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124. They must allot to him out of their own family (property) a suitable maintenance, after considering his ability, his industry, and the number of those whom he is bound to support.

125. The remnants of their food must be given to him, as well as their old clothes, the refuse of their grain, and their old household furniture.

126. A Sudra cannot commit an offense, causing loss of caste (pātaka), and he is not worthy to receive the sacraments; he has no right to (fulfil) the sacred law (of the Aryans, yet) there is no prohibition against (his fulfilling certain portions of) the law.

127. (Sudras) who are desirous to gain merit, and know (their) duty, commit no sin, but gain praise, if they imitate the practice of virtuous men without reciting sacred texts.

128. The more a (Sudra), keeping himself free from envy, imitates the behaviour of the virtuous, the more he gains, without being censured, (exaltation in) this world and the next.

129. No collection of wealth must be made by a Sudra, even though he be able (to do it); for a Sudra who has acquired wealth, gives pain to Brahmanas.

## Chap. XI

56. Falsely attributing to oneself high birth,.... (are of-fenses) equal to slaying a Brahman.

193. Let him prescribe the same (expiation) when twice born men, who follow forbidden occupations or have neglected (to learn) the Veda, desire to perform a penance. Namely to perform three Krikkhra.

212. A twice-born man who performs (the Krikkhra penance) revealed by Pragapati, shall eat during three days in the morning (only), during (the next) three days in the evening (only), during the (following) three days (food given) unasked, and shall fast during another period of three days.

207. But he, who, intending to hurt a Brahmana, has threatened (him with a stick and the like) shall remain in hell during a hundred years; he who (actually) struck him, during one thousand years.

208. As many particles of dust as the blood of a Brahmana causes to coagulate, for so many thousand years shall the shedder of that (blood) remain in hell.

## Chap. XII

70. But (men of the four) castes who have relinquished without the pressure of necessity their proper occupations, will

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become the servants of Dasyus, after migrating into despicable
bodies.

71. A Brahmana who has fallen off from his duty (becomes) an
Ulkamkha Preta, who feeds on what has been vomited; and a
Kshatriya, a Kataputana (Preta), who eats impure substances
and corpses.

72. A Vaisya who has fallen off from his duty becomes a Mai-
trakshagyotika Preta, who feeds on pus; and a Sudra, a Kail-
asaka (Preta), who feeds on moths).

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The Laws of Manu (The Sacred Books of the East).
by Johan George Buhler
Vol.XXV Pub. Oxford Press.

Chap.II

6. The whole Veda is the (first) source of the sacred law,
next the tradition and the virtuous conduct of those who know
the (Veda further), also the customs of holy men, and (finally)
self-satisfaction.

7. Whatever law has been ordained for any (person) by Manu,
that has been fully declared in the Veda; for that (sage was)
omniscient.

10. But by Sruti (revelation) is meant the Veda, and by
Smriti (tradition) the Institutes of the sacred law; those two
must not be called into question in any matter, since from
those two the sacred law shone forth.

11. Every twice-born man, who, relying on the Institutes of
dialectics, treats with contempt those two sources (of the law)
must be cast out by the virtuous, as an atheist and a scorner
of the Veda.

13. ......to those who seek the knowledge of the sacred law
the supreme authority is the revelation (Sruti).

14. But when two sacred texts (Sruti) are conflicting, both
are held to be law; for both are pronounced by the wise (to
be) valid law.

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# Reading Materials for the Jajmani System

## "The Early History of Institutions"
by Sir Henry Sumner Maine
Pub. by Henry Holt & Co. 1875
written 1874.

"The village itself is an assemblage of houses, contained indeed within narrow limits, but composed of separate dwellings, each jealously guarded from the intrusion of a neighbor. The village lands are no longer the collective property of the community; the arable lands have been divided between the various households; the pasture lands have been partially divided; only the waste remains in common.....In India, though the villagers are still a brotherhood, and though membership in the brotherhood separates a man from the world outside, it is very difficult to say in what the tie is conceived as consisting. Many palpable facts in the composition of the community are constantly inconsistent with the actual descent of the villagers from any one ancestor. Accordingly, private property in land has grown up, though its outlines are not always clear; the periodic re-division of the domain has become a mere tradition, or is only practiced among the ruder portions of the race; and the results of the theoretical kinship are pretty much confined to the duty of submitting to common rules of cultivation and pasture, of abstaining from sale or alienation without the consent of the co-villagers, and (according to some opinions) of refraining from imposing a rack-rent upon members of the same brotherhood. Thus, the Indian village-community is a body of men held together by the land which they occupy; the idea of common blood and descent has all but died out." Pages 81, 82.

...."the Indian communities, placed in a region of which the population has from time immemorial been far denser than in the north, bear many marks of past contests between the ancient brotherhood of kinsmen and a class of dependents outside it struggling for a share in the land, or for the right to use it on easy terms." Pages 83, 84.

"The wretchedness of the outcast in India, understood as the man who has lost or been expelled from caste, does not arise from his having been degraded from a higher to a lower social standing, but from his having no standing whatever, there being no other order of society open to receive him when he has descended from his own." Page 182.

