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• Introduction
• Textual Introduction
• Acknowledgments
• Writings On India
• Trade With India 1828
• Minute On the Black Act 1836
• Penal Code For India 1838
• The East India Company’s Charter 1852
• The Petition of the East-india Company 1858
• Memorandum of the Improvements In the Administration of India During the Last Thirty Years 1858
• Report to the General Court of Proprietors, Drawing Attention to the Two Bills Now Before Parliament Relating to the Government of India 1858
• A Constitutional View of the India Question 1858
• Observations On the Proposed Council of India 1858
• Practical Observations On the First Two of the Proposed Resolutions On the Government of India 1858
• The Moral of the India Debate 1858
• A President In Council the Best Government For India 1858
• Letter From the East India Company to the President of the Board of Control 1858
• Maine On Village Communities 1871
• Appendices
• Appendix A: Check List of Mill’s Indian Despatches (1823%u201358)
• Appendix B: List of Published Extracts From Mill’s Indian Despatches
• Appendix C: Editorial Emendations
• Appendix D: Index of Persons, and Works Cited, With Variants and Notes

MAINE ON VILLAGE COMMUNITIES

1871

EDITORS’ NOTE

Fortnightly Review, n.s. IX (1 May, 1871), 543-56. MS (frag.), Library of Congress (Miscellany of the Andrew Carnegie Papers, Box 259), is signed “J.S. Mill” and inscribed in Mill’s hand: “Proof to be sent to J.S. Mill, Blackheath Park, S.E.”; and in Andrew Carnegie’s: “MSS. presented to / me by my friend / John Morley / Andrew Carnegie.” There are compositors’ stint signatures in the manuscript. Titled in Fortnightly: “Mr. Maine on Village Communities”; title footnoted: “Village-Communities in the East and West: Six Lectures Delivered at Oxford. By Henry Sumner Maine [1822-88], Corpus Professor of Jurisprudence in the University, formerly Law Member of the Supreme Government of India, author of Ancient Law. London [: Murray], 1871.” Running titles: “Maine on Village Communities.” Signed “J.S. Mill.” Republished (posthumously) in Dissertations and Discussions, Vol. IV (London: Longmans, et al., 1875), 130-53. Identified in Mill’s bibliography as “A review of Maine on Village Communities in the Fortnightly Review for May 1, 1871” (MacMinn, 100). In the footnoted variants, “MS” signifies the manuscript, “D&D” Dissertations and Discussions.

Maine on Village Communities

this book is an important contribution to a branch of knowledge in which the author is as yet unrivalled—the philosophy of the history of institutions. It pursues into ulterior developments (at least in one great department, that of property) the line of research and speculation so brilliantly commenced in Ancient Law: its Connection with the Early History of Society, and its Relation to Modern Ideas.¹ It is superfluous at this time of day to say anything either in the way of information or of recommendation, concerning a treatise which has already become classical; but we may remark that its title indicates the double aspect of the important vein of thought which it has opened—the historical aspect, and the practical: the light which it throws on the ancient condition of mankind, and the intimate connection which it establishes between “the early history of society” and “modern ideas,” through the connection of both of them with “ancient law,” the great transmitter (next to religion) of influences from a barbarous age to a civilised one. Political thinkers, who at one time may have been over-confident in their power of deducing systems of social truth from abstract human nature, have now for some time shown a tendency to the far worse extreme, of postponing the universal exigencies of man as man, to the beliefs and tendencies of particular portions of mankind as manifested in their history. But if so much weight is attached to these historical characteristics, it is most essential to inquire how they came to be what they are; which of them are grounded in permanent necessities of humanity, and which are but relics of facts and ideas of the past, not applicable to the present. In this point of view, the historical truths brought into so strong a light by Mr. Maine have more than an historical value. Though assuredly not written with a view to any such purpose, his Ancient Law is a most powerful solvent of a large class of conservative prejudices, by pointing out the historical origin not only of institutions, but also of ideas, which many believe to be essential elements of the conception of social order.

