;•■ ^DK^7M.€\ 
 
3 1924 100 500 077 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924100500077 
 
In compliance with current 
 
 Copyright law, Cornell University 
 
 Library produced this 
 
 replacement volume on paper 
 
 that meets the ANSI Standard 
 
 Z39.48-1992 to replace the 
 
 irreparably deteriorated original. 
 
 2005 
 
CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 Gift in memory bf 
 
 MARY STEPHENS SHERMAN, '13 
 from , . 
 
 JOHN H. SHERMAN, 'il 
 
tW Slips for Librarians io paste yo^ Catalogue 
 Cards. \ '''',. ; 
 
 N. B. — Take out carefully, leaving about qiisirter bf an inch 
 at the back. To do otherwise, would, in sqin% cases, release 
 other leaves. ,.."; "V;-t Y 
 
 MAINE, Sir HENRY SUMNEPj^ Disserta- 
 tions on Early Law and Custotn. Chiefly selected 
 from Lectures delivered at Oxford. .Tiy Sir Henry 
 Sumner Maine. New York: Henry Holt & Co., 
 1883. 8vo, pp. 402. . ;'., ;„ : 
 
 ■;■■-.. !'■ '^: 
 DISSERTATIONS ON EARL'V^* LAW AND 
 CUSTOM. Chiefly selected frQia^Xecifures deliv- 
 ered at Oxford. By Sir HENgt; S*&MiJ,er Maine. 
 New York : Henry Holt & Co., iSiA 8v6, pp. 402. 
 
 LAW. Dissertations on Early L^,!? an<i Custom. 
 Chiefly selected from Lectures delil^ered At Oxford. 
 By Sir Henry Sumner MAiNEy I^ew York: Henry 
 Holt & Co., 1883. 8vo, pp. 4S>.2/ , :, - : 
 
 CUSTOMS. Dissertations on ^arly Law and Cus- 
 tom. Chiefly selected from Lfi/iimifii delivered at 
 Oxford. By Sir Henry S.uijner Maine. New 
 York: Henry Holt & Co.fiSJJf. 8vo, pp. 402. 
 
BAELY LAW AND CUSTOM 
 
BY THE SAME AUTHOR. 
 
 ANCIENT LAW. Its Connections with the Early- 
 History of Society, and its Relation to Modern 
 Ideas. 8vo, $3.50. 
 
 LECTURES ON THE EARLY HISTORY OP 
 INSTITUTIONS. 8vo, $3.50. 
 
 VILLAGE COMMUNITIES IN THE EAST AND 
 WEST, to which are added other Lectuees, 
 Addresses and Essays. 8vo, $3.50. 
 
 DISSERTATIONS ON EARLY LAW AND 
 CUSTOM. Chiefly selected from Lectures 
 delivered at Oxford. Svo, $3.50. 
 
 BT THE LATE JOHN AUSTIN. 
 
 LECTURES ON JURISPRUDENCE; or, The 
 Philosophy of Positive Law. By the late Jolin 
 Austin, of the Inner Temple, Barrister-at-Law, 
 Abridged from the larger worlt for the use of 
 students. By Robert Campbell, of Lincoln's 
 Inn, Barrister-at-Law. Svo, $3.50. 
 
DISSERTATIONS 
 
 ON 
 
 EARLY LAW AND CUSTOM 
 
 CHIEFLY SELECTED FROM 
 
 LEG TUBES DELIVERED AT OXFOMD 
 
 BY 
 
 SiE HENRY SUMNER MAINE 
 KC.S.I. LL.D. F.R.S. ' 
 
 AUTHOR OF " ANCIENT LAW" " VILLAGE-COMMDNXTIES " ETC. 
 
 NEW YOBK 
 HENRY HOLT AND COMPANY 
 
 1883 
 
 J-v 
 
AUTHOR'S EDITION. 
 
PREFACE. 
 
 Two COUESES 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 veiy 
 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] PEEFACE. 
 
 of ' Sacred Books of the East,' translated under the 
 superintendence of Professor Max Miiller, to throw- 
 some Ught on that close implication of early law 
 with ancient religion which meets the inquirer on 
 the threshold of the legal systems of several societies 
 which have contributed gi-eatly to modern civili- 
 sation. In the chapters which follow, 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, 
 biit 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., VI., IX., and XI. 
 has already appeared in the ' Fortnightly Review,' 
 and the bulk of Chapter VIII. ui 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. 
 
 Cn^rTKtt PAQB 
 
 I. The Sacked Laws of the Hindus .... 1 
 
 II. Relmion- and Law 20 
 
 in. Ancestor-'Wokship 52 
 
 IV. AjrcBsiOR-WoESHrp and Inheritance . . . . 78 
 
 V, BOTAL StrCCESBION AND THE SaLIC LaW . . . ]25 
 
 VI. The Kino, in his relation to Eakt.t Civil JirsTicn . 160 
 
 V"II. Thboribs op Primiiite SOCIETT 192 
 
 VIII. East European Hoitse Communities . . . . 232 
 
 IX. The Decay op Feudal Property in . France and 
 
 England 291 
 
 X. Classifications op Property 335 
 
 XI. Classifications of Legal Rules .... 362 
 
 IIS'DEX .... 393 
 
EARLY 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 during his Oriental studies in England to have 
 suspected the existence of the treasure he was destined 
 to disinter. He seems rather to have sought the key 
 to Eastern knowledge in two spoken and highly- 
 cultivated languages — Arabic and Persian. But he 
 accepted a Judgeship in a Court of Justice newly esta- 
 blished in Bengal, under an Act of Parliament which 
 reserved to native litigants the application of their 
 own laws and usages in all questions of inheritance 
 
 B 
 
2 THE SACRED LAWS OF THE HINDUS. chap. i. 
 
 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 William Jones re- 
 peatedly expresses his suspicions (perhaps not always 
 quite just) of the fidelity and honesty of the native 
 advisers of the tribunals. ' I can no lonsrer 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 Hiadu 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 Englisli of Hindu and Mahommedan law, which 
 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 oflFer to preside over the undertaking, and 
 his staff of native experts, considerably increased, was 
 taken into the Government service. On his monument 
 by Flaxman, in the chapel of University College 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 William Jones learned, and the learned and curioiis 
 all 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, and 
 grey shirtings — to reproduce the keen throb of intel- 
 lectual interest which the literary portion of these 
 discoveries sent through Europe. But Sir William 
 Jones was even more of a jurist than a scholar, and 
 
 B 2 
 
i THE SACRED LAWS OF THE HINDUS. chap. r. 
 
 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 CuUuca,' 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 o the Book 
 of Manu m 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 SACKED 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 
 Roman Justinian, but he assigns to it the prodigious 
 date of 1,280 years before Christ. In the light of newer 
 knowledge, which nevertheless might not have existed 
 but for Jones, we can see that these statements of his 
 require correction. 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 religious observance ; and to this 
 combination of law with religion 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, literally 
 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 HINDUS. chap. I. 
 
 been thought to be that ha which the civil and Pontifi- 
 cal jurisprudence were earliest and most completely 
 disentangled. Yet the meagre extant fragments 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 limited the costliness 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 all 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 SAC3BBD LAWS OF THE HINDUS. 7 
 
 by Hindus. It is only just beginning to be perceived 
 that this opinion had a very slender foundation, for 
 it is probable that at the end of the last century large 
 masses of the Hindu population had not so 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 ' Village 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 
 qriginally 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 Mann 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 SACRED LAWS OF THE HINDUS. chap. i. 
 
 if not checked /to absorb them.' 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 
 archasologist 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 hy the High 
 
CHAP. I. THE SACRED LAWS OP THE HINDUS. 9 
 
 always been regarded as a lax Hindu ; but the truth 
 seems to be, not that he neghgently 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 William Jones's 
 preface. The probable antiquity of Manu's law- 
 book was much exaggerated. Its true date is un- 
 known : in Indian literary 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 Miiller, 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 Hindu 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. CHAP, r. 
 
 during the Middle Ages much of law and not a little 
 of medicine was preserved among professions, not 
 necessaril)'- 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 Enghsh lawyers, and some- 
 times spoken of as the quintessence of wisdom, were 
 really aids to recollection. As to Verse, the ordmary 
 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- 
 Ira 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 
 evei^ts, 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 Mai 
 Miiller's Sacred Books of the East, Vasishtha in vol. ix., Baud- 
 
CHAP. I. THE SACRED LAWS OF THE HINDUS. 11 
 
 wHch are wholly in aphoristic prose), and even more 
 modem than books (like Vishnu and Vasishtha*) 
 which are partly in prose and partly in verse. ' In 
 the whole of Vedic (that is Hindu 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 writings.' Manu, therefore, in 
 spite of its great modern reputation, belongs to the 
 Hindu Apocrypha. Nor is it believed that we have 
 the book in its original form. Dr. Jolly (preface 
 to Vishnu) speaks of the 'abundant evidence' for 
 its having undergone modifications and entire trans- 
 formations in 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. 
 BurneU is now cited for so late an age of the original 
 book as 400 a.d., and it has even been attributed in 
 
 hayana 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. 
 Biihler's Introduction. "Vishnu is ti-anslated by Jolly in vol. v. 
 of the Sacred Books. * Ibid. 
 
12 THE SACEED LAWS OF THE HINDUS. cnAP. L 
 
 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 woiild 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 leanied Brahmans, which are 
 still found in India. They are companies or cor- 
 porations of men devoted to sacred learning. Per- 
 haps the nearest analogy to their work is to be found 
 in the labours of the Benedictines. But the com- 
 pai-ison must not be pushed too far. The conception 
 
' CHAP. I. TUB 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 
 beginning 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 pai'ticular 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, Apastaniba. 
 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, 
 tliough not perhaps according to the actual practice, 
 teacher and pupil stUl inherit from one another, jusit 
 
14 THE SACKED LAWS OP THE HINDUS. chap. i. 
 
 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 in a mass (ii. 176-178), is that it was 
 the aggregate production, not of one man, but of a 
 geim or clan of Homeridas, 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 gens 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 still nearer 
 analogy is one which, Hke 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. 
 
CHAP. 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 Patna 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 embroideiy — 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 Miiller first gave of the large 
 
 * The literary foster-father has the power of pronouncing 
 judgment and proof and witness upon the foster-pupU, as has the 
 father upon the son, and the Church upon her tenant of ecclesias- 
 tical lands [Ancient Laws of Ireland, ii. 349). 
 
16 THE SACKED LAWS OF THE HINDUS. chap. i. 
 
 extant body of Hindu sacerdotal legal writings. 
 They were gradually evolved by Brahmanic 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 frequent 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 fi-e- 
 quently mentioned in Sanscrit literature, but men- 
 tioned by the writer of the extant book as somebody 
 different 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 tbe Sacred Boohs. 
 
CHAP. r. THE SACEED LAWS OP THE HINDUS. 17 
 
 still later Narada, is perhaps still held by some per- 
 sons of earnest religious convictions, but in time now 
 buried it affected every walk of thought. The fun- 
 daraentail assumption is, that a sacred or inspired 
 literature beina: 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 Yedic passage, then I answer, All precepts were 
 originally taught in the Brahmanas, but these texts 
 have been lost. Their former existence may, however, 
 be inferred from 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 
 
 
 
1 8 THE SACRED LAWS OF THE HINDUS. chap. i. 
 
 such a theory, ^vmlj 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 
 dawninsr science are read into the sacred literature, 
 while they are at the same time limited 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 from 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 knoiv. 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 Grods, 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 Aiyan 
 Hindn 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 penancea than about 
 punishments. They are intended to guide the faithful 
 Hindu of the three higher castes from birth to death, 
 
CHAP. I. THE SACEBD LAWS OF THE IIIXDUS. 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, Kshatriyas, 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 Studentsliip. 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 light the 
 sacred laws of the Hindus may throw iipon 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. 
 
 r 2 
 
20 THE SACRED LAWS OF THE HINDUS. chap. i. 
 
 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, li'he third period, however, 
 that of Asceticism, is the one which on the whole 
 seems most unintelligible to the modern reader of 
 these books, and it merits some special attention before 
 this chapter is closed. The duty 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 beino- firm 
 and his organs wholly 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 
 
CHAP. I. THE SACRED LAWS OF THE HINDUS. 21 
 
 to his 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 angiy ; 
 abused, let him speak mildly ; nor let him utter a 
 word referring to vain illusory 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 still 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 life, and ceased 
 to participate in any kind of secular business. There 
 is nothing by itself sui'prising 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 SACKED LAWS OF THE HINDUS. chap. r. 
 
 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 contingency quite as 
 cominonly contemplated is withdrawal from secular 
 life ; the householder quitting his family and dividing 
 his substance among his children — nay, being even 
 liable (though this is a violently disputed point) to 
 be forced mto retirement by his sons. There is 
 some evidence, moreover, that, when the larger asso- 
 ciations of Hindu kmdred, the Joint Families, were in 
 a more ancient state than that in which we bee 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 IHE 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 invested 
 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, yepovcria (the Spartan 
 Senate), Sij/Aoyepoi'Tes (its Homeric equivalent), irpicr- 
 /Sets (Ambassadors), Ealdorman, Elder, Presbyter, 
 Monseigneur, Seigneur, Sire, Sir, and Sheikh ; and 
 Mr. Freeman closes with the Old Man of the Mountain. 
 So great 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 
 o-ave us so much good advice that wc put him 
 
24 THE SACRED LAWS OF THE HINDUS. chap. r. 
 
 mercifully to death.' The reply, if it was ever given, 
 combines the two views which barbarous men appear 
 to have taken at diiFerent 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 dis^tinguished from 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 from, 
 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 SACKED LAWS OP THE HINDUS. 25 
 
 life. Almost everywhere in the advancing portions 
 of the ancient world we find that the old, generally 
 organised in assemblies, had a large share 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 
 administrative than legislative bodies. The nearest 
 analogy to the very important control over the law- 
 making power which they once possessed, must be 
 sought in the indefinite but most real and effective 
 authority which an English Cabinet enjoys through 
 its virtual monopoly of the initiative in legislation. 
 
26 RELIGION AlfD LAW. chap. n. 
 
 CHAPTER TI. 
 
 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 very imperfectly 
 sacerdotalised 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 
 Avhich 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. All 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 Hell, as 
 conceived by the Western religions. But the Hindu 
 
28 KELIGIOX AND LAW. chap. ir. 
 
 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 Soulrj 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 niost ancient faith or faiths 
 of the Hindus, and still more how far the religioup 
 ideas reflected in the books before us represent their 
 existing religious doctrine. In the works of which 
 I have been speaking, the earl}' luanuals 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 bet'R'een 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 in 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, 
 
oHir. ir. RELIGION AND LAVT. 29 
 
 wMch are temporarily detained in external forms, 
 but wHch are constantly passing from one *f6rm to 
 another without losing their identitj''. 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 transitor}'. 
 When a man still 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 frail 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 all 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 K.ELIG10:y and jaw. ' chap. II. 
 
 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 mtich 
 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. 
 Rehgious 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.' 
 
cn.vp. II. RELIGION' AND LAW. ol 
 
 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 qiiite 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 Hell 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 
 modern as Manu) these subjects occupj'- 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 
 
82 RELIGION AND LAW. chap. ii. 
 
 l)y 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, 
 fir 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 very cruel) criminal punish- 
 ments by civil rulers possessing organised authority. 
 The torture chambers of princes have very strongly 
 influenced the conception of posthumous punishinent, 
 as may be seen by comparing what remains of some of 
 them — for example, of that in the free 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 burnt -up soil 
 of India — so many are the periods of a thousand years 
 
CHAP. n. RELIGION 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 heU 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 eifects 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 fi.-om 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 EELIGION AND LAW. chap. it. 
 
 of all plants successively. Mortal sinners enter 
 tlie bodies of worms or insects. Minor offenders 
 enter tke 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 graia 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 difficult 
 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, 
 preying on them and preyed upon by them, do not 
 seem to have been struck by the immense superiority 
 ■of the man to the brute. They appear to have 
 been impressed by the difference between living 
 
CHAP. ir. RELIGION AST) 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 faithfully following the 
 operations of a dream ; and one must here remark 
 that much of the material of ancient superstition is 
 literally such stuff as dreams are made of. 
 
 But these Hindu law-books have wrought up the 
 ancient behef 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 himself 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 taiut 
 by due penance, he will become one of the lowest 
 
36 EELIGION AND LAW, chap, n. 
 
 creatures ; if lie dies purer than lie 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 EngKsh 
 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 conduct 
 stated with the utmost precision. But what happens 
 to a man if he disobeys the rule ? This is the principal 
 question to the modern 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. II. RELIGION AND LAW. 37 
 
 about it. Thus the place which in a modern 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 liimself on a red-hot iron bed, or to enter a 
 hollow iron image, and, having lighted a fire on both 
 sides, to burn himself to death. For the comparatively 
 venial offence of drinking forbidden liquor a Brahman 
 is to have boiling spirit poured down his throat. 
 Other penances are extraordinary from the length and 
 intricacy of the self-inflictions which they suppose. 
 The old books hint a doubt here and there as to the efii- 
 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; Gatitama, xxii. ; Vishnu, xxxiv, 
 
 XXXV. 
 
38 EELIGIOK AND LAW. chap. ir. 
 
 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 crimmal, 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 sh'all 
 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 
 punish even by death.' In a later treatise (Vishnu, 
 III. 2) the duties of a King are summed 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 further 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 EELIGION AND LAW. chap. n. 
 
 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 in 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 he 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, 
 faithful 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 (vii. 17 et 
 seq.) might satisfy the English jurists 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. EELIGION 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 civH 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 
 
 ' TKe ' Institutes of Narada ' have been translated into English 
 by Dr. Julius Jolly. London : Triibner & Co., 1871. 
 
42 EELIGIOIir AND LAW. ckap. 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 ia 
 suspense when thou art come to give evidence, and 
 ponder in their mind, " Wilt thou deliver us from 
 Hell or precipitate us into it?" 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 (viii. 112) is defaced by the 
 often reprobated quahfication, ' In case of a promise 
 made for the preservation of a Brahman, it is no deadly 
 sin to take a light oath.' 
 
 The diflSculties under which the student of the so- 
 called Sacred Laws of the Hindus has so long laboured 
 have been almost entirely caused by the transitional 
 character of the book which was first introduced to 
 European scholarship as the original source of Hindu 
 Law. If the sample of this branch of Hindu litera- 
 ture first translated into a Western language had been 
 Narada, it would have beenregarded as a law-book of 
 a familiar type, and the traces of sacerdotal influence 
 
CHAP. n. RELIQIOSr 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 Baudh&yana, 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 whoUy under the other. And so 
 long as it stood by itself there was the greatest diffi- 
 culty in determiliing its place in the general history 
 of law. A good many years ago (' Ancient Law,' 
 pp. 17, 18, 19), I showed the hesitation I felt in 
 making use of it for archaeological 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, from 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 EELIGION AND LAW. chap. ii. 
 
 brought 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. Gradually 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 alliance 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 Eiirope, 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 punishments to the 
 secular arm. Finally, if the sole advisers and instru- 
 
CHAP. II. EELIGION AND LAW. 45 
 
 ments of the European King in tte administration of 
 civil and criminal justice had been ecclesiastics, 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 beliefs. 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 RELIGION AND LAW. chap. ir. 
 
 were also in some sense priests ; but they were mucli 
 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 all 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 Hell 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. II. KELIGION AND LAW. 47 
 
 study of these books is, that a more awful tyranny 
 never existed than this which proceeded fcom the 
 union 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 ■v^ritten 
 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 hfe. It is a life passed from first to last 
 under the shadow of terrible possibihties. The Brah- 
 man in youth is to beg for his teacher ; in maturity, 
 
48 RELIGION AND LAW. chap. ll. 
 
 as a married householder, 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 in 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 stiU exercising 
 pernicious effect — 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 fi-ame of mind there 
 
CHAP. II. RELIGION 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 self-command demanded from its admi- 
 nistrators. 
 
 E 
 
50 WHEEL-PICTUEES. 
 
 NOTES AND ILLUSTRATIONS. 
 Note A, 
 
 WSEEL-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, supplied 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 hell, 
 and when he returned to earth he would describe the 
 different sights which he had seen. 
 
 ' Buddha said to Anaada, " Maudgalydyana wiU 
 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-PICTUBES. 51 
 
 the liells, 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, Aparagodaniya, Utta- 
 rakuru, and Jambudvipa. In the centre are to be 
 made desire, hatred and stupid indifference :'^ 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 ia a supernatural way, as by the machinery of 
 a water-wheel, falling from one state find 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 
 gath^ 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 certaia 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 Hindu philosophy. 
 ^ See Colebrooke's Essays (ed. 2), vol. i. pp. 453-455. 
 
 * Dharma and Vinaya. 
 
 E 2 
 
52 ANCESTOK-WOKSHIP. chap. hi. 
 
 CHAPTER III. 
 
 ANCESTOR-WORSHIP. 
 
 I HAVE said that the rules of Hfe 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, 
 wiU 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. AKCESTOR-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 gi'eatest 
 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 savages 
 for their Totem, even though it symbolise to them 
 the living creature from which they conceive them- 
 selves to have sprung. In the case before us the 
 ancestors sought to be propitiated by sacrifices and 
 prayers are ancestors actually remembered, or, at 
 all events, capable of being remembered by the 
 
54 ANCESTOR-WORSHIP. chap. hi. 
 
 worshipper. 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 life three 
 generations above him and three generations below 
 him. In accordance with this expectation, the ances- 
 tors worshipped are three : the father firstj then the 
 grandfather, and then the great-grandfather. The 
 reverence paid to remoter ancestors, not personally 
 remembered, may be believed to be a later oif-growth 
 of these ideas. Their original character, and the nature 
 of the feelings associated with them, may be gathered 
 from the account of its own ancestor- worship which 
 Canon Callaway (apud Tylor, ' Primitive Culture,' 
 ii. 106) attributes to a group of South African tribes. 
 ' Although they worship the many Amatongo (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, III. ANCESTOE-WOESniP. 55 
 
 the children of that house, for they do not know the 
 ancients who are dead. But their father, who^ 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- 
 lijies 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 ANCESTOR-WOESHIP. chap. ih. 
 
 curious meetings of the Past and Present than when 
 an English Judge, in the High Court (let us say) of 
 Calcutta, carefully 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 offered 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 hoeres, agnate, cog- 
 nate, actio de familia erdscundd, 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 understanding of 
 the subject, that the Hindu worship of ancestors does 
 not merely affect 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 offerings 
 
CHAP. ni. 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 offered 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 a-jrap^al and primitim, 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 all 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, Hi'ndu Lav> of Inheritance, pp. 83 et seq. 
 
58 ANCESTOE-WOESHIP. chap, hi, 
 
 movements, like Dionysus and Cybele. But they 
 lived far away in their own Olympus, and the real 
 effective worship of the Eoman 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 fills ' La Cite Antique.' 
 
 Ancestor- worship is still the practical religion of 
 much the largest part of the human race. We who 
 belong to Western civilisation 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, ' and 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. HI. ANCESTOR-WORSHIP. 69 
 
 thereof in my mourning ; nor have I taken away 
 ought thereof for any unclean use ; nor given ought 
 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 Fiffcli Commandment, which promises length of days as 
 the blessing earned by honouring 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 Boohs of the East, 
 vol. iii. 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 fall. Like the 
 sun ascending the heavens. Like the everlasting southern hills. 
 Never waning, never falling. Like the luxiun'ance of the fir and 
 the cypress. May such be thy succeeding line ! " ' 
 
60 ANCESTOR-WORSHIP. chap. ni. 
 
 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 Chmese records are the earlier portions of 
 those famous collections in 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 and 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 
 
CHAP. III. ANCESTOE- WORSHIP. 61 
 
 the music tliat 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 mild 
 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 families are permanently im- 
 poverished by the drain to which they are subjected, 
 and which is likely to recur again and again. To omit 
 them would be to incur the anger of the spiteful dead, 
 who are now in a position to avenge tliemselves on 
 the living by inflicting all manner of sickness and 
 
 ' ' Ningpo and the Buddhist Temples,' by Constance Gordon 
 Gumming (Centwry, September 1882). 
 
62 ANCESTOR-WORSHIP. chap. hi. 
 
 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 Avill 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, little thinks that he is all 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 Chmese, who will . 
 
CHAP. III. ANCBSTOK-WOESHIP. 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 
 millions of Chinese who would hardly see a joke in 
 Charles Lam.b, reviling the stupid age that would not 
 read him, and declarLrig that he would write for an- 
 tiquity.' 
 
 The relations of Ancestor- worship to other reli- 
 gions held in honour 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 impUcated with it, and the creeds of Buddha 
 and of Lao-Tze have assimilated it, and their priests 
 indiiFerently 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 ANCESTOR-WORSHIP. chap. in. 
 
 sacerdotal law-writers seem conscious of a rivalry be- 
 tween them and these greater divinities. The ritual of 
 ancestor- worship given in the book of Vishnu begins 
 with sacrifice to the gods (lxxiv. 1), and Manu 
 expressly says (iii. 205), ' Let an offering to the 
 gods be made at the beginning and end of the shrad- 
 dlia ; it must not begin and end with an oJffering 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 sac/ra 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-WOESHIP. 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 Larv^ — 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.) : 
 ' " 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 arid ever." ' And 
 again, at vi. 4, 44 : "• O 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 Zarathrusta." ' We can sympathise with the Greek 
 feeling, though not in its full strength ; but it would be hardly 
 credible that a vigorous and comparatively civilised nation once 
 followed the Zoroastrian usage, were it not for the stubborn survival 
 of it among the Parsees, whose ' Towers of Silence ' are among the 
 first objects which strike- the eye of the traveller on landing in 
 Western India. 
 
 F 
 
66 ANCESTOR- WORSHIP. chap. hi. 
 
 verse. But thougli this most ancient religion died, its 
 eiFects on civil law remained, and indeed stUl survive. 
 One cLirious 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, aiid 
 then subdivides ' things which are not the property 
 of anybody ' into Res Sacras, Res Sanctte, and Res 
 Religiosas. Res Sacrse are things consecrated to the 
 greater gods ; Res Religiosae 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 still affects our law of church- 
 yards. But, further than this, there can be no doubt 
 that our law of Inheritance is still 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 Prajtor'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. 
 
 Modern investigators who have made it their 
 
CHAP. III. ANCESTOK-WPRSHIP. 67 
 
 special business to search for the earliest forms of 
 mental conceptions among the present ideas pf 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. 
 Nov 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 ha.bit would tend to continue longer and 
 longer. Prayers to the dead would reasonably follow 
 from such customs, for even without attributing a 
 greater power to the dead than to the living, they 
 might yet, from their different 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 
 
68 ANCESTOR-WORSHIP. ohap. iit. 
 
 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, not 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 eventuallj'- 
 the subordination, growing decided, becomes most 
 marked when the ancestors were leaders of con- 
 quermg races.' 
 
 The theory, fully developed, appears to be that the 
 
OHAP. in. ANCESTOR- WORSHIP. 6i) 
 
 dead are believed by savage men to live the life which 
 they themselves Hve 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 Hfe 
 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 
 stUl 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 writers 
 
70 ANCESTOR-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 evil 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 wUl traverse a 
 gloom, how hard to be traversed!' (Manu, iv. 240). 
 ' What thou hast to do to-morrow, do it to-day. 
 
CHAP. III. ANCESTOE-WOESHIP. 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 "vdU^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 wUl 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 n6t to mourn for him, but never- 
 theless should offer the sacrifices. ' As both a man's 
 good and bad actions wUl follow him after death like 
 associates, what does it matter to him whether his 
 relatives mourn over him or not ? But, as lonar 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 ANCESTOR- WORSHIP. chap. hi. 
 
 spirit, and suffers botli hunger and tliirst. . Give 
 rice and ajar with water to the man who has passed 
 into the abode of disembodied spu-its. . . . Perform 
 therefore the Shradda always, abandoning bootless 
 grief (Vishnu, sx. 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 effect of sacrificing to a dead 
 ancestor is to deliver him fi'om one special purgatory, 
 the ' Hell called Put.' The doctrine of du-ect 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. in. ANCESTOK-WOKSHIP. ( 6 
 
 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 tUl a much later 
 division of the hymns, ' We have our high grana- 
 ries,' runs the ode called the ' Fang Nien ' — ' 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 filial son. ... I offer this 
 sacrifice to my meritorious father, and to my accom- 
 plished mother/ It is thought that the still existing 
 practice of placiag 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, grandfather, and great- 
 grandfather are the deities to whom the sacrifice 
 is offered. 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 
 wiU be born to him ; he wiU have numerous and 
 
74 ANCESTOR-WORSHIP. chap. in. 
 
 distinguislied offspring, and he 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 follow 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, 
 
CHAP. m. ANCESTOR- W'OESIIir. 75 
 
 and to show that the ancestors first ^'^orshipped by 
 the Hindus were the father, grandfather, and great- 
 grandfather. 
 
 It is clear then, I think, that wherever ancestor- 
 worship arose, Paternity was fully recognised ; and 
 as the texts relating to this worship are as old as 
 any others in the sacerdotal law-hooks, 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. 
 Still, 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 religioxis 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 
 
/ ANCESTOR- WORSHIP. chap. hi. 
 
 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, affectionate 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 origui. Ancestor- worship does exist among the 
 Hindus of the Punjab. But it is a comparatively 
 obscure superstiti6n. 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 differences, where they differ, throw very 
 
CHAP. III. AKCESTOR-^ronSHIP. 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 iii the interest 
 of the dead ancestor, chiefly in the interest of the 
 living Brahman. In this way, persons excluded from 
 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 oftenest permitted to inherit. It is remarkable that 
 the Equity of the Roman Prastor, which was probably 
 a religious before it was a philosophical system, had 
 precisely the same effect in breaking up the structure 
 of the ancient Roman family, governed by the Father 
 as its chief 
 
78 ANCESTOR-WORSHIP AND INHERITANCE. chap, n 
 
 CHAPTER IV. 
 
 ANCESTOR-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 plentiful 
 remains of Greek legal argument to be found in the 
 Athenian Orators is occupied with questions of in- 
 heritance, 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' (Is^us, '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 suffer 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-WORSiriP 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 dfead 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 mediaeval 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 from 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 Cite Antique ' is his determination of the 
 nature of the divine beings to whom the oblations, 
 which exercised so powerful an influence on Athenian 
 
80 ANCESTOK-WOESHIP AND INHEEITAlfCE. chap. iv. 
 
 and Roman heritages, were devoted. They were of 
 course not offered to any one Suprenae God. But 
 neither were they offered to the greater deities of the 
 local Pantheon. ' Le culte des dieux de I'Olympe et 
 celui des Heros et des M&nes 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, of 
 the expenses to which the Chinese are put by 
 worshipping their forefathers. ' One well entitled to 
 know what he spoke of said that fully thirty millions 
 of dollars are annually expended in China at the three 
 great festivals in honour of the dead, and, with the 
 average expenditure of each family, fully 150 millions 
 of dollars are spent in quieting the spirits.' There is 
 no doubt also that funeral rites and oblations are 
 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- 
 
OHAP. IT, ANCESTOR-WORSHIP AND INHERITANCE. 81 
 
 pensiveness of religious observance among Hindus 
 arises from the necessity whicli 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 ilre 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 Yedas.' ' 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- worshipping 
 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- 
 
 G 
 
82 ANCESTOR-WORSHIP AND INHERITANCE. chap it. 
 
 nected with the growing costhness of the ritual. By 
 this ritual a religious and intellectual aristocracy lived. 
 One of the commonest popular errors ahout 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 couilt 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 varying 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 still 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. ' Eveiy step 
 of a man's life from his birth to his death required 
 gifts to Brahmans. Every sin which he committed 
 
CHAP. IV. AITCESTOE-WOESHIP AND INHERITANCE. 83 
 
 might be expiated by gifts to Brahmans. The huge 
 endowments for religious purposes 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 iu 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 t"hem live together, or, if they desu'e 
 separately to perform religious rites, let thern 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 
 
84 ANCESTOE-WOESHIP AND INHEEITANCE. chap. 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 WiU ; 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 favo.ur 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 aUenation 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 Church. 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. IT. AUCESTOR-WORSHIP AND INHERITANCE. 85 
 
 needy at its gates. It was ever careful for the orphan 
 and the widow. But the Brahman law-bboks, 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 
 powei-ful 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, accordiug 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 oflFspring and, as a 
 ' See Note A to this chapter. 
 
86 ANCESTOR--WOBSHIP AND INHERITANCE. chap. it. 
 
 consequence of this desire, a remarkable set of ideas 
 about paternity, sonship, 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 form in which he 
 constantly shows hunself on the threshold of juris- 
 
CHAP. IV. ANCESTOR-WOKSHIP AND INHERITANCE, 87 
 
 prudence, and "which 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, Baudhiyana 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 
 
 2 See Chapter VII. (on ' Modem Theories of Primitive Society') 
 below. 
 
88 ANCESTOR-WOESHIP AND INHERITANCE. chap. iv. 
 
 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 
 doubtful 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 efiicacy 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. ANCESTOR-WOESHir AND INHERITANCE. 89 
 
 Hindu law-writers ; for example, marriage with a 
 purchased bride ; others, where they occur, rfre effec- 
 tuated by violence or by fraud. Still, it is to be 
 observed that the children of all these unions would 
 be physically the chUdren 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- 
 tao-e, is assii^ned 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 ANCESTOR-WORSHIP AND INHERITANCE. chap, it, 
 
 admitting that Primogeniture gives advantages in 
 certain countries, argues strongly for equal division 
 among all 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- 
 trme 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 spii'itual blessing, the greater number of the 
 ancient Hindu law-writers place the son of the wife, 
 born during her mai-riage but not necessarily of her 
 husband. At first sight this looks like an application 
 of the long-descended legal maxim, ^ pater est quern 
 nuptice demonfitrant,^ but all the ancient texts taken 
 together suggest a different 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 1 
 have mentioned, can next in order offer the sacrifices 
 
CEAP. IT. .iNCESTOR-WORSHIP AND INHERITANCE. 91 
 
 for the deceased and claim his succession, is the 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 kinsman through women only, who, 
 according to the usage prevailing among aU the more 
 powerful races of mankind either from the first or at 
 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 
 ■\7hom he woiild 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 will, 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 ANCESTOR- WORSHIP AND INHERITANCE. chap. iv. 
 
 offerings to Agni and to Prag^pati, the lord of crea- 
 tures, and addressing the bridegroom with these 
 words, " For me be thy male off^spring." ' ' Some 
 declare,' adds the writer, ' that a daughter becomes 
 an appointed daughter solely by the intention of the 
 father.' 
 
 Some customs near akin to tbe Hindu usage of 
 ' appointing ' a daughter appear to have been very 
 widely diff"used 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 should 
 imagine, some expression of the father's will, 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. IV. ANOESTOE-WOESHIP 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 (/cupios) 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, daiighters 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-WOESHIP AND IXHERITAXCE. chap. I v. 
 
 The chief interest of the Hindu ' appointment,' 
 and of the counterparts of it in the law of other races, 
 lies in their probably mai-king one of the points at 
 which the right of women to mherit made its way 
 into 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, Baudhayana 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 modern Vishnu introduces 
 both mother and daughter immediately after the 
 sons. In works treating of the Athenian law, it is 
 usually stated that when there wei-e 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 (cVikXij^os) indicates, a 
 
CHAP. IT. ANCESTOR-WORSHIP AND INHEKITANCE. 95 
 
 ' person who went with the property.' ^ As I heave said 
 ahove, her father might compel her by testaifient to 
 marry the devisee of her share ; but, if he died intes- 
 tate, she was subject to another Hability — marriage 
 to his neai'est kinsman — which connects itself with 
 some singular branches of our subject to be dis- 
 cussed presently. In all these Athenian rules, it 
 is to be observed that, while the ancesti*al sacrifices 
 are constantly mentioned, the object of special care is 
 the devolution of the estate in 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, Attic Orators, ii. 318. 
 
96 ANCESTOR- WORSHIP AND INHEEITANCE. CHA.P. rv. 
 
 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 all who investigate the beginnings of organised 
 human society. That ancient family 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 from 
 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 WUl. 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 wUl 
 be entitled to succeed to his property. This famHi- 
 
CHAP. IV. ANCESTOR- WORSHIP AND INHKEITANCE. 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 chUd 
 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 yiolence 
 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 
 Roman 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 in the list of expe- 
 dients for continuing the family of a childless father 
 as set forth in these early Hindu 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 ANCESTOE-WOESHIP AND INHERITANCE. chap. iv. 
 
 the Daya-Bhaga without discovering that adoption 
 is a matter of any prominence in the Hindn 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 
 ihe father whom they are permitted to worship after 
 his death, while some of them cannot possibly be his 
 children. They are all, to use modern words, illegi- 
 timate or adulterine offspring, but then they are aU 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- 
 Jcnown rule which, in Roman law, would settle the 
 status of a slave. Here it is that these stransre usao-es 
 link themselves to familiar phenomena of primitive 
 societies. Paternal power and protective power are 
 inextricably blended together ; even the Slave is in 
 
CHAP. IT. ANCESTOE-WORSHIP AND INHERITANCE. 99 
 
 some sense a member of the family. We know in 
 fact that at Rome a Slave could perform the 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 offer the ancestral sacrifices as 
 a desperate expedient for preserving the ancestor 
 from a total failure of male offspring, 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 AJfCESTOR-WOESHIP AKD INHEEITANCB. 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 born 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 born to a childless man of his wife 
 or his widow, not fi"om the husband himself but from 
 his brother or nearest kinsman. The practice of so ob- 
 taining a son appears to have extended, with various 
 modifications and with or without the religious 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. ANCESTOK-WORSHIP AND INHEBITANCE. 101 
 
 The Levirate, under wliicli the son is born to the 
 dead man from his brother, • that his name be not put 
 out of Israel,' is best known to EngHshmen 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 Resurrection, therefore, whose wife shall she be of 
 the seven? for they all 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 off of the shoe, reappears in the Book 
 
102 ANCESTOE-WOKSHIP AND INHERITANCE. chap. iv. 
 
 of Euth, where the idyllic beauty of the story 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 Samanapravara (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 scq.) 
 
 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 chUd be- 
 gotten at a living husband's request, on his wife,' says 
 
CHAP. IT. ANCESTOK-WORSHIP AND INHERITANCE.' 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 
 child 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 earliest 
 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 firom the widow does not 
 revolt so much as his birth from the wife. But then 
 the ancient law made little difference 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 life in asceticism ; 
 and the fittest moment for retirement is fi'equently 
 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-WOESHIP AND INHERITANCE. chap. iv. 
 
 the records of both, the great States of Greece. A 
 well-kno-WTi story told by Plutarch (' Pyrrhus,' 26) 
 of the relations between a brilliant Lacedsemonian 
 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 Chehdonis, does assiu-edly 
 suggest that, in 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 differed 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 eiri/cA.Tjpos), 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 StaSifcacria) for deciding 
 between different claimants, and men often divorced 
 their wives in order to marry the heiress. The same 
 
CHAP. IT. ANCESTOE-WOESHIP AND INHEKITANCE. 105 
 
 principle was applied to a group of daughters, whom 
 their various kinsmen in 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 {Cite 
 Antique, p. 83), which seems to me conclusive. He observes that 
 an emancipated son did not enjoy the privilege. 
 
106 ANCESTOR-WORSHIP AND INHERITANCE. chap. it. 
 
 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 aU 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 
 
 s See Note B, ' Polyandiy.' 
 
CHAP. IV. ANCESTOE-WOESHIP AND INHEEITADTCE. 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 
 Niyoga 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 diflfer- 
 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 ofi"ensive 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 ANCESTOE-WOESHIP AND INHERITANCE. chap. it. 
 
 Manu, iia a later age, declares it is only tit for cattle 
 (ix. 65. 66), but Narada, a still more recent autho- 
 rity, almost pervaded by the modern 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 quality 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 mto 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. AKCESTOR-WOESHIP 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 family. 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- 
 pupil 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 modern 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 
 6 See Dig. xxx. 84, 6. Cod. vi. 37, 11. 
 
110 ANCESTOE-WOESHIP AND INHERITANCE. chap. it. 
 
 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 belono:inof 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 family 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 modern legal writer 
 and these ancient expositors of the Brahmanical 
 sacred law, they would take up for discussion (1) the 
 
CHAP. IT. ANCESTOR-WOESHIP AND INHERITANCE. Ill 
 
 succession of ascendants of the 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 ia Collateral Succession than other peoples, 
 and, indeed, it may be said in all succession by law, 
 through their almost universal habit of determining 
 the devolution of their property by marriage-settle- 
 ments or wills. But on the Continent, principally 
 through the operation of the French Code and of the 
 Codes modelled on 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 modem object of a Will, 
 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 I 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 in a most instructive chapter (xvi.) of his Hindu 
 Law and Usage. 
 
112 ANCESTOK-WORSHIP AKD 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-pupil, 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 lano-uao^e 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 modem 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). 
 
CHAP. IV. AITCESTOR-WOESHIP AND INHERITANCE. 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 offered 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-WOESniP 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 modern rules governing the succession of 
 collateral relatives are far less the ancient law-books 
 than the so-called mediaaval Digests, dating approxi- 
 mately from the eleventh to the fourteenth century, of 
 which the most archaic is the ' Mifakshara.' 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 usage are ' essentially unsacerdotal, unsacra- 
 
CHAP. IT. ANCESTOR-WOESHIP AND INHERITANCE. ' 115 
 
 mental, secular.' The judicial experience of the Chief 
 Court of the Punjab here coincides with the conclu- 
 sions of the official 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 always have precedence over 
 cognates (Trporijiiacr^at tows olito Totv appdvcjv tuiv aTro 
 Orjkdoiv). 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 in India is specified by Mr. 
 Mayne. In the populous province of Bengal Proper, 
 also noticeable for the nearly total disappearance of 
 the Village Community, cognates are largely admitted 
 to succeed, and sometimes in preference to agnates. 
 ' Heirs in the female line frequently take before very 
 near Sapindas in the direct male line ' (' Hindu Law 
 and Usage,' p. 428). Mr. Mayne has very copiously 
 illustrated this peculiarity of Bengal law, and traced 
 
 * See Boulnois and Eattigan, Notes on Punjab Law, p. 85. 
 1 Diodorus Sioulus, xii. 14 (commenting on a probably spurious 
 law attributed to Charondas). 
 
 i2 
 
116 ANCESTOR-WORSHIP AND INHERITANCE, chap. iv. 
 
 it to its causes, in his sixteenth chapter. The rela- 
 tively modern authorities followed by the Brahmani- 
 cal lawyers of that province — 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 fi*om 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 aiFect 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 oifer 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 he to die with 
 
CHAP. IT. ANCESTOE- WORSHIP AND INHERITANCE. 117 
 
 him, a kinsman 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 in 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 puttiag 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 ' ANCESTOE-WOKSHIP AND INHERITANCE. chap. iv. 
 
 through women, withui 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 entire funeral cake, the oiFer- 
 ing of the fragments left on the hands and wiped off 
 them, and the mere libation of water, together with 
 the corresponding distinctions between the classes of 
 relatives admitted to the succession, to be studied in 
 the books of professed writers on Hindu law, and 
 especially in the works of Mr. J. D. Mayne and of 
 Professor Rajkumar Sarvadhikari. 
 
 I have already stated my belief that at the back 
 of the ancestor- worship practised by Hindus there 
 lay a system of agnation, or kinship through males 
 only, such as now survives in the Punjab. I so far 
 agree with the theory of M. Fustel de Coulanges that 
 I believe this system to have been at first greatly 
 strengthened by ancestor- worship. But it seems to 
 me plain that ancestor- worship in its later growth, 
 acted as a weakening and dissolving force upon the 
 ancient kinship and the ancient family. The secular 
 law followed by Hindus was not, however, equally 
 or universally affected by the religious develop- 
 ment. The Mitakshara, which is, on the whole 
 of more authority in India than the Daya-Bhaga, 
 
CHAP. IV. ANCESTOR- WORSHIP AND [NHKBITANCE. 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 will 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 Prsetor, which gradually 
 brought law into harmony with a set of principles 
 known under their most general designation as Equity. 
 It completely transmuted the Roman j urisprudence ; 
 and the system, formed by its infiltration into older 
 rules, is the fountain of nearly all 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 destined to have 
 a serious influence on human thought down to our 
 own days. At an earlier stage of legal opinion the 
 
120 ANCESTOE-WORSHIP AND INHERITANCE. chap. it. 
 
 Prsetor's Edict was thought to embody the Jus 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, in the interval be- 
 tween the two states of the law reflected in the older 
 and the later books, a change has taken place among 
 the Hindus extremely like that which has occurred 
 among the Romans when the Agnatic Inheritance of 
 the Twelve Tables had been altered into the Cognatic 
 Succession of the Edict. But the ancient Roman law 
 of inheritance was closely implicated with 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 iaherit as well as kinsmen through males. 
 The newer Hindu law, however, carries with it the 
 explanation of its own origin ; the religious element 
 
CHiP. IV, ANCESTOR-WOKSHIP AND INHERITANCE. 121 
 
 ia it has been transmuted, and the 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 
 modern 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 Roman 
 law, and here, too, I suggest that a change was pro- 
 duced by an alteration of religious ideas. 
 