"When men, under the influence of the cast of thought we are discussing (a similar religion), are placed in circumstances which naturally bind affection and sympathy, or when they are placed in a relation which they are taught to consider especially sacred, not only their words and ideas but their feelings,

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emotions, and prejudices mould themselves to the pattern of
those which naturally result from consanguinity." Page 239.

"The form of Fosterage which has most interest for the modern inquirer is called by the Translators of the Brehon tracts, Literary Fosterage. It was an institution nearly connected with the existence of the Brehon Law Schools, and it consists of the various relations established between the Brehon teacher and the pupils he received into his house for instruction in the Brehon lore. However it may surprise us that the connection between schoolmaster and pupil was regarded as peculiarly sacred by the ancient Irish, and as closely resembling natural fatherhood, the Brehon tracts leave no room for doubt on the point. It is expressly laid down that it created the same Patria Potestas as actual paternity; and the literary foster-father, though he teaches gratuitously, has a claim through life upon portions of the property of the literary foster-son. Thus the Brehon with his pupils constituted not a school in our sense but a true family. While the ordinary foster-father was bound by the law to give education of some kind to his foster-children -- to the sons of chiefs instruction in riding, shooting with the bow, swimming, and chess-playing, and instruction to their daughters in sewing, cutting-out, and embroidery - the Brehon trained his foster-sons in learning of the highest dignity, the lore of the chief literary profession. He took payment, but it was the law which settled it for him. It was part of his status, and not the result of a bargain.... According to the general custom of India, the Brahmin teacher of Brahmin pupils receives no payment for his services, but the Hindu law repeatedly reserves to him a remote succession to their property. For example: 'If there be no male issue the nearest kinsman inherits; or in default of kindred, the preceptor, or failing him the disciple.' Pages 242-244.

"In societies of an archaic type, a particular craft or kind of knowledge becomes in time an hereditary profession of families, almost as a matter of course. The difficulty with a native of India, unsophisticated by English ideas, is not to find a reason why a son should succeed to the learning of his father, and consequently to his office and duties; his difficulty would rather be to explain to himself why it should not be so, and how the public interests could be consulted by any other arrangement. ..... One only of these castes really survives in India, that of the Brahmans, (my note - probably in the sense of purity) and it is strongly suspected that the whole literary theory of caste, which is of Brahmin origin, is based on the existence of the Brahmin caste alone. Now, the tendency of knowledge to become hereditary is, by itself, consistent with a great variety of religious and literary cultivation, but, as a fact, the Brahmins of India are a remarkably homogeneous class, admitting (though no doubt with considerable local qualifications) a general brotherhood of all members of the order."

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"While, then, I cannot say that our scanty information respecting changes in the status of the Brehon lawyers helps us much towards a comprehension of the beginnings of caste in the true sense, I certainly think that we learn something more than we knew before from the references in the Brehon tracts to Literary Fostering. They appear to me to give a new emphasis and point to the rules of Hindu Law respecting the remote succession of the 'spiritual preceptor' to the property of families. It seems as if in the most ancient state of both systems Literary or Religious fatherhood had been closely assimilated to actual fatherhood. Under these circumstances, if great schools of Vedaic learning existed in India in very ancient times, as we have strong reason to think they did, the relation between Teacher and Pupil would closely follow and imitate the relation between father and son. A great profession would thus be formed with stores of common knowledge; but the tie between the members would not be purely intellectual; it would from the first be conceived as of the nature of kinship. Such a system, as the old ideas decayed, would tend infallibly to become one of real consanguinity. The aptitude for sacred knowledge would come to be thought to run in the blood of sons whose fathers had been instructed in it, and none but such sons would be received into the schools. A caste would thus be formed, in the eyes of its members, the type of all castes.

"We have thus strong reason for thinking that societies still under the influence of primitive thought labor under a certain incapacity for regarding men, grouped together by virtue of any institutions whatsoever, as connected otherwise than through blood-relationship. We find that, through this barrenness of conception, they are apt to extend the notion of consanguinity and the language beginning in it to institutions of their own not really founded on community of blood, and even to institutions of foreign origin. We find also that the association between institutions arising from true kinship and institutions based on artificial kinship is sometimes so strong, that the emotions which they respectively call forth are practically indistinguishable." 245, 246, 247.

"I have myself heard an Indian Brahmin dispute it (theory of Equality) on the ground that, according to the clear teaching of his religion, a Brahmin was entitled to twenty times as much happiness as anybody else." Page 399.

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Source Material for the Jajmani System

From "Ancient Law"

by Henry Sumner Maine.

Pub. by Henry Holt & Co. 1875

written 1861.

"We saw one peculiarity invariably distinguishing the in-
fancy of society. Men are regarded and treated, not as indi-
viduals, but always as members of a particular group. Every-
body is first a citizen, and then, as a citizen, he is a member
of his order - of an aristocracy or a democracy, of an order of
patricians or plebians; or in those societies which an unhappy
fate has afflicted with a special perversion in their course of
development, of a caste. Next, he is a member of a gens, house
or clan; and lastly, he is a member of his family. This last
was the narrowest and most personal relation in which he stood;
nor, paradoxical as it may seem, was he ever regarded as him-
self, as a distinct individual. His individuality was swallowed
up in his family. I repeat the definition of a primitive so-
ciety given before. It has for its units, not individuals, but
groups of men united by the reality or the fiction of blood-
relationship." Pages 177, 178.