The lesson is not less instructive, when the result of the researches is to prove, not that institutions and ideas belonging to past times have been unduly prolonged into an age to which they are unsuitable, but that old institutions and ideas have been set aside in favour of others of comparatively modern origin. For this result, as much as the other, strikes at the tendency to accept the existing order of things as final—as an indefeasible fact, grounded on eternal social necessities. The question is opened whether the older or the later ideas are best suited to rule the future; and if the change from the one to the other was brought about by circumstances which the world has since outgrown—still more if it appears to have been in great part the result of usurpation—it may well be that the principle, at least, of the older institutions is fitter to be chosen than that of the more modern, as the basis of a better and more advanced constitution of society. A question of this nature in regard to property in land is raised by Mr. Maine’s new work; which has clearly shown that the absolute ownership, which constitutes the idea of landed property as commonly conceived in England, is both modern as to time and partial as to place.

Having been called, subsequently to the publication of Ancient Law, to take part in legislating for a country far less widely removed than civilised Europe from that early state of society which it is usual to call “primitive,” Mr. Maine found that the state of things in regard to landed property which exists in India wherever it has not been disturbed by British legislation, is strikingly in accordance with that which recent historical investigations prove to have once existed in what are now the most advanced communities. The obstinate persistence of custom in India makes that country “the great repository of verifiable phenomena of ancient usage and ancient juridical thought” (p. 22), well worth studying, therefore, by all students of human nature and history, and by all English lawyers who consider “the study of historical and philosophical jurisprudence” not alien to their pursuit. The value of Mr. Maine’s book for this purpose is the greater, since much of his materials has not yet found its way into books, but is derived from the “large and miscellaneous official literature” in the records of the Indian Government, and from “the oral conversation of experienced observers who have passed their maturity in administrative office.”

Of these the Village Mark was the only one of which the several portions were individual property in the modern English sense. The ownership of the Common Mark was “a strict ownership in common, both in theory and in practice. When cattle grazed on the common pasture, or when the householder felled wood in the common forest, an elected or hereditary officer watched to see that the common domain was equitably enjoyed.” (P. 79.) But it will be more of a surprise to many readers to learn that the arable land also was held and cultivated on the same principle of common ownership. The Arable Mark “seems always in theory to have been originally cut out of the Common Mark, which, indeed, can only be described as the portion of the village domain not appropriated to cultivation” [p. 79]; and the Arable Mark “was occasionally shifted from one part of the general village domain to another” (p. 81).

The evidence seems to show “that the original distribution of the arable area was always into exactly equal portions, corresponding to the number of free families in the township. Nor can it be seriously doubted, upon the evidence, that the proprietary equality of the families composing the group was at first still further secured by a periodical redistribution of the several assignments.” (P. 81.) This periodical redistribution has continued to our own day in the Russian villages, and “there appears to be no country inhabited by an Aryan race” in which traces of it do not remain [p. 82].

It is to “the school of German writers, among whom Von Maurer is the most eminent” (p. 21), that we are indebted for the establishment of this important portion of the ancient history of society in relation to the Teutonic countries. Its extension to England is mainly the work of Professor Nasse, of Bonn, whose valuable treatise is about to be made, by translation, conveniently accessible to the ordinary English reader.³ But the simple statement of the ancient practice of Teutonic cultivation brings at once to the mind of any one acquainted with English rural usages, the traces of a similar village constitution in England. The remains of the former collective ownership of the lands of a village still linger among us under the denominations of Common Fields and Lammas lands.

Our law books trace all landed tenures in England to a feudal grant. From such grant, either actual or presumed, they all technically proceed; and the law writers seldom trouble themselves with anything anterior. But there were landed possessions and landed rights in England before there was feudality. The feudal lords were the successors of former holders; and in order to know what the lord could either claim for himself or grant to others, it is necessary to know whose rights he succeeded to. In this there is now no obscurity. The feudal lord took the place of the collective village community; the Mark system passed by transformation into the Manorial. The rights which had belonged to the village as a collective body, became the rights of the lord; the customary rights which the several households of the village could claim from the collective body, were not lost, but remained valid against the lord. The Common Mark became the lord’s waste; but the village families retained their rights of pasture and of turf or wood cutting over it. Of the Arable Mark, a great though a gradually decreasing portion continued to be cultivated under much the same rules as before.

