in the oblations and share in the inheritance. Some traces of a movement in this direction are to be found throughout the law-books ; and a very learned Indian lawyer (Mr. J. D. Mayne, ' Hindu Law and Usage,' chap, xvi.) has shown that, wherever in modern India the doctrine of Spiritual Benefit — that is, of an intimate connection between the religious blessing and the civil right of succession — is most strongly held, women and the descendants of women are ofbenest permitted to inherit. It is remarkable that the Equity of the Roman Praetor, which was probably a religious before it was a philosophical system, had precisely the same eff'ect in breaking up the structure of the ancient Roman family, governed by the Father as its chief 78 ANCESTOK.-WOESHIP AND INHEKITANCE. CHAPTER IV. ANCESTOK-WORSHIP AND INHERITANCE, The close connection between succession to property after death and the performance of some sort of sacrificial rites in honour of the deceased has long been known to students of classical antiquity. A considerable proportion of the not very plentiftd remains of Greek legal argument to be found in the Athenian Orators is occupied with questions of in- heri]tance, and the advocate or litigant frequently speaks of the. sacrifices and the succession as in- separable. ' Decide between us,' he says, ' which of us should have the succession and make the sacrifices at the tomb ' (Isaeus, ' In the goods of Philoctemon,' Or. vi.) 'I beseech you by the gods and immortal spirits not to allow the dead to be outraged by these men ; do not suflFer his worst enemies to sacrifice at his grave ' (Or. ii.). In a former work I pointed out the number, costliness, and importance of these ceremonies and oblations among the Romans, and I insisted on their probable significance as the source CHAP. IV. ANCESTOE-WOKSHIP AND INHERITANCE. 79 of the peculiar fictions which cluster round early family law ('Ancient Law,' p. 191). The best ex- planation, I argued, of the facility with which a stranger can be made a son is that, being admitted to the religious observances, he is not distinguishable from a son under his religious aspect. The later experience of the world may show us that in the mere blending of the ideas of inheritance and offering there is nothing to surprise us. It is natural enough. Wherever it has been matter of belief that the sur- viving members of a dead man's family could do any- thing to better his lot in the world after death, it has been thought their duty to do it before they entered upon his possessions. The mediasval Christian Church held this view of personal or movable pro- perty ; it was primarily a fund for the celebration of masses to deliver the soul of the owner fi-om pur- gatory. Upon this doctrine was founded the juris- diction of our Ecclesiastical Courts, in which all property of this kind vested in the first instance before it could be distributed ; and this jurisdiction, coupled with the necessary powers over Executors in the case of Wills, and of Administrators in the case of Intestacies, has descended to the modern Court of Probate. The new light which we owe to the author of ' La Cit6 Antique ' is his determination of the nature of the divine beings to whom the oblations, which exercised so powerful an influence on Athenian 80 ANCESTOE-WOESHIP AND INHEEITANCE. chap. it. and Eoman heritages, were devoted. They were of com'se not offered to any one Supreme God. But neither were they offered to the greater deities of the local Pantheon. ' Le culte des dieux de I'Olympe et celui des H^ros et des Manes n'eurent jamais entre eux rien de commun,' says M. Fustel de Coulanges. The worship was given to the dead, chiefly to the remembered dead who had just passed away into a life not further removed from their late existence than a sleep from reality. I will note in passing that the excessive expensive- ness of the Roman sacra privata,, which is the burden of Cicero's complaints in his private letters, seems tO' be a feature of still surviving ancestor- worship. The writer of a paper I have before quoted (' Ningpo and Buddhist Temples ') gives a curious calculation, upon what is probably American missionary authority, ol the expenses to which the Chinese are put by worshipping their forefathers. ' One weU entitled to know what he spoke of said that fuUy thirty millions of dollars are annually expended in China at the three great festivals in honour of the dead, and, with the average expenditure of each family, folly 150 millions of dollars are spent in quieting the spirits.' There is no doubt also that funeral rites and oblations are extremely expensive in India, and I have heard their heavy cost seriously urged as a reason against im- posing a duty on legacies and successions. The ex- CHAP. IV. ANCESTOE-WOESHIP AND INHEEITANCB. 81 pensiveness of religious observance among Hindus arises from the necessity which it involves of feasting Brahmans, sometimes in multitudes, and making them gifts. The oldest of the law-books strongly inculcate the duty of employing the ministry of Brahmans. Three are especially to be in places of honour at all funeral celebrations, who are to represent the three ancestors worshipped — the father, grandfather, and great-grandfather. But many more are to be enter- tained. ' Pure, with composed mind, and full of ardour,' says Apastamba, ' he shall feed Brahmans who know the Vedas.' ' He shall feed an uneven number of Brahmans, at least nine,' is the rule of Gautama, ' or let him feed as many as he is able to entertain.' Some singular but very intelligible texts forbid the worshipper to make these sacred feasts a pretext for entertaining his own relatives- ' The food eaten at a sacrifice by persons related to the giver is a gift offered to goblins. It reaches neither the Manes nor the Gods. Losing its power to procure heaven, it wanders about in this world, as a cow that has lost her calf runs into a strange stable '■ (Apas- tamba, II. vii. 17. 8). We have now to consider some of the ways in which the law and custom of ancestor-worshippiag societies have been affected by their peculiar faith and religious practice. The first instance of a trans- formation in law which I will give is one nearly con- Q 82 ANCESTOR-WORSHIP AND INHERITANCE. cuap it. nected with tlie growing costliness of the ritual. By this ritual a religious and intellectual aristocracy lived. One of the commonest popular errors about the Brahmans even now current in England is that, because they are spiritually the highest, they are therefore the wealthiest and most powerful of the Hindu castes. They count among them some opulent and powerful families, and one Royal house in India is Brahman, but, on the whole, they are not specially wealthy. It would be more accurate to describe them as a serving and ministering class, their occu- pations varjnng from the high administrative duties which they once monopolised in the Mahratta States to such humble functions as those of the cook, whose service is a luxury, because no impurity can be con- tracted at his hands. The Brahman of the old law- books is stUl a priest and spiritual director more than anything else, though with a visible tendency to become a lawyer, a judge, or an administrative counsellor. He lives, however, by the bounty of others, by their charitable and pious gifts, more par- ticularly those given to him on the great occasions of sacrifice. It is strongly said by a modern writer (J. D. Mayne, ' Hindu Law and Usage,' p. 205) that the modern law, as promulgated by Manu, might be described as a law of gifts to Brahmans. ' Every step of a man's life fi"om his birth to his death required gifts to Brahmans. Every sin which he committed CHAP. IV. ANCESTOR-WORSHIP AND INHERITANCE. 83 might be expiated by gifts to Brahmans. The huge endowments for religious pui-poses which are found in every part of India show that these precepts were not a dead letter.' Now one chief impediment to pious liberality is that system of joint ownership by groups larger than families which is still common in India, especially in that earliest home of the Aryan race, the Punjab. Every man's rights in such a group are more or less limited by the rights of every- body else ; and, as a rule, the assent of the entire group is necessary before any part of its property can be alienated. Hence the sacerdotal system, of which the rudiments are to be seen in the law-books, is most manifestly adverse to joint forms of property. The writers frankly avow their motives for this dis- like of co-ownership and for their partisanship of partition. ' In partition,' says Gautama, ' there is increase of spiritual merit' (x. viii. 4). The prin- ciple is still more plainly put by Manu (ix. iii.) : ' Either let them live together, or, if they desire separately to perform religious rites, let them live apart ; since religious duties are multiplied in separate houses, their separation is therefore right and even laudable.' The more separate households, the more occasion for domestic sacrifice, the more opportunities for pious largesse to the sacred order. The modern writer I have quoted (J. D. Mayne, p. 204) cites my own opinion, expressed in a former e 2 84 ASCESTOE-WOKSHTP AND INHERITANCE. OHAP. it, work (' Early History of Institutions,' p. 104) that the Christian Church, when engaged in proselytism among barbarous societies, exerted a similarly dis- solving force upon tribal ownership. The Church certainly introduced its barbarous converts to the Testament or Will ; it strove to strengthen their reverence for Contracts ; and the Irish evidence seems to prove that it largely extended Separate, as dis- tinguished from Tribal, ownership. In reading the Brehon tracts, you remain in doubt whether the writer means to lay down that tribal land under cer- tain circumstances may be parted with generally and in favour of anybody, or whether it is only to be alienated in favour of the Church. The strong pro- bability is that he intended to sanction gifts to the Church primarily ; and that a generally enlarged power of separate alienation was the consequence of such rulings. But it has always to be remembered that there is a radical difference between the Brahman encouragement of charitable profusion and the en- largement of legal facilities for pious endowment by the mediaeval Christian Churqh. Charity with the Brahman began strictly at home ; he was wedded to it, because he lived by it. But the Church, although it certainly desired to fortify by endowments every asylum and stronghold which it planted amid bar- barism, had other classes under its protection besides its own servants and clergy. It fed the poor and CHAP. IV. ANCESTOK-WOESHIP AND INHERITAJVCB. 85 needy at its gates. It was ever careful for the orphafi. and tlie widow. But tte Brahman law-books, with much elevation and some tenderness of feeling, are constantly offensive in the contempt, sometimes amounting to loathing, which they express for aU classes except the sacred caste and other castes powerful enough to pretend to equality with it, or proximity to it.-^ We come now to some results of Ancestor- worship which are of the highest interest as throw- ing light on a number of perplexing questions which embarrass our first steps in the examination of very- ancient societies. It seems clear that, according to the most ancient ideas, not only must the ancestor worshipped be a male ancestor, but the worshipper must be the male child or other male descendant. Under the conditions of thought we have been sup- posing, it will have been seen that the verge of life and death was very easily overstepped. The dead man was he who had been the living dreamer, only that he had now passed permanently into the life of dreams. It thus seemed proper that the sacrifice should be offered by a person who one day would take his place in the chain of deified ancestors, and this could only be a male descendant. Hence there arose, among the ancestor-worshipping peoples, a most intense desire for male offspring and, as a 1 See Note A to this chapter. 86 ANCESTOR-WOESHIP AND INHERITANCE. chap. IV. consequence of this desire, a remarkable set of ideas about paternity, sonsbip, and inheritance, which must have been widely diffused of old among all the more powerful races of mankind, and specially those of the Aryan stock. There are manifest traces either of these ideas, or of the customs with which they were intermixed, in the legal antiquities of the Athenians and of the Spartans, of the Romans, of the Celtic Irish, of the Hebrews, and of the Chinese. As is natural, from the deeply sacerdotalised character of their legal literature, the fullest and most detailed account of a family system shaped and interpene- trated by ancestor-worship is to be found in the ancient books of the Hindus. It cannot, of course, be taken for granted that this system, in its integrity, ance existed everywhere. One feature of it is found here, another there. But there does seem to have been a general likeness between the deductions which the priests and lawyers of a large number of ancient societies drew from the principle that sacrifice and worship were due, under severe supernatural penalties, from male children to their dead forefathers. We cannot, as it appears to me, frame in our minds any reasonable explanation of Ancestor- worship and its legal consequences, unless we assume that, when it first arose among men, the Father of each family appeared to them in the for.n in which he constantly shows himself on the threohold of juris- CHAP. IT. AKCESTOE-WOESHIP AND INHEEITANCB. 87 prudence, and wliicli he probably wore^ when the human race began. He is the Pater Familias. The physical paternity is fully recognised, but it is blended with protective power. Most of the males subject to him are really his children, but, even if they have not sprung from him, they are subject to him, they form part of his household, they (if a word coloured by later notions be used) belong to him. On the other hand, under the religious aspect of these relations, from the point of view of a sacerdotal lawyer, the son is simply the person who can effica- ciously offer the sacrifices. Dr. Biihler (Preface to vol. ii. of ' Sacred Books of the East,' p. xix.) writes thus of Baudh&yana, whom Sanscritists, Indian and European, generally regard as one of the oldest of the law-writers. * Like many other ancient teachers, Baudh^yana permits childless Aryans to satisfy their craving for representatives bearing their name, and to allay their fears of falling after death into the regions of torment through a failure of the funeral oblations, by the affiliation of eleven kinds of substitutes for a legitimate son. Illegitimate sons, the illegitimate sons of wives, the legitimate and illegitimate offspring of daughters, and the children of relatives and even of strangers, who may be solemnly adopted or received as members of the ' See Chapter VII. (on ' Modern Theories of Primitive Society ') below. 88 ANCESTOK-WOBSHIP AOT) INHEEITANCE. chap, it; family without any ceremony, are all allowed to take the place and the rights of legitimate sons.' I will proceed to examine this system of artificial affiliation at some length, together with its bearing on Inheri- tance in the embryo. Until the ideas upon which it rests have been carefully sifted, it seems to me doubtfal whether all investigation of the primitive forms of society is not likely to be imperfect and pre- mature. First of all, then, the person who offers the sacri- fices with the best chance of efficacy in the world beyond the grave is the legitimate son, the son who is physically the offspring of his father and who, by preference, is born of a marriage blessed by Brah- mans and contracted under all the conditions which their sacred law prescribes. And, among all sons, the eldest son is most likely to confer spiritual benefit on his father. Here, however, we come upon one of the most remarkable of the extensions which the sacerdotal lawyers give to their doctrine in order to prevent its miscarriage in particular cases. With the purpose of increasing the chance of there being legiti- mate sons to present the oblation, some among the oldest of these Brahmanical teachers relax the con- ditions of marriage, and show leniency to strange forms of wedlock, so numerous as almost to include all possible unions of the sexes. Some of these mar- riages are very strongly condemned by the later CHAP. IV. ANCESTOErWOKSHIP AND INHEEITANCE. 89 Hindu law-writers ; for example, marriage with a purchased bride ; others, where they occur, are effec- tuated by violence or by fraud. StiU, it is to be observed that the children of all these unions would be physically the children of the husband ; and the father and mother, however barbarous their con- nection, are probably understood to have been un- married before it. Among all the sons sprung from the father, the eldest is preferred. The sacerdotal reason assigned by the Hindu lawyers is that, by his birth, the religious obligation to have a son who can continue the chain which binds together the living and the dead has been satisfied. But the privileges of inheri- tance corresponding to this spiritual primacy are very variously defined in the law-books, and, even when they approach somewhat to modern primogeniture, they are still very unlike it. Sometimes the eldest son is spoken of as taking the whole inheritance of his father and supporting the rest of the family, and this is very probably the secular custom for which the priestly lawyers invented a religious reason. More often, the best portion, or some similar advan- tage, is assigned to the eldest of the sons, and some- times alternative modes of providing for him are stated. Of two ancient authorities, Gautama defines his privileges in ambiguous and indeed contradictory language (see chap, xxviii.), while Apastamba, while 90 AWCESTOK-WOESHIP AND INHERITANCE, chap, it, admitting that Primogeniture gives advantages in certain countries, argues strongly for equal division among aU the sons (ii. vi. 14. 14). It seems to me that, at the epoch of these law- treatises, the ancient Primogeniture was decaying among the Hindus, as we know that it decayed in the barbarous world generally. Under the original usage, the eldest son may have taken everything and maintained his brethren ; but the Brahmans, as I have explained, were strong partisans of multiplied households, and this feeling must have militated powerfully against the privileges of the eldest. On the whole, the doc- trine which tends to prevail is that the division should be equal among sons, with a small advantage to the eldest as the divider of the inheritance, which may have been meant as an inducement to fairness. Next to the legitimate sons, as proper vehicles for spiritual blessing, the greater number of the ancient Hindu law-writers place the son of the wife, born during her marriage but not necessarily of her husband. At first sight this looks like an application of the long-descended legal maxim, ^ pater est quern nuptioB demonstrant,^ but all the ancient texts taken together suggest a difi'erent explanation, and I will consider the ' son of the wife ' again when I come to the son of the widow. The person who, on failure of all the inheritors I have mentioned, can next in order offer the sacrifices CHAP. IT. ANCESTOK-WOESHIP AND mHERITANCE. 91 for tlie deceased and claim his succession, is tlie son of his ' appointed ' daughter. It is an interesting case for a variety of reasons. The son of a daughter, regarded by himself, would not satisfy the require- ments either of a successor or of a worshipper. From the secular point of view, he is, in Roman phrase, a ' cognate,' a Jdnsman through women only, who, according to the usage prevailing among all the more powerful races of mankind either from the first or in a certain stage of their development, cannot continue the family. The religious theory of ancestor-worship would not take any notice of him, for the parent to whom he would sacrifice would be a woman, and women could not in the earliest times be objects of worship, and never at any time by themselves. But the ancient law allowed the father, who had no pro- spect of having legitimate sons, to ' appoint ' or nomi- nate a daughter who should bear a son to himself and not to her own husband. Apparently this appoint- ment could be made against the husband's wUl, for one of our oldest authorities warns the Hindu against marrying a girl who has no brothers, because her father may ' appoint ' her, and her husband may have his own naturally-born son converted into the son of the maternal grandfather. The sacerdotal formula of appointment is given in Gautama, xxviii. 19. 18 : ' A father who has no male offspring may appoint his daughter to raise up a son for him, presenting burnt 92 ANCESTOE-WOESHIP AM) INHEKITANCE. chaf. IT. offerings to Agni and to Prag^pati, the lord of crea- tures, and addressing the bridegroom with these words, " For me be thy male offspring." ' ' Some declare,' adds the writer, ' that a daughter becomes an appointed daughter solely by the intention of the father.' Some customs near akin to the Hindu usage of 'appointing' a daughter appear to have been very widely diffused over the ancient world, and traces of them are found far down in history. The daughter here becomes neither the true successor of her father nor the priestess of his worship, but a channel through which his blood passes to a male child, capable, according to the oldest notions, of sacrificing to him ; and, according to the newer ideas, of taking his property and preserving the continuity of the household. At first there was always, I shoiild imagine, some expression of the father's wUl, coupled with some religious ceremony. Among the Athenians, when our knowledge of their law begins, the Testa- ment or Will has appeared, though its operation is much limited. An Athenian father, fearing sonless- ness, might have a son raised up to him by a daughter ; and the commonest mode of effecting this object was by devising his property — or, to speak more strictly, the property and the daughter together — to a person selected by himself on condition of marrying her. The son born of the marriage was, CHAP. rv. ANCESTOR-WORSHIP AND INHERITANCE. 93 on coming of age, transferred to the family of his maternal grandfather — it would seem, with some of the forms of adoption — and took his name, becoming at the same time the legal representative (icupios) of his own mother. This is essentially the same method of obtaining a male child which was anciently in use with the Hindus. But some such practice must have been followed, and some such ideas must have pre- vailed among a certain portion of the barbarous communities which contributed their usages to the enormous body of rules finally consolidated as the Feudal Law. According to some systems of mediaeval customary law, daughters succeeded, either in order of primogeniture or in a group, when sons had failed. According to others, they were excluded altogether. But between these doctrines there was an intermediate view, that a daughter, though she could not succeed herself, could transmit a right of succession to her male children. Hereafter, I shall have occasion to point out that this was the rule on which our Edward III. based his claim to the throne of France ; he admitted that the French princess, who was his mother, could not succeed, but he contended that he himself, as her son, was entitled to succeed his maternal grandfather. This argument did not pre- vail either in the forum of arms or in the opinion of the feudal lawyers ; but it seems to be clearly con- nected with the range of legal notions before us. 94 ANCESTOE-WORSHIP AND INHEKITANCE. chap. it. The chief interest of the Hindu ' appointment,' and of the counterparts of it in the law of other races, lies in their probably marking one of the points at which the right of women to inherit made its way iato the strict agnatic systems of kinship and succes- sion which prevailed among the more advanced of the barbarous societies. The Brahman compiler of Manu, while speaking of the appointed daughter, uses language which seems to show the natural growth of feeling : ' The son of a man is even as himself, and as the son so is the daughter ('thus appointed' adds the commentator) : how then, if he have no son, can any inherit his property but a daughter who is closely united with his own soul ? ' As the law developed itself, the most general result finally attained was that daughters inherited when sons had failed. But it was not reached at once. Among the ancient Hindu writers, Baudh&yana seems to have wholly denied the right of women to inherit : Apastamba places the daughter at the very end of the list of inheritors, but the more modem Yishnu introduces both mother and daughter immediately after the sons. In works treating of the Athenian law, it is usually stated that when there were no sons daughters succeeded. But this is not an adequate statement of the rule. The daughter of a man who left property but no sons, was not in strictness his heiress. She was, as her Greek name (irnKk-qpos) indicates, a CHAP. rv. ANCEtSTOK-WORSHIP AND INHERITANCE. 