"The co-owners of an Indian village, though their property is blended, have their rights distinct, and this separation of rights is complete and continues indefinitely." Page 259.

"The earliest social forms of the feudal period differ in little from the ordinary associations in which the men of primitive civilizations are everywhere seen united. A Fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably blended together. It had much in common with an Indian Village Community.... But still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners in civilization. True archaic communities are held together not by express rules, but by sentiment, or, we should perhaps say, by instinct; and newcomers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood-relationship from which it naturally springs. But the earliest feudal communities were neither bound together by mere sentiment nor recruited by a fiction. The tie which united them was contract, and they obtained new associates by contracting with them. The relation of the lord to the vassals had originally been settled by express engagement, and a person wishing to engraft himself on the brotherhood by commendation or in-feudation came to a distinct understanding as to the conditions on which he was to be admitted. It is therefore the sphere occupied in them by contract which principally distinguishes the feudal institutions from the unadulterated usages of primitive races. The lord had many of the characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs traceable to the express conditions

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which had been agreed upon when the infeudation took place. Hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. They were much more durable and much more various; more durable, because express rules are less destructible than instinctive habits, and more various because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. This last consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of modern society stand in need of revision. It is often said that the irregular and various contour of modern civilization is due to the exuberant and erratic genius of the Germanic races, and it is often contrasted with the dull routine of the Roman Empire. The truth is that the Empire bequeathed to modern society the legal conception to which all this irregularity is attributable; if the customs and institutions of barbarians have one characteristic more striking than another it is their extreme uniformity." Pages 353, 354.

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Source Material for the Jajmani System.

"Village Communities in the East and West"
by Sir Henry Sumner Maine
Pub. Henry Holt & Co. 1876
written 1871.

"But the Indian Village-Community is a living, and not a dead, institution....and over the greatest part of the country the Village Community has not been absorbed in any larger collection of men or lost in a territorial area of wider extent. For fiscal and legal purposes it is the proprietary unit of large and populous provinces." Pages 12, 13.

"The whole of the codified law of the country - that is, the law contained in the code of Manu, and in the treatises of the various schools of commentators who have written on that code and greatly extended it - is theoretically connected together by certain definite ideas of a sacerdotal nature....large bodies of indigenous custom have grown up independently of the codified law. But on comparing the written and the unwritten law, it appears clearly that the sacerdotal notions which permeate the first have invaded it from without, and are of Brahmanical origin. I shall have to advert to the curious circumstance that the influence of these Brahminical theories upon law has been rather increased than otherwise by the British dominion." Page 20

"Hindu law is theoretically contained in Manu, but it is practically collected from the writings of the jurists who have commented on him and on one another." Page 46.

"I am aware that the popular impression here is that Indian society is divided, so to speak, into a number of horizontal strata, each representing a caste. This is an entire mistake. It is extremely doubtful whether the Brahmanical theory of caste upon caste was ever true except of the two highest castes; and it is even likely that more importance has been attached to it in modern times than ever was in ancient times. The real India contains one priestly caste, which in a certain, though a very limited, sense is the highest of all, and there are, besides, some princely houses (Kshatriya) and a certain number of tribes, village communities, and guilds, which still in our day advance a claim, considered by many good authorities extremely doubtful, to belong to the second or third of the castes recognized by the Brahmanical writers. But otherwise, caste is merely a name for trade or occupation, and the sole tangible effects of the Brahmanical theory is that it creates a religious sanction for what is really a primitive and natural distribution of classes. The true view of India in that, as a whole, it is divided into a vast number of independent, self-acting, organized social groups - trading, manufacturing, cultivating....The smaller organic groups of Indian society....are constantly dwelling on

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traditions of a certain sort, they are so constituted that one man's interests and impressions correct those of another and some of them have in their council of elders a permanent machinery for declaring traditional usage, and solving doubtful points." Pages 57, 58.

"The council of village elders does not command anything, it merely declares what has always been." Page 68.

"The Brahmanical written law assumes the existence of King and judge." Page 71.

"No Indian phenomenon has been more carefully examined, and by men more thoroughly in earnest, than the Village-Community. For many years past the discovery and recognition of its existence have ranked among the greatest achievements of Anglo-Indian administration. But the Village-Community did not emerge into clear light very early in the history of our conquest and government. Although this peculiar group is referred to in Many, the English found little to guide them to its great importance in the Brahmanical codified law of the Hindoos which they first examined. Perhaps in the large space assigned in that law to joint-property and partitions they might have found a hint of the truth, if the great province in which they were first called upon to practice administration on a large scale, Lower Bengal or Bengal proper, had not happened to be the exact part of India in which, from causes not yet fully determined, the village system had fallen into great decay. The assumption which the English first made was one which they inherited from their Mahometan predecessors. It was, that all the soil belonged in absolute property to the sovereign, and that all private property in land existed by his sufferance." Page 104.