The minutely exact agreement of this description with what has been ascertained by quite independent evidence to have been the ancient custom of village communities in the countries from which our ancestors came, leaves no doubt that originally ownership of land was conceived in the same manner in both cases. And the rights which still survive in our own country over the lands which were once the collective property of the village—the rights of commoners over the common land, and of those who are entitled to the joint use of Lammas lands or common fields—are older than any manorial rights, older than any grants from a feudal^a superior, and can claim more of the sacredness which the friends of existing land institutions consider to attach to prescription.

How dear these rights were to the people is strikingly shown by their persistency through many centuries, notwithstanding the powerful causes which have been at work during the whole time for their destruction. Beneficent and noxious influences conspired to favour the conversion of collective into individual property. On the one hand, the rigid customs which prevailed in the cultivation of the common fields provoked opposition by their tendency to perpetuate a bad system of agriculture; and as to the waste, then occupying so large a portion of the soil of the island, it was thought to be for the public good to promote almost any arrangement by which it could be brought into cultivation. This was the honourable side of the movement. There is a deeply disgraceful side which remains to be mentioned. The great landed proprietors, and owners of manorial rights, were the rulers of the country. From 1688 downwards they ruled it through the Parliament; but before the Parliament became absolute ruler of the State, each of them ruled his own neighbourhood with a power almost above legal control. Among the consequences were perpetual encroachments by the great landholders, not only on the customary rights of the people in the land, but even on their separate properties: encroachments sometimes by abuse of the processes and forms of law, sometimes altogether lawless. ^bIn the words of the great Sir Thomas More, tenants were “got rid of by force or fraud, or tired out by repeated injuries into parting with their property.” Bishop Gilpin “complained that the great landowners scrupled not to drive people from their property, alleging that the land was theirs, and turning them out of their shelter like vermin .”^* When even the separate properties of the peasantry were thus treated, no wonder that their rights of common were taken from them, in many cases without any compensation.^b This dreary history is not to be found in Mr. Maine’s work, but it has been related in other books, and recently by Mr. Cliffe Leslie, in his instructive volume on the Land Systems of England, Ireland, and the Continent.

Yet, notwithstanding the constant tendency of these customary rights to extinction, sometimes by usurpation and sometimes by voluntary agreement, the great extent of them as late as the early part of the present century is attested by Marshall, a writer of that period, of high authority on the statistics of agriculture, and whose facts have been largely used in the work of Professor Nasse. According to Marshall, “In almost all parts of the country, in the Midland and Eastern counties particularly, but also in the west—in Wiltshire, for example—in the south, as in Surrey, in the north, as in Yorkshire,” there were still, in his time, “extensive open and common fields. Out of 316 parishes in Northamptonshire, 89” were in this condition; “more than 100 in Oxfordshire; about 50,000 acres in Warwickshire; in Berkshire, half the county; more than half of Wiltshire; in Huntingdonshire, out of a total area of 240,000 acres, 130,000 were commonable meadows, commons, and common fields.” (Maine, pp. 88-9.)⁴ Mr. Maine adds: “The extent of some of the fields may be inferred from the fact, stated to me on good authority, that the pasturage on the dividing baulks of turf, which was not more than three yards wide, was estimated in one case at 80 acres” (p. 89). Since that time the commonable and common lands have undergone constant and rapid diminution, first by private Acts of Parliament, and at a still more accelerated pace since 1836, by inclosure, agglomeration, and exchange, under the Common Fields Inclosure Act of that year,⁵ and under the general powers of the Inclosure Commissioners;⁶ “but both common fields and common meadows are still plentiful on all sides of us. Speaking for myself personally,” says Mr. Maine, “I have been greatly surprised at the number of instances of abnormal proprietary rights, necessarily implying the former existence of collective ownership and joint cultivation, which comparatively brief inquiry has brought to my notice.” (Pp. 87-8.)

It was not Mr. Maine’s business, in a purely historical and jurisprudential work, to deduce practical inferences from these facts; nor have we any knowledge^c whether he would coincide in the inferences which we ourselves draw from them. But there are certain truths, of a very important character, which the facts we have abridged from Mr. Maine’s work seem to us to support and illustrate very impressively.