122 HINDU PATRIA POTESTAS. 
 
 NOTES AND ILLUSTEATIONS. 
 Note A. 
 
 HINDU PATRIA POTESTAS. 
 
 It is possible that the ancient sacerdotal writers, 
 besides being 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 which each household broke up into several families 
 should not be delayed till the death of its head. 
 Their expectatirin is that the faithful Hindu, the man 
 twice born through the study of the Scriptures, wUl 
 retire in advanced years from active life and become 
 an ascetic or a hermit. There are a few texts which 
 have been thought to imply that the sons of an aged 
 father could compel his retirement. Gautama (xv. 
 19), while condenming 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 will of 
 their father. I regard them as exclusively applying 
 to the case of a father who has reached an age at 
 which it has become a religious duty for him to 
 abandon secular life. The fulness of the ancient 
 Hindu Patria Potestas may be safely inferred from 
 the veneration which even a living father must have 
 inspired under a system of ancestor-worship. At 
 
POLYANDET. 123 
 
 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 stiU more recent, but 
 still ancient, authority — Narada (v. 39) — says that 
 a son is ' of age and mdependent 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 wUl 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 there is fairly 
 good evidence (Polybius, xii. 7, 732, following TimEeus) 
 that the Spartans practised polyandry. What I doubt 
 (with Mr. L. H. Morgan) is the importance of the 
 place assigned by Mr. McLennan to polyandry in the 
 evolution of society. It serves as a caution against 
 being too much 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 Sorites 
 d'ltalie, torn. i. p. 157). The Spartan and Venetian 
 aristocracies were both 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 which did not come 
 into existence without separate marriages. The 
 usage seems to me one which circumstances over- 
 powering morality and decency might at any time 
 call into existence. It is known to have arisen in 
 the native Indian army. 
 
CHAP. T, KOYAL SUCCESSION AND THE SALIC LAW. 125 
 
 CHAPTER V. 
 
 ROYAL SUCCESSION AND THE SALIC LAW. 
 
 In the legal history of those Western societies which 
 have passed through feudalism, Succession to Property 
 and Succession to Thrones 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 aU over the West. 
 But the law ■ systems of the East, which contain an 
 elaborate la# 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 EOTAL StrCCESSrON AND THE SALIC LAW. chap, t, 
 
 law of inheritance declared by the Mahommedan doc- 
 tors. At most we may trace a resemblance in the pi aces 
 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 difficult 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 difficulty 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 
 Cognates. 
 
CHAP. T. KOYAL SUCCESSION AND THE SALIC LAW. 127 
 
 The Hindu law of succession has more authentic 
 claims than that of the Mahommedans to a religious 
 origin. Some of its principles can be applied 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 ia the heart of the town. In front of it 
 there shall be a haU. That is called the HaU. 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 burn constantly, and 
 oblations shall be offered in theln 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 SUCCESSIOlir AND 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 
 in the later treatises, Vishnu and Manu, there are 
 very long discussions on regal duties, the teacher 
 even giving an account of the art of strategy and of 
 the methods of taxation. 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 modem 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. V. ROYAL SUCCESSION AND THE SALIC LAW. 129 
 
 to Tvliich these movements give birth. The real or 
 pretended doubts, the bitter disputes, and the san- 
 guinary wars which the appHcation 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 in English memorj'', 
 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 Russia, who now wears the 
 most distinct badge of modern Afghan sovereignty 
 by holding the three great cities of Cabul, Candaharj 
 and Herat — of Ayub Khan, who, after inflicting on 
 British Indian troops the first defeat in the open field 
 which they had suff'ered for seventy-eight years, was 
 utterly routed by the victorious General Roberts, and 
 
 £ 
 
130 ROYAL SUCCESSION AND THE SALIC LAW. chap. v. 
 
 who, after another success against Ms rival Abdurrha- 
 man, was finally defeated and compelled to take refuge 
 in Persia. There were also the obscurer names of 
 Abdulla Jan, now dead, who was a younger son 
 of Shere Ali 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 all de- 
 scendants of Dost Mahomed Khan, against whom the 
 British fought iu 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, 
 Abdulla 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. T. ROYAL 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 
 ascertainable), 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 was more often a group of kins- 
 
 K 2 
 
132 EOTAL SUCCESSIOIf AND THE SALIC LAW. chap. t. 
 
 men, 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 all royal famUies, 
 the Jewish princes descended from 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 Afghan 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. EOYAL SUCCESSION AND THE SALIC LAW. 133 
 
 the devolution of crowns that we have some difficulty 
 ia understanding 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 shapie 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 famihes as to 
 the particular rule or usage which should invest one 
 of the royal kinsmen with a primac)'^ over the rest ; 
 and these quarrels bore fruit in civil wars. The 
 commonest type of an ancient civil 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 from 
 time to time appear in Oriental history. One of them 
 is described in that story in the Hebrew Chronicles 
 
134 EOYAL SUCCESSION AITO THE SALIC LAW. CHAP. T. 
 
 wHch gives its plot to Racine's fine play of ' Athalie.' 
 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 hi's 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 evil 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. ROYAL SUCCBSSIOIf 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 tiU 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 EOYAL SUCCESSION AND THE SALIC LAW. CHAP. T. 
 
 All's heir-apparent, AbduUa Jan, If he 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 
 diiFused 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 reitmed 
 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 SUCCESSION AND THE SALIC LAW. 137 
 
 petually disturbed societies there could be hardly a 
 better principle to follow, for it has the gr6at 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 hils 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 ROYAL SUCCESSION AND THE SALIC LAW. chap. v. 
 
 practice in ancient Ireland. Tanistry seems to be 
 tlie Tindoubted 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 linger 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 famotis 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 Ifavarre, had died 
 in 1314, leaving three sons who successively ascended 
 the French throne under the names of Louis X., 
 
CHAP. V. EOYAL SUCCESSION AND 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 Phihp 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 verj' 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 tbe 
 Sanscrit word is translated, to bear a son to her 
 father. It is remarkable that this was the exact 
 2 See above, Chapter IV. 
 
140 ROTAL' SUCCESSION AND THE SALIC LAW. chap. v. 
 
 position of Edward III. He disclaimed the idea that 
 France could be ruled by a woman, but he conte»ded 
 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 firom 
 the law-books of the time that, ev^ in the inheritance 
 of private property, the rules of succession which 
 were to prevail under si'.ch circumstances were still 
 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 fully and fairly 
 raised ; and it promptly fell under the only j uris- 
 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. 
 
CHiP. V. ROYAL SUCCESSION AND THE SALIC LAW. 141 
 
 to the close of the English mvasion of France under- 
 taken by Henry V., the years of war between the 
 English and French were as nearly as possible a 
 hundred find twenty, inten-upted 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 Rose and the Red, 
 were no more to the turbulent and warlike English 
 nobility than the blue and green colours of the race- 
 course which once divided the populace of Constan- 
 tinople, the New Rome, into fierce and seditious 
 factions. The English kings bore the title of King 
 of France, and carried the French lilies 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 fruit 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 EOYAL SUCCESSION AXD 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 ruterest 
 is literary ; some is archaeological ; but some is prac- 
 tical. We Englishmen are satisfied to rest the title 
 of our Royal 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 aff"ect 
 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 contmues. It embraces the elder 
 branch of French Bourbons, represented by the 
 Count de Chambord, the younger branch consistiag 
 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 full 
 
CHAP. T. ROYAL SUCCESSION AND THE SALIC LAW. 143 
 
 Bourbons ; but nevertheless the theory of sovereignty 
 and government 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 Valois. 
 
 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 
 from 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 Valois his title 
 
144 ROYAL SUCCESSION AND THE SALIC LAW. chap. t. 
 
 to tbe French throne. But both to the French argu- 
 ment and to the counter-argument which -Shakespeare 
 borrowed froln the EngHsh 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 tOiPharamond, the first Frankish 
 king, and to have been written with a quill 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 
 
 3 See below, Chapter VI. p. 169. 
 
CHAP. V. BOYAL SUCCESSION AND THE SALIC LAW. 145 
 
 search 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 with 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-called 
 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 
 
146 KOTAL SUCCESSIOIT AND THE SALIC LAW. chap. v. 
 
 Tanistry would probably have died out of Europe if, 
 a century later, this method of succession had 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 all 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 stiU 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 Eoman Empke may be traced to the acclaim 
 of the Roman soldiery saluting a successful general 
 as ' Imperator ; ' but since the fall of the Roman 
 Repubhc, the Imperial dignity had a tendency to 
 concentrate itself in particular families, a settled 
 succession being procured by the practice of choosing 
 
CHAP. V. EOTAL SUCCESSION AND THE SALIC LAW. 147 
 
 the new Caesar during the reigning Emperor's life. 
 In the more modern or Romano- 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 
 nearly two centuries before Edward Ill's time. The 
 
 L 2 
 
148 ROTAL SUCCESSION AXD THK SALIC LAW. chap. t. 
 
 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. EOYAL SUCCESSION AND THE SALIC LAW. 149 
 
 we now separate had been unknown to the Romans of 
 the Empire, and had somehow been introduced mto 
 the Western world by the barbarous conquerors of 
 the Roman 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 concermng the 
 inheritance of property, we find the same uncertainty 
 and diiFerence 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 greatest races of mankind, when they first 
 appear to us, show themselves at or near a stage of 
 development ia 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 in 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. V. 
 
 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 inherit, 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. Somethnes 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 in the 
 inheritance of movable property, but confine land 
 exclusively to males and the descendants of males. 
 Indeed, it is not to be supposed that under a purely 
 ' agnatic ' system of relationship governing 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 children 
 are deemed to have any further claim on the parent 
 group. 
 
 * I have endeavoured to state the alternative theories as I 
 suppose they would have presented themselves to the mind of Mr. 
 ■J. F. McLennan, prematurely lost to this branch of inquiry, who 
 has forced all interested in them to revise or review their opinions. 
 
CHAP. V. ROTAL 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 diiferences of opinion 
 about the iaheritance 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 wiU 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 p(wentibus 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 femvna/rwm lined, vel femvnce 
 successionem non retinent dum aliquis remanserit de genere mascu~ 
 hricm.' 
 
152 EOTAL SUCCESSION AND THE SALIC LAW. chap. V. 
 
 Edward III. of England, the son of a Ca,petian 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 obstitiatelj 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 Eoyal House founded by Hugh 
 Capet which, if not unique, are of extreme rarity. 
 The Sept, or, as it is called in India, the Joint-FamUy, 
 consisting of the male stock of the founder, of male 
 descendants tracing their descent entirely through 
 males, stiU 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. V. KOYAL SUCCESSION 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 
 Imes of all the Bourbon Houses are still prolific, 
 represented by the French Princes of Orlea,ns, 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 all, 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. v. 
 
 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, hke 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 English 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. Through 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. 
 
CHir. V, EOTAL 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 will 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 
 
 6 The subject, as respects the pedigrees of the nobility, is dis- 
 cussed by Mr. Hayward in a very interesting paper in his Bio- 
 grapliical and 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 arc directly represented in the male Kne.' 
 
156 ROYAL SUCCESSION AND THE SALIC LAW. chap. v. 
 
 shows that there are exceptions to it. At the same 
 time, the position of the early Capetians must not he 
 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 beheve 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 
 aifected 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 throuo-h 
 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. T. EOTAL SUCCESSION AND 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 EOTAL 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 
 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 throuo-h the 
 failure of lines of vassals even more powerful than 
 
CHAP. V. EOYAL 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 was 
 from first to last bom and educated a Frenchman. 
 The same vein of character may be seen running 
 through the whole series of French Kings, broken 
 only perhaps in the unhappy Prince who closed the 
 dynasty in the last century. Hence the whole 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 centralisation, 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 AND EARLY CIVIL JUSTICE. chap. ti. 
 
 CHAPTER VI. 
 
 THE KING, IN HIS EELATION TO EARLY 
 CIVIL JUSTICE. 
 
 Whenever in the records of very ancient societies, 
 belonging to races with which we have some afl&nity, 
 we come upon a personage resembling him whom we 
 call the King, he is almost always associated with 
 the tidministration of justice. The King is often 
 much more than a judge. He is all 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. vr. THE KING AND EARLY CIVIL JUSTICE. 161 
 
 served they none of them deserve to be called Codes. 
 They are in fact books of mixed law and theology, 
 the manuals in use with the Indiail 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 fi'om 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, ia 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 iu 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 legislattire, deriving its powers from an Act 
 of Parliament not a century old. He waits tUl there 
 arises a King in India who wUl serve God and take 
 
 M 
 
162 THE KING AND EARLY 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 claLoied a descent 
 from supernatnral personages only second to the 
 gods. The ancient Irish lawyers pretended that the 
 first of their order was a pupil 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. 163 
 
 Here we can perceive the undeveloped foi-m 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 be has no 
 assessors. His sentences come directly into his mind 
 by divine dictation from on high. These sentences, 
 or OefiuTTes — 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 from 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 
 
 M 2 
 
164 THE KING AND EAKLY CIVIL JUSTICE. CHAt'. Tl. 
 
 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 again 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 required 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. VI. THE KIN'G AlTD EARLY CIVIL JUSTICE. 165 
 
 usage whicli is characteristic of very ancient times 
 did not exclude the 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 caU. a common 
 law, or whether it appears under a slight disguise 
 in the French Civil Code, and the numerous codes 
 descended from it. But the real indigenous law of 
 ancient Eome deserved no such fortune as this. It 
 
 * There is no doubt that the Court of Star Chamber was of 
 higher antiqviity than the statutes regulating it, 3 Henry VII. c. 1, 
 and 21 Heniy VIII. o. 20. 
 
166 THE KING Am) EAKLT CIVIL JUSTICE. chap. ti. 
 
 was 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 Rome, descended, at the establishment of the 
 Roman Republic, to the magistrate known as the 
 Prtetor ; 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 Prater. 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 
 into 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 aU events regard as 
 extravagance of praise, is to be sought in this most 
 ancient behef that law, custom, and judicature were 
 all necessarily and naturally subject to correction by 
 the supreme authority of the King. 
 
CHAI. TI. THE KING AND EARLY CIVIL JUSTICE. 167 
 
 I wish, however, to speak less of early Kings 
 m general than of the early Teutonic or Germanic 
 King and of his relation to civil justice. Our 
 own Queen Victoria has in her veins the blood of 
 Cerdic of Wessex, the fierce Teutonic chief out of 
 whose dignity English kingship grew ; and in one 
 sense she is the most perfect representative of Teu- 
 tonic royalty, as the English institutions have never 
 been bo 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 turn to a monument of ancient Teutonic law 
 constructed at a time when piratical chiefs from 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 
 eflfected by the Emperor Theodosius II. Nothing is 
 
168 THE KmG AOT) EABLT CIVIL JUSTICE, chap, vl 
 
 more sin^lar than the delusion,- so long and so 
 obstinately entertained in Europe, that the Salic Law 
 either was a system of rules, (Or at any rate comprised 
 a set of rules, regulating the succession to throiies 
 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 
 SaHan 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 in 
 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. VI. THE KING AND EAELY 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 deliberate 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 
 
 country 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 
 
 2 De terrd {Salicd) in mvEerem nulla portio hcereditatis 
 transit; &c. The word ' Sailed ' 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 SaUca by Messrs. Kern and 
 Hessels. (London : Murray, 1880), L.S. 379 ef seq. 
 
170 THE KmOt AND EARLY CIVIL JUSTICE, chap. vi. 
 
 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 hving 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 from redressing their own wrongs, and to take 
 into their own hands and regulate the method of 
 redress. The earhest penalty for disobedience to the 
 Court was probably outlawry. The man who would 
 
CHAP. W. THE KING AND EARLY 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 EARLY CIVIL JUSTICE. OHAP. ti, 
 
 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 Frankish 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 wUl 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 nanae, 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 while inquiring what were the weaknesses of 
 those Courts, what seeds of dissolution they con- 
 
CHAP. yr. THE KING AND EARLY 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 different public 
 purposes. The King unpolitical 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 uLodern ideas — the organs of 
 
] 74 THE KING AND EAELY CIVIL JUSTICE. chap. w. 
 
 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 walled 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 laggai'd 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 Achaaan League (' History of Federal 
 Grovernment,' i. 266), has noticed the effect which 
 
CHAP. VI. THE KING AND EAELY CIVIL JUSTICE. 175 
 
 the burden of attendance on political duties had in 
 throwing political privilege into a few hatids and 
 thus in converting democracies into ai-istocracies. 
 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 m 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 surds or essoin, a word 
 which once puzzled English 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 of 
 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 Am> EAKLT CIVIL JUSTICE, chap, 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 contiaue 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 th,at the sherifi^s had abused their power of 
 summoning special meetings of ,the court and fining 
 absentees. He adds that it was the direct mterest 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. VI. THE KING AND EARLY 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 Coui-t which deprived our 
 King John of the fiiirest 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 aU 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 Roman juris- 
 prudence. 
 
 It may thus be believed that the ancient Germanic 
 
 K 
 
178 THE KING AND EARLY CIVIL JUSTICE. ohap. vr. 
 
 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 King 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 
 
CHAP. VI. THE KING AXD EARLY CIVIL JUSTICE. 179 
 
 believe upon a good deal of evidence * that these 
 ancient kings were itinerant, travelling or arrrbulatory 
 personages. When they became stationary, they gene- 
 rally perished. The primitive Kings of communities 
 confined within walls, like the old Athenian and the 
 old Roman Kings, soon dropped out of sight. Per- 
 haps, as Mr. Grote has suggested, they lived too much 
 in full 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, Deutsclie Eechtaalterthumer I. 237. 'Ersfces 
 Geschaft dea neuen Koaigs wSr sein Keich zu umreiten.' . . . 
 Grimm quotes Gregory of Tours, 4, 14, ' Deinde ibat rex per civi- 
 tates in circuitu positas.' He refers also to similar duties of the 
 Swedish King, and cites the prayer of the Saxons to Henry IV. : 
 'Ut totam in soli Saxoni^ setatem inerti otic deditus non transigat, 
 sed interdum regnum suum circumeat.' 
 
 N 2 
 
180 TUB KING AND EARLY CIVIL JUSTICE, chap. vi. 
 
 wlien Englishmen 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 survival of 
 common incidents in the daily life of the barbarous 
 Chief or King, who had no tax-gatherers to collect 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 Kinffs. ' The Kino- 
 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 TyrconneU 
 
CHAP. VI. THE KmG ANP EAELY CIVIL JUSTICE. 181 
 
 20 steeds, 20 complete armours, and 20 cloaks, for 
 which the said King supported him and the nobility ot 
 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 receiving 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 Ena:lish Kings 
 
 CD O 
 
 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 Rur- 
 nell. The novel-reader comes upon a survival of it in 
 ' Kenil worth,' 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. Duffus Hardy, 
 
182 THE KING AND EARLY CIVIL JUSTICE. CHAP. VI. 
 
 have constructed from documentary testimony ac- 
 counts of the movement from place to place, during a 
 long space of time, of two of our English Kings, King 
 Henry 11. 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 King is foufnd 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 24 th at Porchester, on the 
 27th at Aldingbourn, 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. 71. THE KING AND EARLY CIVIL JUSTICE. 183 
 
 distant and more impracticable tract of country. On 
 June 4th he leaves the Tower of London, and on the 
 28th is at Durham, having been in the meantime to 
 Hertford, Doncaster, Richmond in Yorkshii-e, Bowes, 
 Appleby, Wigton in Cumberland, Carlisle and Hex- 
 ham. What is stiU 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 
 Juue 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 modern type. The 
 change may be 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 EARLY CIVIL JUSTICE. chap. vi. 
 
 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 aU 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 all the circum- 
 stances of the cases brought them v/ithout 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 AND EARLY CIVIL JUSTICK. 185 
 
 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 biirden on the poor man was 
 so severe that the Church interfered in his favour, and 
 a Council of the ninth csntury protested against the 
 cruelty of forcing the poor to do suit in Court. 
 
 But while all these causes were weakening and 
 emptying the Popular Courts, the King was con- 
 stantly perambulating the country, carrying with him 
 that royal justice which had never been dissociated 
 from him since his dignity existed.* The j ustice Avhich 
 
 * A passage in an interesting book, Drew's Kashmir and 
 Jummoo, 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 account of what still 
 goes on in the Curia Regis of the Maharajah of Cashmere, himself 
 a sovereign much more modern 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 Ms consideration. With the customary offering of a 
 rupee, any one could get his ear ; even in a crowd one could catch 
 his eye by holding up a rupee and calling out " My Lord the King, 
 
]86 THE KING AND EAELT CIVIL JCSTICE. chap. ti. 
 
 he dispensed was in the first place complete, sLiice 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. 
 Moi'eover, 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- 
 tionei'. 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 aboat the case.' ' The civil and criminal 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. VI. THE KING AND EAELY CIVIL JUSTICE. 187 
 
 to be inseparable from it — uniformity, inflexibility, 
 and irresistibility. 
 
 It may almost be, laid down tbat in England 
 notbing wholly perishes. The itinerant King is still 
 represented among us by the Judges of Assize on 
 Circuit ; the ancient Popular Court survives in the 
 Jury, though in the last instance the line of descent 
 is far dimmer and far more broken than in the first. 
 When John reigned, the delegation of the royal 
 authoi'ity to itinerant servants of the Kmg for some 
 purposes had long been known ; but one branch of 
 royal jurisdiction, that over the Common Pleas, or in 
 other words over the greatest part of the 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 had perhaps no difficulty 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 the King, as it was called, to give the suitor 
 a day. Sir Francis Palgrave has printed in the second 
 volume of his ' Rise of the 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 THK KING AND EARLY CIVIL JUSTICE. chap. vi. 
 
 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 IT. 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 iaiportance 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 Chartaat 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 modern English 
 judicial system is established. It is distinguished m 
 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. vr. THE KliVG AND EAELY 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 iniposed 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 admmistering 
 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 
 Roman law gained everywhere a considerable, and 
 
190 THE KING AND EARLY CIVIL JUSTICE. CHAP. TI. 
 
 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, generalised 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 nt 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 jurisdiction of the 
 Court of Chancery, which cannot be said to have ever 
 been exactly popular, but which certainly ovred what- 
 ever unpopularity attached to it not to any supposed 
 inherent badness, but to incidental vices, its dilatori- 
 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, betw .en 
 the so-called equity of the Court of Chancery, and 
 the illegalities and unconstitutionalities of the Star 
 
CUAP. Yl. THE KIIfG AND EAKLY 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 eifectual juris- 
 diction till its time had gone by. The depth of dis- 
 credit into Avhich 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 run, 
 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, 
 
192 THEORIES OF PEIMITIVE SOCIETY. chap. rif. 
 
 CHAPTER VII. 
 
 THEORIES OF PEIMITIVE SOCIETY, 
 
 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 thoiight.' 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 1 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 imaginaiy, or the arbitrarily assumed, histoiy 
 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- 
 
CHAP. vir. THEORIES OF rKMITITE SOCIETY. ] 93 
 
 thesis of a law and state of Nature. In endeavourino: 
 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 Roman 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 Roman 
 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 
 
191 THEORIES OF PRIMITIVE SOCIETY. chap. Tir. 
 
 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 in 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 becomino- 
 a more trustworthy subject of study through the 
 
CHAP, TO. THEOKIES OF PHIMITIVE SOCIETY. 195 
 
 labours of Prof. Bogisic. The earliest monuments 
 of German la"w 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. Still, 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 T 
 wrote, from the ideas and usages of societies which 
 hve 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 all 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 Bistory.' 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 
 
196 THEORIES OP PRIMITIVE SOCIETY. chap. th. 
 
 study ; but I 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 imnecessary 
 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 Swao-reiai ('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. vir. THEOEIES OF PRIMITIVE 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 
 will 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 ' 
 {vofiifjia ^ap^apiKa), 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 discovexy of the ' Commentaries 
 of Gains,' which, though not directly treatmg 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. tii. 
 
 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) his 
 wives and children, and they paid no regard to one 
 onother.' 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 
 born under the shelter. But when wife, chQd, 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. viL THEORIES OF PRIMITIVE SOCIETY. 199 
 
 The other theory which is now opposed to that 
 long called Patriarchal is the theory of the origin of 
 society, not in the Family 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 famiUes 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 wholly 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 all of them which had any perma- 
 nence or solidity either were so descended or assumed 
 that they were. An indefinite number of causes 
 may have shattered the primitive groups, but where- 
 ever their ingredients recombined, it was on the 
 
 • See Sir A. Lyall's paper on the ' 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 THEOEIES OF PRIMITIVE SOCIETY. chap, vii, 
 
 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 tmregulated 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. TIL. THEORIES OF PRIMITIVE SOCIETY. 201 
 
 well-known Levirate, play a great part in the system 
 of Mr. McLennan. Consanguine Marriage, Pflnaluan 
 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 himself 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. chap. tii. 
 
 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 
 
CHAJ. Yir. 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 (nepl iraiSt'ov) , 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. Stobceus, 77, p. 455 — 
 
 'AW' tor', £^01 fxey uvtoq oic eorai vofxOQ 
 TO fft] oil (re, liiJTep, TrpoafiXij .rificiv dti, 
 KUL Tov SiKaiov, Kai TOKWi/ tUv a&v ■^apiV 
 OTcpyia Se ror ^uirnvra tUv iravTiav fipoTUtv 
 fioXLirO'' upi^ui TOVTO, Koi (TV ju?) (pdovei' 
 Ktivov yap e^t'/JXaorov, oiS' cw hq dvrjp 
 yui'aiKOE avh'iatiii', aWa. tov irarpog. 
 
 This passage is parallel to a better known passage in the 
 Eumenides of jEschylus, in which Apollo, as advocate for Orestes, 
 argues that he was not of kin to his mother, Clytemnestra, whom 
 he had killed. The argument seems to me wholly physiological, 
 and not in any way archseological. Apollo, like an advocate of 
 the present day with a doubtful case, appeals to the newest 
 physiology. The 'ancient rules' which the Eumenides on the 
 other side declare to be trampled under foot, are those of accepted 
 morality, as may be seen from the first lines of the above fragment. 
 
204 THKOEIES OF PBIMITIVE SOCIETY. chap. tu. 
 
 and the counter-theory of which I have been speaking 
 each explain reasonably well a certain number of 
 ancient social phenomena, both are open to consider- 
 able objection as universal theories of the genesis of 
 society. There are unquestionably many assemblages 
 of savage men so devoid of some of the charactepstic 
 features of Patriarchalism that it seems a gratuitous 
 hypothesis to assume that they had passed through 
 it. It ought further to be admitted that much of the 
 archaeological evidence for the Patriarchal theory is 
 capable of being so put as to suggest the conclusion 
 that the societies, seen to be almost but not quite in 
 the condition from which the theory supposes them 
 to have started, are approaching that condition or 
 tending towards it, rather than declining from it as 
 an older state. But on the other hand, apart from 
 all disputes as to the value of the evidence in detail, 
 the newer theory is surrounded by difficulties quite 
 as grave or graver. Mr. McLennan compared the 
 state of relations out of which he conceived human 
 society to have lifted itself to that exhibited by the 
 unfortunate class now found m great European cities. 
 But the comparison suggests the reflection that this 
 class is almost wholly infertile ; and though doubtless 
 explanations of the phenomenon may be offered, a 
 good deal of evidence ^ (which at the same time I do 
 
 3 An eminent living physiologist (Dr. Carpenter) who visited 
 the West Indies before the abolition of slavery, well remembers 
 
CHAP. vn. THEORIES OP PRIMITIVE SOCIETY. 205 
 
 not represent as conclusive) tends to show that such 
 a state of original promiscuity as that which McLennan 
 and Morgan postulate tends nowadays to a patho- 
 logical condition very unfavourable to fecundity ; 
 and infecundity, amid perpetually belligerent savao-es, 
 implies weakness and ultimate destruction. A far 
 greater objection is that the theory takes for granted 
 the abeyance, through long ages, of the mightiest of 
 all passions, a passion which man shares with all the 
 higher animals, sexual jealousy. It is thus strongly 
 contrasted with the Patriarchal theory, which vir- 
 tually assumes this jealousy to be the force binding 
 together and propelling the ancient social order. I 
 will presently deal with this difficulty at greater 
 length. 
 
 I have never myself imagined that any amount 
 of evidence of law or usage, written or observed, 
 would by itself solve the problems which cluster 
 round the beginnings of human society. ' The im- 
 pei'fection of the geological record' is a mere trifle 
 
 the efforts of the Planters to form the negroes into families, as the 
 promiscuity into which they were liable to fall produced infertility, 
 and fertility had become important to the slave- owner through the 
 prohibition of the slave-trade. It should be added that, inde- 
 pendently of pathological evils, the same infecundity would follow 
 if the promiscuity arose from a considerable inferiority in number 
 of women to men. It is only under very unusual circumstances 
 that a small number of women would give birth to offspring 
 equalling numerically the whole parent generation, male and 
 female. 
 
206 THEOEIES OF PRIMITIVE SOCIETT. ohap. Til. 
 
 to the imperfection of the archteological record. 
 ' What were the motives,' I asked in my ' Ancient 
 Law' (p. 270), 'which originally prompted men to 
 hold together in the family union ? ' 'To such a 
 question,' I answered, ' Jurisprudence unassisted by 
 other sciences is not competent to give a reply.' 
 This anticipation of aid to be expected from biological 
 science has been fulfilled, and it is remarkable that, 
 whUe the greatest luminary of ancient science invented 
 or adopted the Patriarchal theory, the greatest name 
 in the science of our day is associated with it. Mr. 
 Darwin appears to me to have been conducted by his 
 own observations and studies to a view of the primi- 
 tive condition of mankind, which cannot be dis- 
 tinguished from this theory. ' "We may conclude 
 (' Descent of Man,' ii. 362) from what we know of 
 the passions of all male quadrupeds that promiscuous 
 intercourse in a state of nature is extremely im- 
 probable. ... If we look far enough back in the 
 stream of time, it is exceedingly improbable that 
 primeval men and women lived promiscuously to- 
 gether. Judging from the social habits of man as 
 he now exists and from most savages being poly- 
 gamists, the most probable view is that primeval men 
 aboriginally lived in small communities, each with 
 as many wives as he could support or obtain, whom 
 he would have jealously guarded against all other 
 men. ... In primeval times men . . . would pro- 
 
CHAP. VII. THEORIES OF PRIMITIVE SOCIETY. 207 
 
 bably have lived as polygatnists or temporarily as 
 monogamists. . . . They would not at that period 
 have lost one of the strongest of all instincts, common 
 to all the lower animals, the love of their yoimg 
 offspring ' (p. 367). With his usual candour Mr. 
 Darwin admit*!, though with some hesitation, the 
 conclusions of writers who have followed a different 
 path of inquiry from his, but he thinks that the 
 licentiousness attributed to savao^es belonged to a 
 * later period when man had advanced in his intellec- 
 tual powers but retrograded in his instincts.' 
 
 It must be remembered that a difference in the 
 nature of the sexual union, answering to the difference 
 of view separating the Patriarchal theory from its 
 opposite, runs through the whole animal world ; and, 
 under such circumstances, considering the extreme 
 scantiness of the archffiological evidence, it would 
 seem reasonable to call in the testimony of those who 
 have made the animal world their study. When 
 man had most of the animal in him, he belonged to 
 the highest animals ; and this is the consideration 
 which gives such importance to Mr. Darwin's opinion. 
 It would be possible to deny, or to shrink from, 
 the absolute conclusion reached in the book (the 
 ' Descent of Man ') in which this opinion is stated ; 
 and yet it would remain a most wonderful magazine 
 of facts, pointing to the prodigious influence of sexual 
 jealousy in the animal world, a force increasing in 
 
208 THEORIES OF PRIMITIVE SOCIETY. chap. th. 
 
 intensity as the animal ascends in the scale, and 
 compelling the sexes to associatfe in groups closely 
 analogous to those in which Plato and Aristotle 
 conceived primitive men to be united. The foreign 
 labourers in the field which McLennan and Morgan 
 have occupied with us, have mostly had the advantage 
 of biological training ; and they seem all to have 
 formed the same conclusion as Mr. Darwin. Dr. 
 Letourneau, whose very full and very valuable com- 
 pendium of the facts of savage life contains a protest 
 against the modern English theories as premature,* 
 is quite clear as to the nature of the primitive family. 
 ' Nos primitifs ancetres errerent alors dans les forSts, 
 par petits groupes, composes chacun du pere (du male 
 plut6t), de sa ou de ses femmes, des jeunes ; le tout 
 formant une association temporaire sons I'autorite 
 paternelle ' (Letourneau, 'La Sociologie,' p. 379). 
 Dr. Le Bon (' L'Homme et les Societ^s,' ii. 284) 
 strongly denies that the state of promiscuity could 
 be the earhest state of mankind. ' Dans les societes 
 des animaux qui se rapprochent le plus de notre 
 
 * Ces faits et bien d'autres prouvent combien il est premature 
 aiijourd'hiii de pr6tendre formuler des lois sociologiques, precises 
 et rigoureuses, comme des lois scientifiques. Rassembler des faits, 
 les grouper, et hasarder prudemment qiielques theories g^nerales, 
 sujettes k revision : voili k peu prfe tout ce que nous pouvons nous 
 permettre dans nos essais de sociologie (Letourneau, p. 320). La 
 prudence du serpent est la vei-tu qu'il ne faut pas se lasser do re- 
 commander aux sociologistes de nos jours (p. 332). 
 
CHAP. Til. THEORIES OF PRIMITIVE SOCIETY. 209 
 
 espece, nous voyons I'animal, monogame ou poly- 
 game, toujours jaloux de ses prerogatives sexuelles, 
 les defendre avec I'energie pendant le temps plus ou 
 moins long que dure son union, c'est-a-dire au moins 
 pendant la periode necessaire pour Clever ses petits.' 
 There can be no question that this is the result 
 arrived at whenever the hi2;her animals are stronsr 
 enough to give full rein to sexual jealousy. But 
 sexual jealousy, indulged through Power, might 
 serve as a definition of the Patriarchal Family. 
 
 If, however, the human race may still be believed 
 to have started with the Patriarchal Family, how are 
 we to explain the many remarkable phenomena of 
 savagery and infant civilisation for the first time 
 noticed by McLennan and Morgan, and woven by 
 them into rival theories of the original condition of 
 mankind? The inference that they point to an 
 absolute promiscuity must be received with the 
 greatest hesitation, both for Mr. Darwin's reasons 
 and because the evils which such a condition would 
 draw with it would possibly lead to the extinction 
 or the dangerous weakening of the societies which 
 practised it. But it cannot be doubted that these 
 phenomena do suggest such a relation of the sexes 
 as may be supposed to leave the paternity of chil- 
 dren in much uncertainty. The explanation appears 
 to me to lie partly in Mr. Darwin's conjecture that 
 these phenomena belong to a ' later period when man 
 
 p 
 
210 THEORIES OF PEIMITIVE SOCIETY. chap. vii. 
 
 had advanced in his intellectual powei* but retro- 
 graded in his instincts,' and partly in McLennan's 
 hypothesis of a great (and, he appears to think, an uni- 
 versal) deficiency of women in the primitive groups 
 of men. It is not hard to see that the cause assigned 
 by McLennan for the phenomena is a vera causa — it is 
 capable of producing the effects. We must remember 
 that the monogamy now practised by the greatest part 
 of mankind (and even by the so-called polygamous 
 races) is closely connected with a primary natural 
 fact, the near equality of the two sexes in numbers. 
 The idle conjectures which were once common as to the 
 preponderance of male and female births have been 
 set aside by observation, which shows that these 
 births are as nearly as possible equal m number. At 
 the same time, in settled modern communities, the 
 number of grown women is, on the whole, in excess 
 of the number of grown men, because of the more 
 rapid exhaustion of the males through war or dan- 
 gerous adventure. Let us, however, for a moment, 
 and for the sake of argument, assume that balance 
 to be very seriously disturbed. Let us suppose a 
 community in which for long periods together there 
 is a large excess of females over males. There is no 
 question that monogamy might be substantially 
 maintained in such a community, by the precepts of 
 some widely diffused religion, or by a morality 
 derived from some former age or from some external 
 
CHAP. Til. THEORIES OF PEIMITIVB SOCIETY. 211 
 
 source ; but on the whole we should expect that 
 such a community would, in some of its ptirts, be 
 polygamous. Again, let us make the counter-hypo- 
 thesis and suppose a population in which there is 
 an excess of males over females. Here again the 
 Family^ as we understand it, the Family founded on 
 monogamy, might be long preserved by the power- 
 ful sanctions of religion, morality, or law ; but 
 nobody would be surprised that the practices wit- 
 nessed to as prevailing among savages, had here 
 established themselves now or at some former time, 
 that morality and law had adjusted themselves to 
 social habits, and that explanations of them or 
 justifications of them were even to be found in 
 religion. Institutions savouring of such a social 
 condition might still be in existence, though they 
 had lost all reality, and though the natural balance 
 of the . sexes had been restored, since the mere 'sur- 
 vival of an institution proves nothing as to the 
 length of time which may have elapsed since it was 
 produced by circumstances. 
 
 Now that, during a large part of human history, 
 portions of the human race have suffered from a 
 disproportion of females as compared with males, is 
 in a high degree probable. McLennan, as is well 
 known, explained it by the virtually universal preva- 
 lence of infanticide, confined to female children. 
 This position was not accepted by Morgan, and, if 
 
 V 2 
 
212 THEORIES OF PEIMITIVE SOCIETY. chap. yn. 
 
 asserted of the whole human race, has generally been 
 considered as not credible. Nevertheless it may well 
 be believed that under unfavourable circumstances 
 savage men have constantly prevented their weaker 
 offspring from living. But there are many other 
 causes of the disproportion of the sexes which dis- 
 close themselves in the twilight of history. A great 
 part of the race, when we first obtain a glimpse of it, 
 is in a state of movement. Portions have been torn 
 away from larger aggregates and are wandering far 
 and wide, either ^Dressed by enemies or searching for 
 more abundant food. No community, when first 
 seen by the historian, can be certainly said to occupy 
 its original seat. It is in a high degree likely that 
 these wandering bodies included more men than 
 women. There is evidence that some of the islands 
 of the Pacific were populated by boat-loads of men 
 and a few women, and it would be no very violent 
 conjecture that the aborigines of Australia and 
 America originally reached their present homes with 
 the sexes in this proportion. 
 
 It is needless to say what would be the character 
 of the institutions which would establish themselves 
 under such circumstances. In fact, it may be said to 
 have been the usages of the Australians and American 
 Indian s which respectively suggested the theories of 
 McLennan and Morgan, and it is singular how often, 
 wherever a dim ghmpse of similar institutions is 
 
CHAP. Til. THEOEIES OF PRIMITIVE SOCIETY. 213 
 
 caught elsewhere, it is amid societies originally settled, 
 like the Irish, by wanderers over the sea. An even 
 more active cause of inequality between the sexes 
 must have been war ; and we may freely admit the 
 importance and significance of those practices of 
 woman- stealing on which McLennan dwells so 
 emphatically, if only we remember that, if some 
 communities lost their women through defeat, othera 
 must have gained through victory. I will call 
 attention to one striking monument of the scale on 
 which this loss and gain occurred, which has not 
 been much noticed. It is an Egyptian inscription, 
 on the reverse of a stele in the Berlin Museum, 
 commemorating the results of a conquering expe- 
 dition. 
 
 Line 20. I sent my bowmen against the foes in 
 the town of Makhenunem. They smote it and made 
 a great slaughter, taking all the women prisoners 
 and all the beasts of burden — 505,349 Bulls, and 
 Women 2,236. 
 
 Line 25. I made a slaughter among all that 
 were the chief of the Land of Lobardu. All the 
 gold he had. Bulls 203,346, Horned Cattle 603,108. 
 All the women who were spared, the chief gave us. 
 
 Line 27. I sent my soldiers against Arrosa. I 
 made a great slaughter, taking all the women 
 prisoners. Bulls 22,110. All the women. 
 
214 THEORIES OF PRIMITIVE SOCIETY. CHAP. Tir. 
 
 Line 29. From Makhisherkert, I took all the... 
 men? All the women. 
 
 Line 32. I made a great slaughter against those 
 with the chief of Tamakliv. I took all their wives, 
 all their horses. Bulls 35,330. 
 
 In all this inscription, which is a long one, there 
 is only on ; line which may be thought to speak of 
 taking the men alive, and there the reading is doubt- 
 ful. With other records of ancient warfare, it leaves 
 on my mind no doubt that the common rule of tribal 
 victory was to take only the women. The men 
 escaped or were slain ; but the women and perhaps 
 the children were spared for servitude, and this seems 
 to be the point of the well-known exhortation of 
 Greek generals to Greek soldiers on the eve of battle. 
 
 I think then that it must be allowed to be more 
 than probable that, since the appearance of mankind 
 on the earth, an indefinite portion of the race has 
 suffered at different times from a serious inferiority 
 in numbers of women to men. It must further be 
 acknowledged that the advance in inteUigence of 
 which Darwin speaks would lead men to establish 
 institutions in conformity with this proportion be- 
 tween the sexes, if only for the purpose of keeping 
 within bounds that sexual jealousy which could not 
 fail under such circumstances to produce, if unre- 
 strained, a perpetuity of violence and bloodshed. It 
 
CHAP. 711. THEORIES OF PRIMITIVE SOCIETY. 215 
 
 must be admitted that the tendency of such institu- 
 tions would be to arrange men and women in groups 
 very unlike those in which, according to the biolo- 
 gists and according to the Patriarchal theory, they 
 were originally combined. If however it be impossible 
 to say what portion of the human race has suffered 
 from this disproportion between the sexes — if we are 
 unable to deny that some fragments of the vast 
 aggregates of men speaking languages of the Aryan 
 and Semitic stocks may conceivably at some time or 
 other have had this experience — what use, it may be 
 asked, is there in insisting on the Patriarchal theory 
 as expressing the primitive grouping of mankind? 
 I answer that there is the greatest use ; and that, 
 unless we bring home to ourselves all that is implied 
 in the Patriarchal theory, it is impossible to under- 
 stand a number of phenomena which McLennan and 
 Morgan leave unexplained or explain unsatisfactorily. 
 The Patriarchal theory in the first place fixes oc 
 Power, the Power of the strong man, as the principal 
 formative cause of the groups within which the 
 conception of kinship first grew up. The counter- 
 theories assume the abeyance, during long ages, of 
 Power. On this, beyond noting the improbability of 
 the assumption, I will merely now remark that 
 the only source known to us of new forms of kinship 
 is Power. It is a special form of Power, that called by 
 jurists Sovereignty, which has created the modern 
 
216 THEORIES OF PRIMITIVE SOCIETY. chap. tii. 
 
 KinsHp known as Nationality, which enables us to 
 speak of Englishmen, Frenchmen, Australians, Ame- 
 ricans. In the next place the Patriarchal theory 
 supposes that the , motive which led to the exertion 
 of power was sexual jealousy. The counter-theories 
 assume the abeyance during long ages of sexual 
 jealousy. Now it is of course possible to believe, 
 upon sufficient evidence, that the passion which caused 
 the wrath of Achilles and the agony of Othello was 
 unknown to men originally, or was neutralised by the 
 countervailing pressure of circumstances ; but if it be 
 once believed that this passion, which is one of the 
 mightiest of the forces acting on man in the height of 
 his moral strength and the plenitude of his intellec- 
 tual vigour, was also one of the most uncontrollable of 
 his instincts when he had most of the animal in him, 
 the whole of the recently observed phenomena appear 
 to me to show themselves in a light materially diflFer- 
 ent from that in which the observers have seen them. 
 The student, then, of social archasology who is 
 called upon to believe that the Family constituted by 
 sexual jealousy indulging itself through Power is of 
 modern origin or of rare occurrence, will be very 
 rigorous in his scrutiny of the evidence presented to 
 him." He will be cautious in accepting a statement 
 about savages, or an interpretation of a ' survival ' in 
 
 * See Note A to this Chapter, on the • Audaman Islanders,' 
 
CHAP. VTi. THEORIES OF PRIMITIVE SOCIETY. 217 
 
 a system of institutions, which is primd, facie at 
 variance with observed facts of human natui*e. 
 
 Admitting it to be probable, as he is bound to do, 
 that some portions of mankind have at some time 
 been united in groups, which included considerably 
 fewer women than men, and allowing that this 
 scarcity of women would probably result in such 
 institutions as the tracing kinship through descent 
 from females, he will see reasons for thinkmg that the 
 condition out of which these institutions arose could 
 not, as a general rule, be more than temporaiy. A 
 tribe in which the women were for a very long period 
 inferior in number to the men would be at a great 
 disadvantage compared with tribes in which the sexes 
 were on a near equality. It would be liable to infecun- 
 dity, possibly from disease, certainly from the relative 
 fewness of births from a small number of mothers. 
 