"Yet, if I may trust the statements of several eminent Indian authorities, it is always the fact or the fiction that this council (Panchayat) merely declares customary law. And indeed, while it is quite true of India that the head of the family is supposed to be chief of the household, the families within the village or township would seem to be bound together through their representative heads by just as intricate a body of customary rules as they are in respect of those parts of the village domain which answer to the Teutonic common mark and arable mark. The truth is, that nothing can be more complex than the customs of an Indian village, though in a sense they are only binding on chiefs of families. The examination of these customs, which have for their object to secure a self-acting organization not only for the community as a whole, but for the various trades and callings which fractions of it pursue, does not fall within the scope of the present lectures, but it is a subject full of interest. I observe that recent writers are dissatisfied with the historical theory which attributes the municipal institutions

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of medieval Europe to an exclusively Roman origin, and that they
are seeking to take into account the usages inherited from the
conquerors of the Empire. From this point of view, the custom-
ary rules securing the interdependence and mutual responsibility
of the members of an Indian village-community, or of the various
subordinate groups which it may be shown to include, and the
modes of speech in use among them, which are said to fluctuate
between language implying an hereditary brotherhood and language
implying a voluntary association, appear to be worthy of care-
ful examination." Page 117.

"They, in fact, include a nearly complete establishment of
occupations and trades for enabling them to continue their col-
lective life without assistance from any person or body external
to them. Besides the Headman or Council exercising quasi-judi-
cial, quasi-legislative, power, they contain a village police,
now recognized and paid in certain provinces by the British
government. They include several families of hereditary trad-
ers; the Blacksmith, the Harness-maker, the Shoemaker. The
Brahmin is also found for the performance of ceremonies, and even
the Dancing-girl for attendance at festivities. There is in-
variably a Village-Accountant, an important personage among an
unlettered population - so important, indeed, and so conspicu-
ous that, according to reports current in India, the earliest
English functionaries engaged in settlements of land were oc-
casionally led by their assumption that there must be a single
proprietor somewhere, to mistake the Accountant for the owner
of the village, and to record him as such in the official regis-
ter. But the person practicing any one of these hereditary em-
ployments is really a servant of the community as well as one
of its component members. He is sometimes paid by an allowance
in grain, more generally by the allotment to his family of a
piece of cultivated land in hereditary possession. Whatever
else he may demand for the wares he produces, is limited by a
customary standard of price, very rarely departed from. It is
the assignment of a definite lot in the cultivated area to par-
ticular trades, which allows us to suspect that the early Teu-
tonic groups were similarly self-sufficing." Pages 125, 126.

"It is a remarkable fact that certain callings, extremely
respectable and lucrative, do not appear in India to constitute
those who follow them members of the village-community. Emi-
nent officials have assured me that, so far as their experience
extends, the Grain-dealer is never a hereditary trader incorpor-
ated with the village-group, nor is he a member of the munici-
pality in towns which have grown out of one or more villages.
The trades thus remaining outside the organic group are those
which bring their goods from distant markets; and I shall try to
show the significance of this fact hereafter.

"There are in Central and Southern India certain villages
to which a class of persons is hereditarily attached in such a

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manner as to show most unmistakably that they form no part of
the natural and organic aggregate to which the bulk of the
villagers belong. These persons are looked upon as essentially
impure; they never enter the village, or only enter reserved
portions of it; and their touch is avoided as contaminating...
Yet these Indian 'outsiders', as they have been called, to avoid
using the word 'outcast', which has a different meaning, bear
extremely plain marks of their origin. Though they are not in-
cluded in the village, they are an appendage solidly connected
with it; they have definite village duties, one of which is the
settlement of boundaries, on which their authority is allowed to
be conclusive. They evidently represent a population of alien
blood, whose lands have been occupied by the colonists or in-
vaders forming the community. Everybody who has used his eyes
in India will be on his guard against certain extravagances
of the modern theory of Race, and will be slow to believe that
identity of language and identity of religion necessarily imply
identity of ethnical origin. The wonderful differences of ex-
ternal aspect which are readily perceived between natives of
Indian provinces speaking the same language, and the great devi-
ation from what is regarded as the Aryan type of form and fea-
ture observable among populations whose speech is a near deriva-
tive from Sanscrit, have their most reasonable explanation in
the power of absorption which the village group may from many
indications be inferred to have possessed in the earlier stages
of development. But the faculty of taking in strangers, from
without, is one which it loses in time, and there were always
probably some materials too obstinately and obtrusively foreign
to be completely absorbed. Under this last head, the 'outsid-
ers' of the Southern villages apparently fall." Pages 126-128.

"Feudalism....arose from or was greatly influenced by the
Benefices, grants of Roman provincial land by the chieftains of
the tribes which overran the Roman Empire; such grants being
conferred on their associates upon certain conditions, of which
the commonest was military service. There is also tolerably
universal agreement that somewhere in Roman law (though where,
all are not agreed) are to be found the rules which determined
the nature of these beneficiary holdings. This may be called
the theory of the official origin of feudalism, the enjoyment
of land being coupled with the discharge of certain definite
duties, and there are some who complete the theory by asserting
that among the Teutonic races, at all events, there was an
ineradicable tendency in all offices to become hereditary, and
that thus the Benefices, which at first were held for life, be-
came at last descendible from father to son." Pages 131, 132.