95 ' person who went with the property.' ^ As I have said above, her father might compel her by testament to marry the devisee of her share ; but, if he died intes- tate, she was subject to another liability — marriage to his nearest kinsman — which connects itself with some singular branches of our subject to be dis- cussed presently. In aU these Athenian rules, it is to be observed that, while the ancestral sacrifices are constantly mentioned, the object of special care is the devolution of the estate ia the household. The religious basis tends to drop away from the law. Indeed, the wish to prevent daughters from carrying off the patrimony of one household to another is not at all a feature exclusively of sacerdotalised bodies of usage. The secular law of the unsacerdotalised Hindus of the Punjab applies the same principle and exhibits some instructive variants of the Athenian rules (' Notes on Punjab Customary Law,' vol. ii. pp. 75, 81, 184, 239). Under some Punjab usages, the daughter, when there are no sons, inherits a limited interest in her father's property ; but she must resign it when she marries. It is usual, however, for the husband of such a daughter to be adopted by his father in-law. The legitimate sons, and the son of an ' appointed' daughter, have in their veins the blood of the father ' See Jebb, Aitic Orators, ii. 318. 96 ANCESTOE-WORSHIP AKD INHERITANCE. chap. iv. to whom they sacrifice and succeed. But when there are no sons, and when there has been no appointment of a daughter, we are introduced by the law-books to a number of possible successors whose sonship is altogether fictitious. I know no part of the ancient Hindu law more curious than this, or demanding more imperatively to be taken into careful account by aU who investigate the beginnings of organised human society. That ancient famUy law is entangled with fictions has long been known. ( See my ' Ancient Law,' p. 130.) One of them has been so long before our eyes as to be comparatively familiar to us. This is Adoption, the engrafting on the family a son fi-om a strange house. Its importance as a private in- stitution at Rome and Athens is of course well known to students ; and, among the Romans of the Empire, it became politically important in a high de- gree as one of the chief expedients for bringing about the peaceable succession of Prince to Prince. It is true that to Englishmen, nowadays, it is little more than a name ; to adopt a child is to nurture and educate it, and perhaps to provide for it by Will. But in the French Civil Code (liv. i. 8 ; tit. 8, c. 1), and other Continental Codes founded on the French, Adoption survives as an institution : a childless man, though under somewhat severely restrictive condi- tions, may take to himself an adoptive child who will be entitled to succeed to his property. This famili- CHAP. If. ANCESTOR-WOBSHIP AND INHEEITANCE. 97 arity with Adoption, during such a length of history, blinds us to the fact that it is one of the most violent of fictions. The faculty of accepting them, strong as it is in ancient communities, must have been strained to the utmost when, for the purpose of taking part in the most solemn of religious ceremonies and earn- ing a consequent right of inheritance, a strange child was transferred to the household, or a man alien in blood was permitted to enter it voluntarily. No doubt, in the more recent practice of the societies accustomed to the adoption of children, the violence of the fiction is somewhat diminished. The theory may be that the child adopted is a stranger, at most of the same order or caste as the person adopting him, but in India he is generally a blood-relation of some kind ; and, on looking through a list of known E.oman adoptions, the large majority will be seen to be instances of the adoption of ' cognatic ' kinsmen — that is, of relatives through women. But the ancient feeling on the subject may be inferred from the place which simple adoption occupies iu the Hst of expe- dients for continuing the family of a childless fatJier as set forth in these early Hiadu law-books. ' There is a singular disproportion,' says Mr. J. D. Mayne, 'between the space necessarily devoted to adoption in the English works on Hindu law, and that which it occupies in the early law-books. One might read through all the texts from the Sutra writers down to H 98 ANCESTOR- WORSHIP AND INHEEITANCE. chap, it, the Daya-Bhaga without discovermg that adoption is a matter of any prominence in the Hindu system ' (' Hindu Law,' p. 81). The truth is, that by its side there are a number of fictitious affiliations which were of at least equal antiquity with Adoption, and which, I suspect, served its object even more com- pletely in very ancient times. They are startling or revolting to modern sentiment, but they seemed per- haps simpler and more natural to ancient thought than the admission of a mere stranger to the family. These fictitious sons are called by Gautama (xxviii. 32) the ' son born secretly,' the ' son of an un- married damsel,' the ' son of a pregnant bride,' and the son of a ' twice married woman.' It is sufficient to say of them that none of them are necessarily the sons of the father whom they are permitted to worship after his death, whUe some of them cannot possibly be his children. They are all, to use modern words, illegi- timate or adulterine ofi"spring, but then they are all the offspring of women who are under the shelter of the household, or who are brought under it. These women are under the protection of its head ; they belong to him, and the status of their children is settled by the well- known rule which, in Roman law, would settle the status of a slave. Here it is that these strange usages link themselves to familiar phenomena of primitive societies. Paternal power and protective power are inextricably blended together ; even the Slave is in CHAP. IV. ANCESTOR-WORSHIP AND INHERITANCE. 99 some sense a member of tlie family. We know in fact that at Rome a Slave could perform tlie family sacrifices on his master's death ; and it was a com- mon contrivance of men who expected to die insolvent to nominate a slave as the heir' in the last resort, in order that the bankruptcy of the estate might be declared in his name. Thus, on the secular side, these fictitious sons are permitted to rank as in some remote sense sons, because they are born of women protected by the head of the household, and because they are themselves protected by him. On the religious side, they are permitted to oflFer the ancestral sacrifices as a desperate expedient for preserving the ancestor from a total failure of male ofi'spring, and from the terrible consequences of entering the world of the dead without the proper oblations and rites. It must be, however, understood that strong moral repugnance to the fictitious affiliation of these illegitimate and adulterine children begins to show itself among the oldest of the Hindu law-writers whose treatises have survived. A very ancient authority, Apastamba, gives no list of them, protests against the principle, and lays down broadly that ' the son belongs to the begetter.' Even the writers who mention them vary greatly as to their place in the order of succession, and Manu aims at them the remark (ix. 161) that 'such advantage as a man would gain who should attempt to pass deep water in H 2 100 AlfCESTOR-WORSHIP AND mHEEITANCB. chap. it. a boat made of woven reeds, that father obtains who passes the gloom of death leaving only contemptible sons.' I cannot doubt that the growing popularity of Adoption, as a method of obtaining a fictitious son, was due to moral dislike of the other modes of affilia- tion which was steadily rising among the Brahman teachers in the law-schools. Let us now suppose the head of the household to have died without having left a son, without having appointed a daughter, without having taken a son in adoption, without male children bom in the house who can satisfy the fiction of sonship, — ^is there any escape possible from the dreaded consequences of failure in the family succession and the ancestral sacrifices? In the opinion of some of the Hindu doctors, these consequences might be averted by an institution which has lately received a great deal of attention, known commonly as the Levirate, but called by the Hindus, in its more general form, the Niyoga. Under it, a son is bom to a childless man of his wife or his widow, not from the husband himself but fi-om his brother or nearest kinsman. The practice of so ob- taining a son appears to have extended, with various modifications and with or without the religious sanc- tion, over many branches of the human race. We come upon faint but still recognisable traces of it in the law of the Spartans and Athenians, and in one of its forms it was certainly followed by the Hebrews. CHAP. IT. ANCESTOR-WORSHIP Alrt) INHERITANCE. 101 The Levirate, imder whicli the son is born to the dead man from his brother, ■ that his name be not put out of Israel,' is best known to Englishmen from the casuistical question of the Sadducees in the twenty- second chapter of St. Matthew (v. 24 et scq.): ' Master, Moses said, If a man die, having no children, his brother shall marry his wife and raise up seed to his brother. Now there were with us seven breth- ren ; and the first, when he married, deceased and, having no seed, he left his wife unto his brother : Likewise the second also, and the third, unto the seventh. And after them all, the woman died. In the Kesurrection, therefore, whose wife shall she be of the seven? for they aU had her.' In the passage here expressly referred to (Deuteronomy xxv. 5) the duty of the husband's brother is declared to be impera- tive. ' If brethren dwell together, and one of them die and have no child, the wife of the dead shall not marry without unto a stranger : her husband's brother shall go in unto her, and take her to wife, and perform the duty of a husband's brother unto her. And it shall be that the first-born which she beareth shall succeed in the name of his brother which is dead, that his name be not put out of Israel.' The verses which succeed describe the procedure which is to be followed when the brother-in-law declines the obligation ; and this procedure, consisting chiefly of a symbolic plucking ofi'of the shoe, reappears in the Book 102 ANCESTOE-WOESHIP AND INHEEITANCE. chap. it. of Ruth, where the idyllic beauty of thestory sometimes blinds the reader to the fact it is meant to illustrate, a legal rule which was important in its bearing on a passage in the genealogical history of the Royal House of Judah. The most ancient form of the insti- tution appears, however, to be that which is described by the oldest of the Hindu law-writers. ' A woman whose husband is dead and who desires offspring may bear a son to her brother-in-law. Let her obtain the permission of her Gurus (that is, her spiritual direc- tors). On failure of a brother-in-law, she may obtain offspring by cohabiting with a Sapinda, a Sagotra (a Roman would have said, an ' Agnatus ' or ' Gentilis '), a Samfi,napravara (that is, one of the same literary or sacerdotal clan as her husband), or one who belongs to the same caste. Some declare that she shall cohabit with nobody but a brother-in- law.' It is to be remarked that Gautama does not appear to contemplate that the widow will necessarily become the wife of the Levir, and that, as in the Book of Ruth, the obligation is extended by him to. kins- men remoter than a brother-in-law, though he notices the opinion that a brother-in-law alone can raise up seed to his brother (Gautama, xviii. 6 et seq.) But the practice here and there received an exten- sion even more revolting to modern delicacy than the shape which it takes in the Levirate. ' The child be- gotten at a living husband's request, on his wife,' says CHAP. IT. ANCESTOR-WOKSHIP AND INHEEITANCaE. 103 Gautama (xviii. 11), 'belongs to the husband.' There are several instances of such requests referred to in the Sanscrit literature, but the practice, when defined as an institution by the lawyers, strictly required that the natural father of the child should always be a kinsman. Gautama immediately adds to the passage just quoted, ' If the natural father of the chUd was a stranger, that is not of kin to the hus- band, it belongs to the stranger.' And, again, in his list of sons, this ancient writer places the ' son be- gotten on the wife by a kinsman.' It would appear, as I shall have to point out presently, that Hindu sacerdotal feeling was divided fi-om the very earhest times on the morality of the Niyoga ; but we must bear in mind that its coarser form was not necessarily more repugnant to the old teachers than the form which seems to us somewhat less offensive. No doubt the birth of the son from the widow does not revolt so much as his birth from the wife. But then the ancient law made little diflFerence between the husband's old age and his death. It is assumed that an old man will quit his house and family and with- draw to spend the residue of his hfe in asceticism ; and the fittest moment for retirement is frequently described as the time at which he becomes incapable of fatherhood. There are some vestiges of the class of functions assigned by the Niyoga to the nearest kinsman in 104 ANCESTOE-WOKSHIP AOT) IlfHERITANCE. chap, it. the records of both the great States of Greece. A well-known story told by Plutarch (' Pyrrhus,' 26) of the relations between a brilliant Lacedaemonian officer, Acrotatus, and Chelidonis, the wife of Cleo- nymus, and of the way in which the old men of Sparta applauded these relations and invoked bless- ings on the offspring of Chelidonis, does assuredly suggest that, ia that old-fashioned and never very delicate society, some institution like that of the ancient Hindus survived till the third century before Christ. Cleonymus was an aged man, and Acrotatus, his grand-nephew, seems to have been his nearest male relative in the flower of life. At Athens, the most nearly corresponding institution difiFered con- siderably from the Hindu form. I have stated that an Athenian father might provide, like an Hindu, for the continuance of his family through the son of a daughter ; but if, dying sonless and intestate, he allowed his property to descend to a daughter without special arrangement, she became the Orphan Heiress (or eTTifcXijjOos), who makes a great figure in Attic law. She had no power of choosing a husband for herself, but it was the right of her nearest kinsman to marry her and his duty to marry or portion her. The right seems in fact to have been keenly disputed ; there was a special proceeding (or SiaSi/cacria) for deciding between different claimants, and men often divorced their wives in order to marry the heiress. The same CHAP. IT. ANCESTOR-WOESHIP AND INHEEITAITCE. 105 principle was applied to a group of daughters, whom their various kinsmen ia order of proximity had to marry or provide with a portion. The object, of course, is to keep the property in the family, and, if possible, to provide, that the daughter's children should derive a stream of its blood from male descents. An even more remarkable application of the principle occurred when the children left were a brother and sister. In such a case the duty of the brother was to portion the sister, but if she were only a half-sister, the strong Athenian feeling against the marriage of brothers and sisters had to give way, and he might marry her and save the portion to the estate. This power could not, however, be exercised, if the sister were uterine, that is, a child by the same mother though not by the same father ; and this limitation has been thought a survival of the remote age at which the Athenians counted kinship through females only. But marriage with an uterine sister would have no tendency to promote the object aimed at. She would have no rights over the father's estate, and marrying her would not help to keep it from diminution and to preserve in its integrity the fund for the ancestral sacrifices.* Let me repeat that, in most of the Athenian rules about the rights and < This is the explanation of M. Fustel de Coulanges {Giti Antiqtie, p. 83), wMch seems to me conclusive. He observes that an emancipated son did not enjoy the privilege. 106 aNCESTOK-WORSHIP and inheritance. chap. IV. duties of the nearest kinsman, we have illustrations of the tendency, manifest also in the last chapter of the Book of Ruth, of ancient contrivances for continu- ing the family to become mere modes of succession to property. A few words will not be thrown away on the pro- bable origin and meaning of this group of institutions. The Levirate, which is a special case of the Niyoga and under which one brother raises up seed to another, has had a definite place assigned to it by the late Mr. J. F. McLennan in the evolution of society. Originally, I understand him to lay down, there was promiscuity in the relations of the sexes. This pro- miscuity became limited by Polyandry,^ one wife having several husbands. These plural husbands came in time to be always brothers, and the Levi- rate is a relic of this form of Polyandry. It would not be quite easy to bring all forms of the Niyoga (of which the Levirate is, as I have said, only a special case) under this ingenious theory ; but I will confine myself to saying that the explanation is not the one suggested, to my mind at all events, by the antiquities of Hindu law. Let us suppose that in a particular society an intense desire has arisen for male issue, whether through its worship of ancestors or otherwise. Let us assume that in a particular case « See Note B, ' Polyandry.' CHAP. IV. ANCESTOR-WORSHIP AND INHERITANCE. 107 actual issue of the father's loins is impossible. There are no daughters. The accepted fictions, by which sons are created for the sacrifice, cannot be made ser- viceable. What is to be done, that the name of the aged or dead man be not put out on earth nor his lot placed in jeopardy beyond the grave? Now all ancient opinion, religious or legal, is strongly influ- enced by analogies, and the child born through the Myoga is very like a real son. Like a real son, he is bom of the wife or the widow ; and, though he has not in him the blood of the husband, he has in him the blood of the husband's race. The blood of the individual cannot be continued, but the blood of the household flows on. It seems to me very natural for an ancient authority on customary law to hold that under such circumstances the family was properly continued, and for a priest or sacerdotal lawyer to suppose that the funeral rites would be performed by the son of the widow or of the wife with a reasonable prospect of ensuring their object. The very differ- ences of opinion which arose on the subject in the most ancient Brahmanical law- schools seem to me exactly those which would be provoked by a plau- sible and yet non-natural contrivance. There was a division of opinion about the Niyoga, especially in its more offensive shape, from the very first. Apastamba condemns it in the strongest language, while Baud- h&yana and Gautama have nothing to say against it. 108 AKCESTOB-WOESHIP AND mHEEITAJSTCE. chap. it. Manu, in a later age, declares it is only fit for cattle (ix. 65. &6), but Narada, a stiU more recent autho- rity, almost pervaded by the modem spirit, takes it as a matter of course. I have stated that, in my opinion, the capacity which came to be recognised in daughters, to transmit to a male child the religious quaUty of sonship to his maternal grandfather, is connected with the ultimate admission of female descendants to a share in the inheritance. It seems to me, further, a plausible con- jecture that the capacity of the widow to produce a son to her deceased husband through the Levirate has helped to confer on her the life-interest in her husband's property which she enjoys in parts of India ; and has also led to the power very generally vested in her by Hindu law and usage of taking a son to her deceased husband by simple adoption. My subject, however, is the dependence of inheritance on ancestor-worship, and these topics are too far re- moved from it to be fitly discussed at present. In any inquiry into the origins of the succession of daughters to their father's estate, it would be neces- sary to examine the practice of giving them portions on their marriage which prevailed widely in the an- cient world. The gift to a woman or the provision for her on her marriage cannot be separated from her right of succession. Speaking generally, they are alternative modes of providing for her ; and the ex- CHAP. IV. ANCESTOR- WORSHIP AND INHERITANCE. 109 elusion of daughters from inheritance in ancient sys- tems of law constantly means that they have a right to be portioned, as a rule, out of the movable pro- perty of a famUy. The ancient Hindu writers scarcely mention the daughter's succession. Baudh&yana, it is thought, held the opinion that no woman could inherit. Apastamba brings in the daughter not only after the male relatives, but after such remote successors as the religious teacher and the fellow- pupU of the deceased. But still these writers implicitly recognise some separate property in married women (Gautama, xxviii. 24). In the ancient legal systems of the Western world there is a visible connection between inheritance and provision upon marriage. Under Athenian law, when sons have failed and the father has died intestate, daughters must be either married to kinsmen, or portioned by them under the system which I have described. The ancient Roman law, at the earliest stage at which we know it, is thought to have allowed some share of their father's inheritance to daughters. But the Roman law has bequeathed to modem jurisprudence the doctrine^ that, under certain circumstances, a marriage portion is to be deemed an ' advance ' of a legacy to a daughter, and, conversely, that a covenant to settle a portion is ' satisfied ' by a legacy. I have always sus- pected that this doctrine inverted the principle of the s See Dig. xxx. 84, 6. God. vi. 37, 11. 110 ANCESTOR- WORSHIP AND INHERITANCE, chap. iv. oldest law ; and that, anciently, the daughter only- succeeded when she had not been portioned. In the Joint-Families of modern India, and in the Slavonian House-Communities, though the estate may be re- garded as belonging to the male members of the household, the women are entitled to a portion on marriage, generally amounting to some definite frac- tion of the share which their brothers would receive on a division ; and in India, when the property of a joint-family is distributed, the law saddles the shares with a liability to ' maintain ' the unmarried women and widows. Nowhere, so far as I know, are women left without provision in ancient societies which have made even a slight degree of advance. The real prejudice or reluctance is against allowing them to confer on their husbands, to whom they are generally married in infancy, any rights over the kind of pro- perty, such as land, by which the community lives and holds together. But a provision for them by means of property which is actually movable and transferable is thought not merely just and fair, but so imperatively required that it would be a violation of decency and a blot on the famUy honour to omit or refuse to provide it. We have now come to the point at which, if there were any close analogy between a modem legal writer and these ancient expositors of the Brahmanical sacred law, they would take up for discussion (1) the CHAP. iv. ANCESTOE-WOESHIP AND INHEEITANCE. Ill succession of ascendants of tte deceased, of his male paternal ancestors, if any survived him, and (2) the succession of collaterals — ^that is, of the descendants of his paternal ancestors. The second of these subjects. Collateral Succession, has attained a vast extent and complexity in the modern ^ law of the Hindus ; and on the whole its importance has increased rather than diminished in Western Europe. Englishmen are less interested in Collateral Succession than other peoples, and, indeed, it may be said in all succession by law, through their almost universal habit of determining the devolution of their property by marriage-settle- ments or wOls. But on the Continent, principally through the operation of the French Code and of the Codes modelled on it, the practice of testamentary disposition is said to be on the decline. The rights over the father's property secured to children are indefeasible, and the chief modern object of a WUl, the distribution of property among children according to their character and needs, being thus unattainable, Wills fall into disuse and the law is left to settle the succession of more distant relatives. It shows the re- moteness of the legal ideas which 1 am examining from those now prevalent, that the ancient lawyers before ' The existing Hindu law on the subject, with the principles on which the two rival sets of doctrines depend, is discussed by Mr. J. D. Mayne ia a most instructive chapter (xvi.) of his Hindu Law and Usage. 