 Again, he will understand better than the re- 
 cent inquirers how it was that all the societies 
 which, if I may use the expression, attained to any 
 degree of respectability, recovered at last what he 
 will believe to have been the original condition of 
 the Family. Nothing is more unsatisfactory in the 
 writings of McLennan and Morgan than their ac- 
 count of the recognition of Paternity. Morgan 
 seems almost to suppose that it was introduced by 
 popular vote. McLennan expressly suggests that 
 it arose from a custom of putative fathers giving 
 
218 THEORIES OF PRIMITIVE SOCIETY. chap, vil, 
 
 presents to putative children. But the truth is that a 
 great natural force must always have acted, and must 
 be still acting, on these aberrant forms of society, 
 tending always to make the most powerful portion of 
 each community arrange itself in groups, which admit 
 of the recognition of fatherhood, and the indulgence 
 of the parental instincts. And thus reasons appear 
 why it is that, when the Family does reappear, it 
 reappears not as the modern Family, but as the 
 Family in which Kinship is blended with Power, and 
 why it is that the Family so often discloses itself as 
 an institution of aristocracies, not of slaves, nor even 
 of dependents. 
 
 He too who is alive to the nature of this great 
 emotional force, ever acting upon the class of societies 
 of which I have been speaking, will be slow to believe 
 that they recovered all or much of their original con- 
 dition by a series of changes identically the same. 
 He will rather suspect that the stages of recovery 
 were infinitely various. Thus he wUl be indifferent 
 to many or most of the points of controversy between 
 the school of McLennan and the school of Morgan, 
 and will be inclined to think that there has been 
 room, not only for two, but for many courses of 
 modification and development, each proceeding within 
 its own area. So far as I am aware, there is nothing 
 in the recorded history of society to .justify the belief 
 that, during that vast chapter of its growth which is 
 
CHAP. TU. THEORIES OF PRIMITIVE SOCIETY. 219 
 
 wholly unwritten, the same transformations of social 
 constitution succeeded one another everywhere, uni- 
 formly if not simultaneously. A strong force lying 
 deep in human nature, and never at rest, might no 
 doubt in the long run produce an uniform result, in 
 spite of the vast varieties of circumstance accompany- 
 ing the stern struggle for existence ; but it is in the 
 highest degree incredible that the action of this force 
 would be uniform from beginning to end. 
 
 Lastly, if we consider the weight of argument 
 and evidence to be in favour of the commencement of 
 human society in Patriarchal (or Cyclopean) families, 
 we shall think it not only not incredible but highly- 
 probable that certain communities which have sur- 
 vived to historical tunes have grown without inter- 
 ruption out of their original condition. ' In most of 
 the Greek States and in Rome,' I wrote in ' Ancient 
 Law ' (p. 128), ' there long remained the vestiges of 
 an ascendiug series of groups out of which the State 
 was at first constituted. The Family, House, and 
 Tribe of the Romans may be taken as the type of 
 them, and they are so described to us that we can 
 scarcely help conceiving them as a series of concentric 
 circles which have expanded from the same point. 
 The elementary group is the Family, connected by 
 common subjection to the highest male ascendant. 
 The aggregation of Families forms the Gens or House. 
 The aggregation of Houses makes the Tribe. The 
 
220 THEORIES OF PRIMITIVE SOCIETY. CHiP. vii. 
 
 aggregaiion of Tribes constitutes the Commonwealtli. 
 Are we at liberty to follow these indications and to 
 lay down that the commonwealth is a collection of 
 persons united by common descent from the progeni- 
 tor of an original family ? Of this we may at least 
 be certain, that all ancient societies regarded them- 
 selves as having proceeded from one original stock.' 
 Antecedently, is it necessary to assume that such 
 societies passed through a stage of promiscuity, more 
 or less modified ? That would depend on the cir- 
 cumstances in which they were placed. If they 
 suffered from a scarcity of women, such phenomena 
 as polyandry and a tracing of kinship through women 
 would probably show themselves, and at any stage of 
 social gi'owth. But some communities of men must 
 always have been stronger, cleverer, more fortunately 
 placed than others — must have had fewer motives 
 than others for killing their female children, and more 
 success in carrying away the women of other tribes. 
 The great reason for antecedently doubting the 
 alleged evidence of promiscuity in the branches of 
 the Aryan race is that, as it has been the most suc- 
 cessful, so it must have been one of the strono-est 
 of races. Of course the significance of some pieces 
 of this evidence cannot fairly be denied, nor can 
 it be thought very unlikely that some of the divi- 
 sions of this race which wandered furthest, or some 
 of the more savage communities which adopted its 
 
CHAP. -vir. THEORIES OF TELMITIYE SOCIETY. 221 
 
 tongue, fell for a while into a more or less modi- 
 fied promiscuity. But the whole question- must be 
 decided by the preponderance one way or the other 
 of the not very plentiful evidence. Only let it be 
 clearly understood what the problem is. I have 
 recently stated it in the following words : ^ ' The 
 greatest 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 exclu- 
 sively through males. They are in this stage ; or 
 they are tending to reach it ; or they are retreating 
 from it. Many of them, in certain contingencies, 
 generally rare or remote, give women and the de- 
 scendants of women a place in succession ; and the 
 question with modern inquirers is whether the place 
 thus assigned to them is the survival of an older bar- 
 barism, now exemplified in savage races, which traced 
 kinship exclusively through females, or whether it 
 results from the dissolution, under various influences, 
 of " agnatic " relationship, that is, of relationship 
 through males only.' The 'influences' in question (I 
 have elsewhere shown) were in the case of the Roman 
 law, that of the Praetorian equity, and in the case of 
 the sacerdotal Hindu law, the influence of Religion. 
 
 I have yet a few words to say on a topic which 
 owes the importance and interest now commanded 
 by it almost entirely to the labours of Mr. J. F. 
 
 ^ Vide Chapter V. above, p. 149. 
 
222 THEORIES OF PRIMITIVE SOCIETY. chap. vil. 
 
 McLennan. He is the author of the terms ' Exogamy ' 
 and ' Endogamy ' ; the first signifyuag the practice of 
 taking wives exchisively beyond the limits of a par- 
 ticular tribal circle ; the last indicating the custom of 
 marrying within that circle. The fact that certain 
 ancient races extended their prohibitions of intermar- 
 riage far beyond the narrow boundaries of our Table of 
 Prohibited Degrees — that, theoretically at all events, 
 they forbade a man's marrying any woman whose 
 descent from the same ancestor with himself was 
 ascertainable — was not unknown to students of Hindu 
 law ; but Mr. McLennan was the first to point out 
 the wide prevalence of these prohibitions among bar- 
 barous societies and their connection, among savage 
 races, with the system of reckoning kinship through 
 Avonien. The first remark which I have to make 
 on these discoveries, which are closely interwoven, 
 with Mr. McLennan's theory of social advance, is, 
 that it does not seem to me certain that the teiTfis 
 ' exogamy ' and ' endogamy ' can be directly opposed 
 to one another. Is there any society which is not at 
 the same time ' exogamous ' and ' endogamous ' ? 
 Let us fix our ideas, as it is always desirable to do, 
 by looking at the ancient Roman law. Any marriage 
 of a Roman citizen within a circle not widely different 
 from that traced by our own Table of Prohibited 
 Degrees was invalid ; and the children of such a 
 marriage would be illegitimate. But again, any 
 
CEiP. Tir. THEORIES OF PRIMITIVE SOCIETY. 221) 
 
 marriage of a Roman citizen with a woman who was 
 not herself a Roman citizen, or who did not belong to 
 a community having the much- valued and always ex- 
 pressly conferred privilege of connubium with Rome, 
 was also invalid ; and no legitimate children could 
 be born of such a marriage. Thus Roman society 
 was both exogamous and endogamous ; there was 
 both an outer and an inner limit. The double rule 
 is found in the Hindu law. A Hindu may not marry 
 a woman belonging to the same gotj'a, all members of 
 the goh^a being theoretically supposed to have de- 
 scended from the same ancestor ; but then he muit 
 marry within his own caste. Here again, therefore, 
 there is the outer and the inner limit. I do not pre- 
 tend that the point is proved by the evidence respect- 
 ing the great number of savage or barbarous tribes 
 which have been shown to have an extended ' ex- 
 ogamy.' My suggestion in fact is that the outer 
 limit within which a man must marry has been 
 overlooked through the interest excited by the long 
 unnoticed exogamous prohibition ; and I wish to urge 
 that the subject requires re-investigation. I myself, 
 thou<j-h not a professed inquirer in this field, have re- 
 peatedly found indications of the outer or endogamous 
 limit. Thus there are in China large bodies of related 
 clansmen, each generally bearing the same clan-name. 
 They are ' exogamous ' ; no man will marry a woman 
 haviiag the same clan -name with himself ; and much 
 
224 THEORIES OF PRIMITIVE SOCIETY. chap. vii. 
 
 has been made of this fact. But one of a group of 
 earnest inquirers, who are investigating Chinese social 
 phenomena on the spot, Mr. Jamieson, has found 
 that they are endogamous also. ' Externally they 
 are endogamous — they refuse marriage with any 
 surroundmg tribe ; internally they are exogamous ; 
 they refuse marriage with anyone whose surname 
 shows him to be of the same stock ' ('China Review,' 
 vol. X. No. 2). 
 
 These limits, outer and inner, may stUl be dis- 
 cerned in the most civilised Western societies. On 
 the one hand, ' exogamy ' is enforced by law. There 
 are always some of his near kin whom a man may not 
 marry. The Law rests partly on considerations of 
 physiology and partly on considerations of religion, 
 religion and physiology not being, however, quite 
 agreed as to what should be the proper Table of Pro- 
 hibited Degrees. On the other, the outer or endoga- 
 mous limit, within which a man or woman must 
 marry, has been mostly taken under the shelter of 
 fashion or prejudice. It is but faintly traced in Eng- 
 land, though not wholly obscured. It is (or perhaps 
 was) rather more distinctly marked in the United 
 States, through prejudices against the blending of 
 white and coloured blood. But in Germany certain 
 hereditary dignities are still forfeited by a marriage 
 beyond the forbidden limits ; and in France, in spite 
 of all formal institutions, marriages between a person 
 
cniP. vii. THEORIES OF PEIMITIYE SOCIETY. 225 
 
 belonging to the noblesse and a person belonging to the 
 bourgeoisie (distinaruished roughly from one another 
 by the particle ' de ' ) are wonderfully rare, though 
 they are not unknown. The Church, it may be added, 
 has repeatedly relaxed the ' exogamous ' rule which 
 forbids the intermarriage of near kin in order to save 
 a member of a great Continental House from having 
 to transgress the o-uter limit within which he is bound 
 to marry. 
 
 I have a special reason for dwelling on the point. 
 Exogamy plays a great part in the system of 
 McLennan, and (though not under the same name) 
 in the system of Morgan. Both hold that a definite 
 stage of human development is marked by the appear- 
 ance of a group which Morgan calls the ' Gens ' and 
 McLennan the ' exogamous totem-kin,' a body of 
 kinsmen and kinswomen never intermarrying and 
 witnessing to their kinship by a common mark on 
 their persons. In so far as this group has fallen 
 vmder actual observation, in America and Australia, 
 it is more like a Sex than any other assemblage of 
 human beings ; it cannot reproduce itself unless it 
 combines with some similar body, for the men cannot 
 find wives nor the women husbands. Consequently 
 it is always nowadays a part of some larger social 
 aggregate. But, althotigh I may not have clearly 
 realised McLennan's conception, 1 understand him to 
 consider that this group is the developed form of the 
 
226 TIIEOIUES OP PRIMITIVE SOCIETY. chap. rir. 
 
 independent primitive group, which he believes to 
 have been an assemblage of men and much fewer 
 women, living together in promiscuity, and therefore 
 very unlike the Patriarchal or Cyclopean family as- 
 sumed by the older theory. The fewness of women was 
 produced by infanticide, and had for its consequence 
 the habit of stealing women from other groups, still 
 supposed to be witnessed to by the form of capture 
 widely characterising the marriages of barbarians. 
 Under the influence of this habit the practice of ' ex- 
 ogamy ' was gradually created. On the other hand, 
 Morgan, though he too believes the sexes to have 
 originally lived together in promiscuity, does not 
 seem to consider that their numbers were very un- 
 equal. He supposes that primitive men very early 
 discovered the evils of close inter breedins:, and that 
 all the early transformations of human society were 
 the results of a constant struggle to prevent these 
 evils. In his view, therefore (as I understand it), 
 the ' Gens,' as he rather unfortunately calls it (the 
 ' exogamous totem-kin' of McLennan), is not a primi- 
 tive group, but a mere subdivision of larger tribal 
 societies originally promiscuous, formed for the pur- 
 pose of limiting intei'breeding. 
 
 For reasons which I have already given, I have 
 no wish to take sides with Morgan or with McLennan, 
 but it does seem to me that, if further inquiry should 
 disclose the prevalence of an outer ' endogamous ' as 
 
CHAP. TU. THEORIES OP PRIMITIVE SOCIETY. 227 
 
 well as an inner ' exogamous ' circle of consanguinity, 
 it lends some strength to Morgan's theory of develop- 
 ment, which is certainly easier to understand than 
 McLennan's. I merely accept Morgan's theory so 
 far as it is an explanation of the original formation 
 of exogamous groups, and in so far as it considers- 
 them to have heen subdivisions of larger communities, 
 and formed for the purpose of limiting interbreedmg. 
 The difficulty which seems to be felt by candid op- 
 ponents of this hypothesis is that primitive men are 
 unlikely to have made any such physiological dis- 
 covery. If it be true that interbreeding is an evil, 
 its very truth, in their view, militates against the 
 antiquity of human knowledge about it. Indeed it is 
 not certain that it is true. Physiologists are not 
 agreed as to Tables of Prohibited Degrees. Some no 
 doubt would considerably extend them, but others 
 deny that the evil which they prevent is of serious 
 proportions. I think, however, it is forgotten that the 
 assertion made by Morgan is made of a time when 
 neither Surgery nor Medicine existed, of a time before 
 that at which, according to the Greek tradition, Pro- 
 metheus discovered the chopped herbs which were to 
 be the remedy for human ailments. With the vast 
 resources of modern medicine at hand, the evils of 
 the intermarriage of near kin may have been reduced 
 to a minimum or may have come to be doubted. But 
 what is invaluable to la savage is, I take it, what we 
 
 « 2 
 
228 THEORIES OF PRIMITIVE SOCIETY. chap. vn. 
 
 should call a good constitution ; sucH a constitution 
 received at birth as will not easUy admit disease, or 
 will easily overcome it by its own native soundness. 
 For amon<r such men disease once contracted cannot 
 be artificially cured. Even therefore if the advantage 
 given by exogamous marriage to the children be now 
 a slight one, it ipight be beyond price to primitive 
 mankind. I cannot see why the men who discovered 
 the use of fire and selected the wild forms of certain 
 animals for domestication and of vegetables for culti- 
 vation should not find out that children of unsound 
 constitutions were born of nearly related parents. 
 If such children, left to themselves, are really weakly, 
 the fact would be forced on notice by the stern pro- 
 cess of natural selection, affecting either the individual 
 or the tribe. It is this process which has produced 
 those wonderful contrivances for the intercrossinsr of 
 plants and the generation of a healthier vegetable 
 ■ offspring which have recently been observed by men 
 of science ; but if the process ever acted without 
 check on mankind I should imagine that their earliest 
 intelligence would enaTale them to note its operation. 
 It should be added that the earliest serious attempts 
 to combat disease appear to have taken the form of 
 precautions, of training and of the formation of habits, 
 rather than of remedies as now understood. 
 
THE ANDAMAN ISLANDBBS. 229 
 
 NOTES AND ILLUSTRATIONS. 
 
 Note A. 
 
 THE ANDAMAN ISLANDERS. 
 
 I AM afraid that I incurred some reproach by remark- 
 ing in an earlier work (' Village Communities in the 
 East and West') on the unconvincing character of 
 much of the evidence for savage customs to which the 
 utmost significance had been attributed, and by speak- 
 ing of some of it as ' travellers' tales.' My observa- 
 tions on this evidence (which has since then con- 
 siderably improved) were coupled with a statement 
 that I expected much from the critical examination 
 which was being given to savage or barbarous usage 
 by officers of the Indian Government engaged in the 
 administration of the so-called aboriginal races still 
 numerous in India. The expectation has been abun- 
 dantly fulfilled already, and I will instance one set of 
 results. 
 
 I suppose that if there was one community which, 
 looked at from a distance, or at occasional intervals, 
 seemed more than others to constitute the ' missing 
 link' between the brute and the man, it was the 
 population of the Andaman Islands. In the Preface 
 to ' Selections from Records of the Government of India 
 (Home Department),' No. XXV., written before these 
 islands were finally made the seat of a convict station, 
 it is said that ' it is impossible to imagin.e any human 
 beings to be lower in the scale of civilisation than are 
 the Andaman savages. The little that is known of 
 
230 THE ANDAMAN ISLANDEBS. 
 
 their manners and customs proves them to be without 
 religion or government, and that they live in per- 
 petual dread of the contact of any other race. . . . 
 The traditions of so absolutely barbarous a race are 
 not likely to throw any light on their origin.' The 
 little evidence that existed seemed fully to bear oat 
 this unfavourable judgment. The older Oriental 
 accounts had represented the islanders as cannibals 
 (a charge which now appears to have been without 
 any foundation), and in the ' Asiatic Researches ' of 
 1795, Lieutenant Colebrooke wrote of them : ' The 
 Andaman Islands are inliabitod by a race of men the 
 least civilised perhaps in the world, being nearest a 
 state of nature than any people we read of. They 
 go quite naked ; the women wearing at times a kind 
 of tassel or fringe round the middle, which is in- 
 tended merely for ornament, as they do not betray 
 any signs of bashfulness when seen without it. . . . 
 The men are cunning, crafty, and revengeful.' Other 
 authorities to the same effect are quoted by Lubbock 
 (' Prehistoric Times,' 4th ed. p. 451). ' The Anda- 
 man Islanders appear to be entii-ely without any sense 
 of shame, and many of their habits are like those of 
 beasts. . . . Marriage only lasts till the child is born 
 and weaned, when, according to Lieutenant St. John, 
 as quoted by Sir E. Belcher, the man and woman 
 generally separate, each seeking a new partner.' 
 
 The Andaman Islands are now the principal 
 convict station of the Government of India, and the 
 islanders have been brought under British adminis- 
 tration. A most interesting account of them, founded 
 on actual observation, has been published by a British 
 Indian public officer, Mr. E. H. Man (' Journal of the 
 Anthropological Institute,' XII. i. 69, and ii. 13). 
 One of the points most dwelt on in this account is 
 the modesty of the women. They will not renew their 
 leaf aprons even in one another's presence. Another 
 
THE ANDAMAN ISLANDERS. 231 
 
 is tlie married women's chastity. ' In the esteem in 
 whicli they (the islanders) hold their virtues (modesty 
 and morality) they compare favourably with that 
 existing in certain ranks among civilised races.' 
 Marriage is a well-detined institution. ' ]\Iarriages 
 never take place till both parties have attained ma- 
 turity, the bridegroom from eighteen to twenty-two, 
 the bride from sixteen to twenty.' Bachelors and 
 .spinsters are placed at the opposite ends of the large 
 common dwelling-house and the married couples in 
 the middle. Paternity is thoroughly recognised ; the 
 fathejr is generally present at the child's birth. There 
 is no example of a cross-breed in the islands. 
 
 There is a government by chiefs whose au- 
 thority is i-eflected on their wives. ' A chiefs 
 wife enjoys many privileges, especially if she be a 
 mother, and, in virtue of her husband's rank, she 
 rides over all the young unmarried women, and the 
 married ones not senior to herself.' ' There is inuch 
 mutual affection in social relations,' says Mr. Man. 
 ' Children are taught to be generous and self-denying. 
 The duty of showing respect and hospitality to friends 
 and visitors is impressed on them from their earliest 
 years. Every care and consideration is paid to all 
 classes, to the very young, the weak, the aged, and 
 the helpless,' 
 
 My impression is that there is no subject on which 
 it is harder to obtain trustworthy information than 
 the relations of the sexes in communities very unlike 
 that to which the inquirer belongs. The state- 
 ments made to him are apt to be affected by two 
 very powerful feelings — the sense of shame and the 
 sense of the ludicrous — and he himself nearly always 
 sees the facts stated in a wrong perspective. Almost 
 innumerable delusions are current in England as to the 
 social condition, in regard to this subject, of a country 
 so near to us in situation and civilisation as France. 
 
232 EAST EUROPEAX HOUSE COMJIUxVITIES. chap, vm 
 
 CHAPTER VIII. 
 
 EAST KUIiOI'EAN HOUSE COMMUNITIES 
 
 Nothing -woulcl be of higher value to scientific archee- 
 (jlogy than any addition to our opportunities of ob- 
 serving societies of Aryan race still remaining in a 
 condition of barbarism. The practices of savage men, 
 lying altogether beyond the circle of the greater races, 
 liave been carefully observed and compared of late 
 years, and some generalisations of much ingenuity 
 and interest have been founded on them ; but the 
 relation of these practices to the beginnings of our 
 own civilisation is far from satisfactorily settled at 
 present. The early usages of the now civilised 
 societies can be partially recovered from their records, 
 their traditions, and above all from their law ; but it 
 is just whei'e these sources of evidence can least be 
 depended upon, where history runs into poetry, 
 tradition into legend, and definite law into dimly 
 seen custom, that the connection between barbarous 
 Aryan usage and savage non- Aryan practice has to 
 be established, if it really exists. What we most 
 require is the actual examination by trained ob- 
 
CHAP. VIIT, EAST EUEOrEAX HOUSE COMMUNITIES. 233 
 
 servers of some barbarous or semi-barbarous com- 
 munity, whose Aryan pedigree is reasonably pure. 
 
 India has made contributions of great importance 
 to the study of early institutions, and I hope to show, 
 before the close of this paper, that among the most 
 important are the most recent. Many portions of 
 the social and family life of the high-caste Hindu 
 unquestionably answer to stages of social develop- 
 ment through which the earliest civilised com- 
 munities of the West may just be seen passing m the 
 twilight of their history. But there are some serious 
 drawbacks on the value of Indian social facts, and 
 some considerable limitations of their irapressiveness. 
 A great deal of the very ancient usage discoverable 
 in India is non- Aryan. There are no doubt abundant 
 remains of true Aryan barbarism, but it is not always 
 easy to distinguish this from barbarism which is non- 
 Aryan, and that which is really Aryan has been 
 transformed to an unknown extent. A religion 
 which has lost its affinity for the religions of the 
 West is constantly penetrating and modifying it, and 
 the newer influences of the English dominion are 
 working upon it with ever-increasing effect. What- 
 ever, too, be the value of Indian observations, they 
 do not certainly at present produce the impression 
 which might be expected on the European historical 
 scholars who are busy with the rudiments of Western 
 society. There is an evident distrust of illustrations 
 
234 EAST EUROrEAX HOUSE COMMUNITIES, chap. tui. 
 
 of social growth taken from the usage of a people so 
 remote as the Hindus, and so long parted from the 
 sister-communities of the Aryan group. 
 
 No field of investigation seems to me to promise 
 so much to the student of primitive social antiquity 
 as that opened to us by the obvious thinning of the 
 superficial crust of Mahommedan institutions spread 
 over so great a part of the once civilised world. In 
 all the countries now or lately under Mussidman 
 dominion, strange and deeply interesting forms of 
 ancient social organisation from time to time come 
 into the light, like buried cities from volcanic ashes 
 or lava. This remark must be confined to com- 
 munities conquered by the Mahommedans and made 
 tributary to them, but not converted to the Mahom- 
 medan faith. For the purposes of the scientific 
 archajologist, a group of men converted to Mahom- 
 medanism becomes practically worthless, because from 
 the moment of its conversion it lives under a civil 
 law which is also a religious law, and which can only 
 be explained at present as a religious law. The 
 portions of ancient usage which in the present state of 
 these inquiries yield most to the student of early in- 
 stitutions are those which, in modern phraseology, we 
 should call the law of Inheritance and the law of 
 Marriage. But a society which has adopted the Ma- 
 hommedan law of inheritance has come tinder a system 
 of rules of succession which may possibly embody 
 
CHAP. Tni. EAST EUEOPEAN HOUSE COMMUNITIES. 236 
 
 some Arabian cnstoms, but which on the whole can 
 only be accounted for as consisting of strict deduc- 
 tions from the letter of texts assumed to be sacred. 
 This system of rules arranges the heirs in classes 
 unlike those known to modified or unmodified Aryan 
 custom, and it is moreover a system of extremely 
 definite division into fractional shares. On the 
 other hand, under rudimentary Aryan usage, it is 
 not the individual, but rather a collective group of 
 kinsmen, which profits by the death of a relative ; and 
 it is exactly because the composition of this group, 
 and the mode of devolution within it, probably reliect 
 some more ancient method of collective enjoyment 
 during life, that rules of intestate succession have 
 nowadays so profound an interest. Again, the 
 barbarous Aryan, still following Aryan custom, is 
 not only generally monogamous, but (to use Mr. 
 McLennan's extremely convenient term) exogamous. 
 He has a most extensive Table of Prohibited 
 Degrees. The Mussulman, however, is not only 
 polygamous but endogamous : that is, his law per- 
 mits comparatively near relatives to intermarry. It 
 has been noticed by good observers in India, that the 
 comparative liberty of intermarriage permitted by, 
 Mahommedanismis part of the secret of its success as 
 a proselytising religion. It offers a bribe to the con- 
 vert m relieving him from the undoubtedly vexatious 
 restraints of the Brahmanical law of marriage. 
 
23G EAST EUROPEAy HOUSE COMMUNITIES, chap. Tin. 
 
 But where communities subject to Mussulman 
 rule have never been converted to the Mussulman 
 faith, the effect of the dominant Mahommedanism is 
 to fix and stereotype their barbarism, where they are 
 barbarous. A large number of them are socially 
 organised in groups held together by the reality or 
 the fiction of common blood ; they possibly may 
 never have attained to a higher organisation than thi;-, 
 or — what is more probable — the Mahommedan con- 
 quest may have not mei'ely arrested their civilisation, 
 but may have actually forced some of them to retrace 
 part of the path by Avhich they had ascended from 
 a primitive barbarous condition. When, however, 
 these groups are once organised on the well-known 
 model of an association of kinsmen or tribesmen, there 
 is much in Mahommedan government which tends to 
 tighten the bonds by which they are held together. 
 The members of Christian societies are most reluct- 
 ant to enter the Mahommedan Courts, and thus they 
 are led to value the domestic tribunals, which all 
 naturally organised brotherhoods mclude. Agam, 
 community of life based upon consanguinity always 
 implies common liability to the discharge of legal 
 demands ; and thus the fiscal exactions of the 
 Mussulman ruler give a strong motive to the kins- 
 folk to keep the burden of taxation resting on as 
 many shoulders as possible. The advantage of main- 
 taining the liability of groups rather than the liability 
 
CHAP. -viil. EAST EUROPEAN HOUSE COMMUNITIES. 237 
 
 of individuals is also felt by the Mahommedan Go- 
 vernments themselves, and they are thus led* to favour 
 the integrity of these natural bodies, just as the 
 French seigneurs are stated in medieval law-books 
 to have favoured the existence of communities of 
 villeins living au inenie pot. The natural processes 
 of dissolution to which such groups are subject are 
 also much retarded by the indirect influence of 
 Mahommedan power. The chief dissolving forces 
 acting on primitive communities are war and com- 
 merce. One tears them to pieces and scatters the 
 fragments abroad, the other disintegrates them, by 
 creating inequalities of wealth ; and nothing is harder 
 (as will be seen presently) than for the rich and poor 
 brethren to dwell together in unity. But a Mahom- 
 medan Government on the whole keeps. the peace, and 
 both by its acts of commission and by its sins of 
 omission, by its irregular taxation, and by its failure 
 to provide modes of easy communication and a pure 
 and regular administration of justice, it retards or 
 puts a stop to the accumulation of capital. 
 
 The closer examination of the Turkish provinces 
 in Europe which many causes have recently made 
 practicable has already recovered for us a nearl}' 
 perfect example of one of the oldest institutions of 
 the Aryan race — probably, with the exception of the 
 Family, the very oldest. The House Community is 
 not peculiar to the territories and dependencies of the 
 
238 EAST EUROPEAN' HOUSE COMMUJs'ITIES. chap. tiii. 
 
 Turkish Empire, since it is foiind among all the 
 South Slavonian populations, but it occurs in greatest 
 completeness wherever men of the South Slavonian 
 stock are now or have been lately under Mussulman 
 government, or where, like the Montenegrins, they 
 have had their whole history determined by incessant 
 struggles with Mussulman power. The importance 
 of these House Communities is easily understood by 
 the student of what I may perhaps venture to call 
 social and political embryology. They are a living 
 form, very near to us and constantly brought nearer, 
 of institutions rather hinted at than revealed in the 
 most ancient records of a. singularly large number of 
 civilised nations. The Roman law, which supplies 
 the only sure route by which the mind can travel 
 back without a check from civilisation to bai'barism, 
 shows tis society organised in separate families, each 
 ruled by the Paterfamilias, its despotic chief. But it 
 also exhibits vestiges of institutions not wholly for- 
 gotten, of certain associations of related families 
 which still had somethina; in common and mio-ht 
 once have had a common life. There are some marks 
 of these associations on law, and some more on re- 
 ligion, but practically in Roman legal history they 
 are dead institutions. Next above the Family, there 
 were vestiges among the Romans of a group which 
 had no special collective name, the Agnati, or 
 Agnatic Kindred, the collective body of kinsmen re- 
 
cirAP. Tin. EAST EUROPEAN HOUSE COMMUNITIES. 239 
 
 lated excuTsively through male descents, tvIio either 
 were, or miglit have been, under the paternal power 
 of the same ancestor. Again, above the Agnatic 
 Kindred, there was yet another and a more extensive 
 group, of which the origin was lost in antiquity, but 
 which was believed by the Romans themselves to 
 have been formed as the Agnati were formed — that is, 
 by descent through males alone from a real common 
 male ancestor. This was the Gens. Nothing can be 
 more interesting than to find alive in usage these 
 groups which, as bodies having a corporate existence, 
 are dead in Roman law. There can be no reasonable 
 doubt that the House Community of the South 
 Slavonians corresponds to one or other of the larger 
 Roman groups, to the Hellenic yeVo5, the Celtic Sept, 
 the Teutonic Kin. It answers still more closely to the 
 Joint Family of the Hindus, which is itself a living 
 though an extremely perishable institution. In what 
 way it is related to certain associations of savage 
 families, like it and yet very unlike it, upon which 
 our attention has been fixed by the deeply interest- 
 ing researches of Mr. McLennan (in his ' Primitive 
 Marriage ') and of Mr. Lewis Morgan (in his 
 'Ancient Society'), is a point upon which it may- 
 one day be possible to have a clearer opinion when 
 the savage and the Aryan group have been fully 
 studied in the life.^ 
 
 • See Note A to this chapter, on ' The Gens.' 
 
240 EAST EUEOPEAX HOUSE COMMUNITIES, chap. nil. 
 
 Fifteen or twenty years ago the institutions of 
 the Slavonians had begun to attract attention, and it 
 was becoming extremely probable that they wotilcl 
 prove to be the bridge connecting two portions of the 
 earth and mankind long arbitrarily separated, the 
 East and the West. The Russian "N'illage Communi- 
 ties were seen to be the Indian Village Communities, 
 if anything in a more archaic condition than the 
 eastern cultivating group. In the Village Com- 
 munity, however, the bond of common origin and 
 kinship, though still recognised in language and to 
 some extent in feeling, is feeble and indistinct ; the 
 model has been too often simulated by fictions for 
 the sense of reality to be ver}?- strong. The related 
 families no longer hold their land as an indistinguish- 
 able common fund — they have portioned it out, at 
 most they redistribute it periodically ; sometimes 
 even that stage has been passed. They are on the 
 high road to modern landed proprietorship. But in 
 the Joint Family of the Hindus the agnatic group 
 of the Romans absolutely survives — or rather, but for 
 the English law and English courts, it would sur- 
 vive. Here there is a real, thoroughly ascertained 
 common ancestor, a genuine consanguinity, a com- 
 mon fund of property, a common dwelling. And the 
 Joint Family of the Hindus, save that it now lasts 
 for fewer generations, is point for point the House 
 Community of the South Slavonians. The distri- 
 
CHAP. Tlir. EAST EUROrEAN HOUSE COMMUMTIES, 241 
 
 bution of these ancient groups in the countries in 
 which they are found is well worth remarking. The 
 North Slavonians or Russians have the Village Com- 
 munity. The House Community belongs specially 
 to the South Slavonians, the Croatians, Dalmatians, 
 Montenegrins, Servians, and the now Slavonised 
 Bulgarians. On the other hand, in India, the Joint 
 Family and the Village Community are often found 
 side by side, sometimes indeed bound together by 
 complex common relations. Even there, however, 
 it has been observed that, where joint families are 
 abundant, the village organisation is weak and village 
 communities are rare ; and this is notably the case 
 in Lower Bengal. 
 
 The House Community then is an extension of 
 the Family : an association of several and even of 
 many related families, living together substantially in 
 a common dwelling or group of dwellings, following 
 a common occupation, and governed by a common 
 chief. The law or custom which regulates these 
 institutions has lately been subjected to a close 
 examination by an eminent man of learning, whose 
 writings are still obscured bj'^ that unfortunate veil 
 of language which hides Slavonian Hterature from 
 this generation of Englishmen. The name of Pro- 
 fessor Bogisic is connected with several places, with 
 which, now of all times, we should least expect 
 to have literary associations. He is a native of 
 
 R 
 
242 EAST EUROPEAN HOUSE COMMUNITIES, chap. Tin. 
 
 Ragusa ; his last work is published by the Academy 
 of Sciences at Agram ; he is a professor in the Uni- 
 versity of Odessa ; and he has codified the laws of 
 Montenegro. The results of his investigations are 
 only known to me through some German translations 
 of passages in them, and through a summary of a 
 portion of them by M. F^dor Demelic. Nothing, in 
 my opinion, can exceed their instructiveness. They 
 show us the very way in which, amid a primitive 
 tribal society of Aryan race, the personal relations 
 and ideas of men become modified when the small 
 groups of which they form part are absorbed in larger 
 assemblages, both the large and the small group being 
 respectively tied together by community of blood. 
 They thus disclose to us Political Power in the 
 en)bryo : the Chief growing out of the head of the 
 household, the State taking its first beginnings from 
 the Family. They are entitled to take their place by 
 the side of some recent Indian investigations which 
 I will describe presently, as new materials of the 
 highest value for a theory of the condition of the 
 higher races of men in a state of barbarism. 
 
 It would appear that in all the South Slavonian 
 countries Natural Families, as they are called, are 
 found intermixed with the House Communities. By 
 a ' natural family ' is meant a group consisting of the 
 descendants of an ancestor still alive, while a house 
 community is (almost invariably) an association of 
 
CHAP. vm. EAST EUROPEAN HOUSE COMMUNITIES. 243 
 
 families all descended from a common ancestor de- 
 ceased. These natural families have not been an 
 carefully examined as could be wished ; they had not 
 the strangeness of the house community in the eyes of 
 the observers, who again show no signs of being 
 acquainted with the controversy which has arisen on 
 the point whether the larger or the smaller group is 
 the more ancient, and better entitled to be considered 
 the cell out of which human society sprang. I have, 
 however, no doubt myself, from a variety of indica- 
 tions, that these families are, as a rule, despotically 
 governed by the eldest ascendant. Not only the legal 
 writers, but all travellers in South Slavonian lands, 
 have noticed the extraordinary respect of the South 
 Slavonians for old age. ' Without reverence for old 
 men there is no salvation,' is a Servian proverb. ' A 
 father,' says another Slavonian maxim, ' is like an 
 earthly god to his son.' A less reverent adage runs, 
 ' The reason why the devil knows so much is that he 
 is so extremely old.' Still more convmcing evidence is 
 furnished by the fact observed by Professor Bogisic, 
 that the South Slavonians, like the Romans, maintain 
 a clear distinction between Agnatic and Cognatic rela- 
 tionship, which they term respectively kinship through 
 the great blood and kinship through the little. Thus 
 a group of men, connected with a common ancestor 
 through male descents (natural or adoptive) exclu- 
 sively, are kinsmen of the great blood ; they are 
 
 K 2 
 
Hi EAST EUROPEAN HOUSE COMMUNITIES, chap. Tin. 
 
 kinsmen of the little blood when they include also the 
 descendants of female relatives. Now the recognition 
 of agnatic relationship is good evidence that patriar- 
 chal power either exists or has once existed in a 
 community ; there may have once been paternal 
 power where there is no agnation, but where there is 
 agnation there must almost certainly have been pater- 
 nal power.^ The play, then, of relation between the 
 Family and the House Community is exactly what 
 we observe in India between the Family and the 
 Joint Family. The family, when it does not dissolve 
 by the swarming off of the children, expands into 
 the house community ; the community (though not 
 so often as in India) breaks up into separate natural 
 families. The process, for all the evidence before us, 
 may have gone on from time immemorial. 
 
 The House Communities, which are found inter- 
 mixed with the natural families, and which are con- 
 stantly springing out of them, are as far as possible 
 from being patriarchal despotisms ; and they illus- 
 
 ^ I learn from coi-respondence with Professor Bogisic that the 
 Power of the Father is stronger among the Prussians than among 
 the South Slavonians, and that among the latter it is stronger 
 near the coast than it is inland. He has heard a young man say 
 to his father, ' We are not here in the coast country, where fathers 
 are everything and sons nothing.' In some parts of these 
 counti ies sons cease to be subject to the father's power when they 
 marry ; but in this case marriage seems to imply severance from 
 the paternal domicil, which is probably the earliest form of the 
 process which the Romans called Emancipation. 
 
CHAP. Till. EAST EUEOPEAN HOUSE COMMUNITIES. 24-5 
 
 trate very clearly that diminution of paternal power 
 Trhich., as I have frequently insisted, sho'?v's itself 
 when families, instead of dissolving at the death of 
 an ancestor, hold together and take the first steps 
 towards becoming a nation. The community at 
 first sight is rather democratically than despotically 
 governed, and it would in fact depend on the point of 
 view from which the observer regarded it, whether he 
 considered its government to be democratic, aristo- 
 cratic, or monarchical. Every member of the body 
 has an absolute right to be maintained, housed, and 
 clothed oiit of the common fund. Every daughter of 
 the associated families has a right to a marriage 
 portion when she marries ; every son has a right to a 
 provision for his wife when he introduces her into 
 the community. Every male of the brotherhood has 
 a voice in its government. The assembly of kinsmen 
 (the Skuptchina) meets every day as a rule, generally 
 in the evening after work is over, under a tree in the 
 neighbourhood of the common dwelling. All the 
 aifairs of the community are there discussed, and 
 every man may theoretically mingle in the delibera- 
 tions. Nevertheless, as a rule, it is tlie old men who 
 debate ; the authority which, as I before said, the 
 South Slavonians assign to old age, makes the opinion 
 of the old far more weighty than their indivi- 
 dual voice ; and in very large communities it would 
 seem that it is generally the mature heads of families 
 
246 EAST EUROPEAN HOUSE COMMUNITIES. CHiP. viir. 
 
 who attend the assembly. All this is exactly in 
 harmony with what we know of the beginnings of 
 Aristocracy throughout the Ar^'an world ; but it 
 should always be remembered that if the association 
 were habitually militant, both the old men and the 
 youths would probably fall into the background, and 
 the authority in council would belong to the mature 
 warrior who is foremost in arms. 
 
 Under another aspect, however, the government 
 of the community is monarchical, and at all times its 
 most important member is the House- Chief, the Do- 
 matchin. He alone represents the association in its 
 dealings with other persons and members. The ad- 
 ministration of all its affairs is in his hands : he allots 
 the daily tasks ; he presides at the common meals 
 and distributes the food ; he reprimands for faults or 
 delinquencies ; he is invariably addressed in language 
 of the greatest respect ; all rise on his entrance ; no 
 one covers his head or smokes in his presence ; no 
 amusement or ceremony commences till he appears or 
 has announced that he will stay away. The council 
 of the brotherhood does not review his acts, but it is 
 expected that he will submit important cases to it, 
 and its jurisdiction is called imo exercise when new 
 principles of administration have to be settled. The 
 women of the community, it should be stated, are not 
 directly under his authority ; there is a house-mother 
 who appoints their work, but she is, whenever it is 
 
CHAP. -nil. EAST EUROPEAN HOUSE COMMUNITIES. 247 
 
 possible, the wife of the house-chief, and is always 
 subordinate to him. 
 
 The mode of appointing the House-Chief is in the 
 highest degree interesting, and throws a strong light 
 on a number of problems which meet us in the 
 ancient history of the kingly office. The student of 
 political embryology is familiar with the seeming 
 contradictions between the facts just seen in the dim 
 light which surrounds the beginnings of royal power. 
 Sometimes the office of the Chief or King seems 
 wholly elective, and its bestowal entirely determined 
 by personal fitness ; sometimes it appears to be here- 
 ditary, but then it is quite uncertain whether it will 
 descend to the brother or to the eldest son of the last 
 sovereign ; in general the office is confined to men, 
 yet here and there a woman in certain eventualities 
 becomes lady or queen. Very ingenious explanations 
 of these phenomena have lately been suggested. But 
 the system of choosing the South Slavonian house- 
 chief, while it exhibits exactly the same apparent 
 uncertainty, shows at the same time that it arises 
 from a very natural and intelligible cause — fi-om the 
 conflict between a sentiment and a necessity, between 
 a very powerful feeling of respect for blood and a very 
 clear sense of the pressure of the facts of life. First, 
 the chief is elected by the collective brotherhood ; 
 but the brotherhood rarely, if ever, fails to choose a 
 member of the family connected with the common 
 
248 EAST EUROPEAN HOUSE COMMUNITIES. caAP. vrir. 
 
 ancestor through descents of primogeniture. Its in- 
 clination would be to choose the eldest son of the 
 last chief, but its veneration for age, and its sense of 
 the value of experience as a means of success in the 
 struggle for existence, lead it constantly to elect the 
 next brother of the last administrator. By its strong 
 appreciation of the importance of individual capacity 
 it is led occasionally to put a woman at its head — 
 who in this case is quite distinct from the house- 
 mother, governing the women under the house-chief. 
 The practice of electing a woman to the chieftainship 
 appears to be less common than was supposed by 
 the travellers who first observed the house commu- 
 nities, and it is not impossible that they failed to 
 discriixiinate between the two shapes which the author- 
 ity of the house-mother takes. But undoubtedly 
 a woman is occasionally placed not only over the 
 women, but over the men of the community, and 
 wherever this occurs it is for reasons of her especial 
 fitness to undertake the administration. The leading 
 case mentioned by my authorities is where a consider- 
 able part of the revenue of a community was derived 
 from a boarding-school for girls kept by the ladies 
 belonging to it. Of course, no such reason as this 
 for choosing a woman to rule could have had effect in 
 primaeval ages, or even at the dawn of history. The 
 explanation of the early female successions to sove- 
 reignties and lordships no doubt is that the circum- 
 
CHAP. VIII. EAST EUROPEAN HOUSE COMMUjN'ITIES. 249 
 
 stances of the time allowed unchecked play to respect 
 for the claims of blood ; the men being exhausted, a 
 woman was taken rather than a new strain of blood 
 introduced. Nevertheless, these Slavonian pheno- 
 mena suggest that, even in the primitive militant 
 communities, eminent capacity in a woman might 
 overweigh the disadvantages of sex, and that every 
 now and then a Deborah or an Artemisia might rale 
 the tribe as the house-mother rules the house com- 
 munity. Sometimes, it should be noted, the woman 
 chosen is the widow of the last chief, who during his 
 lifetime shared his authority, more particularly over 
 the females of the household. 
 
