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deferred, to possess them; and it is only under statutory provisions of very recent introduction and partial application that we know any means of proving title to English land other than showing continuous undisturbed possession, under a consistent claim of title, for a time long enough to exclude any reasonable fear of adverse claims. The conventional fixing of that time first by the usage of conveyancers and latterly by positive law makes no differenco to the principle, nor do the elaborate rules which have been developed in various matters of detail. Title-deeds, as I have said elsewhere, are nothing but the written history of the possession and of the right in which it has been exercised. This is essentially a Germanic institution, as any one who pursues the subject will find ; and when we consider the ideas of early Germanic law, we shall perhaps be less apt to find any problem in the fact of a possessor's rights being recognized by Roman law than to wonder how Roman law came so early by the full and clear conception of an owner's rights as distinct from possession. As to the historical origin of the Roman doctrine of possession there are now several theories in the field, and none of them can be said to be generally accepted, certainly not Savigny's, which was dominant when Maine wrote.

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Note P. The Indian Village Community. After Maine had acquired official knowledge of Indian affairs, he gave a hint in his lecture on Village Communities that the local customs of India are neither so simple nor so uniform in type as an ordinary European reader of 'Ancient Law' might infer. 'I shall have hereafter to explain,' he said 1, 'that, though there are strong general resemblances between the Indian village communities wherever they are found in anything like completeness, they prove on close inspection to be not simple but composite bodies, including a number of classes with very various rights and claims.' The publication in more than one form (most conveniently in The Indian Village Community,' London, 1896) of B. H. Baden-Powell's authoritative researches on the Land Systems of British India has since made it common or at least easily accessible? knowledge that Indian villages are divisible into two principal and widely different types, of which the 'assemblage of co-proprietors,' formerly assumed to be the only normal one,


1 I cannot find any fulfilment of this intention in Maine's published work. See the Preface to the first edition of Village Communities' for the probable explanation.

· Baden-Powell's work appears to have been wholly unknown to a learned gentleman resident at Madras, who published some notes on Ancient Law a few years ago.

is not the more ancient. Sir Alfred Lyall (L. Q. R. ix. 27) has approved Baden-Powell's conclusion that the oldest form of village was not, as is usually supposed, a group of cultivators having joint or communistic interests, but a disconnected set of families who severally owned their separate holdings.' There is a headman and there are village officers; we may say there is administrative unity for many purposes; but there is not communal ownership or tenure. There is no evidence that in villages of this kind, usually called raiyatwārī, and prevalent in Central and Southern India, the holdings were ever otherwise than separate and independent; 'the so-called joint village followed, and did not precede the village of separate holdings.' In the joint or · landlord' villages of Oudh, the United (formerly North-West) Provinces, and the Panjāb, we find a dominant family or clan, oligarchs and in fact landlords as regards the inferior majority of inhabitants, and more or less democratic (for the shares are not always equal) among themselves. This type of village, which is in some ways curiously like a smaller reproduction of a Greek city-state, may be due to several causes. Conquest may produce it, or a deliberate new settlement, or joint inheritance among descendants of a single founder. In the case of conquest it may be superimposed on a former raiyatwāri village. Baden-Powell points out that all writers on the subject down to a time later than the publication not only of Ancient Law' but of Village Communities' had to generalize on incomplete materials,

It can bardly be doubted that the information available when Sir H. S. Maine wrote was very far from being what it has since become. None of the reports on the Panjāb frontier tribal-villages were written-or at least were available in print; and the greater part of the best Settlement Reports of the North-West Provinces, Dudh and the Panjāb, are dated in years subsequent to the publication of Village Communities. Further, the Settlement Reports of the Central Provinces, the District Manuals of Southern India, and the Survey Reports and Gazetteers of the Bombay districts were many of them not written, and the others were hardly known beyond the confines of their presidencies. In this fact I find the explanation of the total omission in Sir H. S. Maine's pages of any specific mention of the raiyatwārī form of village, and the little notice he takes of the tribal or clan constitution of Indian races in general, and of the frontier tribal villages in the Panjāb' (The Indian Village Community, p. 4).

It will be quite a mistake, however, as we may learn at large from Baden-Powell, to assume that the family tenure or property which is the unit of the raiyatwāri village system is equivalent to individual ownership or any kind of ownersbip as understood in

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modern Western law. What is certain is that there is no such thing as the village community of Hindu times, any more than there is any such thing as the village community of the Middle Ages in Europe. But there remains much profit to be derived from comparing the effects of more or less similar causes in fixing the customs of land tenure in the East and the West, whether those effects are, as they sometimes are, closely similar, or varied by the presence of other and different conditions. We no longer expect to find complete and parallel survivals of a common prehistoric stock of institutions, but it is not less interesting to find how easily parallel types may be developed at very distant times and places ; and we are free to hold as a pious opinion that the Indian village council still known as the Five (pancháyat)-though that has long ceased to be the usual number in practice, and the institution belongs only to the landlord' type of village—may go back to the same origin as our own reeve and four men, who flourish in Canada to this day. Robuster faith might be needed to find more than accident in the number of five hearths and five lawful men on Horace's estate ('habitatum quinque focis et Quinque bonos solitum Variam dimittere patres,' Ep. i. 14). A system of dividing land so as to give every man a share of every quality, which resembles our mediaeval common-field system even in minute detail, is described by Baden-Powell (op. cit., pp. 191, 414).