112 AKCESTOK-WOESHIP AOT) INHERITANCE. chap.it. US hardly notice collateral succession. They provide for the ultimate succession, on failure of nearer claim- ants, of spiritual kinsmen, the Brahman teacher, and the fellow-pupU, and for the succession of the King, but they say hardly anything of Inheritance as now- understood, save in the direct line of descent or ascent. Their language on the remoter succession of blood relations is brief and obscure, and they do not use technical terms in the same sense, or in the sense of the modern Hindu law.* They pass rapidly to the spiritual inheritors whom I have named, and to the King ; and one of them adds that ' in cases for which no rule has been given that course must be followed of which at least ten Brahmans, who are well instructed, skilled in reasoning, and free from covetousness, approve' (Gautama, xxviii. 48). The brevity and obscurity of the early law-teachers on certain topics have been accounted for by the assumed purpose of their treatises, which is to give a ' The familiar terms of the mature Hindu law indicating classes of inheritors (Sapinda, Sagotra, &c.) occur in these writers, but not apparently in the more modern sense. A text attributed to Baudhayana defines ' Sapinda ' as ' the paternal grandfather, grandfather, the father, the man himself, his uterine brother by a woman of equal caste (that is, the son of his father by the same mother as himself, provided she be of equal caste with her husband), his son, his son's son, and the son of the grandson.' But this cannot be the meaning of Sapinda in Gautama (xiv. 13, and XVIII. 6). Vishnu seems to employ Sapinda and Bandhu as synonymous (xvii. 10). ohap.it. ANCESTOR-WOESHIP AND INHEEITANCE. 113 compendious summary of the law in aphoristic lan- guage. It is to be observed, however, that they are full and clear enough on all subjects to which they attach importance. It is, I think, impossible not to see that, so far as regards collateral succession, they were little interested in it. The truth seems to me to be that they trusted, for the proper devolution of the inheritance, to their various contrivances for providing a son when legitimate sons had failed, to the appointment of a daughter, to their fictions of sonship, to adoption and to the Niyoga. It is probable that at first an efficacious sacrifice to the dead could only be ofi'ered by a descendant in the direct line ; and though some of the artificial methods of obtaining a worshipping representative were disapproved of, it is very likely that a col- lateral relative could not originally sacrifice at all with any prospect of conferring or receiving spiritual benefit. But all the artificial expedients, save one, for providing sons have long since been exploded in India. They are not permitted, says the orthodox Hindu doctor, in the Iron Age in which we now live, because of the hardness of men's hearts. As a matter of fact, a current of feeling adverse to some or all of them runs through the most ancient of the law- books, and this is the source of the opinion which has ultimately prevailed. Nowadays, if a man has no legitimate sons, he has no resource but adoption, I 114 ANCESTOE-WORSniP AND INHEKITANCE. chap. it. either by himself or his widow, and there are local disputes whether the widow requires his consent or directions to be given before he dies, and if she re- quires it, in what form it should be given. Such a state of the law adds greatly to the modern importance of collateral succession, and there are facts which co-ope- rate with the law. There is marked infertility among Hindus of high rank, and, though there may be a theoretical preference for adopting a son rather than allow the succession to go to a collateral, yet (as I am informed) there is a great deal of the same superstitious disrelish for effecting an adoption which is known sometimes to prevent in England the making of a will. The original authorities for the very extensive body of modem rules governing the succession of collateral relatives are far less the ancient law-books than the so-called mediaeval Digests, dating approxi- mately from the eleventh to the fourteenth century, of which the most archaic is the ' Mitakshara.' The most general feature of this body of rules is thus described by Mr. J. D. Mayne (' Hindu Law and Usage,' p. 51) : 'Except in Bengal^ agnates, kinsmen con- nected through male descents, exclude cognates, kins- men through females, to the fourteenth degree.' The same preference for males is observable in the rules of succession shown to prevail in the Punjab, where law and u^ge are ' essentially unsacerdotal, unsacra- CHAP. IT. ANCESTOK-WOESHIP AND INHEEITANCE. 115 mental, secular.' The judicial experience qf the Chief ' Court of the Punjab here coincides with the conclu- sions of the ofl5.cial inquirers, and establishes that ' kinship is wholly agnatic' ® There can be no doubt, therefore, that agnatic succession among collaterals is the general principle of Hindu usage. It was the ex- clusive principle of the Roman law under the Twelve Tables, and it governed the remoter collateral suc- cessions under the law of Athens, which prescribed that agnates should ailways have precedence over cognates (jirpoTLfJiaLa-dat tovs aifb fStv appivav twv aTro 6r}\eio)v). Indeed, if a comparatively recent writer^ may be trusted, agnatic' succession, succession through males exclusively, was, if I may so put it, the common law of Greece. But one remarkable exception to this general preference for males itt India is specified by Mr. Mayne. In the populous proviflce of Bengal Proper, also noticeable for the liearly total disappearance of the Village Commnfiity, cagtt&teB are largely admitted to succeed, and sometimes in preference to agnates. ' Heirs in the female line frequently take before very near Sapindas in the direct male Hne ' (' Hindu Law and Usage,' p. 428).- Mr'. Mayne has very copiously illustrated this peculiarity of Bengal law, and traced 8 See Boulnois and iJattigan, Woies on Punjab LcM, p. 85; • Diodonis Siculus, xii. 14 (commenting on a probably spurioun law attributed to Charondas)'. i2 116 ANCESTOE-WOKSHIP AND INHERITANCE, chap. rv. it to its caoises, in Ms sixteenth chapter. The rela- tively modern authorities followed by the Brahmani- cal lawyers of that pro\dnce — the Daya-Bhaga and Daya-Krama-Sangraha — are charged with sacerdotal doctrine. They display not only a close connection between ancestor- worship and inheritance, but a com- plete dependence of the last upon the first. The first question is, What is the exact amount of spiritual benefit received by the ancestor from the sacrifices, and what is the precise amount reflected on the wor- shipper? — and this is an accurate measure of the place of the worshipper in the table of succession. The explanation seems to me to be that the original Ancestor-worship transformed itself, and in the course of change helped to modify the law, but did not affect all the stream of legal doctrine in the same degree. Originally, it cannot be doubted, the ancestor worshipped was a male, and the worship- per was his direct male descendant through males. Again, nothing can be stronger than the denials of the right of any woman to offer a sacrifice which we find in the ancient writers. ' A female shall not offer any burnt oblation ' (Apastamba, ii. vi. 15. 18). But, as I pointed out before, there seems to have arisen in time a practice of associating the ancestor's wife with the ancestor as an object of worship. ' A man must fare by himself in the other world,' say the Hindu doctors. ' Even were be to die with CHAP. IT. ANCESTOR- WORSHIP AND INHERITANCE. 117 him, a kilisman cannot follow his dead relative.' ^, ' All, excepting his wife, are forbidden to follow him on the path of Yama ' — a passage which in later times became one of the chief authorities for the burning of the widow. Thus m. early, but still not in the most ancient, times, men are found worship- ping their mother as well as their father, and also their maternal ancestors, though without quite putting them on the same footing as their ancestors through males. One great breach was thus made in the ancient sys- tem. Another transformation of religious ideas, which did not perhaps extend beyond particular Brahmanical schools, may be traced in the Daya-Bhaga. The growing moral dissatisfaction with the artificial modes of procuring sons must have increased the chance of childlessness, and therefore of a failure in the sacri- fices. Such a prospective result, drawing with it not only supernatural penalties on the dead, but secular losses to the Brahmans, would tend to produce or strengthen the belief that mere collaterals might efficaciously offer sacrificial honour to the dead, and, further, would aid in enlarging the view of collateral relationship as widely as possible. This, in fact, is the religious system shadowed forth in the treatises of authority in Bengal. It is a system aimed, among other things, at bringing as large a number of rela- tives as possible, including cognates, or kinsfolk 2 Vishnu, XX. 39. 118 ANCESTOR-WOESIIIP AND INHERITANCE. chap. iv. through women, within the circle of more or less efficacious worshippers. It is moreover a system full of that minute detail and of those subtle inferences from supposed principles which are characteristic of a highly- developed religion which has long since departed from its original simplicity. I must leave the distinctions between the oblation of an e»tire funeral cake, the oflFer- ing of the fragments left on the hands and wiped off them, and the mere libation of water, together with the correspondu^g distinctions between the classes of relatives admitted to the succession, to be studied in the books of professed writers on Hindu law, and especially in the worjss of Mr. J. D. Mayne and of Professor Rajkumar Sarvg,dhikari. I have already stated my belief that at the back of the ancestor-worship practised by Hindus there lay a system of agjjatioi;i, or kinship through males only, such as now survives in the Punjab. I so far agree with the theory of M, Fustel de Coulanges that I believe this system to have been at first greatly strengthened by ancestorrworship. But it seems to me plain that ancestor-worship in its later growth, acted as a weajjepiijg a»d dissolving force upon the ancient kinship and the apcicAt family. The secular law followed l)j Hindus was not, however, equally or universally a#'e,cted by the religious develop- ment. The Mitafe:shara, which is, on the whole, of mor^ fiiuthority in India than the Daya-Bhaga, CHAP. IV. ANCESTOR-WOKSHIP AND INHERITANCE. 119 is manifestly based in the main upon the more ancient conception of kinship. At the same time I do not regard the system of the Daya-Bhaga as simply an after-growth of the system reflected in the more archaic treatise. It is rather a separate deve- lopment of the ancient sacerdotal law. The ideas which led to it are more or less discernible in the oldest treatises, but they seem to have been carried to their consequences in some law-schools more rapidly and completely than others. Nobody wUl understand the relatively late collection of rules called after Manu, who does not recognise that it has been materially affected by the religious transformation. Among the forces which have caused and directed the progress of human society, one of the most powerful has been the Edict of the Roman Praetor, which gradually brought law into harmony with a set of principles known under their most general designation as Equity. It completely transmuted the Roman jurisprudence; and the system, formed by its infiltration into older rules, is the fountain of nearly aU modern Continen- tal law, of some part of the English law, and of the greatest part of the existing Law of Nations. These principles were finally considered by the Roman lawyers to fit in with a Greek philosophical concep- tion, the Law of Nature, which was destiaed to have a serious influence on human thought down to our own days. At an earlier stage of legal opinion the 120 ANCESTOR-WORSHIP AST) INHERITANCE. chap. it. Praetor's Edict was thought to embody the Jns Gen- tium, a supposed generalisation, of the usages of a great part of mankind. But of the most ancient history of the Roman Equity we cannot be said to know any- thing. We have evidence, however, that the Edict was employed in very early times to transform the Roman law of Inheritance, founding it on a view of kinship very faintly recognised previously or not at all. Now I, at all events, cannot read the ancient Hindu law- tracts and compare them with such treatises as the Daya-Bhaga and Daya-Krama-Sangraha without being led to the conclusion that, iu' the interval be- tween the two states of the law reflected in the older and the later books, a change has taken place among the Hindus extremely like that which has occurred among the Romans when the Agnatic Inheritance of the Twelve Tables had been altered into the Cognatic Succession of the Edict. But the ancient Roman law of inheritance was closely implicated with ancestor- worship. This at all events must be taken as placed beyond doubt by M. Fustel de Coulanges. The ancient Hindu law had undoubtedly the same basis, but it underwent in parts of India very much the same modifications as the Roman law, and became a system of inheritance, allowing kinsmen through females to inherit as well as kinsmen through males. The newer Hindu law, however, carries with it the explanation of its own origin ; the religious element CHAP. IT. ANCESTOR-WORSHIP AND INHERITANCE. 121 in it has been transmuted, and tte law with it. I suggest, therefore, that the Roman Equity had its beginning before legal history began, in a modified ancestor-worship and a change in the religious con- stitution and religious duties of the family. There are no ancient philosophies, and perhaps not many modem philosophies, which may not be suspected of having their roots in a religion. The Athenian law corresponds in some of its rules of collateral suc- cession to the later rather than to the earlier Eoman law, and here, too, I suggest that a change was pro- duced by an alteration of religious ideas. 122 HINDU PATKIA POTESTAS. NOTES AND ILLUSTRATIONS. Note A. HINDU PATRIA POTESTAS. It is possible tliat the ancient sacerdotal writers, besides beiag led by the dependent position of their order into denying the multiplication of religious observances through the dissolution of tribal and joint family groups, were also desirous that the period at whifih each household broke up into several famihes should not be delayed tUl the death of its head. Their expectation is that the faithful Hindu, the man ^wice born through the study of the Scriptures, wiU retire in advanced years from active life and become ^n ascetic or a hermit. There are a few texts which have beeij thought to imply that the sons of an aged father could compel his retirement. Gautama (xv. 19), while condemning such a practice, perhaps ad- mits its existence. But, whatever be the meaning of these texts, I cannot allow that they lend any counten- ance to an opinion that sons could compel a partition of the family property at any time against the wUl 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. 128 a mucli later date the law-book of Manu declares that ' Three persons — a wife, a son, and a slave — are declared by law to have in general no wealth ex- clusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong' (Manu, viii. 416). A still more recent, but stm ancient, authority — Narada (v. 39) — says that a son is ' of age and independent in case his parents be dead ; 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 the undoubted fact that among the so-called Hindus of the Madras province 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 ques- tion or demur. He is really the 'master of the family, — of his wife, of his sons, of his slaves, and of his wealth ' (' View of the Hindu Law,' p. 56). And, at p. 38, ' Resistance to the wiU of the father appears monstrous.' Note B. polyandry. I SHOULD be sorry to have it supposed that I doubt the existence of Polyandry, and specially in the form of a plurality of husbands who were brothers, as an occasional practice of the ancient world. The much- discussed story, in the Mahabharata, of Draupadi becoming the wife of the five Pandavi princes may 124 POLYANDRY. be open to various interpretations (see Mayne's ' Hindu Law and Usage,' p. 52), but tbere is fairly good evidence (Polybius, xii. 7, 732, following Timseus) that the Spartans practised polyandry. What I doubt (with Mr. L. H. Morgan) is tbe importance of the place assigned by Mr. McLennan to polyandry in the evolution of society. It serves as a caution against being too mucb impressed by the antiquity of the Indian and Greek examples to be reminded that the President de Brosses accused the Venetian aristocracy of practising the polyandry of brothers in the early part of the eighteenth century (' Lettres ficrites d'ltalie, torn. i. p. 157). The Spartan and Venetian aristocracies were botb noted for their want of deli- cacy in sexual relations, and in both cases the cause of the practice seems to have been the levy of public taxation on separate households whicb did not come into existence without separate marriages. The usage seems to me one whicb circumstances over- powering morality and decency migbt at any time call into existence. It is known to bave arisen in the native Indian army. CHAP. T. ROTAL SUCCESSION AND THE SALIC LAW. 125 CHAPTER V. ROYAX SUCCESSION ANDVTHE SALIC LAW. In tlie legal history of those Western societies which have passed through feudalism, Succession to Property and Succession to Thrones are intimately connected together. When Bruce and Baliol, with ten other competitors, conduct a litigation before Edward I. of England respecting the right to the Scottish Crown, the arguments are not distinguishable in principle from arguments on the inheritance of an ordinary fief, and in point of fact this famous dispute did settle some points in the law of succession to land all over the West. But the law systems of the East, which contain an elaborate law of succession to private property, con- tain little or nothing about succession to thrones. One reigning Mahommedan house, that of the Otto- man Sultans, has continued to our day a system of royal succession of the highest antiquity — that under which the eldest male relative is preferred in the suc- cession to the son ; but there is no clear connection between this rule and any part of the abundant private 126 ROYAL SUCCESSION AND THE SALIC LAW. chap. v. law of inheritance declared by the Mahommedan doc- tors. At most we may trace a resemblance in the places respectively assigned to the son and to the paternal uncle in the Mahommedan scheme. Indeed, of all systems of succession to property, the Mahommedan system is the most difl&cult to adjust to royal succes- sions. It is a system of minute fractional division be- tween a number of relatives whose grouping ^ nobody seems to me to have as yet successfully explained. I agree with Sir George Campbell, that it must have grown up among a race whose property was easily divided into units, and possibly consisted of flocks and herds ; and, again, I think that Mr. Almaric Rumsey ('Mohammedan Law of Inheritance') has conclu- sively shown that its greatest apparent difficulties arise from the fact that, whatever was the algebraical knowledge of later Mahommedans, the earliest ex- positors of this law were ignorant of some simple principles in the manipulation of fractions. On the whole, we must at present be satisfied with the ortho- dox Mahommedan explanation of the rules, which is, that they rest upon separate utterances of authorities supposed to speak with Divine authority-^— of the Pro- phet, his companions, and those who talked with them ; and that they are not therefore necessarily reducible to systematic order. ' The diflBctilty is caused by the composition of the class of Mahommedan Inheritors known as the Sharers. The two remain- ing classes seem to' exhibit the usual preference of Agnates to Cognate». CHAJ. V. EOYAL SUCCESSION AND THE SALIC LAW. 127 The Hindu law of succession has more authentic claims than that of the Mahommedans to a reUgious origin. Some of its principles can be appKed without much difficulty to a royal succession ; but neverthe- less it is essentially a law of succession to private property. It is somewhat remarkable that we learn little from the ancient Hindu lawyers of the rules under which a King should succeed. For when they have once recognised the King as an important auxiliary of the Brahman, they are not chary of advice to him or of opinions on his duties. First of all, he is to execute justice and maintain truth. But much more than this is inculcated on him. Even so old an authority as Apastamba (ii. x. 25. 