 It appears to be a general rule of all these house 
 communities that the capital stock or fund necessary 
 for carrying on the business of the association is in- 
 capable of alienation. The nature of this alieiiable 
 property varies a good deal ; thus, with a community 
 of vine-growers, the fermenting vats cannot be parted 
 with ; and it is the usage with associations of dis- 
 tillers to apply the same prmciple to the apparatus of 
 distillation. But the great majority of the house 
 communities are pm-ely agricultural, and it is remark- 
 able that the property which the custom of these 
 communities makes inalienable corresponds very 
 closely to the res mancipi of the older Roman law : 
 that is to say, it consists of land and plough oxen. It 
 has often been suggested — by myself among others 
 
250 EAST EUROPEAN HOUSE COMMUNITIES, chap. tiii. 
 
 — that the objects placed by the Romans in the high- 
 est class of property were the commodities of first 
 importance to an agricultural people ; and though we 
 only know the Roman res mancipi as alienable under 
 certain circumstances, the very complexity of the for- 
 malities required for alienation furnishes a hint that 
 they once constituted the inalienable capital stock of 
 ihe ancient Latin cultivating communities. But these 
 recently observed facts from Eastern Europe suggest 
 some new ideas, not only concerniQg the res mancipi 
 but also and more particularly concerning that other 
 and technically inferior class of property, the res nee 
 'inancipi, m which the Romans placed all the objects 
 of enjoyment not included in the higher division of 
 things. I myself conjectured, some years ago, that 
 the articles not enumerated among the favoured 
 objects seem to have been placed on a lower standing, 
 ' because the knowledge of their value was posterior 
 to the epoch at which the catalogue of superior pro- 
 perty was settled. They were at first unknown, rare, 
 limited in their uses, or else regarded as mere appen- 
 dages to the privileged objects.' I still think this de- 
 scription of the res nee mancipi probably true of some 
 stages of primitive society, and if the last words, 
 'appendages to the privileged objects,' be understood 
 of the products as distinguished from the mstruments 
 of labour, I think they are also true of the social 
 stage of the ancient world to which the Slavonian 
 
CHAP. VIII. EAST EUROPEAN HOUSE COMMUNITIES. 251 
 
 b.ouse communities most nearly correspond. It may- 
 be supposed that the earliest cultivating communities 
 were barely self-sufficing ; that they never parted 
 with their instruments of tillage, and consumed all 
 the fruits which the earth yielded to their labour. 
 But as production became more abundant, as intervals 
 of peace became less rare, as common markets were 
 gradually established, economical forces Avould begin 
 to operate with greater activity, and the res nee 
 tnancipi would obtain their first step in dignity as 
 commodities exchangeable at a profit. All the sur- 
 plus produce of the domain would be res nee maneipi, 
 and, if not stored, would be bartered or sold. We 
 can see from the Slavonian examples that some things 
 included in the higher class might locally and occa- 
 sionally be dealt with as belonging to the lower. The 
 Roman res maneipi. — land, slaves, horses, and oxen — ■ 
 would no doubt answer to the commodities which 
 primitive agriculturists would almost everywhere 
 regard as properly inalienable, but it is likely that 
 Roman authority generalised the usage beyond its 
 primitive area. A community of cattle-breeders 
 would regard oxen as eminently exchangeable, and 
 even an agricultural community may originally have 
 confined the inalienability to the oxen which served 
 as beasts of plough. 
 
 PecuUum — a few head of oxen kept apai-t — was 
 the name which the Romans gave to the permissive 
 
252 EAST EUROPEAN HOUSE COMMUKITIES. CHAP. viii. 
 
 separate property allowed to son or slave. No prin- 
 ciple was more persistent in Roman law than the sub- 
 jection of the pccuUum to the authority of the pater- 
 familias or the master, should he choose to exercise 
 it ; and the independent holding of the peculium, even 
 by sons, was secured only by very late legislation. 
 These Slavonian usages and the experience of the 
 Slavonian communities give us reason to believe that 
 the separate holding of property by the members of 
 the brotherhood had a much more important influ- 
 ence in other societies than it had in one so sternly 
 tenacious of a central principle as the Roman. The 
 peculium seems to be always an actively dissolvmg 
 force. It had this effect to some extent with the 
 Romans, but with the Hindus it is the great cause 
 of the dissolution of the joint families, and it seems to 
 be equally destructive in the South Slavonian coun- 
 tries. When the house community is in its primitive 
 and natural state, there is no peculium : there is none 
 in Montenegro ; the dominant notion there is that, as 
 the community is liable for the delinquencies of its 
 members, it is entitled to receive all the produce of 
 their labour ; and thus the fundamental rule of these 
 communities, as of the Hindu joint families, is that a 
 member working or trading at a distance from the seat 
 of the brotherhood ought to account to it for his profits. 
 But, as in India, all sorts of exceptions to this rule 
 tend to grow up ; the most ancient and most widely 
 
CHAP. viir. EAST EUROPEAX HOUSE COMMUNITIES. 253 
 
 accepted appearing to be, that property acquired by 
 extremely dangerous adventure belongs independently 
 to tbe adventurer. Thus, even in Montenegro, spoil 
 of war is retained by the taker, and on the Adriatic 
 coast the profits of distant maritime trade have from 
 time immemorial been reserved to seafaring members 
 of these brotherhoods. But the reluctance to sur- 
 render individual gains is a sentiment observed to be 
 gaining in force everywhere, and, in connection with 
 some other causes which I will mention afterwards, it 
 luiiversally tends to bring about the dissolution ot 
 the communities. Doubtless it was always among 
 the most potent of the influences which began to 
 transform the old world of consanguinity into the 
 new world of economical relation. 
 
 The situation of women in the primitive groups 
 of barbarous Aryans, is a topic which calls for much 
 ampler and more minute discussion than can be given 
 to it within my present limits. I will, however, 
 briefly note one or two points among a considerable 
 number which deserve separate treatment, (a) The 
 house community of the South Slavonians, like 
 the joint family of the Hindus, is primarily a com- 
 munity of males. The daughters are entitled to 
 be married and portioned at its expense, and steps 
 are taken to bring about their marriage before 
 any son is married, but they have no right to any 
 share of the capital stock on the rare occasions 
 
254 EAST EUROPEAN HOUSE COMMUNITIES, chap. ttii. 
 
 on which it is divided, (b) At present a certain 
 liberty is allowed to them in the choice of a hus- 
 band, but in the South Slavonian lands, as else- 
 where, there are many vestiges of infant marriage. 
 Down to quite recently, a Christian girl in Eastern 
 Europe was irrevocably betrothed, though not married, 
 in early childhood, (c) The wives of the confederated 
 kinsmen brought into the community from outside 
 have their marriage portion reserved to them as 
 separate property or peculium, and a certain amount 
 of money or goods (which many customs enable us to 
 trace to the ancient institution of the ' morning gift ' ) 
 is held by them independently, not only of the collec- 
 tive group, but of their husbands, (d) In some of the 
 house communities boih this property and the mar- 
 riage portion, both the jparapherna and the dos, 
 descend, like the Hindu Stridhan, by a peculiar Ime 
 of succession to female inheritresses. 
 
 Like all branches of the Aryan race which remain 
 in a condition still savouring of barbarism, but which 
 have not adopted Mahommedan institutions, the 
 South Slavonians bring their wives into the groups 
 in which they are socially organised from a consider- 
 able distance outside. To this ' exogamy,' in the 
 primitive militant state, they no doubt owed hardi- 
 hood, physical vigour, and relative success in the 
 struggle for existence ; and at the present moment 
 the common residence of so many persons of both 
 
CHAP. 7HT. EAST EUROPEAN HOUSE COMMUNITIES. 255 
 
 sexes in the same household may be said to be only 
 possible through their belief that any union' of kins- 
 men and kinswomen would be incestuous. The South 
 Slavonian Table of Prohibited Degrees is extremely 
 wide. Every marriage which requires an ecclesiasti- 
 cal dispensation is regarded as disreputable ; and, 
 though the rule of ecclesiastical jurisprudence on pro- 
 hibitions against intermarriage is tolerably followed, it 
 is rendered excessively stringent by a peculiar method 
 of counting the degrees. The distaste of the South 
 Slavonians for suing in the Turkish Courts is largely 
 caused by these ideas about intermarriage. Mahom- 
 medanism, as I before stated, is an ' endogamous " 
 religion ; it derives from its Semitic origin a rather 
 limited Table of Prohibited Degrees ; and thus a 
 Turkish Court, though not professing to apply the 
 Mahommedan rules, is constantly found admitting 
 the legitimacy of children born of a marriage which 
 the Christian Slavonians consider to be incestuous. 
 Nobody can wonder at the repugnance of the Slavo- 
 riians towards entering the Turkish Courts as liti- 
 gants in cases where their women are concerned ; but 
 undoubtedly some of the principles which they accuse 
 the Tui-kish judges of applying have more in common 
 with our ideas than with theirs. Besides this com- 
 plaint on the subject of intermarriage and legitimacy, 
 the Slavonians are said by Professor Bogisid tc 
 resent the application of rules, Mahommedan in 
 
256 EAST EUROPEAN HOUSE COMMUNITIES. chap. vrir. 
 
 origin, to the inheritance of property by women. 
 Under Mahommedan law, wherever sons and daugh- 
 ters take together, the danerhters take half a son's 
 ahare. Now the custom of the house communities 
 excludes the daughters from any share when the 
 common fund is divided, either at a death or otherwise. 
 The deeply rooted and very ancient notion is that an 
 unmarried daughter is only entitled to maintenance, 
 and that a mari-ied daughter is finally and exclusively 
 provided for by her marriage portion. 
 
 I have here noticed the practices called by ]\Ir. 
 McLennan ' exogamy ' and ' endogamy ' chiefly for 
 the purpose of calling attention to the manifold and 
 surprising fictions by which an inherited sense of the 
 advantage of exogamy and of the disadvantage of 
 close intermarriage is reconciled with the doctrine 
 of the Eastern Church on the point. It is to be 
 remarked that every variety of fiction heretofore 
 observed among ancient societies held together by the 
 assumption of common descent is found among the 
 Christian Slavonians of Eastern Europe. Kinship is 
 in the first place created artificially by Adoption, and 
 in this case the adopted member of a family or house 
 community is assimilated to the naturally born kins- 
 man for all purposes indiscriminately. Entire sub- 
 families are engrafted on the house communities ; 
 individuals are taken into the subfamilies ; and occa- 
 sionally aged men, strangers in blood to the brother- 
 
CHAP. Till. EAST EUROPEAN HOUSE COMMUNITIES. 257 
 
 hood, are admitted to a place among the elders of 
 the joint household from whom labour is no longer 
 exacted or expected. It seems to be a universal con- 
 dition of the Slavonian adoption, that the person or 
 family received into the house community shall be 
 virtually without natural ties through the death or 
 emigration of the natural kindred : a precaution 
 which may remind us of the extreme care bestowed 
 by the Roman College of Pontiffs, that the ceremonial 
 observances of two families should not be confounded 
 through a precipitate adoption. But besides the arti- 
 ficial adoptive relation, which stands for all purposes 
 on the same level as natural connection of blood, there 
 are numerous other fictitious relationships which 
 exist chiefly for the purpose of preventing intermar- 
 riage. Several of these correspond to the fictitious 
 ties which are shown by their ancient law to have 
 been common among the Celtic Irish at the opposite 
 end of Europe. Thus the relation of foster-parent 
 to foster-child creates relations between their respec- 
 tive families which operate as a bar to intermarriage. 
 Gossipred, spiritual parentage, the connection between 
 sponsor and godchild, has the same effects among the 
 South Slavonians which it once had over the whole 
 Christian world. But there are in Eastern Europe 
 forms of fictitious consanguinity hitherto unknown to 
 the study of ancient institutions. The groomsman 
 at a wedding comes under a set of rules which restrict 
 
 s 
 
258 EAST EUKOPE^Vlf HOUSE COMMUNITIES. CHAP, YIIT. 
 
 intermarriage with the family of the bride to just the 
 same effect as if he had been naturally the brother of 
 the bridegroom. Confraternity, fictitious brotherhood 
 — which is an artificial creation of fraternity, just as 
 adoption is an artificial creation of parentage — retains 
 probably in these Slavonian lands the shape which it 
 wore in more westerly countries before it became the 
 central principle of so many orders of knighthood ; it 
 is solemnised with a special ritual of the Slavo-Greek 
 Church, and it is the source of a special Table of 
 Prohibited Degrees. But perhaps the most singular 
 illustration of the tendency of kinship to extend itselt 
 artificially under the empire of primitive ideas is to 
 be found in certain Slavonic forms of gossipred or 
 spiritual relationship. Here we have fiction upon 
 fiction. The relation of sponsor to godchUd imitates 
 consanguinity ; the Slavonian gossipred imitates the 
 ecclesiastical gossipred. A man whose life is endan- 
 gered by the enmity of another may make him an 
 offer of what is called gossipred by misfortune. If 
 the enemy refuses, he may be lawfully killed even by 
 treachery. If he accepts, he becomes connected with 
 his former adversary by a kind of spiritual relation- 
 ship, and is in fact compelled to become sponsor to 
 his next-born child. These peculiar artificial relations 
 in the wilder Slavonian countries, and particularly 
 in Montenegro, are found extremely useful in staunch- 
 ing blood-feuds. When a momentary reconciliation 
 
CHAP. Till. EAST EUROPEAN HOUSE COMMUNITIES. 259 
 
 has been effected by friends or neighbours between 
 Montenegrin Capulets and Montagues, it is common 
 to give it stability by insisting that the heads of the 
 contending houses shall become spiritually related to 
 one another. The expedient is well known as the 
 gossipred of reconciliation. The truth is that mere 
 sentiment has not among these people solidity 
 enough to form a binding; tie between man and man. 
 If it is to bear the ordinary strains of barbarous 
 life, it must have a core of fictitious consanguinity. 
 
 I stated that the House Communities and Natural 
 Families which make up tlie bulk of South Slavonian 
 society are constantly running into one another ; the 
 community dissolving into a mere collection of fami- 
 lies, the family expanding into the community. But 
 both these groups occasionally dissolve in other ways, 
 and some instruction may be obtained from observing 
 the mode of dissolution. When a natural family 
 breaks up, room is made, I need scarcely say, for the 
 operation of the body of rules which we call Inheri- 
 tance ; and in those portions of the South Slavonian 
 countries which are under Codes, as, for example, 
 those which belong to the Austro- Hungarian Mon- 
 archy, the law settles the distribution of the family 
 iiind, and to some extent the personal relations of the 
 kinsmen to one another. But where, as in Turkey, 
 the local usage is left to its unchecked operation, one 
 of the systems of succession commonly followed has 
 
 s 2 
 
2 GO EAST EUROPE AJS' HOUSE COMMUNITIES, chap. Tin. 
 
 a great deal of interest for ns. Each "son of the family, 
 as he grows up and marries, leaves his father's house- 
 hold, taking with him the share of its possessions 
 which under developed law would have devolved 
 upon him at his father's death, and he goes elsewhere, 
 often into a far country, to seek a new fortune. Per- 
 haps there are few things which at first sight seem to 
 have a more distant connection with one another than 
 the customs of Primogeniture and Borouo-h Eno;lish 
 and the Scriptural parable of the Prodigal Son. Yet 
 precisely the same group of usages lies at the root of 
 the institution and gives its point to the story. The 
 division of the family property does not wait for the 
 father's death. The son who wishes to leave the 
 family home takes his share with him, and goes abroad 
 to add to it or waste it. The son who remains at 
 home continues under j^^^f'^^f^ ^:»otes'fa.s, serving his 
 father and never transgressing his commandments, 
 but entitled at his death to the entire remnant of his 
 property. ' Son, thou art ever with me, and all that 
 I have is thine,' says the father in the parable, and 
 this is precisely the foundation of the rule of ancient 
 law. Which indeed shall be the home-staying son is 
 a point on which there has been much diversity of 
 usage. In the Scriptural example, it is the eldest 
 son. Primogeniture, as we know it in our law, had 
 rather a political than a civil origin, and comes from 
 the authority of the feudal lord and probably from 
 
CHAP. Tlir. BAST EUROPE.\>' HOUSE COJIMUNITIES. 261 
 
 ttat of the tribal chief ; but here and there on the 
 Continent there are traces of it as a civil institution, 
 and in such cases the succession of the eldest son does 
 not exclude provision for the younger sons by what 
 are called appanages. The evidence of ancient law 
 and usage would, however, seem to show that it was 
 usually the youngest son who remained at home with 
 his father to serve him through life and succeed to 
 his remaining property at his death ; and thus the 
 Slavonian usage accurately reflects the earliest stage 
 of the English custom of Borough English.^ 
 
 If we take a survey of the Slavonian usages as 
 a whole we shall have little doubt that the natural 
 development of the House Community would be into 
 the Tillage Community. It has almost universally 
 assumed this form in the Russian territories. The 
 number of families included in the brotherhood has 
 now become much larger. Professor Bogi§ic says 
 that the house communities rarely include more than 
 sixty individuals, which is greatly less than the 
 number of persons making up the community of an 
 Indian or Russian village. But with the extensions 
 have come a variety of changes. The land, instead 
 of being cultivated absolutely in common, is divided 
 between the component families, the lots shiftin<»' 
 among them periodically, or perhaps vesting in them 
 
 8 See Elton, Origins of English History, pp. 184 et seq. Mr. 
 Elton's -work is rich in new information on this subject. 
 
262 EAST EUEOPEAX HOUSE COilMUA'ITIES. chap. tiii. 
 
 as their property, subject to a power in the collective 
 body of villagers to veto its sale/ The tie of brother- 
 hood has also become greatly weakened ; all sorts of 
 fictions have enfeebled it, and so many strangers in 
 blood have been admitted, that the tradition of a 
 common origin is dim or lost. The common house 
 of the House Communities tends constantly in the 
 South Slavonian countries to become a group of 
 dwellings, but the Village Community is essentially 
 an assemblage of separate houses, each ruled by 
 its own chief. The reason why the Southern com- 
 munities have held compactly together, while the 
 Northern communities have relaxed and extended 
 themselves, can in the main only be guessed at ; but 
 we can hardly be very wrong in conjecturing that 
 the nearness or remoteness of Mahommedan power 
 had a great deal to do with it. This Mahommedan 
 power is doubtless the secret of the survival of both 
 forms of the community ; but the South Slavonian 
 communities, closer to the headquarters of Ottoman 
 dominion, needed a stronger and more compact orga- 
 nisation to protect their possessions, institutions, and 
 faith, while the Russian populations were only occa- 
 sionally and intermittently scourged by the invasions 
 of their Tartar suzerain. In comparatively recent 
 times, the house communities have chiefly had to 
 complain of irregular exactions from their Turkish 
 masters ; on the whole tlie Turkish Grovernment has 
 
CHAP. Till, EAST EUROPEAN HOUSE COMMUNITIES. 263 
 
 encouraged them, just as the French feudal lords 
 seem to have encouraged the house coBtimunities 
 lately discovered in France, on account of their rela- 
 tive opulence, and on account of the better security 
 thus aflForded for the punctual payment of taxes and 
 dues. 
 
 Assuming that the decay or dissolution of the 
 House Communities is matter of regret, there is no 
 doubt as to the quarter in which they find their most 
 dangerous foes. It is not barbarism which they 
 have to dread, but civilisation. All the recent ob- 
 servers of the South Slavonian communities lament 
 the influence of modern codes in underminmg or 
 destroying them. The same destructive effects are 
 attributed to the older Austrian code "which is in force 
 on the Eastern shores of the Adriatic, and to the 
 newer laws introduced into the Slavonic lands de- 
 pendent on the Hungarian Crown. I can well be- 
 lieve these statements, as I have frequently observed 
 the unintended disintegration of the Indian joint 
 families by the less violent operation of Anglo-Indian 
 law. Legal maxims apparently the most innocent 
 prove to be fraught with peril. Long since I pointed 
 out that the widespread principle of modern law, 
 ' Nemo in communione potest invitus detineri^ ' No 
 one can be kept iu co-ownership against his will,' 
 was irreconcilable with archaic usage ; and Professor 
 Booisic dwells on the destructiveness of a well-known 
 
264 EAST EUROPEAN HOUSE COMMUNITIES, chap. -vili. 
 
 doctrine of the eminent German jurist, Puchta, that, 
 where a law and an usage are » at conflict, the same 
 rules of interpretation should be applied in harmonis- 
 ing them which are employed to reconcile two contra- 
 dictory provisions of law. It is very justly objected 
 that laws theoretically proceed from the same legis- 
 lator, who is assumed to have contradicted himself 
 by accident, whereas law and usage constantly spring 
 from historically different sources. The tendency of 
 modern courts administering modern law is in short 
 to look upon the house communities as bodies ot 
 voluntary partners, and to draw from it the inference 
 that they may dissolve at the will either of any one 
 associate or at all events of a majority. 
 
 These purely legal causes of dissolution are further 
 strengthened by economical causes, which now con- 
 stantly tend, as probably they have always tended, to 
 sap all associations founded on consanguinity. The 
 adventurous and energetic member of the brother- 
 hood is always rebelling against its natural com- 
 munism. He goes abroad and makes his fortune, 
 and strenuously resists the demand of his relatives to 
 bring it into the common account. Or perhaps he 
 thinks that his share of the common stock would be 
 more profitably employed by him as capital in a 
 mercantile venture. In either case he becomes a dis- 
 satisfied member or a declared enemy of the brother- 
 hood. And just where this kind of discontent is 
 
CHAP. Tin. EAST EUEOPEAK HOUSE COMMUNITIES. 265 
 
 commonest, the facilities for indulging it are greatest. 
 For the Slavonian coiOitries which have Codes are of 
 course the best governed Slavonian countries. There 
 wealth is more easily obtained, and its preservation 
 is easier ; and there also the courts of justice are 
 open to arguments which, if successful, are fatal to 
 the cohesion of the house communities, because they 
 appeal to principles born amid a civilisation to which 
 the ancient natural associations of mankind were 
 foreign or unknown. The first French Revolution 
 has sometimes been charged with having left its chief 
 mark on law in an excessive preference for partitions 
 and for sharply drawn lines of division between 
 proprietary rights ; and it has been thought to 
 have thus led by reaction to the modern theories of 
 Socialism and Communism. But this preference is 
 as characteristic of the Roman law as of the French 
 Code ; and in fact the Austrian Code, which has 
 proved so fatal to the house communities, was begun 
 before the Revolution by the Emperor Joseph II. I 
 have no doubt that the peculiarity is less attributable 
 to the discontents of the eighteenth century than to 
 its growing wealth, and to the increasing activity of 
 all economical forces. 
 
 The legal history of the North Slavonians seems 
 likely to furnish us with a mass of information on 
 the mode in which feudal lordships and the kinds of 
 property dependent upon them grew out of the older 
 
266 EAST EUROPEAN HOUSE COMMUNITIES, chap. Tlir. 
 
 social and proprietary organisations. But the South 
 Slavonian House Community I believe to be older in 
 order of development than the Village Community of 
 the Russians, and hence it helps little to throw light 
 on the most difficult of all historico-legal problems, 
 the rise of feudal ownership. One significant state- 
 ment is however made, that on the Austrian military 
 frontier, where house communities were planted on 
 lands held by a tenure of military service, the au- 
 thority of the house-chief assumed more and more 
 of a despotic character, and he could sometimes 
 be hardly distinguished from a sole owner of the 
 originally common domain. 
 
 These new Slavonian materials for a theory of the 
 growth of Aryan society, valuable as they are, have 
 one drawback ; they are the phenomena of tribal 
 groups which for a long period of time have not been 
 fully exposed to the stern process of natural selec- 
 tion. The Mahommedan governments above them 
 have on the whole prevented their engaging in war 
 or brigandage ; if they have fought, it has generally 
 been against a common Mussulman foe. Fortunately, 
 it has just now become possible to place by their side 
 another set of novel facts, gleaned by an Indian 
 observer from an Aryan society which has hardly 
 ceased to be violently disturbed. These results, ob- 
 tained by actual inspection of Rajputana, the home 
 of the Rajput clans, are in fact related to the results 
 
CHAP. vin. EAST BUHOPEAN HOUSE COMMUNITIES. 267 
 
 of Professor Bogisid, as are the phenomena of bar- 
 barous and militant to the phenomena of barbarous 
 but peaceful communities. Excellent observers have 
 never been wanting in the Indian services, but it 
 is the exceptional distinction of Sir Alfred Lyall, 
 the gentleman to whom I am referring, that he 
 understands the nature of the problems suggested 
 by the most recent archasological research ; and thus 
 his appointment to a Commissionership in the wild 
 province of Berar in Central India, and to the high 
 office of Agent of the Governor-General in Raj- 
 putana, may be said to have begtm a new epoch in 
 the investigation of Indian Aryan usage in the stage 
 most conveniently called barbarous. For what fol- 
 lows I am indebted to his writings, now collected in 
 a volume called ' Asiatic Studies ; ' and more parti- 
 cularly to chapter vii., on the ' Formation of CJans 
 and Castes,' and chapter viii., on ' The Rajput States 
 of India.' 
 
 The social system of Raj putana is pure clanship ; 
 society is held together entirely by the tie of blood ; 
 nor is there any serious question that its kernel con- 
 sists of Aryans, still barbarous, indeed, but of the 
 purest breed. Though the pretension is resisted by 
 the Brahmans, the Rajputs claim to represent the 
 ancient regal and military caste of the Sanscrit reli- 
 gious literature, the Kchatryas. The circumstance 
 that villages of Rajputs, often of a very humble 
 
268 EAST EUROPEAN HOUSE COMMUNITIES, chap. Tin. 
 
 station, are occasionally found over most of Northern 
 India, admits of a simple explanation. Originally a 
 conquering and military race, the Rajputs seem to 
 have been first weakened by the attacks of indigenoiis 
 tribes of humbler origin, and finally overwhelmed by 
 Mahommedan conquest. Some of them bowed their 
 necks to the yoke, and remained as peaceful culti- 
 vators in the plains of India ; but othert migrated 
 into the great natural fastness now called from them 
 Rajputana, where they founded societies all of one 
 type. The valour of the Rajputs and the strength 
 of their country long preserved them from being 
 reduced into mere subjects of the Mogul, but perhaps 
 their greatest influence has been derived from their 
 intense pride in blood and birth. No princesses were 
 so much coveted for wives by the emperors at Agra 
 and Delhi as the daughters of Oodeypore and Jey- 
 pore ; and alliance with them is still regarded by 
 Hindus as above . all price. The lowest point, how- 
 ever, which their fortunes reached was just before the 
 British conquest of Northern India ; no states owe 
 more to the success of the British arms, and none ai-e 
 governed by princes more loyal to the British Crown. 
 These Rajput clans have long been recocmised as 
 in the highest degree interesting and worthy of the 
 most careful observation. As I said before good 
 observers of social phenomena have been plentiful in 
 India, but unfortunately, in the case of Rajputana 
 
CHAP. Tin. EAST EUROPEAN HOUSE COMMUNITIES. 269 
 
 the interpretation of the phenomena has been much 
 vitiated by a false historical theory. One of the most 
 careful, learned, and valuable books ever written 
 about India is Tod's 'Rajasthan,' but the author 
 laboured under the erroneous impression that the 
 most ancient type of society is that which we call 
 feudal. Society in Rajputana or Rajasthan is not, 
 however, feudal ; it is pra3-feudal or tribal ; at the 
 utmost, some of the signs of inchoate feudalism may 
 be detected in it ; and thus Colonel Tod's constant 
 references to the well-known incidents of feudal tenure 
 ;ire extremely misleading. Sir Alfred Lyall has now 
 shown that the true instructiveness of the country 
 comes from its illustrating, not the mechanism of 
 feudalism, but the method of tribal formation and 
 development, the stages by which Aryan consan- 
 guinity grew to its perfect form. 
 
 It results from the inquiries and observations of 
 Sir Alfred Lyall that in Rajputana, the land of the 
 clans, and in the wilder Indian countries under Raj - 
 put clannish influence, two sets of forces or agencies 
 are constantly at work, disintegrating agencies and 
 organising agencies, forces of dispersion and forces of 
 consolidation. All of these have seemingly been in 
 operation from time immemorial, though some of 
 them are losing their activity under British super- 
 vision or admiuistration, and may ultimately die out 
 altogether. 
 
270 EAST EUROPEAN HOUSE COMMUNITIES, chap. Tin. 
 
 The dispersing forces are mainly war, pestilence, 
 and famine. War, in the countries under British 
 authority, takes now the form of brigandage, but 
 pestilence and famine have at most been brought 
 under some degree of control. ' It is well known,' 
 says Lyall, ' from history, and on a small scale from 
 experience of the present day, how famines, wide 
 desolating invasions, pestilences, and all great social 
 catastrophes, shatter to pieces the framework of 
 Oriental societies, and disperse the fragments abroad, 
 like seeds, to take root elsewhere.' There are clans 
 apparently of real common descent wliich are also 
 local clans, still occupying the seats of which they 
 first took possession, or to which they emigrated as 
 a body ; but many of these circles of kinsmen have 
 been and still are broken up, and all of them or 
 portions of them have been driven away to any place 
 in which they can find refuge or subsistence. The 
 Fuidhir, or broken man, is as common in Central 
 India as he was in ancient Ireland. Yet it is not to 
 be supposed that the original kinship is broken in 
 idea as it is in fiict. Each fugitive or emigrant 
 retains the memory of the stock from which he 
 sprang, partly from pride of blood, partly because he 
 carries with him his usages of intermarriage, and 
 would think it incest to marry a son or daughter 
 within the prohibited degree. Thus, wherever he 
 settles, he tends to become a new root for a Rajput 
 
CHAP. vni. EAST EUROPEAN HOUSE COilMUNITIES. 271 
 
 yeVos, gem, or sept, and the centre of a new circle of 
 affinity. The effect is to produce a structure of 
 society extremely like that which meets us in the begin- 
 nings of classical history. As will be seen presently, 
 the fugitive is at once placed under a new order of 
 relations with the neighbouring families in contact 
 with whom he actually lives, but he is not released 
 from connection with his natural kith and kin, just 
 as a Roman or Athenian noble, settled at any point 
 of the Ager Romanus or the Attic territory, would 
 still count himself a member of his patrician house or 
 eupatrid tribe. 
 
 It seems to me highly probable that these forces, 
 of dispersion acted on the ancient tribal organisation 
 of more northerly l^ranches of the Aryan race. Biit, 
 if the conjecture may be permitted, I should say that 
 they operated on a smaller scale. Wars were pro- 
 bably as bloody and frequent among the forerunners 
 of the Romans and Athenians as among the Raj- 
 puts, but pestilence and famine have always been 
 more destructive in tropical regions. Thus the fugi- 
 tive was driven to a smaller distance. It is, however, 
 no more incredible that an Athenian family settled 
 in a particular locality of Attica should have been at 
 some time expelled from its original tribal home, 
 than that, in later times, a citizen of Athens should 
 deem himself a hopeless exile at Corinth or Megara 
 In order to understand the most ancient condition 
 
272 EAST EUROPEAN HOUSE COMMUNITIES. CHiP. TUr. 
 
 of human society, all distances must be reduced, and 
 we must look at mankind, so to speak, through the 
 wrong end of the historical telescope. 
 
 It has still to be considered how it comes that an 
 emigrant or fugitive Rajput, besides retaining his 
 connection with his natural tribe of descent, enters 
 into new relations with the families among whom he 
 has settled. Here, in order to understand some of 
 the most interesting of Sir Alfred Lyall's observa- 
 tions, we must attend to his distinction between pure 
 and impure tribes. 
 
 A pure tribe is a tribe of descent, living together 
 generally in the same local seat, and having a real 
 genealogy. Such tribes are still fomided in the same 
 way in which they have always been founded. 
 ' Whereas,' says Sir Alfred Lyall, ' in modern times 
 great men of action found dynasties or noble families, 
 which transmit the founder's name down alonsr the 
 chain of direct lineage, so in prehistoric ages men of 
 the same calibre founded clans or septs, in which not 
 only the founder's actual kinsfolk who followed his 
 fortunes were enrolled, but all who had any share in 
 his enterprises.' All such clans in Rajputana claim 
 to run up to a single ancestor ; and probably the 
 pedigree even of those which pretend to the most 
 prodigious antiquity is to a great extent genuine. 
 For literature in Rajputana still retams that which 
 we may believe to have been its most ancient form-^ 
 
CHAP." Tin. EAST EUEOPEAN HOUSE COMMUNITIES. 273 
 
 in the songs of the hereditary bard, celebrating the 
 exploits, and above all the antiquity, of the family of 
 which he is the honoured retainer. These bardic 
 genealogies may probably be trusted up to a certain 
 point ; but even the least imaginary of them have 
 been doubtless to some extent affected by fictions . 
 Not only are the kinsfolk of the eponymous heroic 
 founder mentioned, but all who followed him in the 
 original adventure come in time to be reckoned as 
 kinsmen. The pedigree is lengthened sometimes 
 through unintentional error, clansmen who lived at 
 the same time being counted as belonging to succes- 
 sive generations, and sometimes through deliberate 
 or poetical exaggeration. The main trunk of the 
 family tree is carried beyond the true founder, and 
 finds its root in a god or among the luminaries of 
 heaven. The proudest princely houses of Rajpu- 
 tana pretend to a descent from the sun and the moon, 
 but a real human founder, an adventurous and suc- 
 cessful warrior, can generally be detected. As Sir 
 Alfred Lj'-all says, the best type of the founder of a 
 pure clan is David, the son of Jesse, with his hard- 
 fighting kinsmen, the sons of Zeruiah. 
 
 The most original result of Sir Alfred Lyall's 
 investigations is his determination of the manner in 
 which impure clans are formed. In a work published 
 some years ago, I said that the conclusion suggested 
 by the e\ddence then accessible was, 'not that all early 
 
 T 
 
274 EAST EUEOPBAN HOUSE COMMUNITIES, chap. vni. 
 
 societies were formed by descent from the same an- 
 cestor, but that all of them which had any permanence 
 or solidity either were so descended, or assumed that 
 they were. An indefinite number of causes may have 
 shattered the primitive groups, but wherever their in- 
 gredients recombined, it was on the model or principle 
 of an association of kindred.' ^ An impure tribe or 
 clan is not a body of kinsmen, but a body formed 
 on the model or principle of an association of kinsmen. 
 Sir Alfred Lyall has been fortunate enough to see 
 these associations in the actual course of formation. 
 
 Not only (he says) do robber tribes receive bands of recruits 
 during periods of confusion, but there goes on a steady enlistment 
 of individuals or families whom a variety of incidents or offences, 
 public opinion or private feuds, drives out of the pale of settled 
 life and beyond their orthodox circles. Upon this dissolute collec- 
 tion of masterless men the idea of kinship begins to operate afresh, 
 and to rearrange them systematically in groups. Each new im- 
 migrant becomes one of a new tribe, but he adheres nevertheless 
 so far to his origin and his custom as to insist on setting up a 
 separate circle under the name of his lost clan, caste, family, or 
 lands. Where an Englishman, settling perforce in Botany Bay, or 
 spontaneously ia Western America, kept up familiar local a.s- 
 sociations by naming his homestead after the county town in his 
 old country, a Rajput, driven intx> the jungles, tries to perpetuate 
 the more primitive recollection of race. 
 
 In this way new clans are constantly formmg, 
 
 under the presidency or hegemony of some successful 
 
 family, and always with a mechanism of social 
 
 arrangements closely copied from the internal rela- 
 
 * Ancient Law, p. 31. 
 
CHAP. Ylll. EAST EUEOPEAN HOUSE COMMUNITIES. 275 
 
 tions of the principal group. The leading family 
 will often consist of real Rajput emigrants, and in 
 this case the whole of the new clan will have a faint 
 sort of claim to be recognised as of Rajput origin, 
 but the proud Rajputs of the ancient stock will only 
 allow the pretension after very strict examination of 
 the emigrant's pedigree. Sometimes it will happen 
 that the chief who becomes the kernel of the new 
 association is a mere captain of robbers, but it is 
 generally found that in a generation or two his de- 
 scendants will lay claim on curiously slender grounds 
 to a Rajput extraction, A great many of the stories 
 current in India about the loves of gods, and about 
 princes or princesses stolen in their infancy, have 
 really been devised to give colour to fictitious pedi- 
 grees ; and this is the humble and commonplace be- 
 ginning of many popular tales for which the Com- 
 parative Mythologists have claimed a more august 
 origin. At the same time it is not to be supposed 
 that all associations of men are successful in consoli- 
 dating themselves into a clan. 
 
 A vast number of rudimentary clans are cut off or disqualified 
 early in their formation by one or other of the innumerable 
 calamities -which beset primitive mankind, . . . the blood is cor- 
 rupted, the genealogy is lost, the brethren are scattered abroad to 
 new habits of life and unauthorised means of subsistence, to strange 
 gods and maimed rites. But the broken groups re-form again 
 like a fissiparous species. And as the great majority of these 
 circles fade away in outline, or break up again into atoms before 
 they can consolidate, there goes on a constant decomposition and 
 
 T 3 
 
276 EAST EUROPEAN HOUSE COMMUNITIES, chap. vm. 
 
 reproduction of groups at various stages, whence we get at the 
 extraordinary multitude of circles of affinity .... which make 
 up the miscellany of Indian society. " 
 
 The chief secret of a stage of social evolution 
 which is now utterly strange to us, is the condition 
 of mind which I recently dwelt upon in describing 
 ancient Irish society.' In the mental state which has 
 survived in Central India, ideas are few, and additions 
 to them scanty and slow. The problem which must 
 have obtruded itself on men ever since their existence 
 became the same thing as thought, the question why 
 they had relations and sympathies with one another, 
 is solved by an appeal to kinship. The fundamental 
 assumption is, that all men not united with you in 
 Ijlood are your enemies or your slaves. To associate 
 on terms of ecpality or friendship with a man who is 
 not in some sense your brother is an unnatural con- 
 dition ; if it be prolonged your neighbour grows into 
 your brother. The modern reason for holding to- 
 gether in social union, that you and your neighbours 
 belong to the same territorial sovereignty, is new and 
 even monstrous in Rajputana and the countries under 
 its influence. The British Government of India in- 
 deed recognises nothing but territorial sovereignty as 
 the principle on which men are grouped together. 
 The Maharana of Oodeypore, the Maharajahs of Jey- 
 pore and Jodhpore, are only known to the Calcutta 
 
 ' Early History of Institutions, Lecture 8. 
 
CHAP. viir. EAST EUEOPEAN HOUSE COMMUNITIES. 277 
 
 Foreign Office as princes ruling over certain defined 
 territories ; but to all the native dwellers in Central 
 India they are. the semi-sacred chiefs of clans of the 
 purest blood, deriving their patriarchal authority from 
 heroic or divine forefathers. Sir Alfred Lyall gives 
 some striking illustrations of the unpopularity of 
 territorial sovereignty in Central India. It is con- 
 doned in the case of the British Government, which 
 delivered the Rajput clans from oppression, and 
 probably saved them from extinction ; but the sub- 
 ordination of pure Rajputs to low-caste Mahrattas 
 or Mussulman apostates is resented as a crying in- 
 justice. We have all heard what Camerons and 
 Macdonalds thought of being required to obey the 
 Earl of Argyll, not because he was McCallum More, 
 but because he had obtained a grant of feudal supe- 
 riority from the Scottish king ; but the Indian princes 
 who rule over many Rajputs, Scindiah the Slipper- 
 bearer and Holkar the Shepherd, are in their eyes less 
 like chiefs of the Campbells than like upstarts sprung 
 from the enslaved tribes who hewed wood and drew 
 water for the great clan of the Western Highlands. 
 
 Among the more special causes of the process of 
 tribal aggregation is the convenience of the arrange- 
 ment to men who regard a more or less strict ex- 
 ogamy as sanctified by usage and religion. The pure 
 Rajput has a prodigious table of prohibited degrees ; 
 but he is also surrounded by a circle within which 
 
278 EAST EUROPEAN HOUSE COMMUNITIES, chap. vm. 
 
 he must marry. He must marry within his caste ; 
 he may not marry within his special clan. He has 
 great difficulty in finding wives for his sons ; he has 
 still greater difficulty in finding husbands for his 
 daughters. These vexatious rules of intermarriage 
 are extremely mischievous to the pure clans, which 
 are greatly weakened by the necessity for their obser- 
 vance, and are even said to be slowly dying out for 
 lack of reproduction. But to the emigrant Rajput 
 it is a positive advantage to be grouped in the same 
 vague and extensive tribal bond with a number of 
 families or septs whom he has not yet learned to 
 regard as literally of the same blood with himself. 
 He must marry, to borrow the Roman expressiocs, 
 within his tribe ; he may not marry within his gen-". 
 When the tribal union is just definite enough to serve 
 as a substitute for caste, and when the various septs 
 included in it are sepai'ate from one another — strung- 
 together, to use Sir Alfred Lyall's language, like rings 
 on a curtain rod — the chances for the fertility of the 
 clan are at the highest point, and give it a manifest 
 advantage in the struggle for existence. At the outset, 
 being perhaps little more than a horde of brigands, 
 it may suffer from the scarcity of women within its 
 circle ; and at this stage all sorts of fictions are 
 adopted to bring stolen girls within the tribal outline. 
 At the other end of its development it will ao-ain 
 suffer, because all the families or septs in the clan 
 
CHAP. Till. EAST EUROPEAN HOUSE COMMUNITIES. 279 
 
 will now have come to be looked upon as akin to one 
 anotlier, and debarred from intermarriiige. The in- 
 termediate stage of which I have been speaking is the 
 most convenient of all. 
 
 But the most interesting result of these inquiries 
 into the origin of impure clans is the determination 
 of the principal fiction at work in their formation. 
 It is one which has not by any means died out of the 
 Western world, into which it was reintroduced by the 
 revival of feudal and municipal aristocracy. The odour 
 of vulgarity which it has now contracted makes it, 
 perhaps, hard to understand its primitive importance, 
 since it is neither more nor less than the fiction of a 
 better family and a longer pedigi-ee than one is really 
 entitled to. What was once a force in the West 
 has now become a foible ; but in the East, among 
 societies held together by kinship, it is still a force. 
 Lyall's explanation of the problem with which we 
 started is that, to quote his words, ' the different 
 stocks congregate by force of circumstances, and tend 
 to form a tribe and clans within a tribe, under the 
 name and within the influence of the most successful 
 groups.' The Indian mode of bringing the fiction as 
 near as possible to a fact is, I should observe, ma- 
 terially different from any contrivance resorted to in 
 this part of the world. It by no means consists in 
 bold assertion, or getting a false entry introduced into 
 a nohiUaire or peerage. In India a man's rank is 
 
280 EAST EUKOPEAN HOUSE COMMUNITIES, ofap. viir. 
 
 measured, not by his wealth or power, not even by what 
 is written about him, but by the number of things he 
 may or may not do. A family on its promotion prac- 
 tises the most rigid abstinence from particular kinds 
 of food and drink, abstains from all sorts of actions, 
 is scrupulously careful about the marriage of its 
 daughters, and goes daily through a punctilious cere- 
 mony of domestic worship. It engages a Brahman 
 chaplain and a Brahman cook ; and thus the entire 
 Brahman priesthood of the country wiU perhaps be 
 led to countenance its pretensions to high-caste extrac- 
 tion. Once taken under the shelter of Brahmanism, 
 the fiction can hardly be distinguished from a fact. 
 
 The effect of these remarkable observations is to 
 suggest a theory of the origin and growth of society 
 among the higher races of mankind, which differs in 
 some material respects from any hitherto propounded, 
 though it is much more consistent with some of the 
 current theories than with others. Sir Alfred Lyall 
 follows Mr. Carlyle in saying that ' the perplexed 
 jungle of primitive society springs from many roots ; 
 but the Hero is the taproot from which in a great 
 degree all the rest are nourished and grown.' A 
 mighty man of valour, with his kinsmen and retainers, 
 founds a clan. Through the very fact of success, 
 this clan is saved from the first from the calamities 
 which arise from an unequal balance of the sexes — 
 the real secret, as I believe, of those unhappy usages 
 
CHAP. viir. EAST EUROPEAN HOUSE COMMUNITIES. 281 
 
 •which have been saddled by recent theories upon all 
 mankind. It becomes therefore a pure clan, having 
 a genume pedigree, in which certainty of paternal 
 descent from the famous founder or founders is as- 
 sumed from the outset. It may also be exogamous, 
 either through the number of female captives which 
 always formed part of its spoil, or simply becatise 
 the practice of taking its wives from a distance, how- 
 ever this came about, increased its physical vigour 
 and caused it to prevail in the struggle for existence. 
 The formation of such a clan might be a fact by itself, 
 and, so far as we have gone, it would be a plausible 
 objection that the wholesale formation of such clans 
 was highly improbable. But now we see how such a 
 clan acts on the masses of men around it. It starts a 
 process of ferment and crystallisation by which all 
 tribes and assemblages in its neighbourhood or within 
 its influence group themselves in circles as nearly as 
 possible adjusted to the heroic model. The original 
 communities of men may have taken all sorts of 
 forms : in the present state of these inquiries it is 
 impossible not to suspect that no statements can be 
 hazarded on the subject which are at once safe and 
 very general. But evidence of many different kinds 
 suggests that this ' miscellany ' of primitive society 
 was brought into shape by the influence of dominant 
 types, acting on the faculty of imitation which must 
 have always belonged to mankind. The communi- 
 
282 EAST EUROPEAN HOUSE COMMUNITIES. chap. viii. 
 
 ties which, were destined to civilisation seem to have 
 experienced an attraction which drew them towards 
 one exemplar,, the pure clan, generally exogamous 
 among the Aryans, generally endogamous among the 
 Semites, but always believing in purity of paternal 
 descent, and always looking back to some god or hero 
 as the first of the race. 
 