"The feudalization of any one country in Europe must be
conceived as a process including a long series of political, ad-
ministrative, and judicial changes; and there is some difficulty
in confining our discussion of it to changes in the condition

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of property which belong more properly to this department of
study. ... If we begin with modern English real-property law,
and, by the help if its records and of the statutes affecting
it, trace its history backwards, we come upon a period at which
the soil of England was occupied and tilled by separate pro-
prietary societies. Each of these societies is, or bears the
marks of having been, a compact and organically complete assem-
blage of men, occupying a definite area of land. Thus far it
resembles the old cultivating communities, but it differs from
them in being held together by a variety of subordinate rela-
tions to a feudal chief, single or corporate, the Lord. I will
call the new group the Manorial group, and though my words must
not be taken as strictly correct, I will say that a group of
tenants, autocratically organized and governed, has succeeded
a group of households of which the organization and government
were democratic. The new group, as known to our law, is often
in a state of dissolution, but, where it is perfect, it con-
sists of a number of persons holding land of the Lord by free
tenures, and of a number of persons holding land of the Lord by
tenures capable of being shown to have been, in their origin,
servile - the authority of the Lord being exercised over both
classes, although in different ways, through the agency of a
peculiar tribunal, the Court Baron. The lands held by the first
description of tenants are technically known as the Tenemental
lands; those held by the second class constitute the Lord's do-
main. Both kinds of land are essential to the completeness of
the manorial group. If there are not Tenemental lands to sup-
ply a certain minimum number of free tenants to attend the
Court Baron, and according to the legal theory, to sit with the
lord as its judges, the Court Baron can no longer in strictness
be held; if it be continued under such circumstances, as it
often was in practice, it can only be upheld as a customary
manorial court, sitting for the assessment and receipt of cus-
tomary dues from the tenants of the domain. On the other hand,
if there be no domain, or if it be parted with, the authority
of the Lord over the free tenants is no longer manorial; it be-
comes a Seignory in gross, or mere Lordship." Pages 133 and 134.

"Not only, as I have told you, is the Village-Community the
basis of British administration in those provinces in which the
art of government has to be practiced with skill and caution,
but a number of controversies turning on the mode of transition
from the village system to what I have called the manorial sys-
tem are as earnestly, and sometimes even as violently, debated
by our countrymen, in the East, as are the great aspects of
politics among ourselves." Page 148.

"In England as everywhere in Western Europe, the waste or
common land of the community has become the lord's waste. It
is still ancillary to the Tenemental lands; the free tenants of

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the lord, whom we may provisionally take to represent the free-
men of the village-community, retain all their ascertained
rights of pasture and gathering firewood, and in some cases sim-
ilar rights have been acquired by other classes; but, subject to
all ascertained rights, the waste belongs, actually or poten-
tially, to the lord's domain. The lord's 'right of approvement'
affirmed by the Statute of Merton, and extended and confirmed
by subsequent statutes, permits him to enclose and appropriate
so much of the waste as is not wanted to satisfy other existing
rights; nor can it be doubted that he largely exercises this
right, reclaiming part of the waste for himself by his person-
al dependents and adding it to whatever share may have belonged
to him from the first in the cultivated land of the community,
and colonizing other portions of it with settlements of his
villeins who are on their way to become copyholders. ...When
we pass from the waste to the grass lands which were intermediate
between the common land and the cultivated area, we find
many varieties in the degree of authority acquired by the lord.
...Sometimes, the lord encloses for his own benefit from Candle-
mas to Midsummer or Lammas, and the common right belongs during
the rest of the year to a class of burgesses, or to the house-
holders of a village, or to the persons inhabiting certain an-
cient tenements. Sometimes, the lord only regulates the in-
closure, and determines the time of setting up and removing
the fences. Sometimes, other persons enclose, and the lord has
the grass when the several enjoyment comes to an end."

"Leaving the meadows and turning to the lands under regular tillage, we cannot doubt that the free holders of the Tene mental lands correspond in the main to the free heads of house holds composing the old village-community. The assumption has often been made, and it appears to be borne out by the facts which can be established as to the common fields still open or comparatively lately enclosed. The tenure of a certain number of these fields is freehold; they are parcelled out, or may be shown to have been in the last century parcelled out, among many different owners." Page 137.

" The bond which kept the manorial group together was evi-
dently the manorial court, presided over by the lord or his
representative." Page 139.

"It is a serious error to suppose that the non-feudal forms
of property which characterized the cultivating communities had
any real resemblance to the absolute property of our day. The
land was free only in the sense of being free from feudal ser-
vices, but it was enslaved to custom." Page 164.

"The village-communities which are still found in the East-
ern world, exhibit, at first sight, a much simpler structure than
appears on close examination. At the outset they seem to be

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entitled to a qualified protection against eviction and rack-
rent. ...he was made an 'occupancy tenant'. Page 184.

"What, in a primitive society, is the measure of Price? It
can only be called custom. Although in the East influences des-
structive of the primitive notion are actively at work, yet in
the more retired villages the artificer who plies an ancient
trade still sells his wares for the customary prices, and would
always change their quality rather than their price." Pages
190, 191.