1) tells him how to build a city and a palace. ' The palace shall stand in the heart of the town. In front of it there shall be a hall. That is called the Hall of In- vitation. At a little distance from the town to the south he shall cause to be built an assembly house, with doors on the south and on the north sides, so that one can see what passes inside and outside. In aU these three places fires shall bum constantly, and oblations shall be offered in them daily, or at the daily sacrifice of a householder. In this hall he shall put up his guests, at least those who are learned in the Vedas. Rooms, a couch, meat and drink should be given to them according to their good qualities. But let not the king Hve better than his spiritual directors 128 ROYAL SUCCESSION ANO THE SALIC LAW. chap. t. or his ministers.' Elsewhere he is taught how to amuse himself with dice, 'in even numbers, made of vibhitaka wood ; ' how to appoint administrative deputies ; how to reward successful generals. Gau- tama compendiously lays down that the king is ' master of all with the exception of Brahmans ; ' and ia the later treatises, Vishnu and Manu, there are very long discussions on regal duties, the teacher even giving an account of the art of strategy and of the methods of taxation. But there is nothing about the way in which princes succeed to thrones, unless a trace of a rule be sought in a direction to a vic- torious king, ' not to extirpate the royal race ' when he conquers a country, but to invest a prince of this race with the royal dignities. The modern Hindu applies his religious law to royal succession only by analogy, and he generally applies the oldest part of that law. The family customs which have grown up in Indian royal houses reflect the ancient rules, barely mentioned by our oldest authorities, on the subject of primogeniture and indivisible patrimony, and it is to be observed that they show a marked preference for Adoption over Collateral Succession. The truth is, that for Oriental systems of succes- sion to Thrones, we have to go to usages, older per- haps than the great religious movements which have swept from time to time over the East, and having, at aU events, a history independent of the institutions CHAP. T. EOTAL SUCCESSION AlTD THE SALIC LAW. 129 to "wMch. these movements give birth. The real or pretended doubts, the bitter disputes, and the san- guinary wars which the application of these customs occasioned were once among the chief scourges of mankind in the countries in which they prevailed, but the area of such troubles has been much contracted by the British Indian Empire. Yet the Empire itself was only the other day mixed up with one contro- versy of the kind which might be taken as a typical example of its class. One can never be very sure how long any Indian events survive ui English memory, and yet some of us should recollect the perplexity caused by the names and claims of the various Chiefs or Princes who appeared during three or four years in the newspaper correspondence as pretenders to sove- reign authority in Afghanistan. We heard of the unhappy Shere Ali Khan who, after the first British success, retired from Cabul, his capital, only to die — of Yakub Khan, now a State-prisoner in India, who ruled at Cabul as Shere All's successor at the time of Sir Louis Cavagnari's assassination — of Abdurrhaman Khan, long an exile in Eussia, who now wears the most distinct badge of modern A%han sovereignty by holding the three great cities of Cabul, Candahar, and Herat — of Ayub Khan, who, after inflicting on British Indian troops the first defeat in the open field which they had suffered for seventy-eight years, was utterly routed by the victorious General Roberts, and 130 EOYAL SUCCESSION AND THE SALIC LAW. chap. v. who, after another success against his rival Abdurrha- man, was finally defeated and compelled to take refoge in Persia. There were also the obscurer names of AbduUa Jan, now dead, who was a younger son of Shere Ah. Khan, and who was long accepted by all except his elder brother as his father's heir- apparent, and of Musa Khan, the son of Yakub, whom I have seen spoken of in the newspapers as the only legitimate claimant to the Afghan throne. All the princes I have named were in some sense pretenders to the throne, and they are all near kinsmen, being aU de- scendants of Dost Mahomed Khan, against whom the British fought in the old Afghan war of forty-four years since, and in whose room they set up for a while a client of their own. Shah Suja. How was it that so many near relatives claimed to be the suc- cessors of the last reigning prince? Hardly one of them is entitled under the rules about succession to thrones to which we are accustomed. Shere Ali, after a hard struggle, succeeded his father, Dost Mahomed, but he was not his father's eldest son. Yakub Khan was not Shere All's eldest son, and he was all but supplanted by a much younger brother, AbduUa Jan, and was long imprisoned for question- ing his claims. Abdurrhaman Khan, the now reign- ing Ameer, is not a son of Shere Ali at all, but the son of his elder brother, and yet not, it is thought, of his eldest brother. Ayub Khan, on the other hand, is CHAP. J. EOYAL SUCCESSION AND THE SALIC LAW". 131 a son of Shere Ali, but lie is younger than his brother Yakub Khan, who has a son living, the Musa Khan who, as I said before, has been called the legitimate heir to the throne. How then come all these princes to be rivals of one another ? How is it that there is no rule, as with us, to regulate (as we should say) the descent of the Crown ? The great difference between the East and West is that the Past of the West lives in the Present of the East. What we call barbarism is the infant state of our own civilisation. The rivalries of these Afghan princes bring us back to one of the oldest causes of war and bloodshed among men, the disputed succes- sion to political sovereignty. And the source of these disputes is to be sought in an ancient fact too often neglected or forgotten. When political sovereignty first shows itself (and the stage of human history at which it shows itself is by no means the earliest ascertaiaable), this sovereignty is constantly seen to reside, not in an individual nor in any definite line of persons, but in a group of kinsmen, a House or Sept, or a Clan. In Greek history, there is a later form of this sovereignty which has a name of its own ; it is called a hegemony, the political ascendency of some one city or community over a number of subject commonwealths. But in more ancient times the royal or ruling body ^as more often a group of kias- % 2 132 EOTAL SUCCESSION AND THE SALIC LAW. chap, y, raen, a Clan, or a Sept, called in India a Joint Family, In the ancient world, this group of royal kinsmen had often a purely fictitious pedigree, and pretended to be descended from a god ; and there is an example of this claim in our own day, since the Emperor or Mikado of Japan, who has a Minister at the Eng- lish Court, lays claim to a divine ancestry. Some- times, however, the reigning House consists of the descendants of a known historical hero, as was the case with the most illustrious of aU royal families, the Jewish princes descended fi^om David, the son of Jesse. And just as among the Hebrews there were two rival royal clans, the princes of Judah and the princes of Israel, so also there have been rival clans pretend- ing to the Afghan throne, and the old A%han war was not so much a struggle between Dost Mahomed and Shah Suja as between the clans to which these chiefs belonged, the Suddozies and the Barukzies. Bloody wars have frequently been fought between the partisans of rival clans and houses, but in some- what later times civil strife has chiefly raged between individual pretenders belonging to the same house. The reason of this is, that there are few things on which mankind were at first less agreed, few things on which their usages were less at one, than the rule which should determine which of the family should have its headship. We are so used to some form or other of Primogeniture as the system which regulates CHAP. V, EOTAL STTCCESSIOIf AND THE SALIC LAW. 133 the devolution of crowns that we have some difficulty , in understandings the ancient disputes of which I have spoken. Yet Primogeniture — to which as a political institution I may observe that the human race has been deeply indebted — did not at first appear in anything like the shape in which we are familiar with it ; and, even when it approached that shape, its rules were subject to many uncertainties. On all sides we find evidence that, in the beginnings of his- tory, quarrels were rife within reigning families as to the particular rule or usage which should invest one of the royal kinsmen with a primacy over the rest ; and these quarrels bore fi-uit in civil wars. The commonest type of an ancient civU war was one in which the royal family quarrelled among themselves and the nobility or the people took sides. The mad- ness of rivalry took possession of the chiefs and the people were smitten. A very ancient, possibly the most ancient, method of settling these quarrels was that which has been called in our day Natural Selection. The competing chiefs fought it out, and the ablest, or the strongest, or the luckiest, lifted himself into supremacy. Now and then, one of the kinsmen has had the opportunity of crushing the others by a sudden blow, and this is the case of those massacres of princes which fi'om time to time appear in Oriental history. One of them is described in that story in the Hebrew Chronicles 134 EOYAL SUCCESSION AND THE SALIC LAW. oeas. v. which gives its plot to Racine's fine play of ' AthaJie.' Athaliah, the queen-mother in Judah, that ' wicked woman,' seeing that her son King Ahaziah was dead, arose and destroyed all the seed royal of the house of Judah. One child was saved and hidden in the house of God six years : and Athaliah reigned over the land (2 Chron. xxii. 10). More revolting, be- cause more systematic, were the massacres of their near collateral relatives by the Ottoman Sultans ; but the Turk who bore no brother near his throne had his excuse in a peculiar rule of royal succession of which I will say something presently. The atrocities of the Seraglio were more than matched only the other day by those committed in the palace at Manda- lay by the present King of Burmah, Thebaw. I have little to say for a personage who in the course of a single week shed the blood of nearly every relative, male or female, within his grasp ; but undoubtedly, when there is no clear rule of royal succession, the choice may unhappily lie between one of these mas- sacres and prolonged and desolating civil war. Fortu- nately a great deal of the progressive civilisation of the human race has consisted in the discovery of remedies against violence ; and the evU of dynastic contests has been so manifest, and so little tolerable, that men seem very early to have striven to find contrivances for preventing them. Such contrivances were indeed not absolutely new ; most of them were CHAP. V. KOTAL SUCCESSION AND THE SALIC LAW. 135 still more ancient tribal or family usages put to a new use. One of the most ancient of them is to obtain the peaceful consent of the community to the succession of a particular chief either before the death of the last reigning sovereign or immediately afterwards. An elective monarchy, much modified in its later form, survived till the last century in Poland, and the most august throne in Europe, that of the Empire, of the Roman or German Empire, was till the begin- ning of the present century open in theory, as Mr. Freeman puts it, to every baptized Christian. There are in fact few monarchies in whose records some trace of an original popular election or confirmation cannot be found, and there is even a survival of it in the ceremonies of an English Coronation. A conve- nient modification of the system, which removes a dangerous interval between prince and prince, is to have the election during the lifetime of the reigning chief or king ; and thus, in Germany, a King of the Romans was generally chosen who was to become Emperor on the Emperor's death. A precaution of the same class, particularly where there is a numerous progeny of princes produced by polygamy, lies in the appointment of his successor by the reigning chief during his lifetime. This on the whole seems to be the system of succession prevailing in Afghanistan. Shere Ali owed his throne to it and so would Shere 136 EOTAL SUCCESSION AND THE SALIC LAW. chap, v. All's heir-apparent, AbduUa Jan, if lie had lived. But that it has to compete with other ideas about succession is plain from the bloody civil war which followed Shere All's accession and from the later quarrel on this very point between Yakub Khan and his father. The present Ameer, Abdurrhaman Khan, owes nothing to it. The weakness of the system lies in its tendency to produce the nomination of the child of some favourite wife, and thus to lead to endless palace-intrigues which sometimes bear fruit in civil war. Yet another contrivance, probably much older and in itself extremely rational, was once very widely diffused over the world, but has now only one field of operation among the European dynasties. This is the descent of the sovereignty to the oldest living male of the family. It still survives among the Turks. The present Sultan succeeded his brother, who had children ; and Sultan Murad, who reigned for a few months, succeeded his uncle, though his uncle, Abdul Aziz, left male children. Where the system may be observed in its more barbarous form, we find it generally combined with that which I mentioned first, popular or tribal election. The Irish tribesmen and even the clansmen of the Scottish Highlands once elected their chiefs, but the former always chose the brother of the last chief, if of mature years, and the latter seem in very ancient times to have made similar elections. In warlike and per- CHAP. V. EOTAL SUCCESSIOIir AND THE SALIC LAW.' 137 petually disturbed societies there could be hardly a better principle to follow, for it has the great advan- tage of providing that the new chieftain shall be a grown and experienced man ; and barbarism cannot afford to face the dangers of royal minorities. Its disadvantages do not begin till princes have begun to live in palaces amid luxury and ease. The heir- apparent then receives a training which more than compensates for his maturity of years. The seclusion in which he is kept, the jealousy with which all his energies are repressed by the reigning monarch, and his long familiarity with the harem, make it too pro- bable that he will prove an incapable ruler if he is allowed to succeed. But the interests of the existing Chief, and still more of his children, are against the heir-apparent continuing to live. It is only in quite recent times that the next eldest male relative of a Turkish Sultan could be reasonably sure of the suc- cession. The declaration that fratricide is a rule of the Ottoman State is attributed to Mahommed II., but the great example of the practice was set by Mahommed III., who massacred nineteen of his brothers and caused to be drowned twelve of his father's wives who were supposed to be pregnant. The system which I have described, that under which not the eldest son but the eldest male kinsman succeeds, now bears very generally the name of Tanistry, from the Celtic word which points to its 138 EOTAL SUCCESSION AND THE SALIC LAW. chas. v. practice in ancient Ireland. Tanistry seems to be the undoubted parent of Primogeniture as we know it. But this later system of succession to thrones, though in some respects a great advance on Tanistry, was not at all free from dangerous uncertainties when it was first followed, and indeed some of these uncer- tainties hnger about it still. It was through one of such uncertainties that the fortunes of this country came to be mixed up with a disputed succession, and that our ancestors were engaged in a foreign war which lasted a hundred years and which entailed a bloody civil war as its consequence. The Royal House or Sept, whose disputed headship involved England in these calamities, was that of the Capetians, of the collective body of the descendants of Hugh Capet, who in 987 got himself elected King of the Franks, or French, and founded the feudal monarchy of the country which, by successive additions, has since become so famous under the name of France. The progeny of Hugh Capet, continued exclusively through males, is not extinct at the present moment, after nine centuries ; but his male descendants, in the direct line of descent, came to an end in 1328. Philip the Fair, the man of strongest character in the whole line of French kings, with the possible excep- tion of Henry IV. of France and Wavarre, had died Ln 1314, leaving three sons who successively ascended the French throne under the names of Louis X., CHAP. 7. ROYAL SUCCESSION AKD THE SALIC LAW. 139 Philip v., and Charles IV. No one of these three kings left sons, but two of them left each a daughter, and one left three. Now Edward III. of England, who held the English Crown by an independent title, was a Capetian through his mother, Isabel, the ' she-wolf of France ' of Gray's well-known Ode. Isabel was a daughter of Philip the Fair. On the death of Charles IV. of France, the youngest of the three royal brothers who died without male issue, our Edward III. put in a claim to the French Crown. It is usual both with French and with English historians to describe this claim as wholly untenable, but, though I will not here discuss what is really a point of technical law, I will pause to say that this view of the utter baselessness of Edward's title seems to me to be based partly on ignorance of certain peculiarities in ancient systems of law and partly on the assumption that certain legal rules, which were then unsettled, were as clearly recognised as they now are. There are some very ancient bodies of law which, though showing a decided preference for male inheritance, nevertheless permit the family to be continued through a daughter when the sons have failed. The ancient Hindu law required that in such a case the daughter should be^ appointed, as the Sanscrit word is translated, to bear a son to her father. It is remarkable that this was the exact ^ See above, Chapter IV. 140 ROYAL SUCCESSION AND THE SALIC LAW. chap. t. position of Edward III, He disclaimed the idea that France could be ruled by a woman, but he contended that, her brothers having died, she could transmit her father's right to her own male child. There are other apparent objections to Edward III.'s claim, arising from the fact that all the sons of Philip the Fair had left daughters, but it may be shown from the law-books of the time that, even in the inheritance of private property, the rules of succession which were to prevail under such circumstances were stiU uncertain. It is probable, then, that the argument of Edward III. was not considered in his day to be as untenable as all French and some English writers have represented it, but that it answered to some ideas about royal and other successions which were more or less current. But the point was no doubt regarded always as a doubtful one ; and in fact in 1316, on the death of the eldest son of Philip the Fair, Louis X., who left a daughter, an Assembly of Notables, which is sometimes described as the States- General of France, had resolved that the French Crown descended exclusively to males and through males. Thus the question of law was fuUy and fairly raised ; and it promptly fell under the only juris- diction by which it could possibly be decided. It was put to the arbitrament of the sword. From the commencement of active hostilities by Edward III. CHAP. T. ROYAL SUCCESSION AND THE SALIC LAW. 141 to the close of the English invasion of France under- taken by Henry V., the years of war between the English and French were as nearly as possible a hundred and twenty, interrupted only once by a regular peace, and always on the question of royal succession ; and this hundred years' war, as historians now call it, left undoubtedly as a legacy, as the result of the fierce military habits which it produced, the bloody struggle known as the Wars of the Roses, in which, to say the truth, the symbols of the two con- tending royal houses, the White Eose and the Red, were no more to the turbulent and warlike English nobUity than the blue and green colours of the race- course which once divided the populace of Constan- tinople, the New Rome, into fierce and seditious factions. The English kings bore the title of Kino- of France, and carried the French lUies on their arms, down to the beginning of the present century. In the repeated negotiations between the British Government and the first French Republic, which at last bore fi^uit in the hollow and transient Peace of Amiens, the question of giving up this title and armorial bearings played a considerable part, as may be seen from the Papers of Lord Malmes- bury. With this famous dispute between the English and French kings — a dispute in which the English people from the first heartily took part, and in which 142 BOYAL SUCCESSION AND THE SALIC LAW. chap. v. the French people first imbibed the national spirit which has ever since characterised them — with this dispute there are considerations connected which seem to me sufficiently interesting to deserve to occupy the rest of this paper. Some of this interest is literary ; some is archaeological ; but some is prac- tical. We Englishmen are satisfied to rest the title of our Eoyal House on the Act of Settlement, which limits the right of succession to the descendants of the Electress Sophia of Hanover. But in other countries the old doubts which caused the war of a hundred years have still vitality enough to affect practical politics. As I before stated, the Capetian Sept or House, composed on the principle laid down by the States -General of 1316, of males who spring from males, still continues. It embraces the elder branch of French Bourbons, represented by the Count de Chambord, the younger branch consisting of the Princes of Orleans, the Spanish Bourbons, and the Italian Bourbons sprung from them. King Alfonso of Spain is the son of a Bourbon father and a Bourbon mother, but he is a king in right of his mother, and he was engaged a few years since in a civil war with his cousin, Don Carlos, whose pre- tensions to the throne are derived exclusively through males. The conflict of title between the Count de Chambord and the Orleans princes is of another kind and of a more modern type. All of them are fuU CHAP. T. ROYAL SUCCESSION AND THE SALIC LAW. 143 Bourbons ; but nevertheless the theory of sovereignty and goveruinent called Legitimism, which is still a factor in French and Spanish politics, is ultimately based on the assumption of a sort of sacred and inde- feasible law regulating succession to the Crown, and placing it beyond competition and above popular sanction. There is no doubt that the belief in the ex- istence of such a law first showed itself during the con- troversy between Edward III. and Philip of Yalois. This sacred and indefeasible law bears a familiar name. As it was at first conceived it was called the Salic law. It is not quite certain when men first began to suppose that the law thus designated applied to royal successions, but clearly this view prevailed both in England and France soon after the beginning of the hundred years' war. What were the ideas about the Salic law which were common in this country fi-om one hundred to one hundred and fifty years after the conclusion of this quarrel may be gathered from Shakespeare's ' Henry V.,' act i. scene 2, where the English argument is put into the mouth of the Arch- bishop of Canterbury. It amounts to what lawyers call a plea in confession and avoidance. It admits the existence of a royal Salic law, but denies that it applied to the case of Edward III. and his rival. Now the Salic law, like the Capetian House, is still in existence, and we can put our finger on the very passage which was supposed to confer on Philip of Yalois his title 144 ROYAL SUCCESSION AND THE SALIC LAW. chap. v. to the French throne. But both to the French argu- ment and to the counter-argument which Shakespeare borrowed from the English chroniclers there is one fatal objection. The Salic law does not apply at all to thrones and to the succession to thrones. It merely regulates the succession to private property. When this most indisputable fact was first discovered in the sixteenth century by the rising learning of those times, there was a good deal of scandal in France and some little dismay. Montesquieu in the eighteenth century popularised the discovery ; and Voltaire is never tired of jesting at the Salic law, which he had always supposed, he says, to have been dictated by an angel to Pharamond, the first Frankish king, and to have been written with a quOl from the angelic wing. The Salic law might in fact be best described as a manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organised Teutonic Courts, the Court of the Hundred : it only mentions the king in so far as the king has authority in the Court. It was once supposed to contain a reference to some peculiar description of land called Salic land ; but the new English edition ® clearly shows that the word ' Salic ' is an interpolation, and that nothing is re- ferred to except the private inheritance of simple land. It becomes therefore a matter of some interest to * See below, Chapter VI. p. 169. CHAP. V. ROYAL SUCCESSION AND THE SALIC LAW. 145 searcli out the true origin of this celebrated rule (erroneously supposed to be contained in the Salic law), which not only excluded females from succession to thrones, but denied the royal office to the nearest male kinsman if his connection w;ith the royal house was through a female. It is first to be observed that, at the time of which we are speaking, the middle of the fourteenth century, there were two sys- tems of royal succession in existence of much greater antiquity than either the Royal House of England or the Royal House of France. One of these was followed by semi-barbarous tribes at the very ex- tremity of Europe, but it is of immemorial age, and, as some think, almost as old as mankind itself. I have already called it Tanistry, the system under which the grown men of the tribe elect their own chief, generally choosing a successor before the ruling chief dies, and almost invariably electing his brother or nearest mature male relative. In the fourteenth century this system was confined to the so-caUed kings or chiefs of that part of Ireland which lay beyond the English Pale, but there is a far-off echo of the same system in the story which furnished a plot to the tragedy of ' Hamlet,' where the mur- dered king is succeeded not by his son, but by his brother, who strengthens his title (according to a usage also of the highest antiquity) by