They show, first, that even in our own history property in land has not been, and is not, one simple idea, one conception of rights always the same; but that different systems of property in land have existed, and even coexisted, both in this and in other countries; and that, by an operation not sudden, but extending over our entire history since the Norman Conquest, we have been gradually transforming one of these systems into another:

That the system under which nearly the whole soil of Great Britain has come to be appropriated by about thirty thousand ^dfamilies—the far greater part of it by a few thousands of these—^d is neither the only nor the oldest form of landed property, and that there is no natural necessity for its being preferred to all other forms:

That if the nation were to decide, after deliberation, that this transmutation of collective landed ownership into individual shall proceed no further, and that the various rights of the public or of particular neighbourhoods which in many cases still limit the absolute and exclusive control of the land by the proprietor—rights generally of older date than his—shall no longer be allowed to be extinguished, to the detriment of posterity; the nation, in so deciding, would not overpass the limits of its moral right. Nay, further, that if the nation thought proper to reverse the process, and move in the direction of reconverting individual property into some new and better form of collective, as it has so long been converting collective property into individual, it would be making a legitimate use of an unquestionable moral right; subject to the moral obligation which arises whenever rights sanctioned by established law are annulled by an act of authority, of satisfying all just claims to compensation:

That, having thus a full right to retrace the steps which it has taken under the predominant influence of the class of large landed proprietors, the nation ought to take into serious consideration which among the many footings on which the right of landed ownership might be placed, is the one most beneficial to the whole community, with a view to adopting, with the precautions justly demanded by vested interests, that most beneficial system. And, in the meantime, it should absolutely suspend all further proceedings in the old direction—all further conversion into the absolute property of individuals, of land which is now only their limited or qualified property, or which is not the private property of individuals at all. In particular, the inclosure of commons should be absolutely discontinued, until the principles on which it can rightly take place have been deliberately reconsidered, the classes who have been the chief sufferers by what has hitherto been done being included in the deliberation.^e

This is the moral which we deduce from that part of Mr. Maine’s researches which relates to the ancient landed institutions of England. The part which relates to India gives a practical warning of an even more urgent nature; since it shows that we have done, and are still doing, irreparable mischief, by blindly introducing the English idea of absolute property in land into a country where it did not exist and never had existed, and into which its introduction could only be effected by trampling upon the rights of all except some one of the classes which, by the customs of the country, shared among them the right of using and disposing of the soil. This injustice has been done by the English rulers of India, for the most part innocently, from sheer inability to understand institutions and customs almost identical with those which prevailed in their own country a few centuries ago.

In the purely native governments of India, property in land has never emerged from that primitive state in which absolute and unconditional ownership by individuals had no existence. Various beneficial interests existed in the soil. There was, first, the interest of the sovereign, who had at least one attribute of an universal proprietor; he was an universal receiver of rent. The share of the produce to which he was entitled, and which formed the bulk of the public revenue, was nominally limited by custom, but practically, in most cases, only by the impossibility of extracting more. Whether we call it rent or land-tax, it was usually of such an amount as to leave no surplus to constitute rent in the hands of any private individual, except those to whom, by a not uncommon act of favour, the sovereign made a grant of the revenues of a village or district. At the opposite extremity of the social scale were the actual cultivators. In some cases the whole of these, in others only certain classes of them, had a right to retain their holdings as long as they paid the Government demand. Between these co-proprietors (as they may be called), the sovereign and the cultivator, there were intermediate classes who had rights, of greater or less extent, and who were often extremely different in different places. But there was nobody who could be called a proprietor in the absolute sense of English law. The English, however, when they came into possession of the Bengal provinces, assumed, as indisputable, that there must be an absolute proprietor of all land, the only question being how to find him; and the indication of ownership by which they were at first guided was the collection of rent. In the provinces over which the British dominion was first extended, this attribute was exercised by officers of Government, each of whom, at the head of an armed force, collected the rents of a particular district; and who were mostly hereditary, for all things tend to become hereditary in the East. In these officers the English rulers thought they had found the proprietors of the soil. It was not considered, that these collectors of rent were bound to pay over the whole of their collections to the State, except a commission of ten per cent deducted as their own remuneration. In spite of this, they were declared absolute owners of the land, and received a pledge that the Government demand of revenue from them should never be increased. The cultivating classes became their tenants. A reservation was made of the right of the tenants to be protected against eviction while they paid the customary rents; but the distance and expensiveness of the only courts of justice which for a long time were provided, put it out of the power of the cultivators to enforce this right. In the words used many years later by a British-Indian judge, the rights of the Bengal ryots (or peasants) passed away sub silentio.⁷ They sank generally into the miserable condition of Irish cottiers—rack-rented tenants-at-will. What little respect was anywhere paid to their rights or interests resulted solely from the still partially surviving influence of custom on the minds of persons whom the law had exempted from any necessity of observing it.