THE GENS, 283 
 
 NOTES AND ILLUSTRATIONS. 
 Note A. 
 
 THE GENS. 
 
 The passage in the text respecting the ancient groups 
 more or less answering to the still extant House 
 Community has been somewhat altered since it was 
 first printed in the ' Nineteenth Century.' 
 
 It will be seen that, in the present state of these 
 inquiries, I do not accept the account of the origin of 
 the Gens given either by Mr. McLennan or by Mr. 
 Morgan as universally true. I do not,, for example, 
 ■ venture to dissent from the view which the Romans 
 themselves took of the history of this peculiar group 
 as known to themselves. What this view was may 
 be inferred from a passage in Varro ( ' De Lingua 
 Latina,' viii. 4) which has been often quoted. The 
 grammarian observes that there is a certain ' agnation ' 
 and ' gentility ' among words. All the cases of the 
 noun ' jEmilius ' are descended from the nominative, 
 just as all the members of the Gens JEmilia, all the 
 iEmilii, are descended from a single original ^milius. 
 The Romans, therefore, regarded ' gentility ' as a kin- 
 ship among men not essentially different from ' agna- 
 tion.' The Agnati were a group of actual or adoptive 
 descendants, through males, from a known and remem- 
 bered ancestor ; the Gentiles were a similar group of de- 
 scendants from an ancestor long since forgotten. It is 
 
284 THE GENS. 
 
 true that some learned Komans seem to have perceived 
 or thought that this Gentile relationship was to some 
 extent fictitious ; but, on the whole, they figured it 
 to themselves as a form of kinship arising Irom de- 
 scent, through males, from a common male ancestor. 
 For reasons given in Chapter VII., I think that the 
 Roman theory of the origin of the Roman Gens was 
 at least probable. I see no reason to doubt that, 
 though some of the gentes may have been fictitious, 
 and others partially fictitious, there was a real core 
 of agnatic consanguinity in most of thera from the 
 very first. The probable character of the fictions 
 which clustered round this core may be gathered 
 from the latter part of the preceding chapter. As 
 Sir Alfred Lyall's description of the mode in which 
 groups simulating true tribal groups are formed is 
 now printed in his ' Asiatic Studies,' I might have 
 omitted my abridgment of it ; but I retain it, be- 
 cause nothing seems to me to have more affected 
 primitive society, and yet to have been more neglected 
 by those who have theorised on it, than the imitative 
 faculty which man has always possessed and which 
 Sir Alfred Lyall has witnessed in actual employment 
 by barbarous men. 
 
 On superficial consideration, we are apt to think 
 that man's mimetic faculty confines itself to matters 
 of taste and personal habit. But, in truth, there is 
 no successful, or conspicuous, or simply fashionable 
 model which men, in the various stages of their pro- 
 gress, will not endeavour to imitate. The habit of 
 political imitation, which has always been strono-, 
 still survives. . ' Make us a King to judge us, like all 
 the nations,' said the Israelites to Samuel (1 Sam. 
 yiii. 5). ' Give us a Constitution to regulate our 
 liberty, like that of one particular nation,' is the 
 corresponding modern and Western demand. If any- 
 
THE GENS. 285 
 
 body is inclined to think that the process of copying 
 models by entire societies is extinct, he shoul4 look 
 at the way in which the British Constitution, which 
 was once regarded by men more civilised than the 
 English as an eccentric political oddity, has spread 
 over nearly all Europe in less than seventy years. 
 What Sir Alfred Lyall has shown from his own 
 observations is the activity of this process of imira- 
 tion in barbarous stages of society. Barbarous men 
 will copy any successful or fashionable social type — 
 a Tribe, a Sept, a Gens, a Village Community, the 
 rules of ' exogamy ' or ' endogamy,' the practice of 
 infanticide or suttee. The agency by which the 
 imitation is carried out is Fiction, sometimes of the 
 most audacious kind, and through it an old order is 
 constantly giving place to a new, and even broken 
 hordes, mere miscellanies of men, are transmuted into 
 definite social forms, which afterwards might seem as 
 if they had all sprung together from roots deep in 
 the Past. 
 
 The important lesson is that in sociological in- 
 vestigation it is never possible to discoA^er more than 
 the way in which the Type has been formed. If an 
 institution is once successful, it extends itself through 
 the imitative faculty, which is stronger m barbarous 
 than in civilised man. It follows from this that no 
 universal theory, attempting to account for all social 
 forms by supposing an evolution from within, can 
 possibly be true. A person perfectly ignorant of 
 European history might suppose that the British 
 Constitution and the Belgian Constitution, which 
 are extremely like one another, were produced by 
 analogous courses of development ; ypt the Belgian 
 Constitution is really the copy of a copy, and the 
 true growth of constitutionalism can only be traced 
 in the history of the English Constitution. 
 
286 THE GENS. 
 
 The eminent writers I have named, if I have 
 rightly understood them, are of opinion that the 
 Roman Gens and all similar bodies are derived, 
 without exception, from older groups stUl to be 
 observed among savages. Among the so-called abo- 
 rigines of Australia, among the North and South 
 American Indians, and elsewhere, but always among 
 slightly advanced communities, there are found groups 
 of men and women tracing kinship exclusively through 
 the female parent, and not through the male. Wherever 
 they have any tradition of human ancestry, they trace 
 their parentage, according to Mr. Morgan, to a com- 
 mon ancestress, and not to an ancestor. Their most 
 distinct characteristics are that they mark their bodies 
 with some common mark or ' totem,' and that the 
 members of the same group never intermarry ; and 
 thus, as I have said in the text, they resemble a Sex 
 rjither than any other combination of human beings 
 now familiar to us. On the other hand, among 
 several barbarous or semi-barbarous communities we 
 can still observe, and in the ancient history of several 
 civilised or semi-civilised societies we can stUl detect, 
 another class of groups having a close resemblance to 
 the Roman Gens. They attribute their origin to a single 
 common male ancestor, and they trace kinship through 
 the male parent, real or adoptive, alone. The members 
 of such groups much more frequently intermarry than 
 do the members of the savage group ; but occasionally 
 they will not intermarry, at all events as a matter of 
 theory. Such is the Hindu theory with reference to 
 . kinsmen and kinswomen belonging to the same Gotra, 
 and there is some faint evidence of a similar feelmo- 
 once existing in the Roman Gens. Even among 
 savages, examples of groups tracing relationship 
 through males are found intermingled with groups 
 acknowledging female descents only ; and Mr. Morgan 
 
THE GENS. 287 
 
 insists that the first groups are merely the last in a 
 transmuted shape, and that the transformation oc- 
 curred everywhere, in the societies now civilised as 
 well as in those still savage or barbarous. He several 
 times thus describes the process : ' Descent in the 
 Grens was chanofed from the female to the male line,' 
 giving the name Gens indiflFerently to both groups. 
 
 Whatever the facts may have been, the language 
 of Mr. Morgan seems to me to be open to much 
 objection. One of these two groups did not really 
 succeed the other, but the two co- existed from all 
 time, and were always distinct from one another. We 
 must be careful, in theorising on these subjects, not to 
 confound mental operations with substantive realities. 
 The ' Agnatic ' G-entile groups, consisting of all the 
 descendants, through males, of a common male an- 
 cestor, began to exist in every association of men and 
 women which held tos^ether for more than a single 
 generation. They existed because they existed in 
 nature. Similarly the group consisting of the de- 
 scendants, through women, of a single ancestress still 
 sui'vives, and its outline may still be marked out, if 
 it be worth anybody's while to trace it. What was 
 new at a certain stage of the history of all or of a 
 portion of the human race must have occurred, not 
 in connection with the Gens, but in connection with 
 the Family. There was always one male parent of 
 each child born, but prevalent habits prevented his 
 bemg individualised in the mind. At some point 
 of time, some change of surrounding facts enabled 
 paternity, which had always existed, to be mentally 
 contemplated ; and further, as a consequence of its 
 recognition, enabled the kinship flowing from com- 
 mon paternity to be mentally contemplated also. As 
 to the new facts which led to this recognition, all 
 that, in my opinion, can be said of them is that they 
 
288 THE GENS. 
 
 must have been such as again to give free play to an 
 overmastering emotional force. Believing, as I do, 
 that when Paternity reappeared, it reappeared in 
 association with Power and Protection, I require no 
 explanation of the fact that the kinship then recog- 
 nised was kinship throLigh male descents only. 
 
 Mr. Morgan's application of the same name to 
 the group mentally formed by attending solely to 
 female descents and to the group constituted by 
 looking only at male descents, seems to me unfor- 
 tunate, because it tends to put out of sight the essen- 
 tial differences between the t^vo. It is hard to see 
 how the savage group can be self-existing, or indeed 
 anything but an organisation for matrimonial purposes 
 spread over a larger tribal community. The men born 
 of the women belonging to it are themselves members 
 of it, but the sons of these men leave it because they 
 belong to the same group as their mothers. But the 
 other group, formed by male descents from males, 
 retains uninterruptedly the flower of its masculine 
 strength, and this strength is constantly reproducino- 
 itself. Hence it tends to be a self-existent militant 
 body. The famous exploit of the Fabian Gens at Rome, 
 when they collectively attacked Veil, and were all but 
 extirpated, is thus in itself perfectly credible. No 
 doubt it is said that Australian savages will sometimes 
 travel great distances to join in the quarrels of men 
 having the same ' totem ; ' but these contests between 
 people who have hardly any interests in common can 
 be scarcely more than faction-fights between men 
 wearing different colours. At the same time, 1 admit 
 that fiu'ther information of the precise way in which 
 these peculiar organisations affect the practical life of 
 the communities subject to them is greatly needed ■ 
 and I regret that Mr. Morgan's death prevented his 
 communicating to me the result of some investigations 
 
THE GENS. 289 
 
 on the subject which, he had promised to make. As 
 to the South Slavonian communities, the actual origin 
 of many of them has been recorded or is otherwise 
 known. With the limitations mentioned in the text, 
 they are composed of the descendants, through males, 
 of a common male ancestor. 
 
 I have said above that workers in the new field 
 of mvestigation opened , by the life and usages of 
 savage societies seem to me to be under some tempta- 
 tion to take mental operations for substantive realities. 
 Mr. Morgan, it is well known, considered that the 
 savage habit of grouping relatives in large classes, 
 without reference to degree — of grouping, for instance, 
 a man's father and his uncles together and calling 
 them all his fathers, or formmg his brothers and 
 male cousins in one class and calling them all his 
 brothers — is a relic of a state of society in which the 
 relations of the sex es were very unlike those to which 
 we are accustomed. Earnest, and indeed bitter, con- 
 troversies have already arisen on this theory of 
 Classificatory Relationship, and ingenious efforts 
 are from time to time made to identify and recover 
 the lost forms of marriage. May I suggest that it 
 is at least worthy of consideration whether all or 
 part of the explanation may not lie in an imperfection 
 of mental grasp on the part of savages ? The reader 
 of Dr. Macfarlane's remarkable ' Analysis of Relation- 
 ships of Consanguinity and Affinity' ('Journal of 
 Anthropological Institute,' xii. 1) will require no 
 further proof that the comprehension of a large body 
 of complex relationships demands a prodigious mental 
 effort, even now reqtiirmg for its success the aid of a 
 special notation. Some communities have surmounted 
 a part of the difficulty by giving separate names to 
 the nearer relationships, which is what Mr. Morgan 
 calls the Descriptive System ; but is there not ground 
 
 u 
 
290 THE GENS. 
 
 for a suspicion that the savage classification is after 
 all nothing more than a rude and incomplete attempt 
 at the mental contemplation of a tolerably numerous 
 tribal body ? Is it more than a conception of com- 
 plex relationship, reached by looking only at genera- 
 tions and by eliminating the idea of grade or degree ? 
 The rough view of a community as consisting of 
 generations is common enough. It appears alike in 
 the Hindu sacerdotal distribution of life into that of 
 the Student, the Householder, and the Ascetic, and 
 in the fine Greek song of the militant Dorians which 
 makes the men boast that they are warriors, the 
 children that they will be wai-riors some day, and the 
 old men that they were warriors once. 
 
CHAP. IX. DECAY OF FEUDAL PKOPERTY. 291 
 
 CHAPTER IX. 
 
 THE DECAY OF FEUDAL PROPERTY IN FRANCE 
 AND ENGLAND. 
 
 Considering the immense space whicli the first French 
 Revolution filled in the eyes of the generation which 
 immediately succeeded it, it is surprising at first sight 
 that the search after authentic materials for an opinion 
 concerning its causes, course, and character was for 
 a while but slackly prosecuted. A virtually inex- 
 haustible store of such materials existed in the cahiers 
 — ^the statements of grievances which, according to 
 the ancient practice of the French States- General, 
 were sent up from every administrative subdivision 
 of France to the body which became the first Con- 
 stituent Assembly. Yet it is only in comparatively 
 recent days that this and other similar stores of 
 historical wealth have been critically examined. The 
 story runs (I do not know whether it has found its 
 way into print) that a well-known German historian 
 once expressed his amazement at having pointed out 
 to him in Paris some dusty bundles of papers, with 
 the remark that they had lain undisturbed since 
 
 V 2 
 
292 DECAY OF FEUDAL PROPERTY IN chap. ix. 
 
 they were deposited in the Archives on the recon- 
 struction, after the close of the Reign of Terror, of 
 the gloomily famous Committees of Public Salvation 
 and General Security. ' But you have classical 
 histories of the Revolution,' he said ; ' have not these 
 documents been examined by their writers? ' ' No,' 
 was the reply, 'that is the dust of 1794.' 
 
 There is, however, some account to be given of 
 this neglect, especially as regards the cahiers. One 
 cause of it has undoubtedly been that preference for 
 general explanations of phenomena which has always 
 been a heavy drawback on French genius ; and the 
 general explanations of the first French Revolution 
 current in France are a multitude. But another, and 
 probably the most powerful, cause is the nearness of 
 the Revolution itself. De Tocqueville, who first dug 
 deep into the cahiers, and showed what great results 
 might be obtained by thoroughly exploring that mine, 
 has left the striking remark that no foreigner can 
 properly appreciate the state of sentiment in one 
 section of French society, where there is scarcely a 
 single family in which the guiUotining of a parent or 
 a near relative is not a recollection or a fresh tradi- 
 tion ; and one of the fruits of this condition of feel- 
 ing is a strong reluctance to connect the France of 
 the Revolution with the France of the Monarchy, 
 Another, and a much larger, portion of the nation 
 traces its political and social rights to the period 
 
CHAP. IX. FRANCE AND ENGLAND. 293 
 
 during which all this blood was shed ; and hence 
 arises a manifest disposition to regard the Bevolution 
 as a historical catastrophe, terrible but inevitable, and 
 to look on the society which succeeded it as no more 
 closely related to that which preceded it than is the 
 vegetation which has gi'own on the sides of Vesuvius 
 after an eruption to the vegetation which the lava 
 destroyed. Between unwillingness to find the 
 parentage of the Revolution in the old ?'egime before 
 it, and unwillingness to have its crimes placed in full 
 light, the first condition of scientific history, the 
 critical examination of its sources was too much and 
 too long overlooked. But of late, and mainly owing 
 to the influence of that invaluable work on the rela- 
 tions between Old and New France, on which De 
 Tocqueville was still engaged at his death, the busi- 
 ness of correcting preconceived opinions by the aid 
 of authentic historical materials has been rapidly 
 proceeding. Two interesting books, one by M. 
 Chassin (' Le Genie de la Revolution '), and the other 
 by M. Doniol (' La Rdvolution Fran^aise et la F4o- 
 dalit^ '), are among the first-fruits of renewed ex- 
 amination of the cahiers ■ and in the three volumes 
 of his ' Origins of Contemporary France,' which 
 M. Taine has lately published, he has given us in- 
 stalments of a work which, apart from its great 
 literary merits, is not unworthy to be compared 
 with De Tocqueville's fragment in the originality and 
 
294 DECAY OF FEUDAL PEOPERTY IN chap. tx. 
 
 carefulness of the research of which it gives proof 
 M. Doniol states that great quantities of the original 
 cahiers are to be found in the French Archives ; but, 
 though some of them were separately printed in 1789, 
 I am not acquainted with any collection of them 
 fuller than that published, many years ago, by 
 Prudhomme and Laurent de Mezieres. 
 
 But although the diligent prosecution of these 
 inquiries is comparatively recent, it has already led 
 to considerable results. Some new facts have been 
 discovered, some already known have been brought 
 into clearer light, and several errors have been de- 
 tected. Among the passages in the Revolution 
 hitherto obscure which may now be better under- 
 stood, one or two deserve especial remark. The 
 hostility of the cultivating peasantry to the territorial 
 nobility in all provinces of France except Brittany 
 and Anjou, has generally been recognised, not merely 
 as one of the causes of the Revolution, but as the 
 chief cause of the rapidity with which it gathered 
 head and of the comparative stability which it mani- 
 fested. The provincial cities and towns were slowly 
 drawn into the movement through the action of 
 Jacobin clubs, gradually established in them, and 
 taking their instructions from the central body in 
 Paris, which no doubt from the first was a furnace 
 of revolutionary agitation. But the peasantry, always 
 excepting those of the western provinces, were from 
 
CHAP. IX. FBANCE AND ElfGLAITD. 295 
 
 the very beginning enthusiasts for the destruction of 
 the ancient institutions, and so they remained until 
 they gained their objects. This universal hatred of 
 the peasants had for one of its effects a condition of 
 the country which, no doubt, has often perplexed the 
 reader of the ordinary histories. After a while France 
 became hermetically closed, and escape from the 
 guillotine became almost impossible. Some writers, 
 in explaining this, have attributed to Robespierre a 
 special genius for police organisation ; but the truth 
 seems to be that the cultivating classes, who at first 
 witnessed with pleasure the emigration of the nobility, 
 constituted themselves a voluntary police as soon as 
 they found that, by detaining the nobles in France, 
 they would probably send them to the scaffold. This 
 extremity of detestation is not sufficiently accounted 
 for by assigning general reasons for it. The com- 
 plicity of the peasants with the rulers of the Reign 
 of Terror was undoubtedly connected with a wish to 
 preserve certain advantages which they had obtained 
 just at the very period when France became a re- 
 public ; and similarly an earlier series of incidents, 
 which testify to the same unquahfied bitterness of 
 feeling, are now shown to have had a special rather 
 than a general cause. M. Taine has described in the 
 subdivision of his work called ' L'Anarchie Spon- 
 tande' those terrible outbreaks of violence which 
 occurred even as early as 1789, and which are 
 
296 DECAY OF FEUDAL PROPERTY IN CEiP. ix. 
 
 sometimes designated collectively the ' burning of 
 the chateaux.' What is now seen clearly, but had 
 only been suspected before, is that the acts of the 
 incendiaries had a distinct object.^ The object in 
 setting fire to a chateau was to burn the rauniment- 
 room ; and the object of burning the muniment-room 
 was to destroy the titres or title-deeds of the seigneur 
 of the fief — as we should say, of the lord of the 
 manor. All this would be hardly intelligible but 
 for a fact, now established, which possibly requires a 
 lawyer rather than an historian to appreciate it — the 
 fact that the French nobility were everywhere en- 
 gaged in never-ceasing litigation with the peasants. 
 The majority of the French nobles, it should be 
 understood, had little or no analogy to what we 
 understand by a landed aristocracy. A certain num- 
 ber of them, relatively but a few, had great estates ; 
 but the largest part of them had little or no land let 
 for rent to lessees or tenants-at-will. The multitude 
 •of petty noblemen and gentlemen — classes indistin- 
 guishable from one another in Old France — lived 
 
 ' See Taine, vol. i. of La Revolution (vol. ii. of the entire 
 -work), pp. 94 et seq. It will be observed in how many cases the 
 attack on the chateau ends with the burnins; or pillage of the 
 muniments. M. Taine observes that the anarchy was sure to 
 spread. ' Kemarquez,' he writes, ' que les chartriers et les titres 
 feodaux sont encore intacts dans les trois quarts de France 
 que le paysan a besoin de les voir disparaitre, et qu'il est toujonrs 
 ai m6.' 
 
CHAP. ix. FRANCE AND ENGLAND. 297 
 
 on tte moBey produce of the small incidental services 
 due, as we should say, from owners of land held in 
 copyhold to the lord of the manor. Thus they had 
 their finances, the ' fines ' of our copyhold tenure, the 
 dues payable to the lord by the peasant proprietor on 
 death or on the sale of his land. They had also their 
 monopolies, such as the obligation of the peasant to 
 send his grain to the lord's mill for grinding, or his 
 beast to the lord's market for sale. And they had 
 a number of miscellaneous and nondescript sources 
 of income, such as a sole right to have a dovecote 
 stocked with pigeons, which fed on the peasants' corn. 
 Now on the legal foundations of these privileges a 
 strong controversy was proceeding among the French 
 lawyers during the half-century preceding the Revo- 
 lution. Some maintained the legal doctrine which 
 had made great way in France at the period when feu- 
 dalism was really strong — Kulle terre sans seigneur, 
 ' No lord, no land.' On this principle, the presump- 
 tion was always in favour of the liability to feudal 
 dues, and the right to them could always be estab- 
 lished by prescription. But another school, no doubt 
 unconsciously influenced by the economical doctrines 
 which had excited such interest among the educated 
 classes in the latter part of the eighteenth century, 
 contended that the lord must show his titres, and 
 almost went the length of arguing that no feudal 
 rights had a legal basis unless documentary evidence 
 
298 BECAY OF FEUDAL PROPERTY IN chap. ix. 
 
 of title could be produced. The struggle between 
 the competing principles produced an enormous 
 amount of litigation, sometimes the lord encroaching 
 on the strength of one view, sometimes the peasant 
 on the strength of the other. In any event, the 
 title-deeds of the lord had become of the greatest 
 importance, and the advantage which the tenants 
 gained by their destruction is obvious enough. At 
 a later date it lost its vakie in the eyes of the 
 peasantry, because more drastic remedies for their 
 grievances had then been devised. The legislation 
 of the Constituent Assembly swept away the greatest 
 part of the feudal dues, and provided compensation 
 for only a part of them. The Legislative or Second 
 Assembly abolished the residue and withdrew the 
 compensation. The Convention, or Third, found 
 almost nothmg to destroy, though it was passionately 
 eager to fasten on a hated institution, and though 
 the Revolutionary lawyers, who abounded in it, were 
 the real authors of the legislative provisions, after- 
 wards engrafted on the Code Napoleon, which for 
 ever prevented the revival of feudal ownership in 
 France. The transfer of property from one class to 
 another through the abolition of the feudal dues was 
 much more important than has been commonly 
 supposed, and had much greater mfiuence over the 
 course of the Revolution. "When in fact the Revolu- 
 tion ceased to be a social movement, it lost the 
 
cnAP. IX. FRANCE AND ENGLAND. 299 
 
 greatest part of its aliment, and nothing remained 
 for its authors except to tear one another to pieces. 
 
 While, however, the re-examination of the cahiers 
 has placed beyond question the character of the griev- 
 ances of the French peasantry, it has raised some 
 new problems. Bitterly and strongly as these griev- 
 ances were felt, were they of extraordinary propor- 
 tions? Does the comparison of the relations between 
 the French peasant and his lord with similar relations 
 in other countries suggest that the small cultivator 
 in France had exceptional and intolerable burdens to 
 bear? 
 
 If I were to say that the first French Revolution 
 took place because a great part of the soil of 
 France was held on Copyhold Tenure, the state- 
 ment would doubtless sound like a paradox. Those 
 who have any practical knowledge of Copyhold, know 
 it to be certainly an inconvenient form of landed pro- 
 perty, but hold it probably to be, like all property, 
 rather a privilege than a grievance. Those again who 
 have paid any attention to its history, have possibly 
 heard that Copyhold Tenure has descended from the 
 precarious holdings of Bondmen or Slaves, a condi- 
 tion to which the greatest part of the Anglo-Saxon 
 population is supposed to have been reduced after the 
 alleged destruction of the ancient land -law of England 
 and confiscation of its soil by William the Conqueror. 
 The popular theory of the origin of Copyhold, or at 
 
300 DECAY OP FEUDAL rROPEETY IN chap. tx. 
 
 all events the theory in which most lawyers are edu- 
 cated, is explicitly set forth in a tract on the ' Use of 
 the Law,' commonly printed in collections of the 
 writings of Lord Bacon (Spedding's edition, vol. vii. 
 pp. 481 et seq.) The Conqueror is described as 
 having ' got by conquest all the land of the realm 
 (except Church lands and the lands of Kent) into his 
 own hands in demesne, taking from every man all 
 estate, tenure, property, and liberty of and in the 
 same.' He then distribiited the soil of England 
 among his tenants in capite, ' reserving some retri- 
 bution of rents or services or both to him and his 
 heirs ' ; and ' by example and resemblance of the 
 king's policy in these institutions of tenures, the great 
 men and gentlemen of the realm did the like as near 
 as they could.' Each of them, after reserving to him- 
 self the land in the immediate neighbourhood of his 
 mansion-house, or manor, gave a cei'tain portion of 
 the ' uttermost parts ' of his estate to some ' trusty 
 servants, to find a horse for war and go with him 
 when he went with the king to the wars, . . . 
 which tenant is called a tenant of knight- service.' 
 Smaller parcels of land he assigned to socage tenants, 
 who were to plough part of the domain of the lord 
 and bring home the harvest ; and the remainder of this 
 domain, ' which he kept to himself,' he cultivated by 
 his bondmen, and ' he appointed them at the courts 
 of his manor how they should hold it, maldng an 
 
CHAP. IX, FRANCE AND ENGLAND. 301 
 
 entry of it into the roll of his court ; yet still in the 
 lord's power to take it away ; and therefore the^ were 
 called tenants-at-will by copy of court-roll, being in 
 truth bondmen at the beginning ; but, havmg at- 
 tained freedom of their persons, they are now called 
 copyholders, are and so privileged by the custom that 
 the lord cannot put them out.' The writer adds that 
 ' Manors being in this sort at first made, it grew out 
 of reason that the lord of the manor should hold a 
 court, which is no more than to assemble his tenant.^ 
 at times to be by him appointed. . . . This court is 
 caUed a Court Baron ; and herein a man may sue for 
 any debt or trespass under forty shillings' value ; and 
 the freeholders are to judge of the cause upon the 
 proofs produced on both sides.' 
 
 The tract on the ' Use of the Law ' appears to be 
 wrongly attributed to Lord Bacon, who has elsewhere 
 shown that he had much sounder ideas than its writer 
 of the true history of English institutions. The 
 account, however, which it gives of the origin of 
 Manors and of copyhold tenures is the one which, on 
 the whole, has generally prevailed, and there is un- 
 doubtedly a good deal in the received authorities on 
 copyhold to suggest it. Yet it is certainly not true, 
 and perhaps the least drawback on it is that it is 
 not true. For, by substituting for the truth a set 
 of plausible fictions, it gives a wrong point to some 
 instructive political lessons, and has besides the 
 
302 DECAY OF FEUDAL PROPERTY IN chap. ix. 
 
 mischievous indirect effect of disguising from us that 
 institutions, like forms of organic life, are subject to 
 the great law of evolution. 
 
 The real facts are being gradually, though but 
 slowly, established by very recent researches, but, so 
 far as they can be stated in the space at our com- 
 mand, they are as follows : — 
 
 When Western Europe has settled down into com- 
 parative peace after the deadly strife which followed, 
 first, the irruption of the Germanic races into the 
 Roman provinces, and next, the disruption of the Car- 
 lovingian Empire, and when the feudal world has at last 
 been constituted, it wears superficially a variety and 
 irregularity of outline very unlike the apparent uni- 
 formity of the Roman Empire. But, on close inspec- 
 tion, all feudal society is seen to be a reproduction of 
 a single typical form. This unit consists of a group 
 of men settled on a definite space of land, and form- 
 ing what we Englishman call a Manor, and what in 
 France was called a Fief. The great misconception 
 which runs through the account of this group which 
 I took from the tract passing under Bacon's name, is 
 as follows : the writer regards the Manor entirely as 
 a mode of property, the manorial organisation as a 
 mere proprietary arrangement. But the Manor or 
 Fief, in its origin, was as much a political as a proprie- 
 tary body, as nearly akin to a State as to an Estate. 
 It retained even in its decay some of the characteristic 
 
CHAP. IX. FKANCE AOT) ENGLAND. 303 
 
 and curiously persistent marks of Aryan political 
 organisms. The Lord is the j3acn\ev?, the rex, the 
 king.^ The free tenants are the yepovcria, the 
 senate, the council. The villeins are the mass of 
 the people ; and below them are the true bondmen, 
 the slaves, or thralls, or, in later legal language, the 
 villeins in gross. The Signorial Court, the Court 
 Baron, is the ancient village assembly, in which the 
 administration of justice has now taken precedence of 
 other public concerns, but in which those public con- 
 cerns continiie to be discussed, the lord presiding, 
 the free tenants advising, the villeins attending with- 
 out definite share or voice in the dehberations, like 
 the crowd in the Homeric Agora. Those fines, dues, 
 and monopolies which still annoy the English copy- 
 holder of our day, which went far to cause the first 
 
 * In the series of papers, called ' Souvenirs d'Enfance,' which 
 M. Eenan is publishing in the Bevue des Devx Mondes, he de- 
 scribes a class of territorial nobles who were found in Brittany, 
 just before the Revolution, and who were quite distinct from the 
 later nobility of royal creation. They had fallen into great 
 poverty, but they received much consideration from the peasantry, 
 who regarded them as the lay chiefs of the parishes of which the 
 cur6s were the ecclesiajstical heads. M. Renan mentions the re- 
 markable fact that they touched for the king's evil. He says of 
 one of them : ' On croyait que comme chef il etait d6positaire de 
 la force de son sang, qu'il possedait eminemment les dons de sa 
 race, et qu'il pouvait avec sa salive et ses attouchements la relever 
 quand elle 6tait affaiblie. On 6tait persuade que pour op^rer des 
 gu^risons de cette sorte il fallait un nombre enorme de quartiera 
 de noblesse.' — Bevue des Devx Mondes, March 15, 1876. 
 
304 DECAY OF FEUDAL PROPERTY IN chap. ix. 
 
 French Revolution, and wHcli had to be cleared away 
 by a timely stroke of statesmanship before Prussia 
 could begin a struggle to relieve herself from French 
 military despotism, were in their origin rather in the 
 nature of taxes than in the nature of rent. They 
 represent the ancient provision for the service of the 
 little village commonwealth. Some of them may 
 have sprung from the oppressions of the lord, and some 
 from agreement with him ; but the greatest part had 
 their origin in regulated force, the sovereignty of the 
 little State. 
 
 The Lord, the Seigneur of France, is answerable 
 for the conduct of the whole manorial group to its 
 superiors and its neighbours. He is the manager or 
 governor of the little society, with the advice of his 
 free tenants. He is arbiter of its affairs in the sig- 
 norial court. He is not the owner of all the land of 
 the Manor ; but he generally owns some of it under 
 the name of his domain. Much, however, of his 
 revenues, and here and there the most important part 
 of them, consists of the various dues payable to him 
 from all classes of his tenants. Immediately under 
 him are his freeholders, who render him military or 
 other honourable service and do suit, which involves 
 giving an opinion on the judicial or other matters 
 arising in the Court Baron. But the greatest part of 
 the land included in the Manor or Fief, in some cases 
 much the largest part of it, is in the hands of the 
 
CHAP. IX. FRANCE AND ENGLAND. 305 
 
 Villeins. It was inevitable that the position of this 
 stratum of the manorial community should be much 
 misunderstood until the Comparative Method of In- 
 quiry let in light upon it through observation of those 
 more backward societies which have preserved to our 
 days the life and social forms of the eleventh and 
 twelfth centuries. The villeins owe to the lord all 
 sorts of dues and services, personal labour, among 
 others, on the lands which form his domain ; they 
 may not leave the Manor without his permission ; no 
 one of them can succeed to the land of another with- 
 out his assent ; and the legal theory even is that the 
 movable property of the villein belongs to the lord. 
 Yet it may confidently be laid down that, in the 
 light of modern research, none of these disadvantages 
 prove an absolutely servile status, and that all may 
 be explained without reference to it.^ Those who 
 remember that, twenty-five years ago, the Russian 
 serfs were popularly supposed in England to be as 
 much slaves as the negroes of a Mississippi plan- 
 ter, but nevertheless are aware that under the great 
 
 ^ Bracton most clearly explains that in the thirteenth cen- 
 tui-y "Villenage was a tenure and not a personal status. Either a 
 freeman or a, bondman might hold in villenage, but ' the tene- 
 ment changes not the condition of a freeman any more than of a 
 slave. For a freeman may hold in mere villenage, doing whatever 
 service thereto belongs, and shall not the less be free since he does 
 this in regard of his villenage and not in regard of his person.' I 
 give the whole passage in Note A to this chapter. 
 
306 DECAY OF FEUDAL PEOPEETT IN chap. ix. 
 
 measure of 1861 the serfs, and not the lords, obtained 
 much the largest part of the land, may be prepared 
 for the assertion that the villeins of the middle ages 
 were never in the strict sense of the word slaves, 
 and never ceased to be in some sense landed pro- 
 prietors. 
 
 To the typical form which I have described, 
 Kingdoms were adjusted no less than Manors. The 
 sovereign who became the most powerful in Europe, 
 the King of France, was the lord of an exalted 
 Manor. His free tenants were the Dukes of Nor- 
 mandy and Burgundy, the Counts of Toulouse and 
 Champagne ; his domain consisted of Paris and of 
 the old Duchy of France. These continental insti- 
 tutions were reproduced in England, but, as has often 
 been the case, with a difference. The great power of 
 the early Anglo-Norman kings came from their 
 allowing nobody to be absolutely interposed, like a 
 Duke of Burgundy, between themselves and their 
 subjects, and from their exacting fealty and therefore 
 military service from all Englishmen (Freeman, ' Nor- 
 man Conquest,' iv. 694). We can trace the Manorial 
 group backwards to an earlier social form, a body of 
 men democratically or rather aristocratically governed, 
 in which the free tenants had as yet no lord, the 
 village community.* We can also trace its gradual 
 
 * See Note A to this chapter, ' Village Communities and 
 Manors.' 
 
CHAP. IX. FKAUCE AND ENGLAND. 307 
 
 dissolution, untU the forms of landed property were 
 established with which we are all familiar. The 
 exact point before us is, Why did the Manor in its 
 decay produce such different results in England and 
 France? Why did its transformation end in one 
 country in a revolution which is an epoch of history ? 
 Why, in another, in a somewhat inconvenient form of 
 landed property? 
 
 It is, in the first place, to be observed that the 
 French peasant tenures of 1789 wear, externally, the 
 strongest resemblance to the copyhold tenures which 
 were found at the same date in England, and which 
 indeed still survive, though their area is miich 
 limited. From my own researches, I should be 
 inclined to doubt whether there is a single service of 
 the French peasantry established by authentic evi- 
 dence of which at least a trace cannot be discovered 
 among the incidents of English copyholds. Arthur 
 Young, who travelled just before and just after the 
 outbreak of the Revolution, singles out certain French 
 services for their especial grotesqueness, but feudal 
 obligations nearly answering to several of them are 
 mentioned by one or other of the witnesses examined 
 by the Select Committee of the House of Commons 
 on Copyholds which sat in 1850 and 1851. There 
 are, no doubt, certain alleged incidents of the French 
 tenure, implying an extreme degradation of the 
 tenant, which do not appear to have ever had their 
 
308 DECAY OF FEUDAL PHOrERTY im chap. tx. 
 
 counterparts in England, though they have been 
 thought to be discoverable in the half-legendary 
 history of Scotland ; but the evidence of them has of 
 late been considered to be extremely doubtful, and it 
 certainly consists in some cases of a misapprehension 
 of the meaning of old French juridical terms. On the 
 whole, the correspondence of the French and English 
 tenures is remarkably close ; and nothing can exceed 
 the surprise of M. Doniol — the first of his country- 
 men, I believe, who has become alive to this corre- 
 spondence — that grievances which all his authorities 
 declare to have brought about the great Revolution, 
 are in England grievances of no political significance 
 whatever. M. Doniol has imagined the following 
 ingenious illustration of the disadvantages of the 
 existing English copyhold tenure. He supposes a 
 capitalist from the South of England beginning 
 negotiations for the purchase of an estate iii the 
 North which has struck his fancy. His solicitor tells 
 him that Manors abound in the Northern counties, 
 and that the estate is mostly copyhold. On further 
 inquiry, he is informed that the land is subject to 
 arbitrary fines — the finances of old French law — and 
 that a sum of money is therefore payable to the lord of 
 the manor every time a copyholder dies or sells his 
 land-; and every time the lord dies, a similar sum 
 must be paid to his successor. These arbitrary fines 
 were once really arbitrary, but the King's Court long 
 
CHA.P. IX. FRANCE AXD ENGLAND, 309 
 
 ago declared that (save in some very exceptional 
 cases) they must be reasonable and must not ^exceed 
 two years' value of the land. The consequence, 
 however, is, that every time any one in a series of 
 hereditary copyhold tenants (father, son, or grandson) 
 dies, and every time a death occurs in a similar series 
 of lords of the manor, two years' value of the land 
 must be paid. Hence, M. Doniol's would-be pur- 
 chaser is -warned that it never can be worth his while 
 to make improvements on his property, since they 
 would only add to the standard of the tine leviable 
 in these eventualities. He is further warned that, 
 on his death, the most valuable piece of personal 
 property he possesses will be liable to be seized by 
 the lord under the name of a Heriot ; and it is a fact 
 that the Pitt Diamond and the famous picture of 
 Rubens, the ' Chapeau de Paille,' which is the gem 
 of the Peel Collection in the National Gallery, were 
 barely saved from seizure as Heriots, and the most 
 valuable racehorse of its time was actually seized, 
 their owners happening to have some fragments of 
 copyhold amid their estates. M. Doniol's solicitor 
 then goes on to enumerate a number of smaller 
 inconveniences of the tenure. One of them was in 
 France one of the chief grievances of the peasantry. 
 On beipg properly summoned the copyholder must 
 supply a man to assist in reaping the lord's harvest. 
 In old France, the peasant went himself, but in 
 
310 DECAY OF FEUDAL PEOPERTY IX chap. ix. 
 
 England it merely comes to this, that the copyholder 
 loses a day's work of one of his lahourers ; the lord, 
 however, does not gain it, for the labourer sent to him 
 does as little work as possible, and by the custom he 
 is entitled to a dinner, which is worth more than the 
 vakie of his labour at its best. 
 
 M. Doniol concludes by asking who in his senses 
 could buy such a property. The incidents of copy- 
 hold which he specifies have a real existence and 
 are very familiar to lawyers ; many others equally 
 singular in the eyes of a foreigner were described to 
 the Select Committees of the House of Commons. 
 Nevertheless, sis M. Doniol himself admits, there is 
 a certain fallacy in his account. For purposes of 
 illustration, he assumes that all copyhold land is 
 burdened everywhere with these onerous services. 
 The truth is that, the picture is made up by uniting 
 burdens spread over a great number of manors ; and 
 it may be asserted generally that in the southern 
 counties of England manorial liabilities are seldom of 
 much importance ; and everywhere they have been 
 extinguished in great quantities during the last five- 
 and-twent}'^ years by the proceedings of the Copyhold 
 Commissioners. 
 
 The reasons which may ultimately lead to the 
 compulsory enfranchisement on equitable terms of all 
 English copyhold land are not at all likely to be the 
 grievances of the copyholder. If he were to urge them, 
 
CHAP. IX. FRANCE AND ENGLAND. 311 
 
 the answer openly or tacitly given would be that he 
 is fortunate to have even an inconvenient kind of 
 property, and that he is no more entitled to the 
 public pity than a shareholder in a railway which 
 pays intermittent dividends or none at all. Very 
 probably he would be told that, whatever be the 
 disadvantages of his property, they were doubtless 
 allowed for in the price which he or his predecessors 
 paid for it. The grounds on which enfranchisement 
 will be enforced, if at all, will be, that copyhold 
 tenure is an obstacle to agricultural improvement, on 
 which it entails a direct penalty, and that it is a 
 restraint on the productiveness of the soil. It is to 
 be remarked, however, that this reasoning, or at least 
 its cogency, is exti'emely modern. As recently as 
 two centuries ago, an observer, not over- sensitive to 
 other people's interests, described the grievances of 
 copyholders in language curiously like that used of 
 the wrongs of the French peasantry in the calders 
 sent up to the French States -General. Roger North, 
 in his delightful book, ' The Lives of the Norths,' tells 
 us that the Lord Keeper Guilford qualified himself 
 for practice at the bar by acting as the steward of 
 various manors, and he quotes a good deal of the 
 Lord Keeper's conversation on the subject of manorial 
 rights, Guilford was in the habit of saying that he 
 found himself the executioner of the cruelty of the 
 Lords and Ladies of Manors upon poor men ; that 
 
312 DECAY OF FEUDAL PEOPBRTY IN chap. ix. 
 
 small tenements and pieces of land which had been 
 men's inheritances for generations were devoured by 
 fines ; that it was wonderful how Parliament, which 
 took away the royal tenures in capite, had never 
 relieved the poorest landowners of the nation from 
 extortion and oppression, and that the tenure ought 
 to be abolished. Here is the very muttering of the 
 volcano before the French revolutionary eruption ; 
 but there is this difference, that the class compassion- 
 ated by North is a relatively small one as well as a 
 poor one, for he goes on to observe on the large 
 number of manors which had become altogether or 
 partially extinct in England. 
 
 Now, if a hundred years ago, a great part of 
 the class which, as a fact, consisted of agricultural 
 labourers, and a considerable part of the class which, 
 as a fact, consisted of tenant farmers, had been made 
 up of copyholders standing to the Lord of the Manor 
 in the relations which North describes, and if, under 
 the law of the equal division of property these copy- 
 holders were constantly multiplying their numbers 
 without severing themselves from the land, thei'e 
 would have been in this country a state of agrarian 
 society very nearly resembling that of France. It 
 must be allowed, I thmk, that if no similar convulsion 
 had resulted from it, it would not have been for want 
 of explosive material. As a matter of fact, nothing 
 of the kind occurred, and the very suggestion of an 
 
CHAP. IX. FHAlfCE AND KKGLAND. 313 
 
 English Revolution caused by the oppression of 
 copyhold tenants strikes every one as an absurdity. 
 How then came the feudal edifice of which the 
 outline had been extremely similar in England and 
 France, to break into such diiFerent shapes? How- 
 came the same institution to become a grievance of 
 the first order in one country, at most an incon- 
 venience in the other? The answer to this question 
 divides itself into many branches ; some of them I 
 could not follow without retracing much of the long 
 and intricate history of English land-law, and without 
 using much technical language, but the consideration 
 of a few may not be out of place here. 
 
 One powerful cause of the difference lay in the 
 strong distinction between the judicial organisation 
 of France and of England. In both countries, a 
 considerable part of the popular law, the law which 
 affected the mass of the people in most of their 
 concerns, had been once administered by the local 
 courts, the Manor courts, and signorial courts, pre- 
 sided over theoretically by the lord, but practically 
 by an expert deputy, the steward, attorney, or hailli. 
 The French signorial court is extinct, and the only 
 picture which remains is a caricature, in the play of 
 Beaumarchais called the ' Mariage de Figaro.' Yet 
 even the sketch of Beaumarchais is a sketch of a 
 tribunal in its way powerful and important, and thus 
 very unlike those Manor courts which, though still 
 
314 DECAY OF FEUDAL PROPEKTV IS chap. jx. 
 
 summoned in our day for the transaction of business, 
 betray in every part of their proceeding their extreme 
 decay. A century since, the English Manor court 
 was very much what it now is ; but the signorial 
 court of France was a comparatively flourishing 
 institution. The English country gentleman, who 
 was lord of the manor, was administratively a person- 
 of great authority and influence ; but his ancient 
 jurisdiction was in extreme decrepitude, and the only 
 judicial powers which he prized were probably those 
 which he derived, as a Justice of the Peace, from the 
 King. The French Seigneur, on the other hand, was 
 administratively a cipher ; as Tocqueville has pointed 
 out, the agents of the centralised royal authority had 
 usurped all serious administrative functions ; but 
 then the court of his signory, though it had lost 
 much, had retained a good deal of its ancient autho- 
 rity and activity. 
 