marrying the widow of his predecessor. The very memory of L 146 KOYAL SUCCESSION AND THE SALIC LAW. chap. t. Tanistry would probably Have died out of Europe if, a century later, this method of succession iad not become that of a throne once the most exalted in Europe through the capture of Constantinople by the Ottoman Turks. The Sultanate in their hands fol- lowed this rule of descent, brother succeeding brother, but all trace of election by the people, if it ever existed, was lost. As followed by the Turks, the system of course excludes females, but it would pro- bably have excluded them at aU times, as its main object is to secure a military leader in the maturity of life. The other system of regal succession to which I referred was that to the throne and crown of the Roman Empire, which stUl theoretically survived in Germany and Italy. This too was a system of election, but the right to have a voice in the choice of the Emperor had gradually become limited to a certain number of prelates and of princes once great officers of the Imperial Court. From one of these, whom we know as the Elector of Hanover, our own royal family is descended. The parentage of the elective Roman Empire may be traced to the acclaim of the Roman soldiery saluting a successful general as ' Imperator ; ' but since the fall of the Roman Republic, the Imperial dignity had a tendency to concentrate itself in particular families, a settled succession being procured by the practice of choosing CHAP. V. EOYAL SUCCESSION AND THE SALIC LAW. 147 the new Caesar during the reigning Emperor's life. In the more modern or Eomano- German Empire, a successor might be elected, before the death of the reigning Emperor, under the name of the King of the Romans ; and the same result followed in the prac- tical limitation of the Imperial dignity to particular families, of whom the House of Austria was the last. The German Empire, considered as the direct suc- cessor of the Roman Empire, fell in 1806 ; but in our own day it has been revived without a revival of election and as a dignity hereditary in the Prussian Royal House. When, then, France and England entered into their bloody war of a hundred years^ which was to decide the place of women in royal successions, there were two systems of succession in Europe which would have undoubtedly excluded women from the throne. One would have shut them out from the most august dignity in the West, because it had been originally an honour conferred on a triumphant soldier. The other would have denied to them a petty Irish chieftainship, because the chief was intended to be a fighting man all his life. But in the monarchies which lay between these extremes, monarchies of the class which we call feudal, there was no settled rule excluding women, and still less their male chil- dren. See what had occurred in England as long as uearly two centuries before Edward III.'s time. The L 2 148 ROYAL SUCCESSION AND THE SALIC LAW. chap. v. country had been desolated by the war between the Empress Matilda and Stephen of Blois, afterwards King Stephen of England. But Stephen's claim to the throne was derived not from his father, but from his mother ; and Matilda, herself a woman, and but faintly objected to by the English barons on that account, transmitted an unquestioned title to her son Henry II. How, then, came such a difference to arise between countries so alike as France and England then were — between monarchies not then divided by a silver streak of sea, since the English kings had ever since the Conquest ruled over more or less of France, sometimes over its most flourish- ing provinces, as vassals of the French king more powerful than their suzerain? I will indicate as briefly as I can the chief con- clusions to which a long, intricate, and difficult in- quiry would lead us. All the Western European monarchies, lying between the Roman Empire and the tribal chieftainships of the Irish and of the Scottish Highlanders, were (to use a word which imperfectly expresses their characteristics) feudal. Now among the many things which may be said about the system known to us as Feudalism, one of the least doubtful is that it mixed up or confounded property and sove- reignty. Every Lord of the Manor or Seigneur was in some sense a King. Every King was an exalted Lord of the Manor. This mixture of notions which CHAP. V. ROYAL SUCCESSION Ain) THE SALIC LAW. 149 we now separate had been unknown to the Romans of the Empire, and had somehow been introduced into the Western world by the barbarous conquerors of the Eoman Imperial territories. If then we avert our eyes from the ideas about chiefship and kingship entertained by barbarous races — ^ideas generally associ- ated with some form of the system which I have called Tanistry — and if we look to their ideas concerning the inheritance of property, we find the same uncertainty and difference of view about the right of women to succeed to it which we observe in the feudal mon- archies. Here no doubt we come upon a set of phenomena of which the precise significance is much disputed in our day ; but probably there would be general agreement in the statement which follows. The greate&t races of mankind, when they first appear to us, show themselves at or near a stage of development in which relationship or kinship is reckoned exclusively through males. They are in this stage ; or they are tending to reach it ; or they are retreating from it. Many of them ia certain contingencies, generally rare or remote, give women and the descendants of women a place in succession, and the question with modern inquirers is whether the place thus assigned to them is the survival of an older barbarism, now exemplified in savage races, which traced kinship exclusively through females, or whether it results from the dissolution, under various 150 EOYAL SUCCESSION AND THE SALIC LAW. chap, t. • influences, of ' agnatic ' relationsMp, that is, of re- lationship through males only.* The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they raherit, either as individuals or in classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably took a great share in producing by their household labour ; for example, in the real Salic law (not in the imaginary Code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share ia the inheritance of movable property, but confine land exclusively to males and the descendants of males. Indeed, it is not to be supposed that under a purely ' agnatic ' system of relationship governing inherit- ance, women are wholly unprovided for. The idea is that the proper mode of providing for a woman is by giving her a marriage-portion ; but when she is once married into a separate community consisting of strangers in blood, neither she nor her childrei are deemed to have any further claim on the parent group. * I have endeavoured to state the alternative theories as I suppose they would have presented themselves to the mind of Mr. J. F. McLennan, prematurely lost to this bi-anch of inquiry, who has forced all interested in them to revise or review their opinions. CHAP, V. EOTAL SUCCESSION AND THE SALIC LAW. 151 There is therefore a strong probability that, among the miscellaneous mass of barbarians of Aryan breed who overran Western and Southern Europe, aU sorts of ideas prevailed about succession to pro- perty. Some would exclude the descendants of women altogether. Others would admit them in certain contingencies. I regard therefore these dis- putes about the right of succession to feudal mon- archies as having their origin in differences of opinion about the inheritance of property, but as transferred by the feudal spirit to the descent of crowns.^ They are, a late survival of very ancient differences of usage between barbarous communities, now mixed together as conquerors of the West. The claim of Edward III. to the French throne would have received favourable consideration as a claim to pro- perty by those most ancient Brahman lawyers who framed the Hindu law-books erroneously called by Western scholars Codes. It will therefore be perceived that the question, as it presents itself to my mind, is not, why did * The most general feudal rule about succession to fiefs is that contained in the Customs of Normandy ; but the compiler, as is usual with such writers, gives merely feudal reasons for it. Thus, after stating that the rule forbidding one uterine brother to succeed to another {cum a pwrentihus 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 femma/rum Uned, vel /emmce successionem nOn retineni dwtn aliquis remdnserit de genere maacu- lorum.' 152 ROTAL SUCCESSION^ AND THE SALIC LAW. chap. v. Edward III. of England, tlie son of a Capetian Prin- cess, become a pretender to the throne of France on the death of his three uncles without male issue, but rather, why were the ruling classes of the provinces then composing France so obstinately persuaded that nobody but a man descended through men from the founder of the Royal House could rightfully reign over them? I think there is an explanation of this strong conviction for which the Frenchmen of that day fought so stoutly. It is this. There are some peculiarities in the Royal House founded by Hugh Capet which, if not unique, are of extreme rarity. The Sept, or, as it is called in India, the Joint-Family, consisting of the male stock of the founder, of male descendants tracing their descent entirely through males, stUl exists, although not much less than 900 years have elapsed since Hugh Capet died, and more- over it shows no signs of dying out. Several times in the course of this long history it has seemed on the point of extinction. Twice has the reigning branch ended in three kings who had no male children. The direct descendants of Hugh Capet ended, as you have heard, in 1328. Then the Valois succeeded, and they too came to an end in three brothers who had no legitimate children, male or female, Francis II., Charles IX., and Henry III. But the fertility of some younger branch has always remedied the decay of the elder, and on the death of Henry III., Henry CHAP. T. EOTAL SUCCESSIOK AND THE SALIC LAW. 153 of Navarre took his place, just as a Valois had taken the place of the lineal heir of Hugh Capet. The same rule of the infecundity of the elder line being repaired by the fecundity of the younger, seems still to hold good. Of the Bourbons who are descended from Henry of Navarre, the branch of Cond6 was exhausted almost in our own day. The eldest branch of the same house seems likely to close with the childless Prince known as the Count de Chambord, and the elder branch of the Spanish House has only been continued through women. But the younger lines of all the Bourbon Houses are still prolific, represented by the French Princes of Orleans, by the Italian Bourbon Princes, and by the Spanish Princes descended from the first Don Carlos. All these Princes are the male issue, descended exclusively through males, of Hugh Capet, who, as I said, died nearly 900 years ago. These facts are possibly not unexampled, but they are very unusual and extremely remarkable. Their rarity may be concealed from us by our English way of talking loosely about families who came in with the Conqueror, and through our English usage of tracing descent indiscriminately through males and females. No doubt there are longer genealogies which are matter of belief. The most illustrious of aU, that of the House of David, is longer, but then the Kings of Judah were polygamous, and polygamy, though it 154 ROYAL SUCCESSION AND THE SALIC LAW. chap. t. sometimes produces sterility, occasionally results in families like that of the Shah of Persia, who not many years ago left eighty sons. In India there are pedigrees greatly longer, for there are princes claiming to descend from the Sun and the Moon. But I need scarcely say that the earlier names in these genealogical trees are those of fabulous personages, and indeed under a system of succession which, like most of the Indian systems, permits the adoption of children, there can be but little assurance of the absolute purity of male descent. It must at the same time be understood that I am not asserting the impossibility of pedigrees of this length, but only their rarity. It is said that genuine pedigrees almost as long may be found among the Enghsh gentry, but anybody can convince himself that among the English nobility a long continuity of male descents is very rare, though there are excep- tions, a notable one being that of the Stanleys. But, rare and striking as is this peculiarity in the family history of the Capetians, that House presented in the fourteenth century a phenomenon which is still rarer and still more impressive. The kings sprung from Hugh Capet succeeded one another, son to father or brother to brother, for more than 300 years, Thrdugh all this time there was no occasion to call in a remote collateral, an uncle or great-uncle or a cousin. How unusual is such a succession we can conceive ourselves by taking a very simple test. CHAP. Y. ROYAL SUCCESSION AND THE SALIC LAW. 155 Let us take any half-dozen conspicuous men of a hundred years since, conspicuous in any way we please, statesmen or writers or simply of noble birth, and we shall find that their living descendants through males are few, though their descendants through women may be numerous. Go two hundred years back and you wUl see that the fewness of male descendants through males from men of eminence much increases, and if you go three hundred years back, it becomes ® extraordinary. The whole sub- ject belongs to a branch of the theory (as it is called) of Heredity which has not been perfectly investi- gated as yet, and which it would be out of place to discuss here. I think, however, that it is not too bold a proposition that the greater the eminence of the founder of a non-polygamous family, the greater on the whole is the tendency of the family to con- tinue itself (if it continue at all) through women in the direct line ; and that the best securities for a pure pedigree through males are comparative obscurity and (I could almost say) comparative poverty, if not extreme. The rule is of course only approximate, and the example of the Capetian dynasty sufficiently * The subject, as respects the pedigrees of the nobility, is dis- cussed by Mr. Hayward in a very interesting paper in his Bio- graphical am^d Critical Essays, Third Series, ' English, Scotch, Irish, and Continental Nobility.' See page 260. , ' It is quite startling on going over the beadroU of English worthies, to find how few are directly represented in the male line.' 156 EOYAL SUCCESSION AND THE SALIC LAW. chap, t, shows that there are exceptions to it. At the same time, the position of the early Capetians must not be judged by the splendour of the late Kings of France. They were comparatively poor and comparatively obscure, and for long could hardly make head against even the humbler of their nominal vassals. This, then, I believe to be the true secret of the so-called Salic rule of succession. There is nothing, even now, very uncommon in the frame of mind which leads men to think that everything, of which they know or remember nothing to the contrary, has existed from all time and that it ought to continue for ever. But in an age in which historical know- ledge was all but non-existent, and in which the mass of mankind lived by usage, such a habit of thought must have been incomparably stronger ; and we cannot doubt that men's minds were powerfully affected by this uninterrupted continuation of male descents in the royal family of France, which even to us is impressive.. Nobody, they would say, has reigned in France but a King the son of a King. There had been no occasion to call to the throne a collateral relative, much less a kinsman through women. Amid a general flux of men's ideas on the subject of succession to thrones, the French law would at all events have appeared to have solidified. And, such being the preconceived notions of French- men, there is no doubt that they were strengthened CHAP. V. KOYAL SUCCESSION AOT) THE SALIC LAW. 157 by the provision of the real Salic law, which said that land — or, as it was once read, Salic land — should descend exclusively to males through males. This legal provision was in fact irrelevant to the question, but it may very easily have been misunderstood ; and it is a significant circumstance that manuscripts of the true Salic Code, the Lex Salica of the Ger- mans, appear to have been found in the Royal Library at Paris from the time of its first foundation. The supposed Salic rule, excluding women and their descendants from royal successions, has been adopted in later days in many countries in which women were at one time permitted to succeed. In constitutionally governed States, female successions have always been popular ; and quite recently, in Spain and Portugal, the establishment of constitu- tional government coincided with the overthrow of the rule which excluded queens from the throne. The Spanish monarchy was composed of portions in most of which the throne might be filled by a woman, but when the younger branch of the Bour- bons obtained the Crown of Spain, they introduced the so-called Salic rule. This system of succession is manifestly thought to be convenient wherever, whether there be a Constitution or not, a large mea- sure of authority resides with the sovereign. Thus the succession to the German Empire, following that of the Prussian kingdom, is now Salic ; and in 158 ROYAL SUCCESSION AND THE SALIC LAW. chap. t. Russia, where an extremely peculiar rule of succes- sion prevailed, one of the most usual successions being that of the widow of the late Emperor, the exclusive devolution of the Crown through males on males was for the first time introduced by the Emperor Paul I. The explanation given by French historians of the memorable rule which first sprang up in their country has nothing to do with reasons of conveni- ence. They say that the exclusion of women and their issue was the fruit of the intense national spirit of Frenchmen. If it had not been for this principle the King of France might have been an Englishman, or a German, or a Spaniard, according to the na- tionality of his mother's husband ; and this was con- trary to the genius of France, which imperatively required that the King should be a Frenchman. But this is the error, not so very uncommon in the philo- sophy of history, of taking the consequence for the cause. It was not the national spirit of Frenchmen which created the Salic rule, but the Salic rule had a great share in creating the French national spirit. No country grew together originally so much through k chance and good luck as France. Originally con- fined to a small territory round Paris, province after province became incorporated with it through feudal forfeitures, through royal marriages, or through the failure of lines of vassals even more powerful than CHAP. V. EOTAL SUCCESSION AND THE SALIC LAW. 159 the King to whom they owed allegiance. But owing to the Salic rule, the King always belonged to the heart and core of the monarchy. The King of Eng- land who first annexed Ireland was a Frenchman. The King of England who united Scotland with her was a Scotchman. But the King of France wa s from first to last bom and educate d a Frenchman . The same vein of character may be seen running through the whole series of French Kings, broken only perhaps in the unhappy Prince who closed the dynasty in the last century. Hence the whole au- thority of the French Kings was exerted to bring each successive acquisition of the Crown into political and social conformity with the original kernel of the kingdom. And in this way was created the French love of unity, the French taste for centrahsation, the French national spirit. The undoubted power which France possesses of absorbing into herself and im- buing with her national character all the populations united with her, has been attributed to the French Revolution ; in reality it is much older, and may be traced in great part to the Salic rule of royal suc- cession. 160 THE KING AKD EARLY CIVIL JUSTICE. chap. yi. CHAPTER VI. THE RING, IN HIS RELATION TO EARLY CIVIL JUSTICE. Whenever in the records of very ancient societies, belonging to races witli wHcli we have some affinity, we come upon a personage resembling him whom we call the King, he is almost always associated with the administration of justice. The King is often much more than a judge. He is aU but invariably a general or military chief. He is constantly a priest and chief priest. But, whatever else he may be, he seldom fails to be a judge, though his relation to justice may not be exactly that with which we are familiar. The examples of this association which I will give must be few among many. The monuments of jurisprudence which lay claim to the highest anti- quity are those of the Hindus, one of which has long been vaguely known to Europeans under the name of the Code of Manu. Many similar collections of ancient Indian legal rules have of late been discovered, and some have been translated, but it is to be ob- CHAP. 71. THE KING AND EARLY CIVIL JUSTICE. 161 served they none of t£em deserve to be called Codes. They are in fact books of mixed law and theology, the manuals in use with the Indian Brahmans in ancient law-schools, in which their subjects were no doubt at first taught orally and committed to memory, and were only embodied in writing in comparatively recent times. They are further, as we have them, the result of a sort of literary evolution. The origi- nal treatises, or rather bodies of learning, dealt with all things divine and human (regarded no doubt from a purely theological point of view), but the various portions of this learning became gradually specialised, till at last treatises dealing with law mainly, or law entangled with religious ritual, were finally separated from the rest. In these ancient law-books, in so far as they are law-books, the authority of a King is assumed. He sits on the throne of justice. He has the book of the law before him. He has learned Brahmans for assessors. Some part of these ideas, like much else of immemorial antiquity, survive in India. A gentleman in a high official position in India has a native friend who has devoted his life to preparing a new book of Manu. He does not, however, expect or care that it should be put in force by any agency so ignoble as a British Indian legislature, deriving its powers from .an Act of Parliament not a century old. He waits till there arises a King in India who will serve God and take M 162 THE KING AND EAELT CIVIL JUSTICE, chap. ti. the law from the new Manu when he sits in his court of justice. If we pass from the extreme East to the extreme West, from the easterly to the westerly wing of the Indo-European or Aryan race, from India to Ireland, we find this same association. That most interesting system, the ancient Irish law, is known as the Brehon Law, because it is said to have been declared by the Brehons, who are in fact as nearly as possible the Brahmans of India, with many of their charac- teristics altered, and indeed their whole sacerdotal authority abstracted, by the influence of Christianity. Here, too, we find that the great Brehons are Kings or King's sons ; and we come upon the significant proposition that, though a King is necessarily a judge, it is lawful for him to have a professional lawyer for an assessor. There are many most striking resemblances, often on the most unexpected points, between ancient Indian and ancient Irish law ; and this hint as to the proper constitution of a Court of Justice is one of them. The ancient Hindu lawyers claimed a descent from supernatural personages only second to the gods. The ancient Irish lawyers pretended that the first of their order was a pupU of Moses in the Desert. But, in point of fact, the order of ideas exhibited by both systems is relatively more modern than that which we can trace in the poems attributed to Homer. CHAP. Ti. THE KING AND EAELY CIVIL JUSTICE. I6d Here we can perceive the undeveloped form of the Indian and Irish conception of a Court. The Homeric King is chiefly busy with fighting. But he is also a judge, and it is to be observed that he has no assessors. His sentences come directly into his mind by divine dictation from on high. These sentences, or defiLOTTes — which is the same word with our Teutonic word ' dooms ' — are doubtless drawn from pre-existing custom or usage, but the notion is that they are conceived by the King spontaneously or through divine prompting. It is plainly a later development of the same view when the prompting comes fi-om a learned lawyer, or from an authoritative law-book. I pause on one more instance of the association familiar to all of us. 