With regard to the supposed corporate or quasi-corporate ownership of European and especially English village communities, Professor Maitland's section thereon in Domesday Book and Beyond, pp. 340-56, gives a sound and much needed criticism of the loose language which was current among historical writers a generation ago.

Note Q. Res Mancipi ; Alienation in Early Law. Maine's opinion that the res mancipi of ancient Roman law were 'the instruments of agricultural labour, the commodities of first consequence to a primitive people’ is entirely confirmed by the best recent authors. Professor Girard, agreeing with Ihering, Sohm, and Cuq, considers the soundest explanation (' la doctrine la moins aventureuse') to be that the category consists of the necessary elements of the original Roman farmer's goods, to which alone, therefore, the early 'Roman forms of alienation' were applicable. It is further suggested that at first only res mancipi were the Bubjects of full ownership, and that, at a time before individual property in land was alienable, the distinction mancipinec mancipi coincided with that of familia and pecunia, which had become obsolete at the date of the Twelve Tables (Girard, Manuel, p. 247). Muirhead's explanation (Private Law of Rome, p. 63) is similar;

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adding that the things constituting the familia were those which determined a Roman citizen's political qualification after the Servian reforms. Alienation of such things might affect the owner's political standing, and was therefore of public importance; but I am not clear that this reason is not superfluous. Muirhead observes, deliberately not following Gaius, that the fundamental notion of mancipium is manum---not manu-capere, the acquirement of manus in the sense of legal dominion (op. cit., p. 61), which seems highly probable.

As to the fetters on alienation usually found in early systems of property law, Maine set it down as 'remarkable that the AngloSaxon customs seem to have been an exception' to the prevailing Germanic usage which forbade alienation of land without the consent of the family or at least the sons of the grantor. Maine's insight is now justified. The freedom which he thought anomalous, though it was accepted as a fact by the best authorities then accessible on Anglo-Saxon law, was really very partial indeed, being confined to land, or rather lordship over land, held by privileged persons and bodies under the privileged instruments known to contemporaries as books' and to us as charters. Only after the Norman Conquest did the charter become a common assurance.” As I tried not long ago to sum up in the simplest form practicable what is known and not known about customary land tenure before the Conquest, I may as well repeat my words :-

• We know next to nothing of the rules under which free men, whether of greater or lesser substance, held “ folk-land,” that is, estates governed by the old customary law. Probably there was not much buying and selling of such land. There is no reason to suppose that alienation was easier than in other archaic societies, and some local customs found surviving long after the Conquest point to the conclusion that often the consent of the village as well as of the family was a necessary condition of a sale. Indeed, it is not certain that folk-land, generally speaking, could be sold at all.

There is equally no reason to think that ordinary free landholders could dispose of their land by will, or were in the habit of making wills for any purpose. Anglo-Saxon wills (or rather documents more like a modern will than a modern deed) exist, but they are the wills of great folk, such as were accustomed to witness the king's charters, had their own wills witnessed or confirmed by bishops and kings, and held charters of their own; and it is by no means clear that the lands dealt with in these wills were held as ordinary folk-land. In some cases it looks as if a special licence or consent had been required; we also hear of persistent attempts by the heirs to dispute even gifts to great churches' (The Expansion of the Common Law, pp. 156-7; L. Q. R. xiv. 304).

The analogy which Maine points out (p. 289) between the Roman cessio in iure and the Fines and Recoveries of mediaeval English law is of course genuine ; but much earlier Germanic examples of a like device may be found, though not in England. Auflassung is the modern German term. Methods of this kind, when once ascertained to be efficient, are often used merely by way of abundant caution in spite of the additional trouble and expense involved. But in the classical real property law of the fifteenth century Fine and Recovery were already taking their places as regular specialized parts of a technical machinery.

CHAPTER IX. Note R. Contract in Early Law, . Remembering that Maine did not profess to write a treatise on Roman law, we shall not follow this brilliant and suggestive chapter with a critical eye for details. But we must note that Savigny's explanation of the Stipulation as an 'imperfect conveyance'-a truncated form of the Nexum (about which, by the way, little seems to be really known)—is not accepted by any recent author. The origin is now sought in an earlier religious obligation, probably by oath ; opinions differ, as might be expected, as to the conjectural details (Muirhead, 22–7; Girard, 481, sqq.; Pacchioni, Actio ex sponsu, Bologna, 1888; Zocco-Rosa in Annuario dello Istituto di storia di diritto Romano, vol. 8, Catania, 1902). To such an origin the fact that the words spondes ? spondeo could be used only by Roman citizens appears to point, though Savigny strangely failed to see this; and in mediaeval English law we actually find the religious sanction of the spiritual courts interposed, in the name of correcting the sinful breach of plighted faith (fidei laesio), to enforce promises which were still mere words for temporal courts, bound as they were to the archaic categories of forms of action. English example also shows how improbable it is that contract should be derived from an imperfect conveyance. In mediaeval English law a debt is constituted not by the debtor's promise to repay, but by a supposed grant of the sum to the creditor, and the creditor's action alleges no promise, but is in exactly the same form as an action to recover land, and is expressly called an action of property. Here we have conveyance enough. But the action of debt was quite incompetent to become the starting-point of any true law of contract, and when a way was found to sue on informal promises outside its limits, that way was altogether different. All this is in no degree prejudicial to the substance of Maine's argument, which is to show that the law of contract, or, to be exact, any comprehensive doctrine of con

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