By degrees India began to be better known, and its English administrators came to be aware of the error which they had at first committed. They found that, in mistaking the collectors of revenue for the landed proprietors, they had overlooked the village communities; which, indeed, in the provinces first acquired, had almost become extinct, but in many of the more recently acquired British possessions still retained a substantial existence, and whose rights in the land could not without great injustice be ignored. The conclusion which was come to by the administrators of these later acquisitions was that the village communities were the real proprietors. And it is certain that, in adopting this opinion, they were nearer to the truth than they would have been in supposing absolute ownership to reside anywhere else. Further experience, however, made them aware that village communities were of very various composition, and that they, no more than any other persons or bodies, were absolute proprietors. Their rights, like those of all others in a country in which custom for the most part decides what is the law, were limited and hemmed in by the equally positive customary rights of other people. When this truth dawned on the most eminent Indian administrators, it taught them at first the proper lesson. They made it their business to ascertain, by oral and documentary evidence on the spot, not who was proprietor of the soil—a question idle and unmeaning in the country with which they had to deal—but who were all those who had any rights over it, and what those rights were. When they had, with more or less completeness, ascertained this, they endeavoured to give equal protection to all these rights. These rational opinions and rational practices prevailed in the counsels of the Indian Government for about two generations. But of late official opinion has taken an unfortunate turn in the opposite direction.

In England, for some time past, the idea of absolute property in land has been sensibly weakened, and the tendency of the time is progressively inclining towards the opinion that proprietary rights in the mere raw material of the globe should not be absolute, but limited. While, however, English opinion has thus been advancing, official opinion in India, which had been much ahead of it, has retrograded. The change may be roughly dated from the time of the Mutiny. The feeling engendered by that calamitous event, of the unstable foundation on which our power in India rested, produced a strong impression of the necessity of conciliating the natives; and, as usual in such cases, “the natives” were taken to mean those small classes who were most conspicuous, who had the greatest opportunitites of making themselves heard, and the greatest power of being troublesome. Before the Mutiny it had been the policy of our Government, not certainly to ignore or disregard the rights or vested interests of the so-called higher classes, but to construe them strictly, when they conflicted with the interests of the mass of the cultivating population, towards whom, it was rightly thought, were the first and most binding duties of our Government. Since the Mutiny a reaction has set in, which cannot be better illustrated than by the instance of Oude. We had taken this province from its Mahomedan Government and annexed it to British India,⁸ in consequence of the anarchy occasioned by the lawless usurpations and disorderly excesses of the Talookdars—a class of functionaries of very various origin, who collected the Government dues from large districts, and entertained for that purpose bodies of undisciplined mercenaries, which made them practically uncontrollable by the feeble native government. By means of these troops the country was kept in a state of bloodshed and warfare, the most high-handed violence was practised towards the people of the country, and the landed possessions of the Talookdars were swelled by the dispossession, and sometimes the extermination, of entire families of landholders. These Talookdars were naturally exasperated by the annexation, which deprived them of their misused position; they joined, and they were the only powerful class or body in all India that did join, with the mutineers. We subdued them, and what did we then proceed to do? We admitted these rebellious oppressors to engage with our Government for the revenue; we declared them proprietors of the soil, and delivered over the cultivating classes into their hands: and it is with great difficulty that, some years after, an Act was got passed, making some small reparation to a portion of the dispropertied classes, by giving to tenants who could prove a certain number of years’ possession a guarantee against eviction.⁹ In other parts of Upper India, those to whom the absolute ownership has been conceded are the village communities; but there has been a growing disposition to restrict, instead of enlarging, the number of the inhabitants who are considered entitled to communal privileges. Even at an earlier period, single families from which by custom the headman of the village had been taken, had not unfrequently been recognised by our Government as sole owners. The remainder of the cultivators, including many who at the first settlement had been admitted, as proprietors, to enter into engagements for the Government revenue, have been reduced to the condition of tenants-at-will. There is great danger that if this tendency of opinion continues, the whole of the northern provinces^* will be possessed, for the first time in India, by a comparatively small body of absolute owners, many of them peasants, with a vast population under them of tenants-at-will. And this—one of the greatest social revolutions ever effected in any country, with the evil peculiarity of being a revolution not in favour of ^fa^f majority of the people, but against them—its supporters defend in the name of civilisation and ^g political economy; though if there is a truth emphatically taught by political economy, and from which no one who has the smallest tincture of the knowledge of it withholds his assent, it is that the status of an agricultural tenant-at-will is intrinsically vicious, and in a really civilised community ought not to exist.