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 national disaster ; but, independently of the etymo- logy of the name by which they are designated, they were clearly exponents of law and administrators of justice. Deborah, the prophetess, who is counted among them, judged Israel. She dwelt under the palm-tree of Deborah in Mount Ephraim, and all Israel came up to her for judgment. Eli, the last but one of the Judges, had judged Israel forty years, and Samuel the prophet, the last of them, expressly U2 164 THE KING AND EAELT CIVIL JUSTICE. chap. tt. claims credit in his old age for the purity of his judgments. On the other hand, the decline of the system is shown by the fact that the sons of Eli are expressly charged with abuse of authority, and those of Samuel with corruption. In the more mature kingship which presently succeeded, the military functions of the King are most prominent in Saul and David, but the judicial authority agaiu manifests itself in Solomon. There is one portion of these ancient ideas about justice on which it is necessary to dwell for a moment on account of the great importance which they prove to have had for mankind. It would seem that, in these early times, however much the administra- tion of justice might be organised, even though a system of law-courts might exist competing with the King's justice and quite independent of him, even though all or some part of the law might have been set forth in writing, yet there was always supposed to be what may be called a supplementary or residu- ary jurisdiction in the King. The law, however administered, was never believed to be so perfect but that the royal authority was always requii-ed to eke out and correct it. Just as, according to the most modern ideas about jurisprudence, every body of law is thought certain to become an instrument of gross tyranny unless there is somewhere a legislature to amend it, so even that servility to immemorial CHAP. vr. THE KING AND EARLY CIVIL JUSTICE. 165 usage whicli is characteristic of very ancient times did not exclude tlie correction of usage by the autho- rity of the King. We owe to this belief in a supple- mentary judicial authority residing in the King some branches of our own jurisprudence which are in great credit, e.g. the so-called Equity of our Court of Chancery ; and others of much less repute may be traced to it, such as the old Court of Star Chamber,^ which was established by a belated and therefore un- popular exercise of this same residuary royal power. But a large part of mankind is indebted for much more than this to these ancient notions. Practically at this moment two systems of law divide between them the whole civilised world. One is the English law, followed by nearly all the English-speaking peoples — by ourselves, by all the colonies actually planted by Englishmen, by all the Northern and Central States of the American Union, and to a greater extent every day by the millions of India. The other is the Roman law, whether it take the form, as in Germany, of what we call a common law, or whether it appears under a shght disguise in the French Civil Code, and the numerous codes descended from it. But the real indigenous law of ancient Rome deserved no such fortune as this. It ' There is no doubt that the Court of Star Chamber was of higher antiquity than the statutes regulating it, 3 Henry VII. c. 1, and 21 Henry VIII. c. 20. 166 THE KING AND EARLY CIVIL JUSTICE. chap. vi. Tvas a stiff system of technical and ceremonious law, belonging to a common and easily recognisable type. But it underwent a transformation through this very residuary or supplementary royal authority of which I have been speaking. The judicial powers of those dimly seen and half fabulous personages, the Kings of Eome, descended, at the establishment of the Roman Republic, to the magistrate known as the Prastor ; and the old belief in a divine or semi-divine inspiration, dictating judicial rulings to the ancient King, gradually converted itself into the assump- tion, first of a religious and then of a philosophical theory, guiding the more modern Praetor. Auguste Comte might have appealed to the change as illus- trating the transformation of a theological into a metaphysical conception. What has descended to so large a part of the modern world is not the coarse Roman law, but the Roman law distilled through the jurisdiction of the Praetor, and by him gradually bent iato supposed accordance with the law of Nature. The origin, therefore, of a body of law, regarded by some of the most civilised societies of mankind as the per- fection of reason, and spoken of by continental law- yers with what Englishmen at all events regard as extravagance of praise, is to be sought in this most ancient belief that law, custom, and jizdicature were all necessarily and naturally subject to correction by the supreme authority of the King. CHAP. Tl. THE KING AND EAELY CIVIL JUSTICE. 167 I "wish, however, to speak less of early Kings in general than of the early Teutonic or Germanic King and of his relation to civil justice. Our own Queen Victoria has in her veias the blood of Cerdic of Wessex, the fierce Teutonic chief out of whose dignity English kingship grew ; and in one sense she is the most perfect representative of Teu- tonic royalty, as the English institutions have never been so much broken as the institutions of other Germanic societies by the overwhelming disturbance caused elsewhere by Roman law and Roman legal ideas. But, though this is true, there is no community of which the early legal history is more obscure than ours, much as English and German learning has lately done for it. Fortunately, for an account of the early relations of the Germanic King to justice, we can txim to a monument of ancient Teutonic law constructed at a time when piratical chiefs fi:om Jut- land and Friesland were beginning to work the over- throw of the Roman provincial administration in our island. This is the Salic Law, the oldest of the Teutonic codes, the oldest portrait of Germanic insti- tutions drawn by a German. Scholars are now pretty much agreed that it belongs to the fifth century after Christ, and that its preparation was prompted by the great codification of Roman law efflected by the Emperor Theodosius II. Nothing is 168 THE KIJSTG AJST) EARLY CIVIL JUSTICE. ohap. ti. more singular tlian the delusion, so long and so obstinately entertained in Europe, that the SaHc Law either was a system of rules, or at any rate comprised a set of rules, regulating the succession to thrones and crowns. In reality it deals with much humbler matters. It is concerned with the daily life of the men who belonged to the confederation of German tribes called (it is not altogether known why) the Salian Franks. It deals with thefts and assaults, with cattle, with swine, and with bees, and above all with the solemn and intricate procedure which every man must follow who would punish a wrong or enforce a right. It might be best described as a manual of law and legal procedure for the use or guidance of the free judges in that ancient Teutonic Court, the Court of the Hundred. It is written ui phraseology which probably reflects accurately the way in which the Germans of the fifth century spoke Latin. Some of the manuscripts of it contain inter- lineations in a very old Teutonic dialect which, under the name of the Malberg Gloss, stUl excite the strongest interest among philologists. With Kings it has nothing whatever to do, except so far as the King is concerned with the administration of justice. The famous passage which was once thought to justify bloody European wars, which caused the war of a hundred years between England and France, and which is still the basis of the theory of politics called CHAP. Tl. THE KING AND EARLY CIVIL JUSTICE. 169 Legitimism, merely gives the rule of inheritance to landed property.^ This Court of the Hundred, which administered the Salic law to the Salian Franks, was the most ancient of the organised Courts among the Germanic races. There were probably ' natural ' prehistoric Courts which were older, such as the assemblies (or moots) of the various village communities, but the Hundred Court was the result of a dehberate attempt to furnish an alternative to violence and bloodshed, and it seems to have been practically universal among the Germanic tribes. It has bequeathed to this countiy a territorial description, the Hundred, or (as it is called in the north) the Wapentake ; and Mr. Gomme, in his interesting volume on ' Primitive Folk Moots,' has traced many of the sites at which its open-air meetings were held. They seem to be particularly abundant in Norfolk and in the east of England. The Hundred Court, however, was not an institution which had great vitality in our country, since part of its powers seems at an early date to have gone over to the larger judicial body called the County or Shire Court, while another part went back ^ Be terrd {Sailed) in mulierem nuUa portio hcereditatis transit,' kc. The word ' SaKca ' is certainly an interpolation, as may be seen at a glance from the tabular comparison of the MSS. in the splendid edition of the Lex Salica by Messrs. Kern and Hessels. (London : Murray, 1880), L.S. 379 et seq. 170 THE KING AND EARLY CIVIL JUSTICE. chap. ti. again to the village communities under their newer name of Manors. As the Hundred Court appears in the Salic Law, it looks at first sight like an entirely popular tribunal with which royal authority has nothing to do. The judges are all the freemen living within the limits of the Hundred. The President is elective and bears the name of the Thunginus or Thingman. I will say no more of its general characteristics than that it is intensely technical, and that it supplies in itself suffi- cient proof that legal technicality is a disease not of the old age, but of the infancy of societies. But it has one remarkable peculiarity, that in a large class of cases which come before it, those based on contract or ownership, it does not enforce its own decisions. It may be suspected that, at a still earlier date, this singular inability to discharge what seems to us the most distinctive function of a judicial tribunal ex- tended to all the decrees of the Hundred Court, what- ever might be their object. The explanation seems to be that the most ancient Courts deliberately es- tablished by mankind were intended to be what we should call Courts of Arbitration, Their great func- tion was to give hot blood time to cool, to prevent men fi*om redressing their own wrongs, and to take into their own hands and regulate the method of redress. The earliest penalty for disobedience to the Court was probably outlawry. The man who would CHAP. Tl. THE KING AND EAELT CIVIL JUSTICE. 171 not abide by its sentence went out of the law. If he were killed, his kinsmen were forbidden, or were deterred by all the force of primitive opinion, from taking that vengeance which otherwise would have been their duty and their right. But at this very point the Salic Law puts us on the trace of one of the greatest services which royal authority has rendered to civil justice. At the first glance, the King appears to have nothing to do with the Court of the Hundred. He is merely repre- sented in it by a class of officers who collect his share of the fines imposed — a very important part of the royal revenues. We find, however, that if the un- successful litigant in the Court had agreed to abide by the sentence, the King's officer would enforce it ; and even in the absence of such an agreement, if the litigant who had been successful went to the King in person and petitioned him, the King would do him justice in virtue of his ultimate residuary authority. These are the first feeble and uncertain steps of royal authority towards the ascendency which in all Teutonic countries it has gained over the primitive popular justice. It has dwarfed and finally absorbed this justice, but then it has conferred on it the faculty without which we can scarcely conceive it existing. The King has nerved its arm to strike, and there seems no doubt that the process by which the whole force of the State is employed to enforce the com- 172 THE KING AND EAULT CIVIL JUSTICE, chap. tt. mands of the judge is the result of the contact, ever growing in closeness, between the royal authority and the popular court. "We possess in the Capitu- laries of the Prankish Kings some evidence of the further course of these relations between the King and the Court. After a while, the popular president of the Hundred Court, the Thingman, disappears, and his place is taken by the Graf or Count, the deputy of the King. Royal authority is therefore constantly growing, and, as a consequence, we find that the Count wiU use the King's power to enforce all decrees of the tribunal, without reference to their nature, without previous agreement, and without appeal to the King's supreme equity. The presi- dency of the royal officer over the Court was the beginning of a separate set of changes by which the character of the old popular justice was profoundly changed. Everywhere in the Teutonic countries we find deputies of the King exercising authority in the ancient courts, insisting that justice be administered in the King's name, and finally administering a simpler justice of their own amid the ruins of the ancient judicial structures fallen everywhere into dis- repute and decay. Such being the well-established consequences of the contact between the Teutonic King and the Teutonic Popular Courts, it seems worth whUe inquiring what were the weaknesses of those Courts, what seeds of dissolution they con- CHAP. VI. THE KING AND EAELT CIVIL JUSTICE. 173 tained, and what there was in the King, even apart from this power, which made him their natural suc- cessor. Two forms of authority, the King and the Popular Assembly, are found side by side in a great number of the societies of mankind when they first show them- selves on the threshold of civilisation. The Popular Assembly and the Popular Court of Justice are in principle the same institution ; they are gatherings of the freemen of the community for diiferent public purposes. The King && political chief is contrasted with the Popular Assembly ; as military leader he is contrasted with the host, with the general body of fighting men ; with the Popular Court of Justice he is contrasted as judge, as depositary of the special judicial authority which is my subject. I do not enter upon questions, now much disputed, whether the King or the Popular Assembly is the older of the two, or whether they have co-existed from all time, and I will merely observe that the tendency of recent research is to assign the higher antiquity to the assembly of tribesmen. Taking it, however, as a fact that the two authorities very generally appear together, we may remark a further law of progress which they seem to follow. In such communities as those of which Athens and Rome are the great examples — in that walled city which was the cradle of a large part of modern ideas — the organs of ] 74 THE KIISTG AND EARLY CIVIL JUSTICE. chap. tt. freedom, as we should say, continually increase in importance. The assemblies monopolise power. The King either disappears or becomes a mere shadow. But in communities spread over large spaces of land, and without waUed towns, it is the King who grows, and all popular institutions tend to fall into decrepitude. Are there, then, any reasons for this growth and decay, so far as regards the particular institutions with which we are concerned — -judicial institutions? One source of weakness may, I think, be traced in the ancient popular insti- tutions, both judicial and political. This was the great number of men, and the large portion of every man's time, which they required for their efficient working. Even in communities confined by the surrounding wall to moderate dimensions, we can see the difficulty of bringing up the people to the discharge of their public duties. Scholars will re- member the vermilion- stained rope which was dragged along the streets of Athens to force the citizens to the place of assembly, and which exposed the laggard marked by it to a fine ; and their recol- lection will also dwell on the famous fee, the three obols, which was paid for attendance there and at the popular tribunal. Mr. Freeman, speaking of the later revival of Hellenic freedom in the collection of States united by the Achasan League (' History of Federal Government,' i. 266), has noticed the effect which OHAP. yi. THE KING AOT) EAELT CIVIL JUSTICE. 175 the burden of attendance on political duties had in throwing political privilege into a few hands and thus in converting democracies into aristocracies, Much of ancient freedom was, in fact, lost through the vastness of the payment in person which it de- manded. In communities of the other class, those spread in villages over a great extent of country, the burdensomeness of public duties must always have been considerable, and must have become very great when their size increased through the absorption of many tribes in the same nation. Some evidence of this may be discerned in the importance which old Germanic law assigns to the sunis or essoin, a word which once puzzled Enghsh lawyers greatly, but which is of old German origin, and really signifies the ground of legal excuse which a man may make for failing to discharge any duty in a popular Teutonic tribunal. But the difficulty is easily un- derstood in another way. Although its pedigree is much interrupted, our English jury is a survival ot the old popular justice ; yet nobody even now, I suppose, receives a summons to attend a jury with perfect complacency. What, however, must the necessity for attendance have been when the place of meeting was at the other side of the hundred, or perhaps of the county, when there were no roads in England except the Roman roads, when the eastern counties were little better than a fen, and when the 176 THE KING AND EAELY CIVIL JUSTICE. ohap. vi. Wealden of the south were really forests? Yet there is some ground for thinking that the burden of attendance was lighter in England than elsewhere. On the Continent of Europe, so long as the Hundred Court had a genuine existence, and up to the time when it was converted into a limited Committee of Experts, we cannot trace any relaxation of the severe rule that every man of full age and free must be present. But, even in this particular, the begin- nings of that representative system which has done so much to continue the English form of Teutonic liberty in life can be perceived specially characterising this country. From very early times the English Hundred and Shire Courts were attended not by every freeman, but by the Lords of Manors, and by the Reeve and four men representing each village or parish. Never- theless there can be little doubt that even in England the duty of attendance was felt to be very burden- some. In the Confirmation of Magna Charta by Henry III. in 1217, there is a provision that the County Court shall not meet more than once a month; and Mr. Stubbs (' Const. Hist.' i. 605) suggests the explanation that the sheriffs had abused their power of summoning special meetings of the court and fining absentees. He adds that it was the direct interest of the sheriffs to multiply the occasions of summons. This multitudinousness, if I may so describe it, of all Courts of Justice except those of the King, lasted CHAP. Ti. THE KING AND EABLY CIVIL JUSTICE. 177 far down into the feudal period. Feudalism attained its greatest completeness in France, and French his- torians are astonished at the number of persons who were required for the organisation of a feudal Court of Justice. The principle is expressed in a phrase familiar to us, that every man must be tried by his peers, which originally meant that his judges were the entire body of persons standing in the same degree of relation with himself to some superior above. If a great vassal of the Crown had to be tried for treason or felony, all the great vassals of the French Kings must assemble from all parts of the territories of which the French King was the overlord ; and it was precisely such a Court which deprived our King John of the fairest provinces of France. If, on the other hand, a villein had to be tried, his peers were the villeins of the same seigneurie. The inevit- able result was that the French feudal Courts dwindled into bodies which confided all active duties to a small committee of experts, and as these experts were for the most part devotees of the Roman law, they exercised memorable influence in diffusing notions of the absolute power of the King, and specially of his rightful authority over justice. Quod principi placuit, legis hahet vigorem—this was the central principle of the developed Eoman juris- prudence. It may thus be believed that the ancient Germanic 178 THE KING AND EAELT CIVIL JUSTICE. chap. tt. Popular Courts, and probably the Popular Courts of many other societies, fell into disfavour or decay, as communities of men grew larger by tribal inter- mixture, through the multitude of judges they in- cluded, and through the great difficulty of discharg- ing judicial functions. The freeman who ought to have attended preferred to stay at home, sending his excuse or essoin for the neglect, and submitting to a fine if it were insufficient. The tribunals were thus ever changing into committees of legal experts, with a strong bias towards royal authority. Meantime we know from other evidence that the Eong and the King's justice were ever growing at their expense ; and we may ask ourselves whether there was any- thing in the royal office and functions which gave them an advantage in this competition with the Popular Local Courts. The story of the struggle is far too long and intricate to be told here ; but the habits of the King gave him one advantage which there is some interest in pointing out, all the more because it is often overlooked. I do not suppose that, when a litigant put himself from the first into the King's hands, or appealed to the King over the head of the popular tribunal, he went to some royal residence, palace, or castle. This would have been an aggravation of the difficulties of the popular local justice. It was not the litigant who went to the King, but the King who came to the litigant. I OHAP. Tl. THE KING AND EAELY CIVIL JUSTICE. 179 believe upon a good deal of evidence' that these ancient kings were itinerant, travelling or ambulatory personages. When they became stationary, they gene- rally perished. The primitive Kings of communities confined within walls, like the old Athenian and the old Eoman Kings, soon dropped out of sight. Per- haps, as Mr. Grote has suggested, they lived too much in fuH view of their subjects for their humble state to command much respect when the belief in their sacredness had been lost. But the more barbarous King of communities spread over a wide territory was constantly moving about it ; or, if he did not, he too perished, as the Kings called the wis faineants of the Franks. If I were called upon to furnish the oldest evidence of these habits of the ancient King, I should refer to those Irish records of which the value is only beginning to be discerned, for, whatever may be said by the theorists who explain all national charac- teristics by something in the race or the blood, the most ancient Irish laws and institutions are nothing more than the most ancient Germanic laws and in- stitutions at an earlier stage of barbarism. Now, ' See Grimm, Deutsche ReehtsalterthUmer I. 237. 'Erstea Gesohaft dea neuen Kbnigs war sein Reich zu umreiten.' . . . Grimm quotes Gregory of Tours, 4, 14, ' Deinde ibat rex per civi- tates in circuitu poaitas.' He refers also to simUar duties of the Swedish K!ing, and cites the prayer of the Saxons to Henry IV. : . 