"It is of the very essence of Custom, and this indeed
chiefly explains its strength, that men do not clearly distin-
guish between their actions and their duties - what they ought
to do is what they always have done, and they do it." Page 191.

"I am also informed that the natives of India will often
pay willingly a competition price for one article, when they
would think it unjust to be asked more than a customary price
for another. A man who will pay the price of the day for corn
collected from all parts of India, or for cotton-cloth from Eng-
land, will complain (so I am told) if he is asked an unaccus-
tomed price for a shoe." Pages 197, 198.

"But no reader of Mr. Lyall's papers can doubt that another
powerful preservative has been the influence of Religion and
Caste, an influence, however, of which I must warn my hearers
that they will gain no accurate conception from the impressions
generally given by the words I have used. European scholars,
having hitherto been chiefly interested in the ancient languages
of India and in the surprising inferences suggested by them,
have very naturally acquiesced in the statements which the sole
literary class has made about itself and its creed. But nothing
can give a falser impression of the actual Brahminical religion
than the sacred Brahminical literature. It represents itself
as an organized religious system, whereas its great peculiarity,
and (may I add) its chief interest, arises from its having no
organization whatever.... Brahminism is in fact essentially a
religion of compromise. It reconciles itself with ancient forms
of worship, and with new ones, when they become sufficiently
prevalent, by taking them up into itself and by accepting the
fashionable divinity as an incarnation of Vishnu or Siva." Pages
216, 217.

"The common religious sanction binding the various groups
of native Indian society together finds an outward and practi-
cal expression in the usages of caste. Here again the nearly
exclusive attention paid in Europe to the Brahminical litera-
ture has spread abroad very erroneous ideas of a remarkable
institution. The Brahminical theory of three or four universal
castes has certainly considerable indirect influence, but the

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40.

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division of Hindoo society into accurately defined horizontal
strata, if it ever existed as a fact (which it probably did
not), exists no longer. There is only one perfect universal
caste, that of the Brahmans; there are a certain number of iso-
lated dynasties and communities pretending to belong to the
second of the theoretical castes; but, in the enormous majority
of instances, caste is only the name for a number of practices
which are followed by each one of a multitude of groups of men,
whether such a group be ancient and natural, or modern and arti-
ficial. As a rule, every trade, every profession, every guild,
every tribe, every clan is also a caste, and the members of a
caste not only have their own special objects of worship, sel-
ected from the Hindoo pantheon or adopted into it, but they
exclusively eat together and exclusively intermarry. You will
see at once that a solidity is thus given to all groups of men
which has no counterpart in the Western world, and you can un-
derstand, I think, without difficulty, how it is that all the
old natural elements of society have been preserved under the
influence of caste in extraordinary completeness, along with
the institutions and ideas which are their appendage."
Pages 218 - 220.

"Wherever we can observe the primitive groups still sur-
viving to our day, we find that competition has very feeble
play in their domestic transactions, competition (that is) in
exchange and in the acquisition of property. This phenomenon,
with several others, suggests that competition, that prodigious
social force of which the action is measured by political econ-
omy, is of relatively modern origin....The view of land as
merchantable property, exchangeable like a horse or an ox,
seems to be not only modern but even now distinctively Western."
Pages 227, 228.

41.

Jajmani

Reading Materials for Jajmani

"Domesday Book and Beyond"

by Frederick William Maitland, LL.D.

Pub. by University Press, Cambridge
1897.

"But we may use various standards for the measurement of
liberty."

"Perhaps in the first place we shall think of what German
writers call Freizugigkeit, the power to leave the master
whom one has been serving. This power our ancestors would
perhaps have called 'fareworthiness'. If the master has the
right to recapture the servant who leaves his service, or even
if he has the right to call upon the officers of the state
to pursue him and bring him back to his work, then we may ac-
count this servant an unfree man, albeit the relation between
him and his master has been created by free contract."

Page 42.

W. H. Wiser

42.

Jajmani

"Analytical Digest of All the Reported Cases Decided by the
Supreme Courts of Judicature in India."

by William H. Morley

Pub. by Wm. H. Allen & Co. 1850

(also new series published 1852)

"Jujman, a disciple or employer of a Purohit or family priest. One for whom, and at whose expense, a ceremony is performed. A person assisted and guided by a priest at the time of performing sacerdotal ceremonies. A master, head, or chief." Glossary Page 634. Vol. I (1850)

"Priest"

III. Purohit.

"A Jujman, or member of a Hindu family who employs a certain Purohit, or officiating priest, is not at liberty to discharge such priest whilst he is capable of performing sacrificial or other religious duties. (See II Colebrooke 3 (et seq) Radka Kishen and others v Sham Serma and others. 8th April 1818. 2 S.D.A. Rep. 332 - Ker and Oswald." (See 577-63 of these notes.)

"Jujmans, or Hindu families employing a Purohit, or priest, cannot discard him without fault of disqualifying cause. Mt. Chowrasse v. Jewun Chund, Mehtoon and others. 28th Feb. 1837. 6 S.D.A. Rep. 182 - Rattray and Hutchinson."