The exposition given by Mr. Maine of the real nature and history of agricultural customs in India, read, as it is sure to be, by all intelligent Indian administrators, and, we trust, by those who are in training for Indian administration, is well adapted to check this baneful reaction. We quote, both as a characteristic specimen of this part of the work, and for the important lessons it affords, his exposition of the manner in which, even in the absence of positive intention on our part, the introduction of our Government conferred upon those whom we recognised as representatives of the locality, powers and rights which enabled them to override those who were their co-partners in the land.

These passages, greatly as space has made it necessary to curtail them, will help to show to the intelligent reader (over and above the example they afford of the singularly artificial and variable nature of the idea of ownership) what great difficulties the English Government has to encounter in endeavouring to do justice to each and all in India: and how great injustice may be, and has been, caused by the fact that its mere appearance on the scene destroys the balance of existing social relations; that “when an official appointed by a powerful Government acts upon the loose constitution of a primitive society, he crushes down all other classes, and exalts that to which he himself belongs” (p. 151).

Our desire to profit, as much as our space permits, by the practical lessons derivable from Mr. Maine’s book, has led to our doing but scanty justice to its remarkable merits, both as a literary work and as a series of investigations of the ancient history of human society. But we must at least not omit to call attention to the concluding lecture;¹⁰ in which, from the facts of Indian experience, a flood of light is thrown upon the ideas of an early state of society respecting commercial transactions between man and man, and especially respecting prices and rents; and upon the widespread and long-enduring influence of custom in the determination of payments, as well as upon the particular points at which competition, as a rival principle, first comes in. Our space does not admit of our giving a summary of this lecture, and we can only refer the reader to the original, confidently promising to any one who studies it a rich reward.

The same hindrance prevents us from doing more than merely referring to the very few points on which we find ourselves dissenting in any respect from Mr. Maine, and which are questions of definition and classification rather than of fact. Did space permit, we should have something to say in behalf of Bentham and Austin¹¹ (of whose extraordinary merits as philosophic jurists Mr. Maine shows a full appreciation) on a point on which Mr. Maine differs from them (pp. 67-8);¹² and again, in defence of political economists generally, ^hagainst^h a charge brought against them in the concluding lecture (p. 196), which we do not think will stand examination.¹³ But these small differences of opinion, though worth noting, are not, at least on the present occasion, worth entering into; and we will conclude by once more congratulating our readers and ourselves on the appearance of a second highly instructive work (to be followed, we hope, by many others) from an author so eminently qualified for the department of philosophical history which he has made his especial domain.