'T7t totam in soli Saxonid setatem inert! otio deditus non transigat, Bed iaterdum reguum suum circumeat.' n2 180 THE KIKTG AND EARLY CIVIL JUSTICE, chap. vi. ■when Englislimen like Edmund Spenser first began to put their observations of Ireland into writing at the end of the sixteenth century, there was one Irish practice of which they spoke with the keenest indig- nation. This was what they called the ' cuttings ' and ' cosherings ' of the Irish chiefs, that is, their periodical circuits among their tenantry for the purpose of feasting with their company at the tenants' expense. It was, in fact, only a late sundval of common incidents in the daily life of the barbarous Chief or King, who had no tax-gatherers to coUect his dues, but went himself to exact them, living as a matter of right while he moved at the cost of his subjects. The theory of the Irish law was, though it is impossible to say how far it corresponded with the facts, that the Chief had earned this right by stocking the clansman's land with cattle or sheep. We find a highly glorified account of the same practice in ancient records of the life and state of those Irish Chiefs who called themselves Kings. ' The King of Munster,' says the ' Book of Rights,' ' attended by the chief princes of his kingdom, began his visits to the King of Connaught, and presented to him 100 steeds, 100 suits of military array, 100 swords, and 100 cups ; in return for which the said King was to entertain him for two months at his palace at Ana- chan, and then to escort him to the territories of TyrconneU. He presented to the King of Tyrconnell CHAP. 71. THE KING AND EARLY CIVIL JUSTICE. 181 20 steeds, 20 complete armours, and 20 cloaks, for which the said King supported him and the nobility of Munster for one month, and afterwards escorted him to the principality of Tyrone.' The King of Munster is then described as proceeding through Tyrone, Ulster, Meath, Leinster, and Ossory, everywhere be- stowing gifts on the rulers, and receiviug entertain- ment in return. I suspect that the entertainment is of more historical reality than the royal gifts. The practice, however, described with this splendour by the chronicler or bard, is plainly the same as the cutting and coshering which Spenser and others denounce as one of the curses of Ireland. There is reason to believe that the English Kings itinerated in the same way and mainly for the same purpose. The ' Eyres ' of the Anglo-Saxon Kings are described by Palgrave in his ' Rise of the English Commonwealth' (i. 286). The lawyer might suspect the continuance of the practice from the comparative obscurity of some of the places at which some of the most permanently important of our old statutes were enacted — Clarendon, Merton, Marlbridge, Acton Bur- nell. The hovel-reader comes upon a survival of it in ' KenHworth,' for the progresses of so late a sovereign as Elizabeth were certainly descended from the itinerancy of her predecessors. But there is other evidence of a rather remarkable kind. Two historical scholars, Mr. Eyton and the late Sir T. Duifus Hardy, 182 THE KING AND EARLY CIVIL JUSTICE, chap. ti. have constructed from documentary testimony ac- counts of the movement from place to place, during a long space of time, of two of our EngKsli Kings, King Henry II. and King John. Neither of them of course is a very ancient King, and in both there may have been a certain amount of native restlessness, but their activity, though it may have been excessive, was certainly not a new royal habit. I take the move- ments of King John for notice, because his reign makes an epoch not only in English political but in English judicial history. Sir Thomas Hardy's ' Itinerary of King John ' gives the places at which that Kmg is found to have stayed during every month of every year from 1200 to 1216, the regnant year then beginning on Ascension Day. I take almost at a venture May of 1207. On the 1st of May the King is found at Pontefract, on the 3rd at Derby, on the 4th at Hunston, on the 5th at Lichfield, on the 8th at Gloucester, on the 10th at Bristol, on the 13th at Bath, on the 16th at Marlborough, on the 18th at Ludgershall, on the 20th at Winchester, on the 22nd at Southampton, on the 24th at Porchester, on the 27th at Aldingboum, on the 28th at Arundel, on the 29th at Knep Castle, and on the 31st at Lewes. The King must of course have made all these journeys on horseback over a country scarcely provided with any roads except the Roman roads. But, again, I will take June in 1212, when the King goes to a more CHAP. TI. THE KING AOT) EARLY CrVIL JUSTICE. 183 distant and more impracticable tract of country. On June 4tli lie leaves the Tower of London, and on the 28th is at Durham, having been in the meantime to Hertford, Doncaster, Richmond in Yorkshire, Bowes, Appleby, Wigton in Cumberland, Carlisle and Hex- ham. What is stUl more remarkable, he marches at much the same rate in Ireland, which was then as little known and as impassable a country as now are the wildest parts of the Sierra Nevada. He reaches Waterford with his troops from Haverfordwest on June 20th, 1210, and is back again at the end of August, having been at every place of importance in the south-eastern half of the country. It must be understood that I am not selecting periods in which the King's movements were exceptional or his activity greater than usual. This was practically his life during every month of every year of his reign. King John passes for an effeminate sovereign, but no com- mercial traveller of our day, employed by a pushing house of business, was ever, I believe, so incessantly in movement, and for so many successive years, with all the help of railways. We are able to see how the itinerant King gradu- ally became a monarch of the modem type. The change maybe attributed to the growth of the system of missi, of itinerant deputies of the sovereign, his servants, as the English phrase was, in eyre. The first employment of the missi was much older than 184 THE KING AND EAKLT CIVIL JUSTICE. chap, Tl. the reign of King John on the Continent, and con- siderably older in England. But, as is usual in such cases, one system did not all at once displace the other, and Kings, though gradually becoming more stationary or sedentary, did not suddenly cease to move about their dominions when they began to be represented by itinerant justices or deputies of their own. The transition, however, was hastened in our own country by the great constitutional change of which I will speak presently. But first of all let us notice how this ambulatory life of the ancient Teutonic King gave him an advan- tage, as a great judicial authority, over the ancient local Popular Courts which had possibly existed from time immemorial by his side. As I have explained, they contained in themselves certain seeds of decay. Their numerous members had the strongest reasons for evading or slackly discharging what must have seemed to them a most rigorous duty. They had to waste many days and to incur many dangers while travelling by forest and fen to the place of meeting. They had to acquaint themselves with aU the circum- stances of the cases brought them without any of the aids of a modern Court of Justice. They had often to visit the scene of alleged acts of violence. They had not merely, like a modern jury, to decide on questions of fact ; they had also to declare the law or usage and to pronounce the sentence. And then CHAP. Tl. THE KING AKD EARLY CIVIL JITSTICE. 18') after all this, they might themselves be proceeded against for a wrongful judgment, and even, according to the judicial system of some communities, they might be called upon to defend their sentence in arms. A capitulary of Charles the Bald bids them go to Court armed as for war, for they might have to fight for their jurisdiction ; and at a later date the oath of service exacted by the feudal lord constantly bound the vassal just as closely to service in Court as to service in arms. The burden on the poor man was so severe that the Church interfered in his favour, and a Council of the ninth century protested against the cruelty of forcing the poor to do suit in Court. But while all these causes were weakening and emptying the Popular Courts, the King was con- stantly perambulating the country, carrying with him that royal justice which had never been dissociated from him since his dignity existed.* The justice which * A passage in an interesting book, Drew's ^ Kashnvr amd Jum/moo, curiously illustrates the character of the ancient royal jurisdiction, and also one of the motives which produced the King's activity in exercising it. Here is an accovint of what still goes on in the Curia Regis of the Maharajah of Cashmere, himself a sovereign much more modem than the system he follows. Gholab Singh, the first of the dynasty which 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 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 ai^d calling out " My Lord the King, ] 86 THE KING AND EAKLt CIVIL JUSTICE. chap, vi, lie dispensed was in the first place complete, since he always by his officers executed his own decrees. It was also irresistible, since he generally had with him the flower of the military strength of the country. It was probably purer than that of the popular tribunal, which was certainly not inaccessible to cor- ruption ; and it was more exact, for anything like precise legal knowledge was very much confined to the experts who followed the King in his progresses. Moreover, in those days, whatever answered to what we now call the spirit of reform was confined to the King and his advisers ; he alone introduced compara- tive gentleness into the law and simplified its pro- cedure. Thus the royal justice was ever waxing while the popular justice was waning ; and from the ascendency which the first finally attained are in fact descended most of the characteristics which we asso- ciate with the law, and which some theorists declare a petition ! " He would pounce down like a hawk on the money, and, having appropriated it, would patiently hear out the peti- tioner. Once a man after this fashion making his complaint, when the Maharajah was taking the rupee, closed his hand on it and said, " No ; first hear what I have got to say." Even this did not go beyond Gholab Singh's patience ; he waited till the man had told his tale and opened his hand ; then, taking the money, he gave orders about the case.' ' The civil and crimioal cases,' it is afterwards stated, ' have usually been previously inquired into by judicial officers in the Courts of First Instance, and perhaps have been adjudicated upon by the Court of Appeal ; but it is open to suitors and complainants to try their fortune with the Maharajah himself.' CHAP. Tl. THE KING AND EARLY CIVIL JUSTICE. 187 to be inseparable from it — ^uniformity, inflexibility, and irresistibility. It may almost be laid down tbat in England notbing wbolly perisbes. Tbe itinerant King is still represented among us by tbe Judges of Assize on Circuit ; tbe ancient Popular Court survives in tbe Jury, tbougb in tbe last instance tbe line of descent is far dimmer and far more broken than in tbe first. Wben Jobn reigned, tbe delegation of tbe royal authority to itinerant servants of tbe King for some purposes bad long been known ; but one branch ol royal jurisdiction, tbat over the Common Pleas, or in other words over tbe greatest part of tbe more im- portant civil litigation of the nation, was carried about with him by the King in those surprising pro- gresses of which I have spoken. Hence gradually arose a great abuse. In primitive times, when ques- tions were simple, the King as he approached each local centre in turn bad perhaps no dilB&culty in de- ciding every case which came before him before he went away. But, as a more complex and wealthier society arose, there was the greatest difficulty in getting tbe King, as it was called, to give the suitor a day. Sir Francis Palgrave has printed in the second volume of his ' Rise of tbe English Commonwealth ' a most curious document, which is the account given by one Richard de Anesty of the trouble and charges to which he was put in respect of a mixed civil and 188 THE KIITQ ANJO EARLY CIVIL JUSTICE. chap. ti. ecclesiastical case which he had before the Archbishop of Canterbury and the King. Besides infinite vexa- tion from the Ecclesiastical Courts, he had to follow Henry II. across the sea to France and up and down England before he could get his day. After reading this paper, we gain a vivid idea of the importance of the provision in the Great Charter that the ' Common Pleas shall no longer follow the King.' This is a great judicial epoch, marking a revolution in judicature ; and King John at once proceeded to illustrate the necessity for it. He sealed Magna Charta at Runny- mede on June 15, 1215, and before July 15 he had been over the whole oF the south of England and again northwards as far as Oxford. Meantime the judges of the Common Pleas were sitting — as they did ever since till the Court of Common Pleas was absorbed the other day in the High Court of Justice — at Westminster, and at Westminster only. With the sealing of the Great Charter the early history of the relation of the English King to civil justice comes to a close, and the modem English judicial system is established. It is distinguished in some respects from the corresponding systems of the European Continent, though these too were results of the same general causes. It is the most highly cen- tralised system of judicial administration in the world, all the important branches of judicial business being localised in London, and a portion only diffused CHAP. Tl. THE KING AND EARLY CIVIL JUSTICE. 189 through the country by Judges in eyre, the old missi sent from the side of the King. The only considerable modification of these principles was made when the modem County Courts were established, courts ex- tremely unlike the old Shire Courts. These last have left the merest trace behind them, perhaps in some mound now overgrown with trees which marks their ancient place of open-air meeting, perhaps in some trifling fine imposed on landholders for failing to attend a non-existent tribunal. Even with the ad- dition of the newer County Courts, the English judicial system has another feature peculiar to itself — the fewness of the judges employed in administering justice. If you look across the channel to France, you find these characteristics reversed — comparatively little judicial centralisation, a large number of local courts, a multitude of judges distributed over the various tribunals. The French King, hke the Eng- lish King, became the theoretical fountain of justice, but the effect was produced much more by the zeal with which expert lawyers trained in the Roman law preached his authority than by direct supersession of the local courts by emissaries of his own. On the other hand, the character of the law itself, however administered, was much more changed in France and on the Continent generally than in England. The Koman law gained everywhere a considerable, and 19U THE KING AND EARLY CIVIL JUSTICE. chap, tl here and there a complete, ascendency over ancient custom, and the French Civil Code, the outcome of the Revolution, is only a version of Roman juris- prudence. But, though much is obscure in the beginnings of what we Englishmen call the Common Law, it was undoubtedly in the main a version of Germanic usage, generaUsed by the King's courts and justices. Some savour of the ancient opposition between the popular justice and the royal justice still clung about it, since we know that, theoretically administered in the King's name, it came at a much later date to be thought the barrier of popular liberty against assertions of prerogative by Tudor and Stuart. Meantime that residuary authority over law and justice, which was never in ancient times quite dis- sociated from the King, survived the maturity of the common law. From this sprang the j urisdiction of the Court of Chancery, which cannot be said to have ever been exactly popular, but which certainly owed what- ever unpopularity attached to it not to any supposed inherent badness, but to incidental vices, its dUatori- ness and its costliness. But then from this same residuary authority arose the criminal jurisdiction of the Star Chamber, which has become with ordinary English historians a very proverb of judicial oppres- sion. The true historical difference, however, between the so-called equity of the Court of Chancery, and the illegalities and unconstitutionalities of the Star CHAT?, n. THE KING AND EABLT CIVIL JUSTICE. 191 Chamber, is that one had its origin before the autho- rity whence it sprang had been seriously questioned, while the other did not obtain an eflfectual juris- diction till its time had gone by. The depth of dis- credit into which Star-Chamber justice fell marks the decline and fall of the King's beneficial influence over law. The royal judicial authority was once the most valuable and indeed the most indispensable of all reforming agencies, but at length its course was rim, and in nearly all civilised societies its inheritance has devolved upon elective legislatures, themselves everywhere in the western world the children of the British Parliament. J.y2 THEORIES. OF PRIMITIVE SOCIETY. chap, vii. CHAPTER VII. THEORIES OF PRIMITIVE SOCIETT. Some years ago (in 1861) I published a work (on ' Ancient Law ') which I described in the preface as having for its chief object to ' indicate some of the earliest ideas of mankind as they are reflected in Ancient Law, and to point out the relation of these ideas to modern thought.' It was not part of my object to determine the absolute origin of human society. I have written very few pages which have any bearing on the subject, and I must confess a certain distaste for inquiries which, when I have attempted to push them far, have always landed me in mudbanks and fog. The undertaking which I have followed in the work just mentioned, and in others, has been to trace the real, as opposed to the imaginary, or the arbitrarily assumed, history of the institutions of civilised men. When I began it, several years before 1861, the background was obscured and the route beyond a certain point ob- structed by a priori theories based on the hypo- OHAP. Til. THEORIES OF PRIMITIVE SOCIETY. ]93 thesis of a law and state of Nature. In endeavouring to get past this barrier, I had occasion to point out the claims of the so-called Patriarchal theory of society to be considered a real historical theory ; that is, as a theory giving an account upon rational evidence of primitive or very ancient social order. The Patriarchal theory is the theory of the origin of society in separate families, held together by the authority and protection of the eldest valid male ascendant ; and, having dwelt on the peculiar import- ance of Koman law in investigations such as I was prosecuting, I insisted in a few pages of my book on the testimony to this theory supplied by the earliest records of Roman jurisprudence. We have not indeed knowledge of any working system of institutions in which the Family exactly corresponds to the primi- tive family assumed by the theory. The Eoman law, as a working system, takes a view of Family and Kinship not very different from that accepted in modern societies, but we happen to have unusual facilities for ascertaining a very ancient condition of this law, and it is not possible to doubt that, when the law was in this state, the Family and the Kin- ship of which it took cognisance had for their basis the authority of the eldest male ascendant. Other bodies of old usage and legal rule, less perfectly known to us than the Roman from the scantiness or the inferior quality of their materials, seemed to me o 194 THEORIES OP PRIMITIVE SOCIETY. chap, vii. to suggest that a Family organised on the Patriarchal model had been the near or remote antecedent of the Family Which they reflected. The Hindu law ap- peared to me to suggest this very strongly. So did Slavonian law, as far as it was known. Greek law seemed to point to the same conclusion, less dis- tinctly yet not very obscurely ; and, more doubt- fully, the ancient law of the Teutonic races. The evidence appeared to me very much of the same kind and strength as that which convinces the compara- tive philologist that a number of words in different Aryan languages had a common ancestral form in a now unknown ancestral mother tongue ; but I stated with some caution the opinion that, at that stage of the inquiry, ' the difficulty was to know where to stop and to say of what races of mankind it was not allowable to lay down that the society in which they were united was originally organised on the patri- archal model ' (' Ancient Law,' 123). My book was published in 1861, and delivered as lectures m the four or five previous years, and it is needless to say that, since then, all this evidence has been added to, re-examined, and placed in new lights. We now can discern something of the real relation which the sacerdotal Hindu law bears to the true ancient law of the race. Slavonian law and usage, chiefly known in 1861 from the books of Haxthausen, is becoming a more trustworthy subject of study through the CHAP. m. THEOEIES OF PRIMITIVE SOCIETY. 195 labours of Prof. Bogisic. The earliest monuments of German law have been repeatedly fought over by earnest controversialists, with no very certain result. The Irish Brehon law, once inaccessible, is gradually becoming known to students of archaeology. StiU, if the inquiry were to be confined to the ancient insti- tutions of the group of societies which I examined more than twenty years ago, I should maintain the conclusions which I reached, subject only to some qualifications which are suggested in the first four chapters of the present work. But much testimony of an altogether new kind has been obtained, since I wrote, jfrom the ideas and usages of societies which live in a condition of barbarism or savagery, and the two zealous inquirers, now lost to us, J. F. McLennan and L. H. Morgan, who have put this testimony into order, have been led by it to form opinions on the primitive or very early condition of human society which they themselves at aU events consider to be quite inconsistent with the Patriarchal theory. I am desirous of stating in what light I see these new facts and theories, and of showing at the same time that I have not neglected the friendly challenge to examine them which Mr. J. F. McLennan addressed to me in the preface to his ' Studies in Ancient History.' I trust that the general considerations to which I have been conducted may obtain some attention from per- sons more versed than I am in this special line of 2 196 THBOKIES OF PEIMITIVE SOCIETY. chap. Tn. study ; but J do not print them without some reluc- tance, since, as will appear from remarks in the following pages, I am not satisfied that the investi- gation has advanced far enough to admit of a very confident opinion. The Patriarchal theory of society is, as I have said, the theory of its origin in separate families, held together by the authority and protection of the eldest valid male ascendant. It is unnecessary to add that this theory is of considerable antiquity. So far as we can judge, it first occurred to the great Greek observers and philosophical thinkers of the fourth century before Christ. Plato (' Laws,' iii. 680) and Aristotle (' Politics,' i. 2) both enun- ciate it, the first briefly, the last with so much detail that little has been added in more recent times to his statement of it. It may be proper here to remark that the theory was not founded by them on mere conjecture. They both profess to base it on actual observation. Plato expressly says that forms of society, answering to the assumed original groups, survived in his day ; he calls them by the obscure name Bin/aa-Teiat (' chieftainships ; ' Jowett, ' lord- ships '). Aristotle expressly appeals to the actual social state of ' barbarians.' It should be noted that the opportunities of these observers were such as can never again recur. Living more than 2,000 years CHAP. Tir. THEORIKS OF PEIMITIVE SOCIETY. 