"But in an action by the heir of a Purohit, alleged to have been employed by certain families, for the profits arising from the office, it was held that it was necessary to prove that such Purohit had been appointed with the consent of the Jujmans. Ib." Page 539, Vol. I of 1850.

"Priest"

"Jujmans requiring any religious ceremonies to be performed for their benefit by any Purohit are at liberty to choose the Purohit whom they may prefer for that purpose, and no other Purohit can, as a right, claim a share in the fees paid, either from the Jujmans, or from the Purohit who received the fees." Hurgobind Surma and others v. Bhowanupersand Shah and others. 13th June 1850. S.D.A. Decis. Beng. 296 - Barlow, Jackson, and Colvin. Page 347, Vol. I of 1852.

"Birt, A maintenance, A small spot of land on which a dwelling is erected, generally with some ground round it, often granted to Brahmans." Page 629. Vol. I, 1850.

"Birt Mahabrahmani. Fees received by mahabrahmans, who officiate at the ceremonies performed on the eleventh day after the death of a Hindu." Page 629. Vol. I, 1850.

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Jajmani

"A suit resting on an alleged right to be summoned at all marriages, and to receive a Panbatta, or present of Pān, from the members of a particular community, is not one in which a decretal order can be enforced by our courts." Ram Guttree Biswas and others v. Mahadeo Bunnick and others. 21st March 1850. S.D.A. Decis. Bengal 64 - Barlow and Colvin (Dick dissent). "Mr. Dick dissented, on the ground that the claim of the plaintiff, and the denial of it, were based on inheritance, and not on any local usage, or custom, or voluntary. The Lower Courts had decided the right of inheritance to be plaintiff's; and as that was a matter of fact, and was not cognizable by the Sudder Dewanny Adawlut in special appeal, Mr. Dick would have affirmed the decisions of the Lower Courts as intangible." Page 144, Vol. I, 1852.

"The members of an agricultural community may bind themselves, just as any other persons may do, by agreeing to particular conditions; and there is no reason why these conditions should not be recorded in a Wajib-al-Arz as well as in an Ikrar nāmeh, or similar private deed. Such an arrangement would of course be independent of law so far as the agreeing parties were concerned." Page 388. Vol. I, 1852.

"Ikrar Nāmeh, a written acknowledgement by a purchaser to the vendor." Page 633. Vol. I, 1850.

"Wajib-al-Arz, a written representation or petition." Page 396, Vol. I, 1852.

"Panchayat, Five assembled. An assembly or jury of five or more persons, to whom a cause is referred for investigation or decision." Page 640, Vol. I, 1850.

## "Slavery

"The cognizance of cases of slavery by the courts of the Honourable Company having been put an end to by Act V of 1843, the whole of the cases reported on this subject are arranged under one head without comment. Without for a moment underrating the labor and ability expended and displayed in the voluminous Reports of the Indian Law Commission on the subject of Slavery in India, or questioning the philanthropic feelings which led the Commissioners, and eventually the Government, to turn their serious attention to the subject at an enormous cost to the country, and which ended in the passing of Act V, of 1843, I cannot resist the attempt to remove any false impression that may exist in the mind of the reader respecting what the real state of the slave was in India, by quoting some remarks of Henry Colebrooke in the Third Volume of Harington's Analysis, page 745; his opinion will perhaps cause the candid reader to

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45.

Ja jmani

hesitate before he bestows unqualified approbation on the present or condemnation on the former system: 'Indeed, throughout India, the relation of master and slave appears to impose the duty of protection and cherishment on the master, as much as that of fidelity and obedience on the slave; and their mutual conduct is consistent with the sense of such an obligation, since it is marked with gentleness and indulgence on the one side, and with zeal and loyalty on the other. During a famine, or a dearth, parents have been known to sell their children for prices so very inconsiderable, and little more than nominal, that they may, in frequent instances, have credit for a better motive than that of momentarily relieving their own necessities; namely, the saving of their children's lives, by interesting in their preservation persons able to provide nourishment for them. The same feeling is often the motive for selling children, when particular circumstances of distress, instead of a general dearth, disable the parent from supporting them. There is no reason to believe that they are ever sold for mere avarice and want of natural affection in the parent; the known character of the people, and proved disposition in all the domestic relations, must exempt them from the suspicion of such conduct; but the pressure of want alone compels the sale, whether the immediate impulse be consideration for the child, or desire of personal relief.' Sir W. Macraughten confirms and refers to these remarks in the Introduction to his Principles of Mohammedan Law, page XXXIX." Page 589, Vol. I. 1850

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46.

Jajmani

"The Indian Digest"

by Herbert Cowell

Pub. by Thacker Spink & Co., Calcutta. 1873.

"A Hindu priest cannot sue in respect of the withholding of religious observances due to his sacred rank, but unconnected with any special office held by him, although the non-performance of such observances may have caused him some ascertainable pecuniary loss. Strunan Sada Gopa v. Krista Tattachariyar and another, 1 Mad. Rep., A.C. 307."

"The obligation upon jujmans to employ a particular purohit to perform the ceremonies at the burning of Hindu bodies may be a matter of conscience, and not one which a Court of Law can enforce; but the question of the right to enjoy the joint profits accruing from the performance of such ceremonies is cognizable by a Civil Court. Becharam Banerjee v. Sreemuttee Thakooree, 10 W.A., 115."