 The different condition of the local jurisdictions 
 in the two countries was certainly due to the different 
 action upon them of courts outside and above them. 
 In England the King's Courts at Westmmster Hall 
 constantly corrected the jurisdiction of the manorial 
 courts, limiting the area of land subject to it, confin- 
 ing it rigorously to specific cases, and strictly pre- 
 scribing the manner in which it should be exercised. 
 The heads of the little manorial societies long 
 struggled against what they deemed to be an usurpa- 
 
CHAP. IX. FRANCE AND ENGLAND. 315 
 
 tion. Too few manor rolls have been published ; 
 but in those which have been made accessible you 
 frequently find the lord and the homage (that is, the 
 assembly of free tenants) making rules against resort 
 to the King's Court. Thus, if we turn to page 239 of 
 Mr. Scrope's ' History of the Manor of Castle Combe,' 
 we find an entry of a distress made on the goods of a 
 copyholder for violating the constitutional rule (com- 
 munis ordinatio) of the Manor, that 'no tenant is in 
 any way or for any reason to implead, or procure the 
 impleading of any other tenant, in any external 
 court.' Not only did the King's Courts disregard all 
 such rules, but they established the principle that 
 the lord might be made to answer to the King for 
 any excess of his authority, or of his customary privi- • 
 leges. Some of the best-known principles limiting 
 manorial rights were settled in this way ; among 
 others, the doctrine which in its origin must have 
 been most beneficial to the copyholder, that all so- 
 caUed arbitrary fines must be reasonable, the standard 
 of reasonableness being taken at two years' value. 
 The most destructive influence exercised by the 
 King's Courts over the manorial jurisdictions con- 
 sisted probably in the inclination of the higher 
 tribunal to narrow the area of land held on tenures 
 traceable to the ancient villenage. The King's Court 
 would bind a lord to prove strictly that a parti- 
 cular piece of land was copyhold. The free tenure, 
 
316 DECAY OF FEUDAL PROPERTY IN chap. ix. 
 
 teclinically called socage, was thus always extend- 
 ing at the expense of servile tenures ; and Roger 
 North expressly tells us that, at the time of 
 which he writes — that is, about the middle of the 
 seventeenth century — ' most manors in England 
 were more than half lost.' 
 
 What the Courts at Westminster Hall were to the 
 English Manor, the French Parliaments were to the 
 French Fief. They were originally creations of the 
 King ; the pedigree of the Parliament of Paris is as 
 distinctly traceable as that of the Queen's Bench to the 
 ancient Curia Regis ; and originally the Parliaments 
 were as untiring as the Courts of the English Kings, 
 and in the teeth of far fiercer protests from the French 
 ■ nobility, in extending the authority of royal law at 
 the cost of local law. Not only did they employ 
 against the signorial courts the same weapons which 
 were used by the English judges, but they borrowed 
 a special instrument of attack from the Roman law, 
 by insistmg on their right to hear appeals from all 
 subordinate jurisdictions. Yet there is no doubt 
 that this hostility slackened after a while. Although, 
 as I before said, a special current of decision set in in 
 the latter half of the eighteenth century, yet, on the 
 whole, the later doctrine of the French Parliaments 
 was ' Nulle terre sans seigneur ; ' and thus there was 
 always a presumption against the existence of the 
 free tenure most nearly corresponding to our socage. 
 
CHAr. rx FEANCE AND ENGLAND. 317 
 
 The Parliament of Paris, just before the Revolution, 
 ordered the work of Boncerf, ' On the Inconveniences 
 of Feudal Rights,' to be publicly burnt ; and the 
 decree no doubt testifies to the opinions most strongly 
 and permanently held by the majority of the French 
 judges.. 
 
 There is a general agreement among historians of 
 French law that this later tenderness of the French 
 Parliaments to signorial rights and signorial jurisdic- 
 tions is attributable to the interest which the French 
 ' nobility of the gown ' had acquired in signorial 
 privileges. The change of feeling is connected with 
 the innovation, generally regarded as disastrous, by 
 which offices in the great French judicial assemblies 
 became purchasable and hereditary. Thenceforward, 
 as M. Fustel de Coulanges has observed, a judge was 
 almost invariably a man of inherited wealth ; in the 
 France of that day, the only investment for wealth 
 was land or interests in land, and proprietorship was 
 just as likely to consist in a right to signorial dues 
 as in ownership of the soil. I am not in a position 
 to controvert this view ; yet I may venture to inter- 
 pose the remark that the student of English history 
 will perhaps doubt whether in all states of society 
 the saleableness of judicial office is an unmixed evil. 
 Our associations with the French Parliaments do 
 them a certain amount of injustice. They had in 
 fact inherited, from a time when legislative and 
 
.318 DECAY OF FEUDAL PEOPERTY W chap. ix. 
 
 judicial power were not clearly separated from one 
 another, a claim to check the legislation of the Kings 
 of France, by refusing to register their edicts when 
 they were, as we should say, unconstitutional. Their 
 not always wise and almost always feeble efforts to 
 stand in the way of high-handed legislation, are apt 
 to lead us into contrasting them unfavourably with 
 that famous body bearing the same name which has 
 so long made laws for Englishmen. But, as courts 
 of justice, they were extremely remarkable, more 
 especially for having much of that independence 
 which we are used to consider a natural and necessary 
 characteristic of legislatures. The very defects of their 
 constitution contributed to this independence. While 
 the justice administered in the English Courts was 
 from very early times more emphatically than in any 
 other European country the King's Justice — while 
 each of the four Stuart Kings found no difficulty in 
 packing the English bench with his creatures — the 
 seats in a French Parliament were filled by men who 
 retained a certain measure of independence, exactly 
 because they had purchased or inherited their offices. 
 The Parliaments may be justly taxed with many 
 faults, but they wei-e never servile instruments or 
 pliant nominees of the King, down to the day when 
 the States-General, which had not met since 1614, 
 again assembled in 1789, and ground the King and the 
 Parliaments and all French institutions to powder. 
 
CHAP. IX. FRAN'CE AND ENGLAND. 319 
 
 There vrere other causes, besides the tendency of 
 judicial decision in the King's Courts, which helped 
 to prevent the growth in this country.of that spirit 
 of discontent which exploded among the French 
 peasantry in 1789 and 1790. I have no doubt that 
 we must reckon amono^ them that asccrregation of 
 property in large estates which is of old date in this 
 country, though the pace at which it has proceeded 
 has greatly increased of late. It may have produced 
 other evils, but it reduced the particular evil of which 
 I have been speaking to insignificant proportions. I 
 could not fully account for this aggregation without 
 entering upon the technical history of land-law ; but 
 one of its economical causes may be noticed here. 
 The English Lords of Manors — a class which, it must' 
 be borne in mind, includes the forerunners of both 
 the English nobility and the English gentry — had 
 been originally much poorer than the corresponding- 
 order in France. The forerunners of the French 
 nobility had settled or risen to power in some of the 
 wealthiest, most populous, and most highly cultivated 
 provinces of the Roman empire ; and the imposts 
 which afterwards became their feudal dues gave them 
 no doubt great relative opulence. But England was a 
 country of large forests and wastes, as indeed might 
 be inferred from Macaulay's famous Third Chapter, de- 
 sci'ibing its condition in comparatively modem times. 
 Now one of the best ascertained incidents in the 
 
320 DECAY OP FEUDAL PROPERTY IN chap. is. 
 
 growth of feudalism is the falling of the waste lands 
 of the manor into the hands of the lord, and a par- 
 ticular circumstance gave an especial importance to 
 this gradually acquired property. England in the 
 middle ao;es had a source of national wealth which can 
 only be compared with our present coal and iron, 
 with the wines of modern France, or with the gold 
 of Australia and California. Her soil, her climate, 
 and doubtless her tenures, were specially fitted for 
 the production of wool — those ' wools of Eiigland ' 
 which the King, in the Roll of the Ordinance of the 
 Staple, is made to call ' the sovereign merchandise 
 and jewel of our realm.' The English wool supplied 
 the industrious cities of Flanders with material for 
 their looms, and was carried to all points of the 
 Mediterranean seaboard. This it was which turned 
 a poor nobility into a rich nobility ; and, when the 
 Wars of the Roses have closed, a popular movement 
 which has attracted too little attention and which has 
 been much misunderstood shows the English lords of 
 manors rapidly acquiring land, and acquiring it for 
 purposes of sheep-farming and of agriculture on a 
 great scale. But the French noblesse seem to have 
 never been able to buy up the holdings of their 
 former villeins. A certain number of them had the 
 vast estates described in M. Taine's recently pub- 
 lished volumes ; but, taking France as a whole, and 
 excluding Church and Crown lands, the sense of 
 
CHAP. IX. FRANCE AND ENGLAND. 321 
 
 property in land was not in the seigneur but in the 
 peasant. It is one of the most vulgar of errors to 
 suppose that small properties in France date from the 
 Revolution ; immediately before it, Arthur Young, 
 one of the most observant of English travellers, ex- 
 presses himself as amazed at their multitude. And 
 this multitude was increasing, since the peasants were 
 buying up the domains of the richer nobility, ruined 
 by the court hfe at Versailles. But all this mass of 
 petty proprietors was subject to the payment of feudal 
 dues and to the curtailment of their profits by small 
 monopolies ; and we may gain a feeble notion of the . 
 exasperation which the system caused by recalling 
 the days when the English farmer had to allow the 
 tithe-owner's agent to take every tenth sheaf from 
 his field. But perhaps fiction is even more instruc- 
 tive on the point than history. Turn to the ' Bride 
 of Lammermoor,' and gather from it the opinion 
 which the feudal tenants of the Lord of Ravenswood 
 had of the raids of Caleb Balderstone on Wolfshope 
 — extend this to a whole population and understand 
 that a legion of Caleb Balderstones overran France — 
 and one may be able to bring home to oneself the 
 view which the French peasantry took of the insti- 
 tutions under which they lived. 
 
 If we turn to England, we have reason to think 
 that, by the end of the last century, the bulk of the 
 class corresponding to the French peasantry consisted 
 
 T 
 
322 DECAY OF FEUDAL PEOPERTY IN chap. ix. 
 
 either of agricultural labourers or of tenant farmers. 
 Doubtless mucb might be said on the excessive 
 multiplication in this country, as compared with 
 others, of the first portion of this class, the agri- 
 cultural labourers ; but the tenant farmers, though 
 not given to hide their grievances, have never been 
 politically dangerous. It is not indeed to be sup- 
 posed that the Copyholder, cultivating his own land, 
 is never found even now ; probably a part of the 
 very considerable number of small landowners which 
 the so-called new Domesday Book shows to be left to 
 us consists of this class. Several of them were ex- 
 amined by the Committees of the House of Commons 
 which inquired into copyhold tenures, and they were 
 pressed with the question whether they were not at 
 all events better off than the farmer holding on lease 
 who paid a rent, not at irregular periods, but re- 
 gularly every half-year. The true answer is, that a 
 copyholder is not a hirer but an owner of land, but 
 the comparison implied in the question is significant. 
 No doubt the status of the tenant farmer has had 
 much effect on the feeling of cultivating copyholders. 
 It has served as a standard with which, to compare 
 their own condition ; and indeed it is a fact now 
 known to lawyers that copyholders in the sixteenth 
 and seventeenth centuries frequently impaired their 
 legal position by accepting leases of their land from 
 the lord of the manor. But the French peasant. 
 
CHAP. IX. FRANCE AND ENGLAND. 523 
 
 holding by servile tenure, never compared himself 
 with the farmers of the domain land of the nobles, 
 who were a very special class, the metayers, not only 
 hiring their land from the lord, but having it stocked 
 by him. The peasant compared his lot with that of the 
 nobles themselves, and bitterly chafed at the contrast. 
 I have yet to mention one cause which perhaps 
 more than any other prevented not only manorial 
 rights but all rights in land from being seen in 
 England at the end of the last century in precisely 
 the same light in which they were viewed in Conti- 
 nental countries. It is a fact of great political and 
 juridical interest that from very early times landed 
 property changed hands by purchase and sale more 
 frequently in England than elsewhere. The unusual 
 legal facilities for this which existed here belong to 
 that technical history of law from which, as before, 
 1 abstain ; but it was certainly the early wealth of 
 the country which led chiefly to these transfers. 
 Some jurists have laid down, as a general principle, 
 that every acquisition of property is founded on a 
 previous contract or agreement. This no doubt is 
 historically untrue, but the mistake is one which is 
 closely connected with some of the. most widely 
 received ideas of the eighteenth century. The sacred- 
 ness of contract was one of the fundamental ideas 
 of the French philosophical creed, and it strongly 
 influenced the proceedings by which the manorial 
 
 Y 2 
 
334 DECAV OF FEUDAL PEOPERTY IX chap. ix. 
 
 rights of the French nobility were taken away. In 
 tlie end, the nobles received no compensation for the 
 loss of these rights ; as the flame of revolution 
 o-athered head, it was as much as they could do if 
 they saved their lives. But this was not at all 
 intended by the First or Constituent Assembly. It 
 abolished without compensation those rights only 
 which it supposed to have sprung from the ancient 
 helplessness of the villein ; but wherever any class of 
 rights seemed to it to have originated in a contract 
 between the lord and his vassal, it abolished them 
 indeed but provided for the lord's receiving their 
 money-value. The distinction did soine honour to 
 the spirit of justice prevailing in the First Assembly, 
 but no doubt it was founded on historical error. 
 There is no reason for supposing that manorial rights 
 originated in simple violence, but there is equally 
 little for supposing that any large number of them 
 originated in agreement. 
 
 What, however, was untrue of France, was true 
 in a certain sense of England, and is still truer now. 
 The title of the Lord of the Manor and the title of 
 the Copyholder were then, as now, far more deeply 
 rooted in agreement than in any other deeply feu- 
 dalised country. The lord had often, personally, or 
 through his predecessors, purchased his rights ; the 
 copyholder had constantly obtained his land subject 
 
OHAP. IX. FRANCE AND ENGLAND. 325 
 
 to manorial rights, by purchase from somebody else. 
 It will be found that English political economy and 
 English popular notions are very deeply and exten- 
 sively pervaded by the assumption that all property 
 has been acquired through an original transaction of 
 purchase, and that, whatever be the disadvantages of 
 the form it takes, they were allowed for in the con- 
 sideration for the original sale. I cannot doubt that 
 this assumption, to a very great extent a true one, is 
 a very valuable safeguard to property ; perhaps in 
 our day not less valuable than the general sense of 
 its expediency and than that feeling, as old as the 
 oldest rudiments of civilisation, which has translated 
 itself into the legal rules of prescription and into the . 
 respect of the most permanently powerful section of 
 every society for its established institutions. If this 
 be so, the immediate practical lesson is that we owe 
 our best wishes to those attempts, hitherto not very 
 successful, which have been made to give an impetus 
 to the exchangeableness of land. If they ever suc- 
 ceed, they will facilitate one of the most conservative 
 and reparative of processes, the purification by con- 
 tract of the title to property. 
 
 I do not wish to be understood that the contrast 
 ■between the view of feudal obligations and rights 
 taken in England and France is wholly to be ex- 
 plained by the causes which I have analysed in this 
 
326 DECAY OF FEUDAL PEOPERTY IN chap. is. 
 
 paper. This set of causes appears to me to have been 
 kept too much in the background, and therefore I 
 have thought them not undeserving of attention. It 
 belongs to the civil historian to bring to light others 
 Trhich are intermingled with the whole structure of 
 French society. De Tocqueville has strongly sug- 
 gested, and others after him will probably demon- 
 strate, that the enormous social prestige of the French 
 Court and its constant indulgence of its mihtary 
 tastes had at length turned the French territorial 
 nobility into a caste as distinct from the cultivating 
 peasantry as is the Rajput from tbe Sudra, as dis- 
 tinct as was the white planter of the Southern States 
 from the negro who laboured in his cane-fields. The 
 effect of this deep alienation was completely to alter 
 the normal or natural character of the social group of 
 which I have spoken, the Manor or Fief. Left to 
 itself, it is one of the most conservative of all insti- 
 tutions. In our own country the Manor is in extreme 
 decay, and chiefly survives in its ecclesiastical organi- 
 sation as the Parish. In France a revolution has 
 passed over the Fief, and it has become a mere 
 administrative subdivision, the Commune. But, as 
 we move eastwards through the German and Scla- 
 vonic countries, this primitive social organism grows 
 stronger and stronger. It is plainly discernible 
 under the superficial crust of Mussulman institutions, 
 
CHAP. IX. FRANCE AND ENGLAND. 327 
 
 until in India it emerges in its most ancient form, as 
 the Village- Community, a brotherhood of self-styled 
 kinsmen, settled on a space of land. Everywhere, 
 however, it offers a more or less stubborn resistance 
 to change ; whether the instrument of change be 
 military conquest or the centralising legislation of 
 well-intentipned rulers, who from the nature of the 
 case can only look on nations as miscellaneous aggre- 
 gates of individuals, and can at most aim at the 
 greatest happiness of the greatest number. Nobody 
 who knows England outside cities and towns will 
 think that deference to the Squire and the Parson is 
 a phenomenon only fit to point a sarcasm or a joke. 
 No Frenchman, except a Parisian, will laugh at what 
 Frenchmen call the patriotism of the Steeple. But 
 in the latter half of the eighteenth century, the normal 
 operation of the Fief was reversed in France. Many 
 causes, and among them that personal friction which 
 is the despair of all who would make History a 
 science, had produced among the peasantry such 
 intensity of hatred to their lord that they were ready 
 to find allies against him anywhere — before the Revo- 
 lution, in the despotic King and his usurping agents 
 — after the Revolution, in the Convention, in the 
 Jacobin Club, in the Directory, in the First Consul, 
 who was soon to be the Emperor. And even now 
 the tradition of the feudal dues and the fear of tlieir 
 
328 DECAY OP FEUDAL PEOPEETY. chap. ix. 
 
 revival are political influences of the first order, 
 tending to make a great part of the nation ready, or 
 not reluctant, to throw itself (as a great French 
 orator said) into the arms of the first lucky corporal 
 who makes it believe that he can preserve the insti- 
 tutions created by the Revolution, without bringing 
 back the Revolution itself. 
 
VILLAGE-COMMUNITIES AND MANORS. 329 
 
 NOTES AND ILLUSTRATIONS. 
 Note A. 
 
 TILLAGE-COMMUNITIES AND MANORS. 
 
 Although no question has been more discussed by 
 German and English, scholars, the exact mode in 
 ■which the Manor or Fief arose out of pre-existing 
 social forms is stUl a very obscure problem. In a 
 work published ten years ago ( ' Village Communities 
 in the East and West'), I gave an abridged ac- 
 count of all that was then known or had been con- 
 jectured on the subject, but additions are being 
 constantly made to our knowledge — in some small 
 degree, I hope, owing to the book I have named — 
 — and much information may be expected from 
 Russia, where the growth of lordships and of the chief 
 incidents of villenage are of relatively recent date, and 
 where there appears to be materials for an authentic 
 history of this social transformation. I trust that 
 Mr. Mackenzie Wallace will not long withhold those 
 results of special investigation which he promised in 
 the preface to his work on Russia. On another 
 aspect of the subject, a forthcoming work of Mr. 
 Frederick Seebohm, which I have had the privilege 
 of seeing, will throw a great deal of hght. 
 
 This, however, is a walk of investigation in 
 which the caution given in a Note on ' The Gens ' 
 to Chapter VIII. is especially necessary. We must 
 make full allowance for the imitativeness of man- 
 kind. A great number of Village-Communities to 
 
330 VILLAGE-COMMUNITIES AND MANOES. 
 
 be found in the various parts of the vrorld, and a 
 great number of Manors which still exist in Eng- 
 land in extreme decay, must have been originally 
 mere reproductions of a model which had grown 
 into favour. Much of the waste land of India, at 
 most held previously in vague tribal ownership, was 
 colonised by groups of men who settled down in 
 Village- Communities because they knew no other 
 form of common cultivation, and the waste places 
 of Europe were extensively brought under tillage by 
 colonists arranged in manorial groups under religious 
 bodies or powerful men who had obtained large 
 grants of land. There are, and have been from time 
 immemorial, parts of the world in which settlers 
 would as naturally plant themselves in these groups, 
 as English or Scottish emigrants in Canada or New 
 Zealand would now establish themselves on separate 
 farms to be cultivated by themselves and their chil- 
 dren, or by hired labour. All, then, that we can 
 hope to discover is the typical form. Now the typical 
 Village- Community — a body of self-styled kinsmen, 
 havmg a government of their own, and engaged 
 under fixed rules in common cultivation — is too 
 peculiar a group to have arisen by accident, or to 
 have had its origin in individual caprice. The 
 evidence seems conclusive that it first grew up in 
 remote barbarism, though in barbarism probably not 
 older than the period at which mankind began to 
 cultivate cereals, or to combine that cultivation with 
 the pasturing of flocks and herds. It may give an 
 idea of the wide diffusion of the Village- Community 
 in its more archaic shapes if I mention that it has 
 been observed not only in the largest part of India, 
 but in the Fiji Islands (by Sir Arthur Gordon), 
 and among the Berbers of North Africa (by M. 
 Ernest Renan), and that what appears to be a 
 
VILLAGE-COMMUNITIES AND MANOES. 331 
 
 distinct form of it, followed by the more southerly- 
 tribes of North American Indians, is described by- 
 Mr. Morgan in the fourth volume of the United 
 States Survey of the Rocky Mountain region, -w^hich 
 appeared last year. Nor is it possible for me to 
 doubt that the typical Manor arose out of the 
 Yillage-Community. Everybody -who has made for 
 himself a clear mental, picture of the last group will 
 see that it contains everythmg which is found in the 
 earliest Manors, with no differences except those 
 which come from the substitution of individual for 
 popular authority. Everything which the lord can 
 do can be done by the council of village elders, or by 
 the village-headman, these last, however, being re- 
 sponsible to the community, while the lord tends 
 more and more to become a mere owner, just as the 
 King of France came to be called by the lawyers the 
 King- Proprietor of all French land. But beyond 
 this account of the relation between the Types, it 
 would not be safe to go. Both the type of the 
 VUlage-Community and the type of the Manor have 
 been extensively copied,^ and here and there in sur- 
 prisingly recent times. Their wide extension by 
 colonisation is, I suppose, the source of a paradoxical 
 opinion which I have seen, that their most distinctive 
 pecuharities are altogether modern. 
 
 The question of the origin of Manors or Fiefs 
 established in Western Europe, and then spread far 
 and wide by artificial agency, is wrapt in obscurity. 
 I argued in a former work that everything which con- 
 tributed to what we call feudalism must have sprung 
 
 ' The earliest settlers in New England appear to have planted 
 themseives in townships having a strong resemblance to village- 
 communities. Manors were found in the Southern settlements. 
 See John Hopkins University Studies, edited by H. C. Adams. 
 1882. 
 
661 VILLAGE-COMMUNITIES AXD MANOBS. 
 
 either from barbarous custom or from Roman law 
 ('Ancient Law,' pp. 364 et seq.) ; but from which 
 source were the germs of manorial authority derived ? 
 On the one hand, the examination of the Theodosian 
 Code shows that the great estates of the Roman pro- 
 prietary — their villce, cultivated by coloni and slaves — 
 contracted a certain resemblance to the Manor, which I 
 myself am, on the whole, disposed to explaui by the 
 number of cultivators of laarbarous origin with which 
 they were filled. I have always distrusted the implied 
 assertion of the Roman lawyers that the multitudinous 
 Roman slaves had no institutions at all ; and 1 ima- 
 gine that a vast property, crowded with barbarians, 
 would naturally fall under a system of management 
 not unlike the mechanism of one of the most wide- 
 spread of barbarous institutions. It is certainly sig- 
 nificant that the Germanic draftsmen of Codes and 
 Charters always used the word ' villa ' for what we 
 call a village- community. While I certainly cannot 
 accept the conclusion to which some learned French- 
 men incline, that the Manors of the continent are in 
 their origin nothing but Roman villce, still it seems 
 only reasonable to suppose that in the former Roman 
 provinces the organisation of the villce did assist in 
 causing the cultivating groups to take the manorial 
 form rather than that of self-governed village-commu- 
 nities. It is to be noted at the same time that the 
 oldest of the barbarous codes, the Lex Salica, knows 
 nothing in its earlier and genume portions of manorial 
 authority. The poiestas dominica of which it speaks 
 is ' royal ' power. It knows the vUlage-community 
 under the name of villa (see the Title 45. ' De 
 Migrantibus '), and in describing one of its even now 
 marked characteristics, its rigid exclusiveness, it im- 
 plies that the community is one of freemen entitled to 
 sue before the free Court of the Hundred. The 
 
VILLAGE-COMMUNITIES AND MANORS. 333 
 
 Manor appears, however, to have been known, to the 
 compilers of the later Leges Barbarorum. 
 
 The difficulty of attributing the origin of 
 English Manors to the Roman Villa need hardly be 
 stated. The particular Teutonic tribes which con- 
 quered Britain came from homes so northerly that 
 they can hardly have so much as seen a great Roman 
 estate, and, even if they had, it is not easy to under- 
 htnnd adventurous warriors settling down as serfs or 
 villeins in their oversea conquests. This subject, 
 however, is one of those most fully treated in Mr. 
 Seebohm's volume. 
 
 It may be convenient that I should give in full 
 the passage from Bracton stating the . legal theory of 
 villenage which prevailed in his day. ' The tenement 
 changes not the condition of a free man any more 
 than of a slave. For a free man may hold in mere 
 villenage, doing whatever service thereto belongs, and 
 shall not the less be free, since he does this in regard 
 , of the villenage and not in regard of his person. . . . 
 Mere villenage is a tenure rendering uncertain and un- 
 limited services, where it cannot be known at eventide 
 what service hath to be done in the morning — that is, 
 where the tenant is bound to do whatever is com- 
 manded him' (fo. 26a). Again : 'Another kind of 
 tenement is villenage,' whereof some is mere and other 
 privileged. Mere villenage is that which is so held 
 that the tenant in villenage, whether free or bond, shall 
 do of villein service whatever is commanded him, and 
 may not know at nightfall what he must do on the 
 morrow, and shall ever be held to uncertain dues ; 
 and he may be taxed at the will of the lord for more 
 or for less, . . . yet so that if he be a free man he 
 doth this in the name of villenage and not in the 
 name of personal service ; . . . but if he be a ville'n 
 [by blood] he shall do all these things in regard as 
 
334 VILLAGE-COMMUNITIES AND MANORS. 
 
 .well of the villenage as of his person ' (fo. 208 J). 
 The only difference in the services was that the mer- 
 chetum on marrying a daughter, being an incident of 
 personal servitude (as a fine paid to the lord for 
 depriving him of a slave), was not demandable from 
 the free man holding in villenage' (F. Pollock, 
 ' Notes on Early English Land Law,' ' Law Maga- 
 zine and Review ' for May 1882). The whole of 
 Mr. Pollock's valuable paper deserves consideration 
 
CHAP. X. CLASSIFICATIONS OF PROPERTY. 335 
 
 CHAPTER X. 
 
 CLASSIFICATIONS OF PROPERTY. 
 
 All who have any knowledge of Legal History are 
 aware of certain distinctions which run through all 
 commodities or through large departments of them, 
 and which cause the objects of enjoyment lying on 
 either side of the line to belong, in the eyes of law- 
 yers, to widely different provinces of law. Among 
 these distinctions, there is that which th.e ancient 
 Roman lawyers drew between Res Mancipi and Res 
 nee Mancipi — that is, between Things which required 
 and Things which did not require for their transfer the 
 conveyance of Mancipation ; there is the mediaeval 
 West European distinction between the AUod and the 
 Feud, between allodial land and feudal land ; there is 
 the still surviving English distinction between Realty 
 and Personalty, and finally there is the late Roman 
 and modern European distinction between Res Mo- 
 biles and Res Immobiles, between movable and im- 
 movable property. 
 
 We only know the distinction between Movables 
 and Immovables as relatively modern in the Roman 
 
336 CLASSIFICATIONS OF PEOPERTY. cuap. x. 
 
 State and in Europe. It is tlie result of an attempt 
 of the Roman lawyers to abandon the old historical 
 classifications, and to classify commodities, Property, 
 the objects of enjoyment, according to their actual 
 nature. The generalisation has required but little 
 subsequent correction ; the difl[iculties which have 
 arisen in using it have been insignificant, and have 
 occurred only on the very border-lme between the 
 two great classes of Things. In the Middle Ages, the 
 fact that a tree, though immovable, generally acquires 
 value through being hewn down and becoming mov- 
 able, and possibly some local practice of employing 
 movable wooden frames in the structure of houses, 
 suggested to the expositors of a few early German 
 legal systems a definition of movables as everything 
 which could be destroyed by fire ; and, in more 
 recent times, the question of the proper place to be 
 assigned to a class of things of which modern manu- 
 facturing industry has greatly increased the import- 
 ance — ' fixtures,' as we call them, the ' immovables 
 by destination ' of French law — has occasioned doubts 
 and disputes. Still, on the whole, if law had reaUy 
 been founded on the principles imagined in the last 
 centLiry to constitute its basis — on those principles of 
 simplicity or fitness or good sense which are associated 
 with the words ' Nature ' and ' Natural ' — it is pro- 
 bable that no classification of commodities would 
 have struck mankind sooner than that which divides 
 
CHAP. X. CLASSIFICATIONS OF PKOPEETY. 337 
 
 them into movable and immovable. We know, 
 nevertheless, that the whole course of Roman legal 
 modification from the Twelve Tables to the reforms 
 of Justinian had to ba gone through before this 
 seemingly obvious distinction formally superseded 
 the old historical distinction between Res Mancipi 
 and Res nee Mancipi, the first including Land, 
 Slaves, Horses, and Oxen, and the second everything 
 else ; and the curious fact remains that the English- 
 speaking communities — England, her colonies, and 
 considerably more than half the States of the American 
 Union — still reject the improved Roman classification, 
 and, separating leases of land for years from the bulk 
 of immovable property, join them to personalty or 
 movables. Thus stubbornly do the old historical 
 classifications hold their ground. But still, if we 
 firmly grasp the truth that these historical classifi- 
 cations can only mean that the commodities which 
 they place in the highest class must have been at 
 some time or other the sole important subjects of 
 proprietary right, and that the others either did not 
 exist or were of trifling value, we cannot but see that 
 there must have been a still earlier time when the 
 accepted historical classifications were themseh'es 
 modern. The most archaic of them, one probably as 
 old as any conscious attempt to draw this kind of 
 distinction, is that bequeathed to us by the Romans. 
 Yet land, slaves, horses, and oxen cannot, as subjects 
 
 z 
 
338 CLASSIFICATIONS OF PBOPEBTY. chap. s. 
 
 of individual property, have been of contemporaneous 
 origin. There must have been a time when a wild 
 animal tamed, which was a rarity, was of more value 
 than a hundred acres of land, which was super- 
 abundant. The domain of a tribe, as soon as the 
 history of mankind began, may have been jealously 
 guarded by it as exclusive hunting-ground, as mark- 
 ing the limits which none but a tribesman could step 
 within save for bloodshed or plunder, or may have 
 been reserved by it (in a later stage of society) for 
 pasture ; but each man's share of this domain was of 
 1 ss value to him individually than 'a slave, a horse, 
 an ox, or even than a flint-headed axe or spear. All 
 this folio ?vs from the simplest economical axioms ; 
 but the vestiges of the older (and yet probably not 
 t e oldest) state of the primitive objects of enjoy- 
 ment are plainly stamped upon one authentic record 
 of archaic custom, the nncient Irish law ; and they 
 seem to me equally discernible in the ancient Teu- 
 tonic Code, the Lex Salica, which, whatever else it 
 is, is pre-eminently a body of rules protecting the 
 ownership of kine, swine, sheep, goats, horses, and 
 even bees. 
 
 I pass to a distinction which rose into importance 
 in an age nearer our own — the distinction between 
 the allod and the feud, between allodial and feudal 
 land. The allod m some form or other is probably 
 as old as the institution of individual landed property, 
 
CHAP. X. CLASSIFICATIONS OF PROPEETY. 339 
 
 aiid we may regard it as equivalent to or dii-ectly 
 descended from the share which each man took in 
 the appropriated portion of the domam of the group 
 to which he belonged — tribe, joint-family, village 
 community, or nascent city. But many facts — facts 
 which are receiving constant additions — appear to me 
 to show that this share was not at first a definite 
 area, but what we should now call a fraction or 
 aliquot part of the divisible land. The shares of the 
 domain which each family or household could claim 
 shifted among the households under a system of 
 distribution in turns or by lot, and each share very 
 slowly became appropriated to particular families. 
 We only know the society of the Roman Common- 
 wealth when it had reached this last stage ; indeed, 
 the hungry struggle for the public domain which 
 begins authentic Roman history would seem to show 
 that the system of 'shifting severalties,' which had not 
 quite died out in England fifty years ago, was long 
 over among the free Roman peasantry ; and the 
 traces of an older economical condition must be 
 sought in that copious law of servitudes or easements 
 into which modern lawyers of all nations have dug as 
 into an inexhaustible mine, and which seems to show 
 that the agricultural land of every Roman was really 
 servient, as the technical phrase ran, to his neigh- 
 bours in respect of rights of way, rights of riding, 
 driving, and draught, rights of drawing and lending 
 
340 CLASSIFICATIONS OF PEOPEETY. chap. x. 
 
 ■water, and a mass of other rights, far beyond all 
 modern experience and example. The abundant 
 Roman servitudes appear to me to point back to the 
 same modified common enjoyment of land which 
 characterised other Aryan races ; but the early 
 period at which the land of a free Roman peasant 
 became appropriated to his family in strict severalty 
 affected the legal and economical history of Roman 
 society very strongly, and thus becomes a fact of 
 much importance in the development of the Western 
 world. 
 
 There are indications that at first the possession 
 of allodial land was everywhere the distinctive privi- 
 lege of the freeman. Down indeed to the first 
 French Revolution the exceptional tenure of land 
 in ' franc-alleu,' which here and there survived amid 
 the general feudalisation, was held by Frenchmen 
 in high honour. Nevertheless, the modern history 
 of allodial land is essentially the history of the hold- 
 ing of land by servile or by very humble classes. 
 It bequeathed its great characteristic, its divisibility 
 at death between all the children or all the sons, to 
 that lowest stratum of landed right upon which the 
 feudal structure reposed, either because communities 
 originally free had sunk on all sides into viUenage, 
 or because the allod was the type of all enjoyment 
 of land, and was followed in colonies of serfs planted 
 by a Roman dominus or Teutonic lord. All peasant 
 
CHAP. X. CLASSIFICATIONS OF PKOPERTy. 341 
 
 holdings in France were adjusted to this type till 
 the Revolution, and so were German peasant estates 
 down to a considerably later date. We have traces 
 of its peciiliar rules in the Gavelkind of Kent, and 
 in much copyhold land ; and a comparison of the 
 treatises of Glanvill and Bracton enables us to fix the 
 time when the most widely diffused of English tenures 
 — socage — was just putting off the characteristics 
 of the allod, and putting on those of the feud. But 
 our current Real Property Law is coloured through- 
 out by the feudal view of land, which is that, when 
 held in individual enjoyment, it is primarily im- 
 partible or indivisible. The great system of land- 
 law, resting on this feudal conception, though occa- 
 sionally wrested into departure from it by sovereign 
 authority, is essentially a system of rules regulating 
 the tenure of land by noble classes. The allodial 
 tenure, which is believed to have been originally the 
 tenure of freemen, became in the Middle Ages the 
 tenure of serfs. The feudal tenure, which was cer- 
 tainlj'' at first the tenure of servants who, but for the 
 dignity of their master, might have been called slaves, 
 became in the Middle Ages the tenure of noblemen. 
 It was by an exception, and a remarkable one, that 
 in our country the land-law of the nobles became the 
 land-law of the people. 
 
 We know thus much of the beginnings of that 
 feudal system, of which the feudal land-law was a 
 
342 CLASSIFICATIO^'S Op property. chap. X. 
 
 part, that it had several diverse origins. The land on 
 the horder lines of the Roman Empire was held by 
 soldier-cultivators on tenure of military service ; and 
 this must have had something to do with it. The 
 Eoman law of Patron and Client must have had 
 something to do with it ; for it plainly suggested 
 many customary relations of lord and vassal. We 
 see much which cannot but have contributed to it 
 in the primitive or barbarous usages of the Aryan 
 races re-introduced into the Roman Empire by the 
 Germans. Among these, society was distributed into 
 compact groups of families or clans, the first ad- 
 ministered by the eldest member subject to a species 
 of election, the second often, if not always, governed 
 by some member of a ruling family, selected by the 
 process which the Irish called Tanistr}-. And these 
 Chiefs or Kings were in the habit of buying or 
 rewarding the services of their immediate retainers 
 by gifts. We can put our finger on a variety of the 
 ingredients of fetidalism spread over a large surface. 
 Nevertheless, with all our knowledge, there is still 
 the greatest obscurity on one point. How was the 
 conception of landed property so completely changed ? 
 Nothing can be more singularly unlike than the legal 
 aspect of allodial land, or, as the Romans would have 
 called it, land held in dominium, and the legal aspect 
 of feudal land. In passing from one to the other, 
 you find yourself among a new order of legal ideas. 
 
CHAP. X. CLASSIFICATIONS OF PEOPEKTY. 343 
 
 Perhaps it requires a lawjj-er alive to the signifi- 
 cance of technicalities, and tolerably acquainted with 
 the later Roman and earlier feudal law, fully to esti- 
 mate the thoroughness of the transmutation. An 
 account of all which it implies would be out of place 
 here ; but, to take only one phase of it, no sub- 
 version of an accepted legal notion can be more 
 strikmg than that of the Roman (which is the 
 developed allodial) view of land as essentially divisible 
 by the feudal conception of land as essentially im- 
 partible. The Roman lawyers note, as a fundamental 
 difference between immovable and movable pro- 
 perty, that land is divisible ad infinitum, and may be 
 always so conceived though actually undivided, while 
 movables are not properly capable of division. They 
 could conceive land as held (so to speak) under 
 different legal dispensations, as belonging to one 
 person in Quiritarian and to another in Bonitarian 
 ownership, a splitting of ownership which, after 
 feudalism had fallen into decay, revived in our 
 country in the distinction between the legal and the 
 equitable estate. Bjit there is no symptom that a 
 Roman lawyer could conceive what we call a series 
 of estates — that is, a number of owners entitled to 
 enjoy the same piece of land in succession, and 
 capable of being contemplated together. It is a very 
 remarkable fact that when these great legal thinkers 
 had to form an idea of an interest in land so familiar 
 
344 CLASSIFICATIONS OF PKOPEETY. chap. x. 
 
 to US as an estate for life, they had to go for an 
 analogy to the law of servitudes or easements. A 
 Roman usufruct of land was in its practical eiFects 
 very much the same as an English estate for life ; 
 but the Roman jurists classed it with rights of way 
 over another man's field, or a right of drawing water 
 from another man's well. The impression left on my 
 mind by a A^ariety of passages in the Roman legal 
 records is that, if a Roman lawyer had been asked to 
 take into his mental view a number of persons having 
 rights together over the same property, he would 
 have contemplated them not as enjoying it in turn, 
 but as dividing it at once between them. Thus far 
 was he from conceiving the ownership of the same 
 area of soil as distributed over tenants for life and 
 remainder men, tenants in tail male, and tenants in 
 tail female, doweresses, tenants by the courtesy of 
 England, and reversioners. This long series of 
 persons, all having ascertainable rights capable of 
 co-existing in the same property^ — this long succes- 
 sion of partial ownerships, making up together one 
 complete ownership, the feodum or fee — could not 
 have been dreamed of till a wholly new conception 
 of landed property had arisen. When, several cen- 
 turies after the birth of feudalism, lawyers sought 
 to employ the Roman law to express the feudal rela- 
 tions, it had to be violently wrested from its true 
 meaning and purpose ; as was notably the case with 
 
CHAP. X. CLASSIFICATIONS OF PEOPEETY. 345 
 
 the law of Fidei-commissa, or testamentary gifts in 
 trust. 
 
 One particular agency by which this great revo- 
 lution of legal ideas was, at least, partially effected, 
 has been of late the subject of controversy between 
 some of the most learned men of our day ; and the 
 controversy, I am sorry to say, has been marked by 
 much of the bitterness peculiar to disputes which are 
 still confined to the learned and have not yet become 
 popular. The Beneficium, or Benefice, an assignment 
 of land by a conquering Teutonic king as the reward 
 or price of military service, is allowed on all sides to 
 have had much to do with this great change in the 
 legal point of view. Whether the benefice was always 
 a gift of public land — as M. Fust el de Coulanges in- 
 sists that it was — in the countries which passed under 
 the sceptre of the House of Clovis, or a gift of con- 
 fiscated land — as there is reason to think it was, at 
 all events, in some subjugated provinces of the 
 Roman Empire — it began a new stage in the history 
 of land -law. In its earliest form it was unlike the 
 estates of matured feudalism, since (according to the 
 better opinion) it was not at first generally hereditary ; 
 but it was still more unlike the allodial lot of the 
 Teutonic freedman and the fundus of the Roman 
 provincial citizen. One modification of Roman landed 
 property came near it — the Emphyteusis ; and I stUl 
 hold to the opinion that we have here one of the 
 
346 CLASSIFICATIONS OF PEOPERTY. chap. x. 
 
 sources of the new legal conception. But though 
 this explanation is plausible, as far as it goes, it is 
 only partial ; and, moreover, the symptoms of a 
 change in the legal view of landed property are not 
 confined to countries which had formed part of the 
 Roman Empire, but are found in purely Teutonic 
 lands. 
 
 Feodum, the later Teutonised name of the Bene- 
 ficium, is now allowed to have been derived from the 
 old Gothic word 'Jihu,' or 'Jlu' — cattle. The term is 
 supposed to have come to mean • property,' just as 
 pecunia, from pecus, contracted this meaning. A few 
 years ago, after pointing out the great part played by 
 cattle in converting Irish tribal holdings into some- 
 thing like feudal tenures, I stated that I suspected 
 ' feodum ' to have a closer connection with cattle 
 than the usual etymology implied. M. de Laveleye, 
 commenting on this remark, has stated that he has 
 no doubt of the association ; and he observes that we 
 thus see the meaning of the original contrast between 
 allodium and feodum — al-od, the complete property ; 
 fe-od, the cattle property. Plausible as this is, I 
 should have hesitated to build on it as a basis but 
 for the remarkable results disclosed by the examina- 
 tion of the Salic Law. It undoubtedly shows that an 
 ancient Law of Movable Property may deeply affect 
 a Law of Land. Now, we know that amons the 
 Germans observed by Tacitus or his informants the 
 
CHAP. X. CLASSIFICATIONS OF PEOPERTY. 347' 
 
 chiefe were rewarded by King or Commonwealth 
 with assignments of cattle and corn ; the companions 
 of the chief, living in his house, received a horse and 
 arms as pay. It was exactly the system which pre- 
 vails at this moment at the Court of a Kaf&r chieftain 
 in North Africa. Now, let us conceive this system 
 modified by the growth of population or by conquest, 
 but otherwise unaltered. In the first case, land in- 
 creases in value through natural economical causes. 
 In the second, the Teutonic host become the masters 
 of lands long since populous and filled with wealth 
 accumulated during the Pax Rom ana. If, then, we 
 assume that, at once in the occupied provinces and 
 more gradually in Teutonic territory, gifts of land 
 took the place of gifts of cattle and arms, but that 
 the old associations with assignments of movables 
 continued to attach to a Benefice in land, the transfer 
 of idea — to my mind, at all events — explains better 
 than anything else the transformation of the legal 
 aspect of landed property. I can now understand 
 why the Benefice was not at first hereditary ; why, 
 even when it became hereditary, the donor could 
 select the son who was to inherit ; why he could 
 cause it, after the death of any holder, to remain to 
 somebody else ; why, like a horse, or a suit of 
 armour, or a herd of cattle, it could pass through 
 a succession of hands and then revert to the giver ; 
 why it was impartible, the ancient gift of movables 
 
348 CLASSIFICATIONS OF PROPERTY. chap. x. 
 
 having to be restored entire either in genere or in 
 specie ; and lastly, to pass to more technical matters, 
 why such importance was attached by the early 
 feudal law to seisin, or actual possession, and why 
 the gift of a feudal estate implied warranty of the 
 title to it, which a grant of allodial land never did. 
 
 As a matter of fact, we have in the Irish usages 
 lately brought to our knowledge a system just such 
 as we might expect if we were permitted a view of 
 Teutonic customs somewhere between the first and 
 the fifth century — a feudal system (if we may so call 
 it) dependent on cattle and kinship instead of land 
 and tenure. I wUl not now repeat the account which 
 I gave on former occasions of the remarkable social 
 mechanism disclosed by the Brehon laws ; but those 
 who will examine it carefully will find a number of 
 special feudal rules much more simply explained by 
 the relations of Irish chief and Irish clansman than 
 by any theory founded on the exigencies of military 
 service or on spontaneous modifications of property 
 in land. 
 