APPENDICES

>First page of Mill’s list of his despatches

(IOR: MSS Eur B 405)

>First page of Mill’s first despatch

(IOR: Dr 246, E/4/711; see App. A, No. 1)

>Part of third paragraph of Mill’s first despatch

(IOR: Dr 246, E/4/711; see App. A, No. 1)

>Title page of Mill’s rejected draft on Native Education

(IOR: PC 1828, L/P&J/1/92; see App. A, No. 1578X)

>Part of paragraphs 12 and 13 of Mill’s rejected draft on Native Education

(IOR: PC 1828, L/P&J/1/92; see App. A, No. 1578X)

>Part of paragraph 8 of draft despatch on states on and beyond the Indus

(IOR: PC 2114, L/P&S/6/310; see App. A, No. 182)

>The final page of draft despatch on states on and beyond the Indus

(IOR: PC 2114, L/P&S/6/310; see App. A, No. 182)

[1 ]London: Murray, 1861.

[2 ]Maine mentions below Erwin Nasse (1829-90), of Bonn University, author of Ueber die mittelalterliche Feldgemeinschaft und die Einhegungen des sechszehnten Jahrhunderts in England (Bonn: Marcus, 1869), and Georg Ludwig von Maurer (1790-1872), of Munich University, author of Geschichte der Markenverfassung in Deutschland (Erlangen: Enke, 1856), Geschichte der Fronhofe, der Bauernhofe und der Hofverfassung in Deutschland (Erlangen: Enke, 1862-63), and Geschichte der Dorfverfassung in Deutschland (Erlangen: Enke, 1865-66).

[3 ]It appeared later in 1871 as On the Agricultural Community of the Middle Ages, and Inclosures of the Sixteenth Century in England, trans. H.A. Ouvry (London: Macmillan).

[a][the manuscript fragment, which runs to the end of the essay, begins here]

[b-b]-MS [one of JSM’s characteristic marks for insertion appears, but the passage is lacking]

[* ]Land Systems and Industrial Economy of Ireland, England, and Continental Countries [London: Longmans, Green, 1870], by Thomas Edward Cliffe Leslie [1826-82], p. 216 [quoting from Thomas More (1478-1535), Utopia (in Latin 1516), trans. Ralph Robinson (London: Vele, 1551), not paged; and Bernard Gilpin (1517-83), “A Sermon,” in George Carleton, The Life of Bernard Gilpin (London: W.I. and T.P., 1636), p. 292.]

[4 ]The statistics from William Marshall (1765-1818), A Review (and Complete Abstract) of the Reports to the Board of Agriculture; from the Midland Department of England (York: Longman, et al., 1815) and idem, . . . from Southern and Peninsular Departments of England (idem), are taken by Maine (in his own translation) from Nasse, Ueber die mittelalterliche Feldgemeinschaft, p. 4.

[5 ]6 & 7 William IV, c. 115.

[6 ]Established by 8 & 9 Victoria, c. 118 (1845).

[c]MS of

[d-d]MS families, and the . . . these,

[e][below this JSM has written (white line) to signal the line space]

[7 ]Francis Rawdon-Hastings; see p. 95 above.

[8 ]See “Draft of Treaty between the East India Company and the King of Oude,” PP, 1856, XLV, 597-9 (never signed by the King of Oude, but acted on by the British).

[9 ]Act X of 1859 (29 Apr.).

[* ]The statement is limited to the northern provinces, because in the south of India, with the exception of certain districts, a different system of land revenue has been adopted, and a different interpretation given to landed rights. “In the southern provinces of the peninsula the English Government” early “began to recognise nothing between itself and the immediate cultivators of the soil, and from them it took directly its share of the produce. The effect was to create a peasant proprietary. This system, of which the chief seat was the province of Madras,” but of which the most improved form is to be found in the Presidency of Bombay, “has in my opinion,” says Mr. Maine, “been somewhat unjustly decried. Now that it has been modified in some details, and that some mistakes first committed have been corrected, there is no more prosperous population in India than that which has been placed under it; but undoubtedly it is not the ancient system of the country.” (Pp. 105-6.)

[f-f]MS the

[g]MS of

[10 ]“The Early History of Price and Rent,” pp. 173-201.

[11 ]John Austin (1790-1859), early teacher and friend of Mill, and disciple of Bentham.

[12 ]Maine holds that the customary law of Indian village communities does not fit Bentham and Austin’s definition of law as a command by a political sovereign enforced by a sanction.

[h-h]D&D in regard to

[13 ]Maine argues against the universality of the law of markets, asserting that it began to operate only when people met to trade at arm’s length rather than as members of a unified group.