197 ago, they were so mucli nearer the barbarism of the greater races ; the societies open to their observation were not the mere waifs and strays of humanity, but people of the same ethnical stock with themselves and ourselves, lagging, however, far behind the Greeks in civilisation. Aristotle, whom nobody I suppose wiU deny to have been a good observer, had abundant material for his conclusions. He was born in the scarcely Hellenic city of Stageira. He passed much of his life at the semi-barbarous Court of Pella, where his father was physician to the Macedonian King. And he left a special treatise on ' Barbarian Customs ' (vonLfia fiapfiapiKa), now unfortunately lost. The Patriarchal theory, during the dark ages, would have shared the fate of much else in Greek speculation if it had not been kept alive by its corre- spondence with the Scriptural account of the Hebrew Patriarchs. But, in the 17th and 18th centuries, its place was taken by a priori theories of the State of Nature which long satisfied curiosity as to the original condition of mankind. Its revival may be said to be owing to Niebuhr's discovery of the ' Commentaries of Gains,' which, though not directly treating of ancient Roman law, enabled us to divide it into successive stages or strata, and gave us a singularly complete view of the earliest among them. I am not sure, however, that the appeal to Roman law has not done disservice with some minds to the Patriarchal 198 THEORIES OF PRIMITIVE SOCIETY. chap. vil. theory. It has encouraged the belief that it referred to a relatively advanced social order. Now Plato and Aristotle clearly intended to describe a highly bar- barous condition of the race. They both illustrate it by the Homeric story of the ' Cyclops,' ' who had neither assemblies for consultation nor dooms, but each exercised jurisdiction over (issued dooms to) hia wives and children, and they paid no regard to one another.' But the family groups contemplated by the theory are more than barbarous ; they are extremely savage, if the test be applied of analogy to the life of animals. The strongest and wisest male rules. He jealously guards his wife or wives. All under his protection are on an equality. The strange child who is taken under it, the stranger who is brought under it to serve, are not distinguished from the child bom under the shelter. But when wife, child, or slave escapes, there is an end to all relations with the group, and the kinship which means submission to power or participation in protection is at an end. This is the family (to borrow Sir George Cox's ener- getic expression) of the wild beast in his den. But when these several relations are decorated with the Roman technical names of Patria Potestas, Manus, Dominion, Adoption, Divorce, Agnation, Emanci- pation (which mean precisely the same things), an impression of recency is given which some minds are clearly unable to shake off. CHAP. TD. THBOKIES OF PRIMITIVE SOCIETY. 199 The other theory which is now opposed to that long called Patriarchal is the theory of the origin of Bociety, not in the FamUy but in the Horde. Aris- totle and the writers who have followed him suppose that the larger groups of men discernible in the twilight of history have somehow grown out of isolated families like that of the Homeric Cyclops. As these larger groups first show themselves, it is impossible to believe that they are composed through- out of blood-relations, but the Patriarchal theory according to recent interpreters assumes that there is a real core of consanguinity in some or most of them, to which artificial additions have been made by a number of fictions of which Adoption is the type ; and that others have been created by a pro- cess, not whoUy extinct,^ of imitating a dominant or fashionable model. My own conclusion in my ' Ancient Law ' was thus stated : ' The conclusion which is suggested by the evidence is not that all early societies were formed by descent from the same ancestor, but that aU of them which had any perma- nence or solidity either were so descended or assumed that they were. An indefinite number of causes may have shattered the primitive groups, but where- ever their ingredients recombined, it was on the ' See Sir A. Lyall's paper on the ' Formation of Clans and Castes,' now forming Chapter IV. of his Asiatic Studies ; and see Note A, on ' The Gens,' to Chapter VIII. of the present work. 200 THEORIES OF PKIMITIVE SOCIETY. chap, -m, model or principle of an association of kindred. Whatever were the fact, all thought, language, and law adjusted themselves to the assumption.' The theory, which deserves to be associated with the names of McLennan and Morgan, may be said in some sense to invert this account of the matter. It derives the smaller from the larger group, not the larger from the smaller. Founded, as was the Patriarchal theory, on observation, but on observation of the ideas and practices of the now savage races, it deduces all later social order from the miscellaneous, unorganised Horde. I must confess that I do not find it easy to bring home to myself the nature of the original groups as conceived either by McLennan or by Morgan. But I think I may lay down that these assemblages are regarded as companies of men and women, in which the relations of the sexes were wholly unregulated at first, but passed through various stages of limitation or restriction until the Family, Patriarchal or other, was reached. The modern social order is thus the result of a modified promiscuity. These two most original inquirers differ widely in their determination of the stages through which this course of development passed. Totemism (or the origin of the conception of kinship in the mark placed by savages on their bodies), the slaughter of female children, woman- stealing, polyan- diy (or a plurality of recognised husbands), and the CHAP. VTi. THEOKIES OF PRIMITIVE SOCIETY. 201 weU-known Levirate, play a great part in the system of Mr. McLennan. Consanguine Marriage, Punaluan Marriage (or the intermarriage of brothers as a group with sisters as a group), and Classificatory Relation- ship (or the confusion under the same general view and name of all members of the tribe belonging to the same generation) are all-important to Mr. Morgan's theory. But both agree in considering human society as beginning in promiscuity, and as continually modified by its progressive regulation, as beginning in the Horde and as gradually lifting itself till the Family was reached. Both writers seem to me to hold that human society went everywhere through the same series of changes, and Mr. McLennan at any rate expresses nimself as if all these stages could be clearly discriminated from one another, and the close of one and the commencement of another announced with the distinctness of the clock-bell, telling the end of the hour. Before I go further, I think it useful to remark that the point at issue seems to me capable of being more simply stated than it usually is by these writers and their followers. The chief or the one piece of evidence obtained from now savage societies, which points to an original promiscuity, is their habit of tracing relationship for some purposes through females only. When, however, the inference from this charac- teristic is stated to be that ' the exogamous totem- 202 THEORIES OF PRIMITIVE SOCIETY. ohae. th. kin ' of McLennan, or the group which Morgan by an unhappy petitio principii has called the ' gens,' is necessarily older than the Family, which in all its forms assumes some certainty of male parentage, such language may lead to confusion of thought. The physiological elements of the Family must al- ways have been present, and must always have been the source of the larger groups. A human being can no more, physiologically, be the child of two fathers than of two mothers, and the children of the same man, no less than of the same woman, must always have had something in their nature which distinguished them from every other group of human beings. What therefore is meant is, that though the Family must always have existed, it could not be recognised through prevalent habits, and through the consequent uncertainty of paternity. I think it im- portant to call to notice that the fact alleged is not a fact of human nature but a fact of human know- ledge. It is merely intended to be asserted that circumstances long prevented savage men from discovering and recognising paternity, which is matter of inference, as opposed to maternity, which is matter of observation. It is certainly remarkable that, as soon as intelligent curiosity was directed to the question, it seems to have exaggerated the share of paternity in parentage. Probably it was so directed very early ; there is a striking remark of M. Fustel OHA.P. TTI. THEORIES OF PEIMITIVE SOCIETY. 203 de Coulanges, that to the ancient societies based on kinship, the problem of generation was very much what the problem of creation is to the moderns. Euripides^ distinctly states that in his day the universal physiological doctrine was that the child descended exclusively from the male parent, and Hippocrates (irepl TraiSi'ou), in energetically combating this opinion, and contending that the child descended from both parents, seems to admit that it was a prevalent heresy. For the purpose of agreeing with McLennan and Morgan, we must assume that the not very difficult observation on which the opinion rested could not be made, so brief and so little ex- clusive was the union of the sexes. It appears to me that, while the Patriarchal theory * Euripides, Frag. StohcEus, 77, p. 455 — 'AW' "itTT, ifiol ncv ovTOe ovK eorrai vo/iog TO fxfi oil are, [irJTep, ■irpo(r(l>iXfj vifitiv cteJ, Kat Tov hiKaiov, koi tokuiv tSv auiv ■^apiV errcpyia M rov (pixravra tS)V iravTiav (SpoTWV fiaXiaB'' opinio TOVTO, kcli -Family.' 239, 240 ; its distinctness from the Village-Com- munity of Russia and India, 240 ; an extension of the 'Family,' 241; its relationship to the ' Family ' identical with relationship between ' Joint- Family ' and ' Family ' in India, 244 ; government both democratic and monarchical, 245, 246 ; its rules of common property corresponding with the res mancipi and the res neo man- cipi of the Bomans, 249 et se different development of in Northern aiid Southern Slavonic provinces, 262 development into a Yillage-Oommu- nity in BusSo-Slavonic provinces, 261 result of this development, 261 et seq. ; decay of the system, 263 et seq. House of Commons, the, its Select Com- raitteo on Copyholds referred to, 307; 310 House of Lords referred to, 26 ; second chambers in imitation of, 26 Hypothek, law of, mentioned, 357 rPUEE Tribes, fictitious formation of, 279 et seq. ; among Eajpoots, description of, 274 ec seq. Inheritance, law of, as it affected women among Athenians, 94, 95 ; Athenian aud Hindu-Punjab rules of compared, 95 ; its implication with ancestor- worship among Hindus and Bomans, 120; as affecting the portion of daughters among Bomans, 109; amon^ Mahommedans, 235 ; as applied to South Slavonian provinces, 259 et seq. Ireland, Brehon law of, referred to, 162; Brehons of, their similarity to the Brahmans, 162 Irish Book of Bights, the, quoted, 180 ' Isseus quoted, 78 JAMIESON, Mr., his communications to the ' China Eevisw' quoted, 224 Jebb, Professor, his 'Attic Orations' quoted, 95 n. Joint-Families, system of, alluded to, 22 ; connection with ' Village-Com- munities,' 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 Anglo- Indian justice. 2, 3 ; his translation of 'Book of Manu' referred to, 4, 376, 379; result of his conclusions, 6,7 Judges, Book of, referred to, 163 Judicial administration, difference of in modern JEngland and France re- ferred to, 189 Jus Genrium referred to, 119; Naturals, Boman conception of referred to, 388 ; Boman lawyers meaning of stated, 366 Justice, Feudal Court of, in France, re- ferred to, 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, corre- spondence of its legal classification vrith that of ' Twelve Tables,' 367 ; his U8th 'Novella Constitutio ' re- ferred to, 66 KEBN and Hessels, Messrs., their edition of the Lex Saliea re- ferred to, 169 ». King, the, functions of, 38 et seq. ; his divine right, 39 ; his relation to the 398 CNT)EX. KINGDOMS Brahmans, 39 ; his alliance with the Urahmao the beginning of civil law, 44 ; influence of his supreme autho- rity upon law and usage, 164 et seq. Kingdoms, the, adjusted to the same form as the Manors, 306 LAND law. Boman, the, referred to, 342, 343, 344 Land Eogistration, Continental systems of, enlarged upon, 353, 356 et seq. ; analogous to Soman system of ' man- cipation,' 358 Land, sale of, in India, private transfers preferred to public, 359 Larvae, the, meaning of, 65 Law, first appearance of in Brahmini- cal books, 3S ; Roman and English systems as dividing the civilised world referred to, 165 ; Gregorian, Hermogenian Codes, 367; Justinian, Theodosius 2nd, Codes of, referred to, 367 ; Boraan, its division into law of persons and law of things 391 ; Dig. XXX. 84, 6, and Cod. vi. 37, H, referred to, 109 ». ; ' Twelve Tables' of alluded to, 3, 6, 66, 75, 115, 337, 367, 369, 388; of Nature, Greek philosophical conception of referred to, 119 Lawyers, origin of, according to Hindu Sacreti Books, 26 ; ancient, identical with priests, 26, 27 Lavaleye, M. de, his opinions referred to. 346 Le Bon, Dr., his ' L'Homme et les SociAtds ' quoted, 208 Legal conceptions, their instability re- ferred to, 360 Legal Eules, classification of, according to * Institutes * of Justinian and Gains enlarged upon, 362 et seq. ; this arrangement exploded according to many modern jurists, 364; this system not regarded as perfect by Eoman jurists, 367 ; renewed sup- port the system has received in America, 365 ; difference of arrange- ment in other Boman Codes, 367 ; according to ' Twelve Tables,' 369 ct seq. ; according to ' Edict of the Praetor,' 370 ; according to Lex Salica, 372 et seq. ; this arrange- ment not derived from Boman sys- MALES tem, 374 ; according to early Irish law, 374 et seq. ; according to Book of Mann, 376 ; according to Book of Narada, 379 et seq. ; principle asd meaning of this system, 381 ; ar- rangement of primitiveL codes ex- plained by this system, 382 et aeq^ ; study of in Middle Ages alluded to, 368 ; distinctions between ancient and modem arrangements, 389 et seq. Legge, Dr., his contributions to ' Sacred Books of the East ' quoted, 59 n. Letourneau, Dr., his ' La Sociologie ' quoted, 208 and n. Levirate, the, alluded to, 201 ; among Hindus, 100, 102, 106 ; among Spar- tans and Athenians, 100, 104, 105; among Hebrews, 101 Leviticus, Book of, compared to Book of Mann, 5 Lex Salica, the, referred to. Note A, 332, 338, 346, 372, 373 Lubbock, Sir John, his ' Origin of Civilisation' etc. quot«d, 37, 68, 72; his ' Prehistoric Times ' quoted, Note A, 230 Lyall, Sir A., his 'Asiatic Studies* quoted, 270, 272, 274, 275. 279; alluded to, 63, 199 «., 267, 277, Note A, 284, 285 MACADLAY, Lord, his 'History of 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 Magna Chnrta, effect of sealing of, stated, 188 Mahommedanism, its effect upon com- munities subject to Mussulman rule, but not to that faith, 236 Maine, Sir H., his 'Ancient Law' quoted, 192, 199, 206, 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 ; alluded to. Note A, 329 Males, excess of females over referred to, 210; disproportion of females, to KiTDEX. 399 UALHESBUST referred to, 211, 211 ; as borne out by inscription in Berlin Museum, 213 ; preference for succession by, in India, Greece, and Rome, 114, 115 ; ex- ception to this feeling in Bengal proper, 116 Malmesbury, Lord, papers of referred to, 141 Han, Mr. E. H., bis contributions to ' Journal of the Anthropological In- stitute ' quoted. Note A, 230 et seq. Manavas, Clan of, its legal doctrines re- ferred to, 16 Mancipation, system of, subordinate to system of ' Tradition,' 352, 359 ; pub- lic conveyance by among Bomans, 352 Manor, the, original nature of described and referred to, 302, 303, Note A, 329 ; differing results from decay of in France and England. 307, 313, 319 et seq., 326; its survival in the ' parish,' 326 ; Court of the, difference from Signorial Court, and reasons for, 313, 314, 323, et aeq. ; Lord of the, his status referred to, 304, 319, 324 Manors, Court Rolls of, in England compared with Continental Land Registries, 354 Manu, Book of, quoted. 33, 40, 41, 64, 70, 83, 94, Note A, 123 ; referred to, 4, 5, 7, 16, 107, 128, 160, 376-379; its double origin, 43 ; suggested dates of, 5, 9, 10, 11 ; its combina- tions of law and ritual, 6 ' Manus,' Roman usage of referred to, 198 Marriage, Mahommedan law of re- ferred to, 235 Matthew, Gospel of, quoted, 101 ; alluded to, 363 Maurer. Konrad, his Icelandic re- searches referred to, 384 Max Miiller, Professor, his test for date of Hindu Books referred to, 9 ; his theory of Hindu legal writings quoted, 15, 16 ; referred to, 377 ; his contributions to 'Sacred Books of the East ' referred to, 1 n. Mayne, Mr. J. D., his ' Hindu Law and Usage' quoted, 114, 115, 117; re- ferred to, 77, 82, 83, U7, 111 »., 124 McLennan, Mr. J. F., the late, his theories referred to, 106, Note B, 124, 150 •»., 203, 209,211, 212, 218, PATERNITY 256 ; his ' Studies in Ancient His- tory' referred to, 196; his 'Primi- tive Marriage' alluded to, 239 Mill, Mr. John Stuart, his speculations on legEtl classification mentioned, 364 Missi, system of, explained, 183 ; and alluded to, 189 Hitakshara, Digest of the, alluded to, 114, 118 Montesquieu referred to, 144 Moolvies, the, alluded to, 2, 3 Morgan, Mr., his contributinns to ' TJnited States' Survey of Rocky Mountains ' referred to. Note A, 331 — Mr. L. H., the late, his theories referred to, 195, 203, 209, 211, 212, 218, Note A, 286, 287, 288, 289; his 'Ancient Society' alluded to, 239 'Mother-law,' usage of, referred to, 75 "VTARADA, Book of, description of, Xl 377 et seq. ; its distinction from Book of Manu, 379 ; quoted, 41, 42, Note A, 123, 378, 379; referred to, 17, 41, 107 Natural Family, meaning of, and dis- tinction irom a ' House Community,' 242 Nelson, Mr. J. H., his 'View of the Hindu Law ' and ' Scientific Study of Hindu Law' referred to, 8 »., 12; quoted, Note A, 123 New Zealand Chief, story of men- tioned, 23 Niyoga system of, 100, 106, 107 Normandy, customs of referred to, 151 n. North, Roger, his ' Lives of the Norths ' quoted, 316; alluded to, 311 et seq. OBLIGATION, Roman legal theory of referred to, 391 ' Orphan Heiress ' in Attifc law, the, referred to, 104 PALGRAVE, 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, 218 400 INDEX. PAIKIA Patria Potestas, the, referred to, 198; among Hindus referred to, Note A, 122 Patr-arcbal theory, difficulties of stated, 204, ; development of ' Power' by through sexual jealousy, 215, 216 Peasantry of France, the, their hos- tility to the nobility prior to the Revolution, 294 et seq. Peeulium, Roman law of, practice of among South Slavonians and Hindus, 252, 253 Penances among Hindus, description of, 37, 38 ; exemption from claimed by Brahmans, 40, 47 Plato, his view and illustration of Patriarchal theory, 196, 198 Pleading, New rules of,' alluded to, 390 Plutarch, 'Lives' quoted, 104 Pollock, Mr. F., his 'Notes on Early English Land Law' referred to, Note A, 334 Polyandry, practice of leferred to, 106, Note B, 123, 200 Popular Assembly, the, relation of the king to, 173 ; Popular Court of Jus- tice identical with, 173 Popular institutions, source of weak- ness of stated, 174 ei seq. Possession, law of among Romans alluded to, 356, 357 Prescription, law of. See Usurpation Primogeniture, system of referred to. 132, 133 ; dangerous example of, 138 et seq. Prodigal Son, parable of, illustration affi>rded by, of primogeniture and * Borough English,' 260 Prohibited degrees, Mahommedan and South Slavonian, tables of. 255 ; spe- cial table of as regards Confraternity in Slavo-Greek Church, 258 Property, legal Classification of re- ferred to, 333 et seq. ; Registration of, Act of Indian Legislature referred to, 359 n. ; succession to among Ma- hommedans, 126 ; transfer of in India, see Property, Registration of Proverbs. Sie Aphorisms Psalm cvi. quoted, 58 Puchta, the jurist, referred to, 264 Punaluan Marriage alluded to, 201 Pundits, the, referred to, 2, 3 BTJTH. ' Punjab, Hindu law of,' referred to, 8,26; ' Punjab Customary Law, notes on ' referred to, 95 Pure tribes among Rajputs, descrip- tion of, 272 Purgatories, Hindu, description of, 30 et seq. QUIRITARIAN ownership, the, al- luded to, 343 "DAJKUMAR SARVADHIKARI, -Lt Professor, his ' Hindu Law of In- heritance ' quoted, 56 ; referred to, 57 n. Rajput Clans, the, origin and high birth of, 268 ; social system of, 267 ; disintegrating and organising forces at work among, 269, 277 et seq. ; observations of by Sir A. Lyall referred to, 267, 269 Rajputana. See Rajput Clans. Real Property, Conveyance of, alluded to, 351 Relationship, ' agnatic ' system of re- ferred to, 114, 115, 140, 146, 150, 162 ; ' cognatic ' system of referred to, 97, 114, 139, 145, 147, 161 ; artificial forms of among South Slavonians, 266 et seq. Relatives, collateral, modern rules for succession of, 114, 116 Renan, M., his 'Souvenirs d'Enfanee' quoted, 303 ». ; his observations among Berbers of North Africa alluded to, Note A, 331 Roman Empire, its system of regal succession referred to, 146 Roman praetor, edict of, its nature and effect stated, 119, 120; referred to, 66i 77, 166, 367 Roses, Wars of, referred to, 141 Royal succession, among Hindus, no law for, 125, 127, 128 ; Oriental sys- tems of, their confusion, 1 29 et seq. ; among Hebrews and Oriental nations, 132 ; conflicts between chiefs and elans to obtain mentioned and illus- trated, 131, 132 e^ seq. Rumsey, Mr. Almaric, his ' Mahom- medan Law of Inheritance ' referred to, 126 Ruth, Book of, referred to, 102, 106 INDEX. 401 SAITO SALIC Law, the, referred to generally, U3, 150, 167 ; description of and application to private property, 144 ; application of to royal succession, 143, 148 et geq., 157 ; as applied to France, explanation of given by French historians, 158 Samnel, first Book of, quoted, Note A, 284 Sanction, the. See Penances Sapinda, the. See 112 n. Scott, Sir Walter, his ' Bride of Lam- mermoor ' referred to, 321 ; his ' Kenil worth' referred to, 181 Serope, Mr., his ' History of the Manor of Castle Combe' quoted, 315 Seigneur, the. See Lord of the Manor 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 oflfering of, 57 Siculus, Diodorus, referred to, 115 n. Signorial Court, the. See Court Baron Sister, uterine, marriage system of, described, 105 Slavonian provinces, rise of feudalism among, 265, 266 Socage, tenure by, referred to, 341 Society, Patriarchal theory of de- scribed, 193, 196 et seg.; origin of. Patriarchal theory to be adopted, 215, 219 Sons, artificial, creation of, absence of in modern India, 117; consequences ofdissatisfaetion with, 117 Sophocles, his 'Ajax' compared with Zend Avesta, 65 n. Souls, transmigration of, referred to, 33 et seq. South Slavonians, their distinction be- tween agnatic and cognatic relation- ships, and their respect for old age, 243 ; position of women among as -o 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, 154 Star-Chamber, Court of, referred to, 165 and n. 190 Stubbs, Professor, his 'Constitutional History' referred to, 176 Succession, collateral, on the Continent and among ancient and modern Hindus, 111, 112, 113; Hindu law of referred to, 22 Sunie, the, meaning of, 176 ; referred to, 178 System Descriptive, the, referred to, Note A, 290 TAINE, M., his 'L'Anarehie Spon- tan^e ' 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 Frankish legal classifications, reasons for, 374 ' Thingman,' the, described, 1 70 Thunginus. See Thingman Tocqueville, De, his observations re- ferred to, 314; his theory of the peasant hostility to the French no- bility referred to, 376 Tod, Colonel, his ' Rajasthan ' referred to, 269 Totem, the. Note A, 286 Totemism, practice of referred to, 200 Tupper, Mr. C. L., his ' Punjab Custo- mary Law ' quoted, 8 Tylor, Mr. E. B., his ' Primitive Cul- ture' alluded to, 54 ; quoted, 55, 62 UNIVERSE, Hindu conception of described, 82 et seg. ' Use of the Law,' tract upon quoted, 300, 301 ; erroneous account given in of the origin of Manors and Copy- hold tenures, 299 et seg. Usucaption, law of, referred to, 356 VARRO, his 'De Lingud Latin4' quoted. Note A, 283 Vashishtha, Book of, referred to, 1 1 Verse, as determining dates of Ancient Law Books, 9, lu ' Villa ' the, use of the word by Ger- D D 402 INDEX manic legal draftsmen, and in Lex Salica, Note A, 332 ' Villae,' the, as understood among Bomans, Kote A, 332 Village Community, the, its existence among North Slavonians, 241 ; re- ferred to, 327, Note A, 329 et sec[. Villeins, the, description and status of, 305 Vishnu, Book of, alluded to, 11, 64, 112 »., 128; quoted, 30, 33,34,47, 71, 72, 74, 94 Voltaire, his contempt for the Lex Salina referred to, 144 WARRANTY, expedient of, referred to, 355 West and Buhler, Messrs., their 'Di- gest of Hindu Law ' referred to, 1 1 ». Wheel, Hindu symbol of, described, 30 Women, property of, according to Gautama, 109 ; provision for among Bomans and in India, 109, 110 YOUNG, ARTHUB, his observations referred to, 307, 321 ZUBICH, Land Begistry of, descriD- tion of, 353 et se^. PRINTED BY ^poTTIS^yooDE and co. ltd., sew-street square LOXDOX