 I must not be understood as affecting to offer a 
 complete account of the complicated system of rights 
 and duties, some personal and some proprietary, 
 which made up what we caU feudalism. The mailed 
 knight of the days of chivalry, who is spoken of in 
 much of history and historical romance as if he were 
 a product of one age and one region, may be shown 
 
CHAP. X. CLASSIFICATIONS OP PKOPERTY. 349 
 
 to have obtained from all sorts of quarters the 
 materials of the ascendency -^hich he long exercised 
 in Western Europe. His iron armour came from the 
 household cavalry of the Eastern Caesar at Byzantium; 
 the stirrups, without which he could not have worn it 
 on horseback, were brought, with his horseshoes, by 
 Tartar riders from the steppes of the furthest Asia. 
 Just so feudalism, which in the twelfth century looks 
 to us all of a piece, is undoubtedly the result of many 
 converging lines of descent. We are now only con- 
 cerned with the feudal land-law, and to attribute it to 
 a single origin would be quite inadmissible. We must 
 give due weight to the influence of purely Roman 
 ideas : those connected with the Emphyteutic form 
 of property, those springing up among the military 
 colonies on the German border, and those which had 
 their origin in the Roman law of Patron and Client. 
 Competing with these Roman ideas are others even 
 more potent, of barbarous or primitive origin. I 
 cannot doubt that, when the Benefice or Feud became 
 hereditary, the plan of succession was mainly taken 
 from that which the men of primitive Aryan' race had 
 considered as appropriate to chiefships or sovereignties, 
 and which in one of its stages the Irish called Tanistry. 
 As little can I doubt that the general tumult of the 
 Western world, during the dissolution of the Caro- 
 lingian Empire, contributed to diffuse succession by 
 Primogeniture on the one hand, and to produce 
 
350 CLASSIFICATIONS OF PROPERTY. chap. x. 
 
 Villenage on the other. The imminent daily danger 
 caused little societies to cluster round their natural 
 leader, or some soldier of fortune who had taken his 
 place ; the general impoverishment caused men to be 
 depressed to the condition of beasts of burden. Un- 
 questionably the squalor and poverty which meet us 
 on the threshold of the Middle Ages did not charac- 
 terise the provinces of the Roman Empire, even on 
 the eve of its fall. There can be no greater delusion 
 than that the Roman provincials were pauperised by 
 taxation ; and M. Fustel de Coulanges seems to me 
 to have quite proved in his last work that Gaul, 
 at all events, even when swarming with barbarians, 
 was stiU full of wealth and splendour. But no 
 surer ruin can be wrought to the hoarded capital 
 of centuries than by such an anarchy as prevailed 
 on the relaxation of the Carolingian power. Lord 
 Macaulay, in contrasting India as the English found 
 it with the impressions of it entertained by Euro- 
 pean adventurers, has said that it is really a very 
 poor country ; but it is very difficult to believe this 
 of so great an area of fertile soil crowded for ages 
 by an industrious population. The true secret of 
 the poverty of India, from which she is slowly re- 
 covering, I take to be the desolation caused by the 
 wars and brigandage of about 2,000 several chiefs 
 while the Mogul dominion was dissolving. I think 
 that India during the reigns of Akhbar and Jehangir 
 
CHAP. X. CLASSIFICATIOIfS OP PEOPBRTY. 351 
 
 was very probably as rich as the Western world 
 thought it ; but its carefully hoarded capital was 
 destroyed as were the accumulations of the Roman 
 Empire. There are some very singular analogies 
 between the dissolution of the Mogul and the disso- 
 lution of the Carolingian power — to some extent in 
 their course, but in a much greater degree in their 
 social effects. These, however, cannot be conveniently 
 considered here. 
 
 One result of tbis revolution of legal ideas, which 
 arose from assimilating immovable property to 
 movable, was, I need hardly say, greatly to com- 
 plicate the law of land. The complex land-law 
 of the feudal ages was, on the Continent of Europe, 
 essentially the law of noble classes ; but in this 
 country it became the general land-law, as I before 
 stated, by exception. Among the many proposals 
 which have been made for reforraino^ it since Bentham 
 became an authority among us, one frequently put 
 forward may be described as a proposal to carry to 
 its farthest consequences the early process of change 
 in which feudalism begun. The suggestion has often 
 been made that real property should be closely assimi- 
 lated to personalty, more especially in respect of con- 
 veyance. There ought to be no more difficulty, it is 
 said, in transferring a piece of land than in selling a 
 horse. I believe the analogy to be unsound, and the 
 route indicated a false one. There is far more promise 
 
352 CLASSIFICATIONS OF PROPERTY. chap. x. 
 
 in reversing than in extending the principle, in 
 treating land as essentially unlike movables, and 
 in a return to the ancient methods of conveying 
 allodial land. The subject is, for several reasons, 
 worthy of our attention. 
 
 It is to be recollected, first, that the primitive 
 conveyances of allodial land were before all things 
 public. Land belonged to the tribe, joint-family, or 
 village-community before it belonged to the individual 
 household ; even when it became private property, 
 the brotherhood retained large rights over it, and 
 without the consent of the collective brotherhood it 
 could not be transferred. The public consent of the 
 village to a sale of land is still required over much of 
 the Aryan world. Although, as we know the Man- 
 cipation in Roman legial history, it is a form of 
 private transfer, it plainly bears the stamp of its 
 original publicity. The five witnesses who had to 
 assist at a Mancipation represent the old consenting 
 community, according to a principle of representation 
 by fives widely diff^used among primitive races. As 
 a private conveyance. Mancipation was extremely 
 clumsy, and I have no doubt it was a great advan- 
 tage to Roman society when this ancient conveyance 
 was first subordinated to Tradition, or simple de- 
 livery, and finally superseded by it. Nevertheless, 
 the most successful modern experiments have re- 
 verted in principle to a method of transfer even 
 
CHAP. X. CLASSIFICATIONS OF PROPERTY. 353 
 
 older than Mancipation, and the latest simplifications 
 of the conveyance of land are a reproduction of the 
 primitive public transfers in the face of the com- 
 munity, in a new form appropriate to large and 
 miscellaneous societies. 
 
 In France, and in the territories incorporated 
 with the Empire of Napoleon I., there has existed, 
 ever since the establishment o^ introduction of the 
 Code called by his name, a system of publicly 
 registering sales and mortgages of land. In some 
 of the Germanic countries there was long a disin- 
 clination to adopt these expedients ; but they have 
 now been almost universally copied on the Con- 
 tinent, and, as sometimes happens, the new system 
 is most perfect where the delay in accepting it was 
 longest. The land-registries which have the highest 
 commendation from juridical writers are those of 
 certain small Teutonic communities — e.g: the state 
 of Hesse- Darmstadt, and the Swiss canton of Ziirich. 
 I can here give but a brief description of the 
 mechanism. The land of the community is divided 
 into a number of circumscriptions of no great area. 
 For each of these a centi-al office is established, with 
 a staff of functionaries who are to some extent ex- 
 perts, and at each office a register is opened in'which 
 separate portions or groups of pages are appropriated 
 to separate masses X)f land. There has been some 
 controversy as to what the area selected for separate 
 
 A A 
 
354 CLASSIPICATIOjyS OF PKOPEKTY. ohap. X. 
 
 treatment should be — whether a space determined by 
 land-measurement, or, as we should say, an estate, an 
 aggregate of lands once held as a single property ; 
 but I believe that the historical system, that which 
 deals with estates rather than with areas settled by 
 land-surveyors, has been found practically the most 
 convenient. When the reo-ister has once been 
 opened, the legal history of every parcel of every 
 area is thenceforward recorded in it, and every 
 transfer or hiortgage must be registered in it, under 
 pain of invalidity. Whether a person wishing to sell 
 or mortgage has the right to do so it is the business 
 of the staSf of experts to ascertain. It is absolutely 
 essential to the system that the register should be 
 easily accessible, and the formalities of registration 
 simple and cheap. 
 
 The nearest English analogy to these new foreign 
 systems is to be sought in the Court Rolls of Manors ; 
 and it is sometimes asserted by lawyers that the 
 manifold disadvantages of copyhold property are 
 compensated by the many conveniences arising from 
 its registration in these rolls. As to the great mass 
 of English freehold property, there is a general ad- 
 mission among lawyers of the expediency of registra- 
 tion, but vehement dispute as to the best method, 
 and a certain disposition to look upon the practical 
 difficulties as insuperable. It is true that these 
 difficulties are far greater than abroad. Our laiid 
 
cm 2. X. CLASSIFICATIOIS'S OP PROPEETY. 355 
 
 law is much more complex than the land law of 
 Contmental countries, where it has its counterpart, 
 if it has any, in the exceptional law applied to the 
 estates of a limited number of noble families ; and 
 English real-property law has been still further com- 
 plicated by the liberty of transfer and devise which 
 we have enjoyed from a comparatively early period. 
 The great difficulty with us lies in the preliminary 
 process of ascertaining whether a person desirous of 
 selling or mortgaging has the right to do it ; but 
 this is in most Continental countries a comparatively 
 easy matter, the bulk of the land having been held 
 until the early part of this century by a tenure of 
 strict villenage, or, as we should say, in copyhold. 
 
 My immediate object, however, is not to pass an 
 eulogy on the principle of conveyance by entries on 
 a register, or to weigh one system of registra- 
 tion against another. I wish rather to point out 
 some remarkable consequences of registration which 
 ought to have our attention in our special branch of 
 study. A short time since I stated that the problems 
 once solved by the expedient of Warranty were com- 
 mon to all bodies of jurisprudence. What is to be 
 done in the case of the man, who is in fact exercising 
 all the powers of an owner, but who has no title to 
 show ? Is he to be at the mercy of anybody who 
 chooses to injure or disturb him ? The Roman law 
 answers this question by providing the vast body of 
 
 A A 2 
 
356 CLASSIFICATIOXS OF PROPERTY. chap. s. 
 
 rules which constitute the chapter on Possession. 
 What has to be done with the man who has bought, 
 with the proper formalities, but not from the true 
 owner — or from the true owner, but not with the 
 proper formalities ? The answer of the Roman law 
 consists in the doctrines of hond fide Possession and 
 of ownership in bonis — Bonitarian or Equitable 
 ownei'ship. Is the Bonitarian owner or the Possessor, 
 with or without good faith, always to have an im- 
 perfect title ? The reply is in the great departments 
 of law concerned with Usucaption and Prescription. 
 If a man mortgages his property to a number of 
 creditors, in what order are they to be satisfied ? 
 The volume of rules by which all systems try to 
 solve this problem is quite enormous. But it is very 
 remarkable that where there is a perfect system of 
 land registry the strong tendency is to revert to the 
 doctrines of Roman law as it must have been before 
 Possession, Usucapion, and Bonitarian ownership 
 grew up. The registry of the sale or mortgage of 
 land being extremely easy, expeditious, and cheap, 
 there is a marked disposition among the authors and 
 expositors of law to say to the members of the com- 
 munity, ' Either register your transfers or mortgages, 
 or cause them to be registered, or you shall have no 
 rights whatever. If you neglect doing that which 
 it is in your power to do at any moment and at a 
 trifling cost in time and money, you shall not have 
 
CHAP. X. CLASSIFICATI0X3 OF TROPERTV. 00/ 
 
 the benefit of Possession, of Bonitarian ownersiiip, of 
 Usucapion, or Prescription. At most, there shall be 
 an Action of Contract to compel the seller of land to 
 register and the buyer to pay the purchase-money. 
 As regards mortgages, they shall rank in the order 
 of priority of registration, and if you delay goiiig 
 through the proper formalities, or compelling them 
 to be gone through, you, the mortgagee, will be 
 postponed to creditors more diligent than yourself, 
 and you will be satisfied after them.' I follow 
 German writers of authority in saying that this is 
 the condition to which legal doctrine is approximating 
 in much of German}'', though it is not quite adjusted 
 to it. The singular result is that some of the most 
 intricate and difficult chapters of law cease to be of 
 any, or much, importance. The expedient of public 
 registration is, it will be seen, purely mechanical. A 
 contrivance very like it in principle spontaneously 
 and very early suggested itself to the human race. 
 Nevertheless, where a public registry of mortgage 
 and land transfer has been established, some of the 
 most famous and luxuriant branches of law show a 
 tendency to dwindle and wither away under its 
 shadow. Possession, Usucapion, Bonitarian owner- 
 ship-, and. Hypothek occupy together a prodigious 
 space in the Roman jurisprudence ; the bulk of what 
 corresponds to them in other systems of law is very 
 oTeat ; if they are reduced to a fraction of their 
 
358 CLASSIFICATIONS OF PKOPEETT. chap. x. 
 
 present dimensions, the diminution of the aggregate 
 body of law will be extraordinary and will have 
 been produced in a most unexpected way. 
 
 I have dwelt on these Continental systems of 
 land registration, and on the effects attributed to 
 them by German juridical opinion, for two reasons. 
 In the first place, the fact is certainly curious that 
 the latest improvements in the mechanism of mort- 
 gage and land transfer involve a reversion to the 
 primitive publicity of conveyance. The public regis- 
 ter at some accessible spot, in which all transactions 
 must be registered under penalty of immediately 
 forfeiting all their benefits, pretty much corresponds 
 to the primitive assembly of the village before which 
 all transfers of shares in the domain must be accom- 
 plished, in order that the brotherhood may consent 
 to them and supply evidence of them by the general 
 recollection. It is true that the ancient formalities 
 had one object which has nothing to do with the 
 modern. The primitive publicity of transfer went 
 with a most rigid exclusiveness, and the public con- 
 sent which was insisted upon was emplojT^ed to refuse 
 the power of purchase to strangers. The decay of 
 the ancient public conveyances was very probably 
 caused by a change of circumstances which made the 
 communities either unable or unwilling to maintain 
 their collective control over the land of their domain. 
 In modern India the growth of wealth has greatly 
 
CHAP. X. CLASSIFICATIOXS OF PROPERTY. 359 
 
 stimulated the spirit of individualism ; buyers and 
 sellers of land alike become impatient of themecessity 
 for obtaining the public consent of the villagers to 
 their bargain ; the modern Anglo-Indian law is un- 
 favourable to these archaic restrictions ; and thus 
 the primitive public methods of alienation are every- 
 where giving way to private transfers.-^ In the his- 
 torically ancient world, the same results were most 
 probably produced by conquest and by the absorp- 
 tion of one or more of the primitive proprietary 
 groups by others stronger than themselves. In" the 
 Roman State, including a population ever more and 
 more miscellaneous, we find, at the outset of legal 
 history, a mere shadow of the old forms of transfer 
 in the Mancipation ; and Mancipation, long before 
 its abolition by Justinian, was subordinated by every 
 sort of legal contrivance to mere Delivery or Tra- 
 dition. Yet even Tradition, when it became the 
 sole Roman conveyance, retained some trace of the 
 institutions out of which it grew. The Roman law 
 never to the last allowed the dominium or right of 
 property to be passed from one person to another by 
 a mere contract ; it was absolutely necessary that the 
 contract should be followed by the dehvery of the 
 Thing which was its subject. This is a peculiarity 
 
 ' Two valuable Acts of the Indian Legislature, the Registration 
 and Transfer of Property Acts, are mitigating the evils arising 
 from the privacy and heterogeneous forms of these transfers. 
 
360 CLASSIFICATIONS OF PEOPEHTY. chap. x. 
 
 which has more than once caused perplexity to per- 
 sons who have consulted the Roman law of Transfer 
 in ignorance of its being founded on a principle 
 which the English law and the French Code have 
 abandoned. 
 
 The other fact to which I wish to call attention 
 is not merely curious, but highly instructive. The 
 tendency of German juridical opinion, which I have 
 mentioned, shows that we are in danger of over- 
 estimating the stability of legal conceptions. Legal 
 conceptions are indeed extremely stable ; many of 
 them have their roots in the most solid portions of 
 our nature, and those of them with which we are 
 most familiar have been for ages under the protection 
 of irresistible sovereign power. Their great stability 
 is apt to suggest that they are absolutely permanent 
 and indestructible ; and this assumption seems to me 
 to be sometfmes made not only by superficial minds, 
 but by strong and clear intellects. I am not sure 
 that even such juridical thinkers as Bentham and 
 Austin are quite free from it. They sometimes w.rite 
 as if they thought that, although obscured by false 
 theory, false logic, and false statement, there is 
 somewhere behind all the delusions which they 
 expose a framework of permanent legal conceptions 
 which is discoverable by a trained eye, looking 
 through a dry light, and to which a rational Code 
 may .always be fitted. • What I have stated as to the 
 
CHAP. X. CLASSIFICATIONS OF PROPERTY. 301 
 
 effects upon law of a mere media nical improvement 
 in land registration is a very impressive wairning that 
 this position is certainly doubtful, and possibly not 
 . true. The legal notions which I described as decay- 
 ing and dwindling have always been regarded as 
 belonging to what may be called the osseous structure 
 of jurisprudence ; the fact that they are nevertheless 
 perishable suggests very forcibly that even juris- 
 prudence itself cannot escape from the great law of 
 Evolution. 
 
362 CLASSIFICATIONS OF LEGAL RULES. chap, si. 
 
 CHAPTER XL 
 
 CLASSIFICATIONS OF LEGAL RULES. 
 
 Almost the first thing which is learnt by the student 
 of Roman law is, that the classical jurists. of Rome 
 divided the whole body of legal rules into the Law of 
 Persons, the Law of Things, and the- Law of Actions. 
 Although, however, his studies, as law is now taught 
 amongst us, may soon introduce him to some vehe- 
 ment disputes as to the meaning of this classification, 
 he may be long in becoming alive to the extent and 
 importance of the hterature to which it has given 
 birth. It would seem, in fact, that in the seven- 
 teenth century, which was a great juridical era, theories 
 of legal classification took very much the place of 
 those theories of law reform which so occupied the 
 minds of the last generation of Englishmen. The 
 continuous activity of legislatures is an .altogether 
 modern phenomenon ; and, before it began, an intel- 
 lect of the type of Bentham's, instead of speculating 
 on the possibility of transforming the law into con- 
 formity with the greatest happiness of the greatest 
 number, or with any other principle, speculated rather 
 
CHAP XI. CLASSIFICATIONS OF LEGAL RULES. 363 
 
 on the possibility of rearranging it in new and more 
 philosophical order. The improvement in .view was 
 thus rather a reform of law-books than a reform of 
 law. The most extreme example of such theories is, 
 perhaps, to be founcl in the attempt of Domat to dis- 
 tribute all law under its two ' great commandments ' 
 as set forth in the twenty-second chapter of St. 
 Matthew's Gospel — love to God and love to one's 
 neighbour. But on the whole the arrangement in 
 which the compilers of Justinian's ' Institutes ' followed 
 Gains, distributing law in Law of Persons, Law of 
 Things, aaid Law of Actions, became the point of 
 departure for theories of legal classification. Its his- 
 tory has been not unlike that of several equally 
 famous propositions. After long neglect, it came to 
 be regarded as an expression of absolute truth, and 
 an essential and fundamental distinction was assumed 
 to exist between the three great departments into 
 which the Romans divided law. English jurispru- 
 dence was, no doubt, very little affected by this as- 
 sumption, but English lawyers occasionally come 
 across the inferences from it when they have to deal 
 with Private International law, or, in other words, 
 with the conditions upon which one community will 
 recognise and apply a portion of the jurisprudence of 
 another. At a later date certain difficulties were ob- 
 served in the rigorous application of the Roman doc- 
 trine, and much ingenuity was expended in removing 
 
CC4 CLASSIFICATIONS OF LEGAL EULES. CHAP. XI. 
 
 tliem, or explaining them away. Finally, it was 
 pronounced to be theoretically untenable, and only 
 deserving of being retained on account of its his- 
 torical importance. According to the general agree- 
 ment of moderti writers on jurisprudence, the Roman 
 distribution of law into Law of Persons, Law of 
 Things, and Law of Actions, must be regarded as 
 now exploded. 
 
 As a perfect classification of legal rules would 
 distribute them according to their real relations with 
 one another, and would therefore be founded on a 
 complete analysis of all the legal conceptions, the 
 subject has not lost its interest for very powerful 
 minds in this century. The speculations of Austin 
 on classification almost fill such writings of his as 
 remain to us, and a valuable essay of John Stuart 
 MiU on these speculations may be read in the third 
 volume of his ' Dissertations and Discussions.' On 
 the Continent of Europe a more practical interest 
 has been given to such questions by the gradual 
 codification of the law of the whole civilised world, 
 except England and the countries under the influence 
 of the English legal system ; for a Code must be 
 arranged somehow, and few would deny that the more 
 philosophical the arrangement the better. But the 
 great majority of writers on the subject, whatever 
 their title to be heard, are agreed in depreciatino- 
 the Roman classification and all classifications de- 
 
CHAP. xr. CLASSIFICATIOXS OF LEGAL EULES. 365 
 
 scended from it, and sometime's their censuie is sur- 
 prisingly strong. This modern fashion of 'decrying, 
 and even of reviling, the arrangement of the Roman 
 Institutes threatens to produce some reaction, and I 
 see that a manful attempt to rehabilitate it has been 
 made in America. A book published at Chicago, 
 and written by a Law Profespor of the State Uni- 
 versity of Iowa, is not likely perhaps to come into the 
 hands of many English readers, but Mr. Hammond's 
 Preface to the American issue of Mr. Sandars's well- 
 known edition of the ' Institutes of Justinian ' con- 
 tains much the best defence I have seen of the 
 classical distribution of law. My own opinion is 
 that the now common depreciation of this distribu- 
 tion is not so much mistaken as misplaced. The 
 legal classifications proposed by the most modern 
 thinkers on these subjects are classifications of legal 
 Rights. Every one of such systems has legal Right 
 for its centre and pivot. But, singular as the fact 
 may appear to those unacquainted with it, the Romans 
 had not attained, or had not fully attained, to the 
 conception of a legal Right, which seems to us ele- 
 mentary. According to the general usage of the 
 Roman lawyers Jiis meant not ' a right,' but ' law,' 
 and usually a particular branch of law. There are, 
 undoubtedly, certain senses of Jus in which the 
 meaning of ' right ' is approached, and even closely 
 approached ; but, on the whole, the Romans must be 
 
366 CLASSIFICATIOJfS OF LEGAL RULES. chap. xr. 
 
 considered to have constructed tlieir memorable sys- 
 tem without the help of the conception of legal Right. 
 "We have constantly to be on our guard against illu- 
 sions produced by the undoubted stability of law as 
 compared with other provinces of thought. Some 
 modern writers speak of the Romans as if they were 
 to blame for not having clearly conceived a legal 
 Right ; even Mill speaks of their language on the 
 point as ' unhappy ; ' but the truth is, and it is very 
 impressive, that the legal idea of a Right was very 
 slowly evolved. In the minds of the Roman lawyers 
 it was entangled with other notions, and was there- 
 fore obscure. In the Middle Ages it became clearer, 
 doubtless through its examination by the scholastics. 
 But, unquestionably, a clear and consistent meaning 
 was, for the first time, given to the expression ' a 
 right' by the searching analysis of Bentham and 
 Austin. I object, therefore, to the contemptuous 
 language sometimes applied to the Roman map of the 
 provinces of law, as in eflfect taxing persons who had 
 not yet attained to the conception of a legal Right, 
 with not having anticipated methods of classification 
 of which Rights are the basis. In order to give their 
 due to the ancient lawyers who first divided law into 
 Law of Persons, Law of Things, and Law of Actions, 
 we must try to bring home to ourselves the view of 
 the field of law which this division siiperseded ; and 
 then we shall see, I think, that the new arrangement 
 
CHAP. XI. CLASSIFICATIONS OP LEGAL EULES. 367 
 
 may have been a great feat of abstraction. The object 
 of this paper will be to show what was th'e original 
 Roman notion of the content^ of a legal system ; but 
 it will derive such interest as it possesses from the 
 light which the inquiry throws on certain primitive 
 ideas regarding law and justice which appear to have 
 been once diffused over a great portion of mankind. 
 
 The respect, which once amounted to reverence, 
 for the classification of law in the Roman Institutes, 
 though it has had time to culminate and decline, is 
 relatively modem. There is no reason to suppose 
 that the Roman lawyers set any extraordinary value 
 on it. It was confined to their Institutional treatises 
 or primers of law, the educational manuals placed in 
 the hands of beginners. The student was soon ad- 
 vanced to the Praetorian Edict, and the greatest part 
 of his pupilage was passed in the close examination 
 of it, and in reading the numerous commentaries of 
 which it was the text. But the Edict of the PrsEtor, 
 even when consolidated by Julianus, did not divide 
 law into Law of Persons, Law of Things, and Law of 
 Actions. The Twelve Tables, older than the Edict, 
 have no trace of this classification ; nor has any later 
 compendium of Roman law. The Gregorian and 
 Hermogenian Codes were arranged upon a different 
 principle ; so was the Code of Theodosius the Second ; 
 so, manifestly, are the Code and Digest of Justinian. 
 When the, study of Roman law revived in the Middle 
 
368 CLASSIFICATION'S OF LEGAL EULES. chap. XI. 
 
 Ages, it was not the arrangement of tlie Institutes 
 which regulated the course of legal study soon fol- 
 lowed by thousands of students. As may be seen 
 frdm Mr. Hammond's Preface, the mediaeval teachers 
 followed the so-called ' legal order,' that is, the actual 
 order of legal topics in the text of the book before 
 the class. The ascendency of the classification of 
 the Institutes in fact took its rise in dissatisfaction 
 wi|h this ' legal order.' It survived in the law- 
 schools, says Mr. Hammond, to the end of the 
 eighteenth century, consequently till after the time 
 of Blackstone ; ' but the increased importance of the 
 Institutes in the plan of study gradually made their 
 aiTangement to be regarded as the basis of all scien- 
 tific systems of jurisprudence.' It has now, how- 
 ever, become plain, and with regard to matters fur 
 more important than legal classification, that much 
 which the eighteenth century abandoned in the name 
 of science and in equally respectable names must be 
 recovered and re-examined, if the thread of human 
 thought is ever to be knitted aneWi What then was 
 the ' legal order,' which appears in the Roman Digest 
 and Code, and which, when those bodies of law were 
 put together, had already maintained its place for 
 about ten centuries in the legal records of a society 
 of pre-eminent legal genius ? I think that the ques- 
 tion will be found to have more than a merely tech- 
 nical and more than a merely antiquarian interest. 
 
CHAP. xr. CLASSIFICATIONS OF LEGAL RULES. 369 
 
 The arrangement of legal topics whicli can be 
 shown to have been extraordinarily persistent in the 
 Roman law is first discovered in the fragments of 
 those Twelve Tables which to the last were its theo- 
 retical basis. The contents of all the Tables except the 
 Eleventh and Twelfth have been known in a general 
 way since the time of Gothofred ; but we are now 
 only under the necessity of attending to the subjects 
 of the first three, and especially of the First. This 
 First Table of the primitive Code contained a number 
 of rules de in jus vocando, on the first steps in a 
 judicial proceeding, on summons to the defendant, 
 and on the excuses, or — to employ the later Teu- 
 tonic word which found its way into our oWn early 
 law — the ' essoins,' which he might make for not 
 attending. The Second Table had to do, first, with 
 the Procedure to be followed when the case was 
 actually in Court, and next (so it is commonly be- 
 lieved) with theft ; it went at once from legal pro- 
 cedure to the fraudulent subtraction of a movable. 
 The Third Table contained rules as to Deposits. We 
 need not go further, and all which must be recol- 
 lected is that the earliest Roman Code treated first of 
 legal procedure, and then, either at once or shortly 
 afterwards, dealt with the subjects of Thefts and 
 Deposits ; all the other heads of law discussed in the 
 remaining Tables followed the same apparently hap- 
 hazard arrangement. Let us now turn to the Prse- 
 
 B B 
 
O / J CLASSIFICATIONS OP LEGAL RULES, chap. XI. 
 
 torian or Perpetual Edict, the body of Roman Equity 
 jurisprudence as opposed to tlie Roman Common 
 Law constructed out of the Twelve Tables and out 
 of the accretion of legal rules which had them for a 
 nucleus. The Edict had unquestionably an order of 
 subjects of its own. I will not now discuss the time 
 iit which, or the mode in which, this order first ap- 
 peared. It began with a title manifestly corre- 
 sponding to the first Decemviral Table, though usually 
 given in different words, de actione dandd. The 
 Second Title, like the Second Table, dealt with Pro- 
 cedure in Court. Deposit was treated of in the Third 
 Title ; but Theft, instead of taking the first place 
 after Procedure, as it is thought to have done in the 
 primitive Code, occupied the last part of the Fourth 
 Title, in which it was preceded by Marriage Portions 
 and Tutelage. There is a general but not exact 
 correspondence with the Twelve. Tables throughout 
 the remaining Titles, and on the whole the classifica- 
 tion of the Edict looks like a modernised form of the 
 ancient order of the Twelve Tables. It is well es- 
 tablished that the distribution of subjects of the Edict 
 was observed in the great mass of Roman legal litera- 
 tiire, and that it influenced the earlier attempts at 
 codification, but it was long a matter of dispute 
 whether it determined the order followed in the Code 
 and Digest of Justinian. At first sight there is no 
 trace of resemblance or correspondence, but the reason 
 
CHAP. XI, CLASSIPICATIOlfS OF LEGAL KULES. 371' 
 
 is that a great quantity of prefatory matter introduces 
 the true classification in hoth of these famous com- 
 pilations. In the Code the preface is ecclesiastical ; 
 in the Digest there are first some general propositions 
 about law, and then an account of various Imperial 
 ofScers connected with the administration of the law 
 or having some sort of jurisdiction. The real body 
 of the Digest commences at the Fourth Title of the 
 Second Book, and begins with the very subject of 
 the First Table of the Decemviral Law, de in jus 
 vocando. A close correspondence between these ear- 
 liest and latest monuments of Roman law may be 
 discerned running through no less than nineteen 
 books of the Digest ; only Theft has dropped into an 
 obscurity characteristic of modern as distinguished 
 from ancient law. 
 
 From this brief summary of an inquiry which has 
 occupied the minds of several generations of learned 
 men, it would appear that the form of the Roman 
 law throughout the whole course of its liistory was 
 strongly influenced by the primitive arrangement oi 
 subjects in the Twelve Tables. Have we any clue to 
 the meaning or principle of this ancient legal classi- 
 fication? At first sight it is simply disorderly, even 
 less capable of being referred to any dominant notion 
 than the arrangement of our classical English Digest, 
 Bacon's ' Abridgment,' which begins with ' Plea in 
 Abatement to the Jurisdiction of a Court,' and goes 
 
 B B 2 
 
372 CLASSIFICATIONS OF LEGAL RULES. ^nkv. xi. 
 
 on to treat of Ambassadors and A.ttorneys, but which 
 at all events may lay claim to the convenience of an 
 alphabetical order. The suspicion, however, that 
 some light might be thrown on the arrangement of 
 the, Twelve Tables by what has more recently been 
 called Comparative Jm-isprudence is not new. Ever 
 since the earliest and purest of the Teutonic Codes, 
 the Frankish ' Lex Salica,' has been examined, it has 
 been seen that it exhibited some curious general re- 
 semblances to the course of legal topics followed in 
 all the monuments of Roman law except the Institutes. 
 The first title is de mannire, on Summons to a Court, 
 thus exactly answering to the First of the Roman 
 Tables, and to the First Title of the Edict. The next 
 seven Titles are concerned with Thefts, just as was 
 the second part of the Second Roman Table. The 
 Salic titles on thefts of swine, thefts of kine, thefts of 
 tame birds, and so forth, succeed one another down 
 to the ninth Title, where the subject of Trespass is 
 taken up ; but the code-maker immediately returns 
 to Theft, and though he interrupts himself to treat 
 of Homicide and other serious crimes, he is const antlv 
 recurring to Theft throughout a great part of the 
 Code. The title corresponding most nearly to the 
 Roman Deposits does not present itself till the middle 
 of the Salic Law is reached : it is numbered ' fifty,' 
 and has the barbarous Latin heading de fides facias ; 
 but it is most elaborately framed, and has furnished 
 
CHAP. XI. CLASSIFICATIONS OF LEGAL RULES. 373 
 
 plentiful food to modern German erudition. The 
 fact remains that the German Salic Law begin*, as did 
 the Roman Twelve Tables, with committing what to 
 a modern, legal eye is the paralogism of placing the 
 Law of Action in front of the law ; that, like the 
 Twelve Tables, it gives a very high place to Theft — in 
 modern law one of the most insignificant of subjects ; 
 and that it elaborately discusses contractual obliga- 
 tions, but that it puts them in no place in the smallest 
 degree corresponding to that reserved in the Roman 
 Institutes for the Law of Contract. These resem- 
 blances, as I stated, attracted notice some time ago ; 
 but it was matter of dispute whether they proved 
 anything more than that the Frankish code-maker 
 had heard something of the Roman 'legal order.' 
 On the one side the strong probability might be 
 urged that the Theodosian Cbde had something to 
 do with the Frankish codification ; on the other, it 
 might be said that the substantive law of the Lex 
 Salica shows no signs of derivation from the Roman 
 jurisprudence. It is purely barbarous. Again, the 
 order of topics in the Lex Salica is not that of the 
 later Roman law, which the Frank might conceivably 
 have followed, but that of the earliest Roman law, of 
 which it is almost impossible that he can have known 
 anything. After Procedure, the Salic Law deals with 
 Theft. So, according to the better opinion, did the 
 Twelve Tables ; but in the later Roman law Theft 
 
374 CLASSIFICATIOXS OP LEGAL RULES. chap. xr. 
 
 had become a criminal oflFence, and not one of any 
 importance. The fact is, the prominent place as- 
 signed to Theft is a distinctive mark of barbarous 
 law. It belongs to the period when movables are 
 of far higher value than immovables, personal pro- 
 perty than land. No surer inference can be drawn 
 from the insistence of a lawgiver on Theft than that 
 the community for which he legislated had more laud 
 than sufficed for cultivation, and that the common 
 prey of violence or fraud was the movable, the slave, 
 the domestic animal, or the ornament or utensil which 
 was the product of workmen making up for unskil- 
 fulness by laboriousness. 
 
 The arguments against the derivation of the Salic 
 from the Roman arrangement have always seemed to 
 me to preponderate, independently of new materials 
 for an opinion. But these new materials place the 
 matter beyond a doubt. By itself indeed the lately 
 revealed Irish law would carry us a very little way. 
 Its great peculiarity is the extraordinary prominence 
 it gives to Procedure. The principal Irish law-book, 
 j)retending to be a Code and claiming in its preface 
 to have been framed when ' Theodosius was monarch 
 of the world,' is almost wholly taken up with the 
 law of Distress. Undoubtedly we have here the 
 Celtic counterpart of the First Roman Table, de in 
 jus vocando. Distraint is the ancient Irish method, 
 and probably it was once the Greek, the Roman, the 
 
CHAP. XI. CLASSIFICATIONS OF LEGAL HULES. 375 
 
 German, and the Hindu method, possibly it was the 
 universal method, of vocatio in jus, of compelling a 
 person complained against to come into Court and 
 submit the quarrel to arbitration or adjudication. 
 The state of things is that of which we have a bare 
 trace in Roman and Hindu, but traces somewhat 
 more abundant in Teutonic law ; you, having re- 
 ceived an injury, so far availed yourself of the primi- 
 tive natural remedy of forcible reprisals that you used 
 it, with the sufferance or under the control of the law, 
 to compel your adversary to come into Court. But, 
 though this amount of correspondence is manifest, no 
 further resemblance to the Roman Twelve Tables 
 can be discovered amid the singular confusions ot" 
 the Irish jurisprudence. The subject discussed in 
 the great Code, the Senchus Mor, next after Distress 
 is the law of ' Hostage-securities,' and it may cer- 
 tainly be asserted that this must have been an im- 
 portant branch of law amid a community perpetually 
 belligerent like the ancient Irish. But in fact a great 
 part of law is incidentally discussed in the Senchus 
 Mor under the head of Distress, and it must on the 
 whole be admitted that neither in that nor in any 
 other Irish law-book is there any clear sign of de- 
 signed classification. All we can say with confi- 
 dence is — and this is an important proposition — that 
 the Irish Brehon lawyers regarded the mode of 
 bringing of a defendant into Court as the legal topic 
 
376 CLASSIFICATIONS OF LEGAL EULES. chap. xr. 
 
 ■whicli rightfully and naturally took precedence of all 
 others. 
 
 It appears to me that the key to these mysteries 
 may be found in those Hindu law-books which have 
 been more or less known to us under the extremely 
 inappropriate name of Codes. One of them has been 
 long accessible to English students through the trans- 
 lation of Sir William Jones, and this so-called Code 
 of Manu is believed by orthodox Hindus to be the 
 very collection of ' sacred laws ' which Manu, ' whose 
 powers were measureless,' declared to the ' divine 
 sages ' who approached him as he ' sat reclined with 
 his attention fixed -on one object.' But the sacred 
 laws thus promulgated in no way answer to the 
 modern conception of a Code. They are contained 
 in a book which, among other things, is a treatise on 
 the seen and unseen worlds, on the art of govern- 
 ment, and on the various classes of Hindu society. 
 Similarly the Christian Brehon laws are found mixed 
 up with discussions on cosmogony and logic ; and 
 the Roman Twelve Tables clearly consisted in some 
 parts of ritual. The Code of Manu would in fact by 
 itself suggest that Law, as a subject of conscious reflec- 
 tion, is the result of a gradual evolution. It was not 
 at first dissociated fi-om all sorts of propositions on 
 matters which affect life in this world or the next. 
 The Sanscritists of our day, as I have explained in the 
 earlier chapters of this work, are not at aU inclined 
 
CHAP. XI. CLASSIFICATIONS OP LEGAL RULES. 377 
 
 to concede to the later Hindu law-books tnat vast 
 antiquity which was once claimed for them. Follow- 
 ing a theory of Professor Max Miiller, they trace the 
 rh3rthnjical texts of the so-called Codes to collections 
 of maxims expressed in language so concise as to 
 fasten themselves on the memory, and finally to their 
 fountain-head in the oldest literature of the Aryan 
 race. But the law-books once framed appear to have 
 undergone a further specialisation. Ritual, of which 
 there are plain traces in the Roman Twelve Tables, 
 has a compendium of rules entirely appropriated to 
 itself in that remarkable record of another Italian 
 community, the Eugubine Tables, which till the 
 other day no man could read ; and in the book of 
 Narada, now open to the English reader, he will find 
 a version of the ' sacred laws ' of Manu in which Law 
 proper has been isolated' from other subjects, and is 
 regarded very much in the same light in which it 
 would be viewed by the author of a modern Code. 
 
 In the mediaeval Digests of Hindu law, which are 
 the actual sources of the law now administered in 
 India, Narada is sometimes quoted as of almost equal 
 authority with Manu. In point of fact, both Manu 
 and Narada are entirely mythical, and the books 
 called after their names are nothing more than com- 
 pendia of the teaching of particular Hindu law- 
 schools, formed more or less on the model of a gens or 
 clan. Both these law-books pretend to an origin in 
 
378 CLASSIFICATIONS OF LEGAL EULES. chap. xi. 
 
 the sacred laws declared by that Manu who took part 
 in the creation of the world ; but the author of the 
 extant book, which purports to contain the whole 
 teachmg of Manu, quotes ' Manu ' as a personage dis- 
 tinct from himself; and the preface to the book of 
 Narad a describes at lengih the process by which a 
 supposed original Code of Manu was gradually spe- 
 cialised, until it became at last a treatise on civil law. 
 Manu, says the writer, composed a work which, among 
 other things, told of the creation of the world, spoke 
 of the classification of beings in it, and gave the enu- 
 meration of the countries assigned to them, and it 
 contained 100,000 sldkas, legal texts or verses. Manu 
 delivered it to Narada, who made the very reasonable 
 remark, ' This book cannot be easily studied by 
 human beings on account of its length.' He accord- 
 ingly abridged it to 12,000 verses, and his disciple, 
 Sumati, further abridged it to 4,000. It is only the 
 gods, says the introduction, who read the original 
 Code. Men read the second abridgment, since human 
 capacitj'' has been brought to this through the lessen- 
 ing of life. 
 
 The chief interest of the book of Narada, which 
 has recently been translated into English by Dr. 
 Julius Jolly, of Wurzburg, is that its writer is much 
 more of a pure lawyer than the writer of Manu, and 
 his work is much more nearly a work on law. Both 
 of them were certainly Brahmans. The writer of Manu 
 
CHAP. xr. CLASSIFICATIONS OP LEGAL RULES. 379 
 
 is intensely sacerdotal, and like earlier awtliorities, still 
 contemplates the civil and eartUy sanction as a sup- 
 plement and aid to the spiritual penalty. On the 
 other hand, the author of Narada depends almost 
 wholly on the civil sanction, and his religious cha- 
 racter shows itself chiefly in earnest and often very 
 impressive exhortations to observance of the law and 
 of the moral duties implicated with legal obligations. 
 For my present purpose, however, I have only to 
 point out that these Brahmanical code-makers, differ- 
 ing sensibly in some respects from one another, and 
 each probably reflecting the doctrine of some vener- 
 ated school, agree essentially ut their conception of 
 the order and contents of a Code. The classification 
 of subjects which they follow may be seen by ex- 
 amining the eighth chapter of the Code of Manu in 
 Sir William Jones's translation, and it is observed 
 throughout the law-book of Narada. I will describe 
 it from the last, since it is plainer in thq more purely 
 legal treatise. The following account of it wiU be 
 found at page 6 of Dr. Jolly's version in slokas IG 
 to 20 :— 
 
 ' The eight constituent parts of a legal proceeding 
 are the King, his Officer, the Assessors, the Law- 
 book, the Accountant and Scribe, gold and fire for 
 Ordeals, and water for refreshment. 
 
 ' Recovery of a Debt, Deposits, Concerns among 
 Partners, Abstraction of Gift, Breach of promised 
 
380 CLASSIFICATIONS OF LEGAL RULES. chap. xr. 
 
 Obedience, Non-payment of Wages, Sale without 
 Ownership, Non-delivery of a Commodity sold, Re- 
 scission of Purchase, Breach of Order, Contests about 
 Boundaries, the Duties of Man and Wife, the Law of 
 Inheritance, Violence, Abuse and Assault, Gambling, 
 Miscellaneous Disputes. 
 
 ' These are the Eighteen Heads of Dispute.' 
 This distribution of subjects is, on the whole, 
 rigorously observed throughout the treatise, except 
 apparently in one particular. The mechanism of a 
 Court of Justice and its procedure are first elaborately 
 described. The King seats himself on the throne 
 with the book of the law in his hands ; but, though 
 the justice described is throughout royal justice, the 
 Kiug is significantly directed to follow the opinion 
 of his Chief Judge or Assessor. After a full account 
 of judicature, the writer (subject to a remark which 
 I will make presently) takes up the subject of Evi- 
 dence, which, in his view, includes Ordeals ; and 
 then, having started with a summary of what we who 
 live in the light of Bentham should call Adjective 
 Law, he proceeds to divide the Substantive Law into 
 eighteen branches, which he calls ' heads of dispute.' 
 The order in which he discusses these is that in which 
 he placed them in the passage which I quoted : with 
 this exception, that the first head of dispute. Recovery 
 of a Debt, is interpolated between Judicature and 
 Evidence. This may be the result of a mere acci- 
 
CHAP. XI. CLASSIFICATIONS OF LEGAL RULES. 381 
 
 dental disarraBgement of tte oldest compendia of 
 Hindu law, but it is to be remarked that Something 
 like the same misplacing of ' recovery of debts ' shows 
 itself in the treatise of Mann, and it is conceivable 
 that it may have been caused by the inherent diffi- 
 culty of explaining adjective law without reference to 
 substantive law, and that one ' head of dispute ' may 
 have been taken out of its place with the view of fur- 
 nishing illustrations to the text- writer. 
 
 The principle and meaning of this ancient classi- 
 fication strike me as obvious. The compiler of 
 Narada or his original makes the assumption that 
 men do quarrel, and he sets forth the mode in which 
 their quarrels may be adjudicated upon and settled 
 without bloodshed or violence. The dominant notion 
 present to his mind is not a Law, or a Right, or a 
 Sanction, or the distinction between Positive and 
 Natural Law, or between Persons and Things, but 
 a Court of Justice. The great fact is that there 
 now exists an alternative to private reprisals, a mode 
 of stanching personal or hereditary blood-feuds other 
 than slaughter or plunder. Hence in front of every- 
 thing he places the description of a Court, of its 
 •mechanism, of its procedure, of its tests of alleged 
 facts. Having thus begun with an account of the great 
 institution which settles quarrel?, he is led to distri- 
 bute law according to the subject-matter of quarrels, 
 according to the relations between human beings 
 
382 CLASSIFICATIONS OP LEGAL RULES. chap. h. 
 
 which do, as a fact, give rise to civil disputes. Thus 
 Debt, Partnership, the Marital Relation, Inheritance, 
 and Donation are considered as matters about which 
 men at a certain point of civilisation do, as a fact, 
 have differences, and the various rights and liabilities 
 (as we should call them) to which they give rise, are 
 set forth simply as guides towards determining the 
 judgment which a Court of Justice should give when 
 called upon to adjudicate on quarrels. 
 
 It appears to me that this explanation covers the 
 whole of the problem suggested by the classification 
 of subjects in the primitive Codes which I cited. 
 They all seem to begin with Judicature, and to dis- 
 tribute substantive law into ' heads of dispute.' The 
 Irish law never, indeed, gets farther than the initial 
 steps of procedure. All the learning and ingenuity 
 of the contributing Brehon lawyers are bestowed 
 on defining the rules by which adversaries may be 
 brought under the control of the institution, which 
 the Roman and Hindu Codes assume to have been 
 long since in existence and long since in active and 
 regular operation. The testimony, however, to the 
 early overshadowing importance of Judicature is all 
 the more striking. As we have seen, the Roman, 
 Prankish, and Hindu Codes also divide the subjects 
 of the quarrels which are the materials for litigation 
 into several branches ; and, as to the order in which 
 these ' heads of dispute ' are taken up, it seems to me 
 
CHAP. xr. CLASSIFICATIOJTS OF LEGAL BULES. 383 
 
 that it depends on their relative importance at the 
 time when that order was fixed. I do not at a,ll 
 doubt that the arrangement is in a certain degree at 
 haphazard, but it seems to me that there must have 
 been a meaning in the prominence given to Deposits 
 in the Roman and Hindu law, and in the prominence 
 assigned to Thefts in the law both of the Romans and 
 of the Salian Franks. At the reasons of the special 
 importance of Deposits we can only guess, but I have 
 already stated my opinion that the importance of 
 Thefts belongs to a particular stage of economical 
 and social advance. We can see the signs in Roman 
 law of their dwindling importance, which is exactly 
 what we should expect from the growth of popula- 
 tion, from the rising value of land, from the greater 
 plentifulness of capital, and from the freer multipli- 
 cation of movable articles of use or luxury^ and from 
 their consequent relative cheapness. It is curious 
 that, though Theft is not'a specific Head of Dispute 
 in the book of Narada, casual allusions to Thefts 
 occur during the discussion of Deposits, possibly 
 derived from an older state of the law. 
 
 The suggestion, then, which I offer is that the 
 authority of the Court of Justice overshadowed all 
 other ideas and considerations in the minds of these 
 early code-makers, belonging to societies of the Aryan 
 race so remote from one another and so unlike to 
 one another. The evidence of this position does not 
 
384 CLASSIFICATIONS OF LEGAL KITLES. chap. xi. 
 
 solely arise from the probabilities or depend on infer- 
 ence from the construction of the ancient legal com- 
 pendia. There is a whole literature, the Icelandic, 
 which gives the most vivid impression of the power 
 and majesty of Courts of Justice in an ancient society. 
 It may almost be said that in the Iceland revealed to 
 us by the labour and learning of Konrad Maurer 
 there is no institution worth speaking of except the 
 Court ; all society is moulded round it and all ideas 
 centre in it. It affects all literature, both poetry and 
 prose. It is manifestly in the most intimate relation 
 to every passage, incident, affection, and passion of 
 life. And as the society depicted is in the highest 
 degree bloody and violent, so long as it follows its 
 natural bent, it becomes clear that it is not the Court 
 as we understand it, but the Court standing before 
 all men's sight as the alternative to forcible reprisals, 
 and as the avenger of their victim, which has attained 
 to this commanding altitude. We need not, more- 
 over, go to historical records for the proof that this 
 is a natural condition of men's minds. The pheno- 
 mena can be reproduced, and are in fact not uncom- 
 monly reproduced in the country which has only 
 lately emerged from the anarchy into which it fell 
 long after the laws of Manu and Narada had ceased 
 to be administered in it by tribunals which they 
 describe. When a province hitherto specially ill- 
 governed is annexed to British India, the first effect . 
 
CHAP. XI. CLASSIFICATIONS OF LEGAL RULES. 385 
 
 ordinarily is neither satisfaction nor discontent, 
 neither the peaceable continuance of old usages nor 
 the sudden adoption of new, but an extraordinary- 
 influx of litigation into the British Courts, which are 
 always a| once established. The fact occurs too uni- 
 formly, and at first sight is too inexplicable, not to 
 have attracted notice, but it has generally been ob- 
 seryed upon with regret, and, after a while, when 
 there has been time to forget the original condition 
 of the annexed territory, this new litigiousness is 
 sometimes adduced to show that in exchanging native 
 for British rule a community ^oes not obtain an un- 
 mixed blessing. But the proper conclusion to draw 
 is that already drawn in this paper, that Courts of 
 Justice have an immense ascendency over men's 
 minds and a singular attraction for their tastes, when 
 they are first presented as a means of settling disputes 
 which were either violently adjusted or slumbered 
 because they could only be settled at prodigious risk. 
 
 Another phase in the history of Courts of Justice 
 is instructively illustrated in the more settled parts 
 of British India. The commands of the British 
 Indian Government and of the British Indian legis- 
 lature are far more implicitly obeyed than the com- 
 mands of any previously existing authority in India, 
 far more implicitly than the orders of the most power- 
 ful Mogul Emperors. The law is obeyed in India 
 as uniformly as in England, but then it is much more 
 
 c c 
 
386 CLASSIFICATION'S OF LEGAL RULES. chap. xr. 
 
 consciously obeyed. At present (and for a long while 
 to come it will probably be so) the fact of tbe exist- 
 ence of Courts of Justice regularly enforcing the law 
 is constantly before the minds of the natives of India 
 subject to their jurisdiction to a degree which we in 
 this country can scarcely conceive. The law and the 
 Court have an. importance which may be measured 
 by a circumstance related to me on good authority, 
 that in many parts of India youths learn the texts of 
 the Penal and Procedure Codes in daily lessons, as 
 did the young Romans of Cicero's day the cantilena 
 of the Twelve Tables. But with us, I need scarcely 
 say, there is little conscious observance of legal rules. 
 The law has so formed our habits and ideas that 
 Courts of Justice are rarely needed to compel obedi- 
 ence to it, and thus they have apparently fallen into 
 the background. It is only when the law happens 
 to be uncertain, or when facts with which we are 
 concerned happen to get unusually entangled, that 
 most of us, who are not lawyers, ever come into con- 
 tact with the administration of the law. No doubt 
 the force which arms the law is still there ; but it 
 lies in reserve, in (so to speak) a compact and con- 
 centrated form, which enables it to keep out of sight. 
 On the whole the effect of peace and civilisation is 
 to diminish the conscious reverence of mankind for 
 Courts of Justice, and the abiding sense of their 
 importance. 
 
CHAP. XI. CLASSIFICATIONS OF LEGAL RULES. 387 
 
 We may believe that tlie impressiveness of the 
 early Courts of Justice was in part created by what 
 to a modern eye were their infirmities. It would 
 seem that by their side the very practices long sur- 
 vived which it was their object to suppress. The 
 tenderness of early judicial procedure to immemorial 
 barbarism is shown by its partial recognition of the 
 remedy which we call Distraint and the Germans 
 ' self-help,' the remedy of private reprisals on the 
 property of an adversary ; and there is much signi- 
 ficant evidence that the early tribunals had no power 
 of directly enforcing their own decrees. The man 
 who disobeyed the order of Court went out of the 
 law ; his kinsmen ceased to be responsible for his 
 acts' and the kinsmen of those who injured him be- 
 came also irresponsible ; and thus he carried his life 
 in his hand. We cannot then doubt that the vio- 
 lence and bloodshed which the law licensed under 
 certain circumstances were generally rife during the 
 infanc)'' of Courts of Justice, and that their earliest 
 service to mankind was to furnish an alternative to 
 savagery, not to suppi*ess it wholly. Their value 
 and beneficence were therefore probably all the more 
 conspicuous while as yet their power was imperfect 
 and their operation irregular. But gradually, as the 
 sovereign power of the State developed itself, and 
 was more and more placed at the disposal of the 
 tribunals, their decrees became inflexibly effectual. 
 
 c c 2 
 
388 CLASSIFICATIONS OF LEGAL RULES. chap. xi. 
 
 Obedience to them came to be unhesitating and im- 
 plicit, and a mass of habits and ideas were formed of 
 which the centre and pivot is unquestioning observ- 
 ance of law. This formation of law-abiding habits, 
 and the consequent banishment of the penal sanctions 
 of law into the background, are the secret of many- 
 transformations of juridical theory. We have seen 
 that the ' legal order ' of the Roman Twelve Tables, 
 testifying to the primitive importance of procedure, 
 survived long after it had lost its meaning ; but in 
 the Roman State, always relatively well ordered and 
 in the end the type of order and peace, the force 
 which is the motive-power of law early retreated into 
 the distance. The classification of the Roman Insti- 
 tutes, assigning the Law of Actions not to the first 
 place but to the third and last, is one testimony to 
 the formation of a habit of obedience to the law so 
 confirmed as to be unconscious ; but another and 
 more striking piece of evidence is the rise of the con- 
 ception of the Law of Nature, which is in truth law 
 divorced from its penal sanctions. The retreat out 
 of sight, if I may so speak, of the force which is the 
 motive-power of law, has been even more complete in 
 the modern than in the Roman world ; partly because 
 the decrees of Courts of Justice are ever\'^where in- 
 exorable, but also doubtless from the long ascendency 
 of theories directly or indirectly descended from the 
 Roman Jus Naturale. The gi-eat difficulty of the 
 
CEAP. XI. CLASSIPICAXIONS OF LEGAL RULES. 389 
 
 modern Analytical Jurists, Bentham and Austin, has 
 been to recover from its hiding-place the force which 
 gives its sanction to law. They had to show that it 
 had not disappeared and could not disappear ; but 
 that it was only latent because it had been trans- 
 formed into law-abiding habit. Even now their as- 
 sertion, that it is everywhere present where there are 
 Courts of Justice administering law, has to many the 
 idea of a paradox — which it loses, I think, when 
 their analysis is aided by history. 
 
 The primary distinction between the early and 
 rude, and the modern and refined, classifications of 
 legal rules, is that the Rules relating to Actions, to 
 pleading and procedure, fall into a subordinate place 
 and become, as Bentham called them, Adjective Law. 
 So far as this the Roman Institutional writers had 
 advanced, since they put the Law of Actions into the 
 third and last compartment of their system. Nobody 
 should know better than an Englishman that this is 
 not an arrangement which easily and spontaneously 
 suggests itself to the mind. So great is the ascend- 
 ency of the Law of Actions in the infancy of Courts 
 of Justice, that substantive law has at first the look 
 of being gradually secreted in the interstices of pro- 
 cedure ; and the early lawyer can cnly see the law 
 through the envelope of its technical forms. It would 
 even seem that civilised societies experience reversions 
 towards this condition of thought. There are men 
 
390 CLASSIFICATIONS OF LEGAL RULES. chap, xi.- 
 
 still alive who recollect that the tendency towards 
 active law-reform which was part of the great move- 
 ment associated with the Reform Act of 1832, first 
 showed itself in an energetic resuscitation of strict- 
 ness in pleading, so that for many years the practical 
 questions at issue were altogether thrown into ob- 
 scurity by questions of the proper mode of stating 
 them to the Courts. It was the very state of things 
 which existed when the ancient Hundred Courts of 
 the Germans were administering the rude Salic law. 
 The eiFecfcs of the ' New Rules of Pleading ' wore 
 away very slowly, and it was only the other day that 
 the Judicature Acts, of which the full influence has 
 not yet been felt, placed the Procedure of Courts of 
 Justice on the footing which would naturally be 
 given to it by a society which regards it only as 
 Adjective Law. 
 
 The most modern classifiers, again, distribute law 
 not with reference to the distinction between Persons 
 and Things, but with reference to the differences be- 
 tween kinds of Rights. I stated before that the clear 
 conception of a legal right is not ancient, or even 
 Roman, but that it belongs distin-ctively to the modern 
 world. Doubtless, before it can be realised, the sense 
 of a Court of Justice as ever active, and as dominat- 
 ing the whole field of law, must have somewhat 
 decayed. As regards one great class of Rights, tho.-.e 
 arising out of Contract and Delict, the Romans un- 
 
CHAP. XI. CLASSIFICATIONS OF LEGAL KULES. 391 
 
 questionably mixed together the notions of legal 
 Right and legal Duty. They considered the parties 
 as bound together by a vinculum juris, a bond or 
 chain of law, and ' Obligation,' which is the name for 
 this chain, signified rights as well as duties ; the 
 right, for example, to have a debt paid as well as the 
 duty of paying it. As I have said elsewhere, ' the 
 Romans kept, in fact, the entire picture of the " legal 
 chain " before their eyes, and regarded one end of it 
 no more and no less than the other.' But it was the 
 Court of Justice which had welded this chain, and 
 the explanation of this and other blended ideas which 
 we can detect in Roman legal phraseology is, I pre- 
 sume, that the dominancy of the Court of Justice 
 over all legal notions still continued to influence the 
 Roman view of law. Although, however, the authors 
 of the Roman Institutional manuals did not invent, 
 and could not have invented, arrangements of law 
 based on classification of Rights, they did, as we have 
 seen, attain to the conception of law as something 
 distinct from Procedure, and they did conceive it as 
 distributable into the Law of Persons and the Law of 
 Things. The exact relation of these two departments 
 to one another has been keenly disputed by modern 
 writers, and it cannot be conveniently considered 
 here ; but anybody who can bring home to himself 
 the ancient ideas of law on which I have sought to 
 throw light may, perhaps, convince himself that the 
 
392 CLASSIFICATIOJfS OF LEGAL KULES. chap, xi, 
 
 conception of a Law of Things, at all events, was a 
 great achievement in mental abstraction ; and that 
 it must have been a man of legal genius who first 
 discerned that Law might be thought of and set forth 
 apart from the Courts of Justice which administered 
 it on the one hand, and apart from the classes of 
 persons to whom they administered it on the other. 
 
INDEX. 
 
 [393J 
 
INDEX. 
 
 ACTIONS 
 
 ACTIONS, law of, place assigned to 
 it by Koman Jurists, 388, 389 
 
 Adams, H. C, his ' Historical Studies ' 
 referred to. Note A, 330 
 
 Adoption, practice and importance of 
 at Rome aud Athens, 96, 97 ; its 
 survival as an institution on the Con- 
 tinent, 96 ; practice of among Hin- 
 dus and in India generally, 07, 154 ; 
 Eoraan usMge of referred to, 1 98 
 
 Aged men among Hindus, withdrawal 
 of into 'religion,' 21, 22 ; status of, 
 22 et seq. 
 
 Agnatic kindred, 238, 239 
 
 Agnation, system of, among Eomans 
 referred to, 198 ; among words re- 
 ferred to, Note A, 283 
 
 ' Alice in Wonderland ' referred to, 3o 
 
 Allod, the„ meaning and description of, 
 338 et seg. ; its difference from the 
 feud, 341, 342 ; how it passed into 
 the feud, 343 et seq. 
 
 Amatongo, the, worship of referred to, 
 54 
 
 Ancestor- worship, incumbent upon heirs 
 in most early communities, 53; theory 
 of its origin, 67-70 ; subsequent to 
 recognition of Paternity, 75, 76 ; its 
 tendency to dissolve the family, 77 ; 
 its connection with Inheritance, 53, 
 78, 79 ; intense desire for male off- 
 spring created by, 85 ; among Chi- 
 nese, described, 60 et seq. ; expense 
 of, 61 ; honours not originally paid to 
 women, 72, 73 ; in reference to fu- 
 neral rites, 80 ; intense desire for 
 male offspring created by, 86 ; among 
 Christians and Mahommedans merely 
 accidental, 59 ; its relation to Con- 
 fticianism and Buddhism, 63, 64 ; 
 
 ANCESTOE 
 
 among Greeks compared with Hindu 
 worship, 67, 58 ; among Hebrews re- 
 ferred to, 58 ; among Hindus, sense 
 in which it is to be regarded, 53 ; 
 proximity in time essential to, 64 ; 
 reverence paid to remote ancestors 
 later in point of time, 54 ; its ela- 
 borate liturgy and ritual, 55 ; law of 
 Inheritance dependent upon, 55 ; as' 
 it affects daily life, 56 ; distinction 
 between general and daily worship, 
 57, 64 ; under name of Pitris referred 
 to, 67 ; difficulty of reconciliation 
 between it and Purgatory and Trans- 
 migration, 70. 71, 72; honours not 
 originally paid to women, 73, 74 ; 
 Vishnu's summary of, 74 ; its exist- 
 ence in the Punjab, 76; in reference 
 to funeral rites, 81 ; its effect upon 
 law, 81-83 ; analogy between such 
 effect and that created by mediae- 
 val Church, 84 ; intense desire for 
 male offspring, 85 ; copsequence of 
 that desire, 86 ; eldest legitimate 
 son of father if possible to offer 
 sacrifices, 88, 89; this spiritual 
 primacy as relating to primogeni- 
 ture and succession, 89, 90 ; failing 
 legitimate son of father, eldest son of 
 wife to sacrifice, 90; failing either, 
 son of ' appointed' daughter to sacri- 
 fice, 91 ; modifications of, Note A, 
 122, and changes in, 116, 118 ; among 
 Romans, distinction between general 
 and daily worship, 57, 64 ; compared 
 with Hindu worship, 57, 58 ; decline 
 of private celebration of, 64 ; its 
 effect on Civil law, 66; result of this 
 effect upon English and Continental 
 law of Inheritance, 66 ; in reference 
 
394 
 
 INDEX, 
 
 ANCIEUT 
 
 to funeral rites, 80; intenss desire 
 for male offspriDg, 86 
 
 Andent Societies, kings judges in, 160 
 et seq. 
 
 Andaman Islanders, the, account of. 
 Note A, 229 et seq. 
 
 Apastamba, Law-Book of, quoted, 13, 
 17, 30, 73, 81, 89, 9i, 127 ; referred 
 to, 43, 107, 109, 115 
 
 Aphorisms, as determining dates of an- 
 cient law-books, referred toi, 9, 10 
 
 Appointment, explanation of, 91 ; sacer- 
 dotal formula of, 91 ; customs akin 
 to, 92 ; practice of among Athenians, 
 92 ; theory of in mediaeval law, 93 ; 
 theory upon which Edward III. of 
 England based his claim to throne of 
 France, 93 ; effect of upon right of 
 women to inherit, 94 ; Hindu testi- 
 mony as to female right of inheri- 
 tance, 94 
 
 Aristotle, his view and illustration of 
 Patriarchal theory of Society re- 
 ferred to, 196, 198 ; his treatise on 
 ' Barbarian Customs ' alluded to, 197 
 
 Austin, the jurist, his speculations on 
 legal Classification mentioned, 364, 
 389 
 
 Austrian Code, the, referred to, 26S 
 
 BACON, Lord, his ' Abridgement ' 
 referred to, 371 
 
 Baudhayana, Law-books of, referred to, 
 43, 107, 109, 112 11.; his judgment 
 upon ' affiliation ' referred to, 87 
 
 Beaumarchais, his ' Mariage de Figaro ' 
 alluded to, "3 13 
 
 Belgian Constitution, the, referred to. 
 Note A, 285 
 
 Beneficiura, the, stage in the history of 
 land law marked by, 345 ; its simi- 
 larity to the Emphyteusis, 345 ; dis- 
 pute as to application of, 345 ; called 
 the Feodum, 346 
 
 Bentham, the jurist, referred to, 351, 
 360, 362, 389 
 
 BogiSic, Professor, his opinions referred 
 to, 195, 241, 242, 244 », 255, 261, 
 263 
 
 Bonitarian Ownership. See Possession, 
 law of, and 343 
 
 Boulnois and Hattigan, Messrs., their 
 ' Notes ' on Punjab law referred to, 
 115 ». 
 
 CHANCERY 
 
 Bracton, his legal treatises referred to, 
 341 ; his treatise on Villeinage 
 quoted, 305 n. Note A, 333 
 
 Brahmanism, system of, its superstition, 
 vitality, and perpetual growth, 48, 
 49 
 
 Brahmans, sacred schools of, alluded to, 
 12 e^ seg.; relations between teachers 
 and pupils, 13 ; likeness to Ho- 
 meric Clans and Irish Brehon Law 
 Schools, 14, 15 
 
 — the, their absolute ascendency, 46 ; 
 their self-denial, 47 et seq. ; support 
 of, alluded to, 82; compared with 
 that encouraged by early Christian 
 Churches, 84, 85 
 
 Brahmanical legal authors, priestly 
 character of, as affecting their books, 
 27, 28 
 
 Brehon Law Schools, the, referred to, 
 14, 15 
 
 Brehon laws, the, alluded to, 84, 348, 
 375, 376 
 
 British Constitution, the, referred to. 
 Note A, 286 
 
 ' Broken Man,' the. See Fuidhir 
 
 Brosses, De, President, his 'Lettres 
 Ecrites d'ltalie ' referred to. Note B, 
 124 
 
 Buddha, Buddhism, 30, 31 
 
 BUhler, Dr., his preface in ' Sacred 
 Books of the East ' quoted, 87 
 
 ' Burning_ of the Chateaux,' meaning 
 and oQect of, 296 et seq. 
 
 CAHIERS, the, neglect of informa- 
 tion contained in them, 291 ; rea- 
 sons for this neglect, 292 et seg. ; 
 examination of these reasons by De 
 Tocqueville, 292 ; collections of them 
 published by Prudhomme and Lau- 
 reirt de M&iJres, 294 ; statements in 
 referred to, 311 
 
 Callaway, Canon, his observations 
 quoted, 54 
 
 Capetians, the. Royal House of referred 
 to, 138, 142, 162, 154, 155 
 
 Carolingian power, the dissolution of 
 noticed, 349 et seg. ; this dissolution 
 compared with that of Mogul, 351 
 
 Carpenter. Dr., his observations referred 
 to, 20in. 
 
 Chancery, English Court of, referred to, 
 166; its origin mentioned, 190; its 
 
INDEX. 
 
 395 
 
 CHASSIN 
 
 identity -with, and difference from 
 Court of Star Chamber, 190 
 
 Chassin, Mods., his 'Le GAnie de la 
 Eevolution ' referred to, 293 
 
 Chronicles, 2nd Book of, referred to, 
 134 
 
 Cicero, his 'De Legibus' quoted, 6 
 
 Classificatory Relationship, theory of, 
 referred to, 201, Note A, 289 
 
 Colebrooke, Lieutenant, his ' Asiatic 
 Researches ' quoted, Note A, 230 
 
 Commentaries of Gains, discovery of by 
 NIebuhr, 197 
 
 Common Pleas, English Court of, former 
 relation of the King to, 1 87 
 
 Commune, the, its displacement of the 
 Fief, 326 
 
 Communities, barbarous Aryan, infor- 
 mation about most valuable, 233 ; 
 difficulty in obtaining such informa- 
 tion, 233 
 
 Comte, Auguste, his philosophy alluded 
 to, 166 
 
 Consanguine marriage, practice of, al- 
 luded to, 201 
 
 Copyhold Commissioners, the, their 
 work referred to, 310, 322 
 
 Copyhold, tenure by, actual origin of, 
 302 et seq. 
 
 Copyholder, the, difierence of status be- 
 tween him Kodthe tenant-farmer, 322 
 
 Coulanges, Fustel de, M., his opinions 
 generally referred to, 66, 75, 80, 
 105 »., 118, 120, 203, 317, 350; his 
 ' La Cite Antique ' specially referred 
 to, 57; his opinion of the Beneficium 
 alluded to, 345 
 
 County Courts in England, system of, 
 referred to, 1 89 
 
 Court Baron, in England and on the 
 Continent, the, its analogy to Home - 
 rie Agora, 303 
 
 Court of Justice, the, its paramount 
 authority in the eyes of early code- 
 makers, 380, 381, 383 ; its position 
 in ancient Iceland described, 384 ; 
 its paramount tendencies as illus- 
 trated by British India, 385 et seq. ; 
 its early authority enhanced by its 
 tenderness to barbarism, 387 
 
 Court of the Hundred, the, referred to, 
 168 ei seq.; peculiarity of, 170; 
 penalty for disobedience to, 170 ; re- 
 lation of the King to, 171; duty of 
 attendance at, 176 
 
 EXO&AMT 
 
 Cowell, Professor, quoted, Mote A, 60, 
 
 51 
 Cox, Sir George, his opinions referred 
 
 to, 198 
 Gumming, Miss C. G., her ' Ningpo and 
 
 the Buddhist Temples ' quoted, 61 ; 
 
 alluded to, 80 
 
 DANTE, Inferno of, referred to, 32 
 Darwin, Mr., his 'Descent of 
 Man' quoted, 206; alluded to, 207 
 
 Daughters, provision for among Athe- 
 nians mentioned, 109 
 
 Daya-Bhaga, the, referred to, 116-118, 
 120 
 
 Daya-Krama-Sangraha, the, referred to, 
 116, 120 
 
 Deuteronomy, Book of, quoted, 58, 101 
 
 ' Distribution of Life,' theory of among 
 Hindus described, 19 et «ej., Note A, 
 290 
 
 Divorce among Romans referred to, 
 198 
 
 Domat, his theory of legal Classification 
 referred to, 363 
 
 Domatehin, the, his position in the 
 House-Community, 246 ; mode of 
 appointment of, 247 ; sometimes a 
 woman, 248 
 
 Dominion, Roman usage of referred to, 
 198 
 
 Doniol, M., his ' La Revolution Fran- 
 9aise et la F^odalite ' referred to, 293, 
 294 ; his view of the disadvantage of 
 English Copyhold referred to, 308 
 
 Drew, Mr., his 'Kashmir and Jura- 
 moo ' quoted, 185 ». 
 
 Dynastic Contests, contrivances for pre- 
 venting, 135, 136 
 
 ELTON, Mr., his ' Origins of English 
 History ' referred to, 261 n. 
 Emancipation, among Romans, referred 
 
 to, 198 
 Emphyteusis, the. See Beneficiura 
 Equity, Roman law of, referred to, 
 
 119 
 Essoin, the. See Sunis; also 369 
 Euripides, Fragment on male parentage 
 
 referred to, 203 ». 
 Exogamy and Endogamy, meaning of, 
 222 ; practice of among Chinese, 
 
396 
 
 INDEX. 
 
 EXOGAMY 
 
 223 ei seq. ; Hindus, 223 ; Eomans, 
 223; practice of among Western 
 nations, 224 et seq. 
 
 Exogamy, practice among South Slavo- 
 nians, result of, 254 ; part played by 
 in theories of Messrs, McLennan and 
 Morgan, 225 ; difForence of view be- 
 tween them, 226 ; Morgan's theory 
 preferable on the whole, 227 
 
 Eyton, Mr., his researches referred to, 
 181, 182 
 
 IJiAMJLY,' the, developed from the 
 ' horde,' according to Messrs. 
 Morgan and McLennan, 200, 201 
 
 ' Fang-Kien,' Ode quoted, 73 
 
 Feodum, the. See ' Beneficiura,' and for 
 its effect upon law of land, 346 
 
 Feud, the. See AUod, the 
 
 Feudal dues, abolition of, in France, 
 ■198, 
 
 Feudal land laws, the, many origins of, 
 341, 342, 349 
 
 Feudal rules among early Irish, obser- 
 vations upon, 348 
 
 Feudalism, confusion between property 
 and sovereignty created by, 148 
 
 Fictitious sons, origin of name, 98 ; 
 statu? of, 98 ; repugnance to in Hindu 
 law, 99 
 
 Fidei-commissa, law of, alluded to, 345 
 
 Fief. See Manor 
 
 Fifth Commandment, the, alluded to, 
 59 n. 
 
 'Finances' of old French law, the, 
 allndfd to, 308 
 
 Fines, the. &e' Finances' 
 
 Fratricide among Mahommedans al- 
 luded to, 137 
 
 Freemnn, Mr. E. A., his ' Comparative 
 Politics' referred to, 23; his 'His- 
 tory of Federal Government ' referred 
 to, 174; his 'Norman Conquest' re- 
 ferred to. 306 
 
 French Civil Code, the, referred to, 96, 
 165, 265 
 
 French Parliaments, origin of, 316 ; 
 their authority over the Fief, 316, 
 318; reasons for their later tender- 
 ness to signorial rights, 317 
 
 French "E,evolution, the first, referred 
 to, 2S5, 291 ; some causes for,- 294 
 
 Fuidhir, the, described, 270 
 
 GAUTAMA, Law-book of, described, 
 10, 16 ; quoted 81, 83, 89, 91, 98, 
 102, 103, 112, 128; alluded to, 43, 
 57, 107, 109, 112b., Note A, 122 
 
 'Gens,' the, account of, by Messrs.. 
 McLennan and Morgan, referred to, 
 Note A, 283 ; among Eomans, 239, 
 Note A, 283 
 
 Gens Fabia, the, referred to, Note A, 
 288 
 
 Germanic king, the, his relation to civil 
 justice, 167 et seq. 
 
 Germany, Lex Saliea of, referred to, 
 157 ; its real origin, 167 ; its relation 
 to daily life, 168 
 
 Glanvill, his legal treatises referred to, 
 341 
 
 Gomme, Mr., his ' Primitive Folk- 
 Moots' alluded to, 169 
 
 Gordon, Sir Arthur, his observations in 
 Fiji alluded to. Note A, 331 
 
 Gossipred, practice of, among South 
 Slavonians, 257, 2o8 
 
 Gotra, the, refeiTed to. Note A, 286 
 
 Government of India, Eecords of, 
 quoted, Note A, 229 
 
 Graf, the, as deputy of the king, alluded 
 to, 172 
 
 Grimm,his'DeutscheRechtsalterthiimer' 
 referred to, 179 »■ 
 
 Grote, Mr., the late, his theory of Ho- 
 meric poetry referred to, 14 ; his 
 'History of Greece' referred to, 179 
 
 HAMLET,' phiy of, referred to, 145 
 Hammond, Mi-., his preface to 
 American edition of Sandars' ' In- 
 stitutes of Justinian ' quoted, 368 ; 
 and alluded to, 365 
 
 Hardy, Sir T. D., the late, his ' Itineraiy 
 of King John' alluded to, 181, 182 
 
 Hayward. Mr. A., his ■ Biographical and 
 Critical Essays' referred to, 155 n. 
 
 Haxthausen, his books upon law and 
 usage referred to, 194 
 
 Hell, torments of, Buddhist pictures of, 
 33 
 
 Heredity, theory of, referred to, 155 
 
 Heriot, the, definition of, 309 
 
 Hesse-Darmstadt, Land registry of, de- 
 scription, 353 et seq. 
 
 Hessels, Mr. See Kern, Mr. 
 
 Hindu doctors, legal theory of, stated, 
 17 ; legal writings, their vast an- 
 
INDEX. 
 
 397 
 
 HOBSE 
 
 tiquity discovered by Sir W. Jones, 
 4; Sacred Law, gradual growth of, 
 enlarged upon, 12; SacredLaw-Books, 
 why so called, 36 ; most valuable 
 portions of, 45 ; drawbacks to, 45 
 
 Horde, the theory of, stated, 199, 200 ; 
 opposed to patriarchal theory, 199; 
 as advanced by McLennan and Mor- 
 gan, 200, 201 ; objections to stated, 
 204, 206, 220 
 
 House chief, the. See ' Domatchm ' 
 
 House Communities and ' Natural Fa- 
 
 . milies,' mutual change into described, 
 2.39 
 
 House-Community, tiie, one of the oldest 
 institutions of Aryan race, 237 ; its 
 completeness in South Slavonian pro- 
 vinces, 238, 241 ; its analogies among 
 the Romans, 268 et seq.; its corre- 
 spondence with the Celtic ' sept,' the 
 Hellenic ' yivos' the Teutonic ' kin,' 
 the Hindu ' Joint-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, 246, 246 ; its rules of 
 common property corresponding with 
 the res mancipi and tjie res nee maii- 
 cipi of the Ilomans, 249 et seq. ; 
 different development of in Northern 
 and Southern Slavonic provinces, 262; 
 development into a Village-Commu- 
 ni ty in Eusso-Slavonic provinces, 261; 
 result of this development, 261 et 
 seq. ; decay of the system, 263 et seq. 
 
 Hoase of Commons, the, its Select Com- 
 mittee on Copyholds referred to, 307, 
 310 
 
 Hotise of Lords referred to, 25 ; second 
 chambers in imitation of, 25 
 
 Hypothek, law of, mentioned, 357 
 
 IMPURE Tribes, fictitious formation 
 of, 279 et seq. ; among Rajpoots, 
 description of, 274 ei seq. 
 Inheritance, law of, as it affected women 
 among Athenians, 94, 96 ; Athenian 
 and Hindu-Punjab rules of compared, 
 95 ; its implication with ancestor- 
 worship among Hindus and Romans, 
 
 EINS 
 
 1 20 ; as affecting the portion of 
 daughters among Romans, 109 ; among 
 Mahommcdans, 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 Rights, the, quoted, 180 
 
 Isseus quoted, 78 
 
 JAMIESON, Mr., his communications 
 to the ' China Review' 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, 162 ; reasons for decay of, 263 
 
 Jolly, Dr., his translation of Vishnu 
 refen-ed to, 1 1 and re. 
 
 Jone.s, 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 Mann ' referred to, 4, 
 376, 379; result of his conclusions, 
 6, 7 
 
 Judges, Book of, referred to, 163 
 
 Judicial administration, difference of 
 in modern England and France re- 
 ferred to, 189 
 
 Jus Genrium referred to, 119: Naturale, 
 Roman conception of -referred to, 388 ; 
 Roman lawyers meaning of stated, 
 365 
 
 Justice, Feudal Court of, in France, re- 
 ferred to, 177; popular Courts of, 
 their gradual change into committees 
 of experts, 177 etseq.; advantage of 
 justice at king's hands over described, 
 17^ et seq., 184 et seq. 
 
 Justinian, Code and Digest of, corre- 
 spondence of its legal classification 
 with that of 'Twelve Tables,' 367; 
 his" 1 1 8th ' Novella Constitutio ' re- 
 ferred to, 66 
 
 KERN 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 
 
 [NDEX. 
 
 KIN&D0M8 
 
 Brahmans, 39 ; his alliance with the 
 Brahman the beginning of civil law, 
 44 ; influence of his supreme autho- 
 rity upon law and usage, 164 et seq. 
 Kingdoms, the, adjustrd to the same 
 form as the Manors, 306 
 
 LAND law, Eoman, the, referred to, 
 342, 343, 344 
 
 Land Eegistration, Continental systems 
 of, enlarged upon, 353, 356 et seq. ; 
 analogous to Roman 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 Brabmini- 
 ciil books, 38 ; Roman and English 
 systems as dividing the civilised 
 world referred to, 165 ; Gregorian, 
 Hcrmogenian Codes, 367; Justinian, 
 Theodosius 2nd, Codes of, referred to, 
 367 ; Roman, its division into law 
 of persons and law of things 391 ; 
 Dig. XXX. 84, 6, and Cod. vi. 37, 11, 
 referred to, 109 n. ; ' 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 
 Sacred Books, 26 ; ancient, identical 
 with priests, 26, 27 
 
 Lavaleye, M. de, his opinions referred 
 to. 346 
 
 Le Bon, Dr., his ' L'Homme et les 
 Soci^tes ' quoted, 208 
 
 Legal conceptions, their instability re- 
 ferred to, 360 
 
 Legal Rules, 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 
 Roman jurists, 367 ; renewed sup- 
 port the system has received in 
 America, 365 ; difference of arrange- 
 ment in other Roman Codes, 367 ; 
 according to ' Twelve Tables,' 369 
 ct seq. ; according to ' Edict of the 
 Praetor,' 370 ; according to Lex 
 Salica, 372 ei seq. ; this arrange- 
 ment not deriyod from Roman sys- 
 
 tem, 374; according to early Irish 
 law, 374 et seq. ; according to Book 
 of Manu, 376 ; according to Book of 
 Narada, 379 et seq. ; principle and 
 meaning of this system, 381 ; ar- 
 rangement of primitive codes ex- 
 plained by this system, 382 et eeg. ; 
 study of in Middle Ages alluded to, 
 368 ; distinctions between ancient and 
 modem arrangements, 389 ei seq. 
 
 Legge, Dr., his contributions to ' Sacred 
 Books of the East ' quoted, 59 k. 
 
 Letoumeau, Dr., his ' La Sociologie ' 
 quoted, 208 and m. 
 
 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 Manu, 5 
 
 Lex Salica, the, referred to. Note A, 
 332, 338, 346, 372, 373 
 
 Lubbock, Sir John, hie ' Origin of 
 Civilisation ' etc. quoted, 67, 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 n., 267, 277, 
 Note A, 284, 285 
 
 MACAULAY, 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 Chsrta, 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 ; 
 
 allnded to. Note A, 329 
 Males, excess of females over referred 
 
 to, 210 ; disproportion of females to 
 
INDEX. 
 
 599 
 
 MALMESBTJRY 
 
 referred to, 211, 214; 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, 115 
 
 JVIalmesbury, Lord, papers of referred 
 to, 141 
 
 Man, Mr. E. H., his 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,' 3o2, 359 ; pub- 
 lic conveyance by among Bomans, 
 362 
 
 Manor, the, original nature of described 
 and refen-ed to, 302, 303, Note A, 
 . 32U ; 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 seq. ; 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, 376-37S ; 
 its double origin, 43 ; suggested 
 dates of, 5, 9, 10, 11 ; its combina- 
 tions of law and ritual, 5 
 
 ' 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 JVTiiller, 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. 
 
 Miiyne, Mr. J. D., his ' Hindu Law and 
 Usage ' quoted, 114, 115, 117; re- 
 ferred to, 77, 82, 83, U7, 111 »., 124 
 
 McLennan, Mr. 3. F., the late, his 
 therries referred lo, 106, Note B, 
 124, 160 a., 203, 209,211, 212, 218, 
 
 FAIERNITT 
 
 256 ; his 'Studies in Ancient His- 
 tory ' referred to, 185 ; his ' Primi- 
 tive Marriage ' alluded to, 239 
 
 Mill, Mr. John Stuart, his speculations 
 on legal cUissification mentioned, 
 364 
 
 Missi, system of, explained, 183 ; and 
 alluded to, 189 
 
 Mitakshara, Digest of the, alluded to, 
 114, 118 
 
 Montesquieu referred to, 144 
 
 Moolvies, the, alluded to, 2. 3 
 
 Morgan, Mr., his contributions to 
 ' United States' Survey of Rocky 
 Mountains ' referred to. Note A, 331 
 
 — Mr. L, H., the late, his theorii-g 
 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 
 
 NAEADA, Book of, description of, 
 377 et seq. ; its distinction from 
 Book of Manu, 379 ; quoted, 41, 42, 
 Note A, 123, 378, 379; referre.d fo, 
 17, 41, 107 
 
 Natural Family, meaning of, and dis- 
 tinction from 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 «. 
 
 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 Attic 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. 
 
 Patria Potestas, the, referred to, 198; 
 among Hindus referred to, Note A, 
 122 
 
 Patriarchal theory, difficulties of 
 stilted, 204 ; development of ' Power ' 
 liy through sexual jealousy, 21&, 
 216 
 
 Peasantry of France, the, their hos- 
 tility to the nobility prior to the 
 Revolution, 294 et seq. 
 
 Peeulium, Roman law of, practice of 
 .■imong South Slavonians and Hindus, 
 252, 253 
 
 Penances among Hindus, description 
 of, 37, 38 ; exemption from claimed 
 by Brahmans, 40, 47 
 
 PLito, 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 et seq. 
 
 Possession, law of among Romans 
 alluded to, 356, 357 
 
 Prescription, law of. See Usurpation 
 
 Prinnjgenitarc, system of referred to, 
 132, 133; dangerous example of, 
 138 et seq. 
 
 Prodigal Son, parable of, illustration 
 afforded 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, 335 et seq. ; Registration 
 of. Act of Indian Legislature referred 
 to, 359 «. ; succession to among Ma- 
 hommedans, 126 ; transfer of in 
 India, see Property, Registration of 
 
 Proverbs. 8te Aphorisms 
 
 Psalm cvi. quoted, 58 
 
 Puehta, the jurist, referred to, 2G4 
 
 Punalnari Marriage alluded to. 201 
 
 Pundits, the, referred to, 2, 3 
 
 ' 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 
 
 EAJKUMAK SARVADHIKARI, 
 Professor, his ' Hindu Law of In- 
 heritance ' quoted, 56 ; referred to, 
 57 ». 
 
 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, 145, 150, 
 152; 'cognatic' system of refeiTed 
 to, 97, 114, 139, 145, 147, 151 ; 
 artificial forms of among South 
 Slavonians, 256 et seq. 
 
 Relatives, collateral, modern rules for 
 succession of, 114, 115 
 
 Renan, M., his 'Souvenirs d'Enfance' 
 quoted, 303 n. ; his observations 
 among Berbers of North Africa 
 alluded to. Note A, 331 
 
 Roman Empire, its system of regal 
 succession referred to, 146 
 
 Roman praetor, edict of, its nature and 
 effect stated, 119, 120; referred to, 
 66, 77. 166, 367 
 
 Roses, Wars of, referred to, 141 
 
 R'lyal succession, among Hindus, no 
 law for, 125, 127, 128 ; Oriental sys- 
 tems of, their confusion, 129 et seq.; 
 among Hebrews and Oriental nations. 
 132 ; conflicts between chiefs and 
 clans to obtain mentioned and illus- 
 trated, 131, 132 etseq. 
 
 Rumspy, Mr. Almaric, his ' Mahom- 
 medan Law of Inheritance ' referred 
 to, 126 
 
 Ruth, Book of, referred to, 102, 106 
 
INDEX. 
 
 401 
 
 SALIC Law, the, referrea to generally, 
 143, 150, 167 ; description of and 
 iipplication to private property, 144 ; 
 application of to royal succession, 
 143, 148 et mq., 157; as applied to 
 France, explanation of given by 
 French historians, 168 
 Samuel, first Sook of, quoted. Note A, 
 
 284 
 Sanction, the. See Penances 
 Sapinda, the. See 1 1 2 «. 
 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 offering 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, tenurif by, referred to, 341 
 Society, Patriarchal theory of de- 
 scribed, 193, 196 et seq.; origin of. 
 Patriarchal theory to be adopted, 
 215, 219 
 Sons, artificial, creation of, absence of 
 in modern India, 117; consequences 
 of dissatisfaction with, 117 
 Sophocles, his 'Ajax' compared with 
 
 Zend Avesta, 65 n. 
 Souls, transmigration of, referred to, 
 
 33 et seq. 
 South Slavonians, their distinction be- 
 tween agnatic and coguatic relation- 
 ships, and their respect for old age, 
 243; position of women among as 
 to marriage and property, 253 et <eq. 
 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 
 .Sur-Chamber, Court of, referred to, 
 165 and n. 190 
 
 VILLA. 
 
 Stubbs, Professor, his 'Constitutional 
 
 History ' referred tb, 1 76 
 Succession, collateral, on the Continent 
 
 and among ancient and modem 
 
 Hindus, 111, 112, 113; Hindu law 
 
 of referred to, 22 
 SuuiH, the, meaning of, 175 ; referred 
 
 to, 178 
 System Descriptive, the, referred to, 
 
 Note A, 290 
 
 TAINE, M., his ' L'Anarchie Spou- 
 tanie ' 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, J 70 
 
 Thunginus. See Thingman 
 
 Tocqueville, Do, his observations re- 
 ferred to, 314; his theory of the 
 peasant hostility •'o the French no- 
 bility referred to, 376 
 
 Tod, Colonel, his ' Kajasthan ' 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 
 
 Ty'or, Mr. E. B., his ' Primitive Cul- 
 ture ' alluded to, 54 ; quoted, 55, 62 
 
 UNIVERSE, Hindu conception of 
 described, 82 et seq. 
 ' Use of the Law,' tract upon quoted, 
 300, 301 ; erroneous account given 
 in of the origin of Manors and Copy- 
 hold tenures, 299 et seq. 
 Usucaption, law of, referred to, 356 
 
 VAERO, his ' De Lingua Latini' 
 quoted, Note A, 283 
 Vashishtha, Book of, referred to, 1 1 
 Verse, as determining dates of Ancient 
 
 Law Books, 9, 10 
 ' Villa ' the, use of the word by Ger- 
 
 D D 
 
402 
 
 INDEX. 
 
 manic legal draftsmen, and iii Lex 
 Salica, Note A, 332 
 
 ' Villse,' the, as understood among 
 Romans, Note A, 332 
 
 Villijge Community, the, its existence 
 among North Slavonians, 241 ; re- 
 ferred to, 327, Note A, 329 et seq. 
 
 Villeins, the, description and status of, 
 30a 
 
 Vishnu. Book of, alluded to, 11, 64, 
 112»., 128; quoted, 30, 33, 34, 47, 
 71, 72, 74, 94 
 
 Voltaire, his contempt for the Lex 
 Salica referred to, 144 
 
 ZFEICH 
 
 WARRANTY, expedient of, referred 
 to, 355 
 West and Biihler, Messrs., their ' Di- 
 gest of Hindu Law ' referred to, 11 m. 
 Wheel, Hindu symbol of, described, 30 
 Women, property of, according to 
 Gautama, 109 ; provision for among 
 Romans and in India, 109, 110 
 
 YOUNG, ARTHUR, his observations 
 referred to, 307, 321 
 
 ZURICH, Land Registry of, descrip- 
 tion of, 353 et seq.