"In a suit for 'Huk Purohitec' - Held that each 'Jujman' has a right to select his own priest, and no suit to enforce such right would lie in the Civil Court. Beharee Lall v. Baboo and others, 2 Agra Rep., A.C., 80."

"A suit will lie against priests for a certain share of their earnings, if brought on the ground of partnership or of contract express or implied. But in the absence of such partnership or contract such a suit will not lie, even against a priest newly appointed by the jujman, simply on the ground of hereditary right to perform the ceremonies of a particular family, such right not being enforceable at law." Muggo Pandeau v. Ram Dyal Tewrua, 15 S.W.R., C.R., 531.

"A Birth Moha Brahminy (my note - should be 'Birt Mahabramani') or right to officiate at funeral ceremonies is incapable of transfer." Jhummun Pandey v. Dinnonaut Pandey, 16 S.W.R., C.R., 171.

"The owner of an idol is entitled to appoint anybody he likes to perform its poojah; the mere fact of a party and his ancestors having done so for a long period creates no right in his favour. Maharance Indurjeet Kooer v. Chundeeman Misser, 16 S.W.R., C.R. 99. Pages 696, 697."

"In a suit to obtain khas possession of lands which were found to have been held of plaintiff and his ancestors by defendants and their ancestors upon a service tenure, but which the grantees alienated to strangers, without any acquiescence on the part of the grantor, and then ceased to perform the services, it was held that the defendants had forfeited their right to hold the land at all. Ramgopal Chuckerbutty and another v. Chundernath Sein and others, 10 W.R., 289.

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Jajmani

"A grant to a man and his heirs on condition of perform-
ing service, does not in general mean that the service is to
be personally performed by the grantee or his heirs, but that
the grantee is to be responsible for its performance. Shib Lall
Singh v. Moorad Khan, 9 W.R., 126." Page 762.

"A Short Treatise on Hindu Law"

by Herbert Cowell

Pub. by Thacker Spink & Co. 1895.

"We now pass....to the subject of the personal rights and duties which devolve upon individuals. The rules which determine the civil status of each, that is his position in the eye of Hindu Law, e.g., his age of majority, his legitimacy, his marriage, his capacity to be adopted and so forth, are derived from the doctrines of religion, and it is not always easy to distinguish the precepts which have the sanction only of religion from the rules which have the force of law.

"At his birth there is ascribed to him by law the state
or position involved in the possession of a particular caste.

"The <u>caste</u> to which he belongs influences his legal posi-
tion, for each <u>caste</u> has its special rules, still to some ex-
tent and for some purposes recognized by law, which affect only
its own members. Religious teaching separates the regenerate
or twice-born Hindu from the unregenerate Hindu, who is still
affected by the taint of sin which he contracted in the womb.
The only regenerating ceremony for a Sudra, or a woman of what-
ever caste, is marriage. In the other three castes, marriage
is the final ceremony which completes the regeneration of a
male Hindu. It unalterably fixes him as a member of the family
in which he was born, after which, under no circumstances what-
ever, can he be affiliated in any other family, or to any other
father, away from <u>and</u> destroying his affiliation to his natural
father." Pages 69, 70.

"The guru is the spiritual guide of a family, and has au-
thority which extends to expel a man from his caste. The Puro-
hits conduct worship and all ceremonies. With regard to their
legal relations to their jujmans or parishioners, which at one
time extended to make the office of Purohit hereditary, the
doctrine was established in 1850 (a) that Purohit's' fees were
partly voluntary, and partly payment for work and labor done;
but were no longer the subject of partition on the ground of
hereditary right, although they might be the subject of a part-
nership account. And in a later year (b), the Sudder Court of

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Jajmani

Bengal ruled that, although, under the Hindu Law, there was no
doubt that the office of a Purohit was, to a certain extent, an
hereditary office, yet the Courts would refuse to interfere ex-
cept when their services were the subject of contract.

"(a) Hurgobind Surma v. Bhowaneepershad Shak (13th June 1850), S.D. Decisions, Vol. VI, p. 296; and Ramakant Surma and others v. Gobindchunder Surma (13th May, 1852), S.D.Decisions, Vol. VIII, p. 398.

"(b) Jowahur Misser v. Bhagos Misser, 13 S.D. Decisions, p. 362.

"The ordinary method of providing for the support of idols, priests, and worship is by endowment, by the dedication of certain property to an idol, or to a temple, or to the maintenance of Brahmins, or to other religious purposes, which property is thenceforth known by the name of dewutter property. Such endowments are recognized, so long as they appear to have been bona fide made, and are, undoubtedly, encouraged by Hindu law. They must, however, be real and not nominal endowments - see Maha-tabchand and others v. Mirdad Ali and others, 5 S.D.R., p.268 -; the criterion being the publicity of the dedication or grant, and the appropriation of the rents, issues, and profits to the purposes for which the grant purported to have been made. As a general rule - Mudden Lal v. Sreemutty Komul Bibee, 8 S.W.R. p. 43 - written evidence of an endowment will be required. Its absence, however, is not necessarily fatal, provided all the circumstances of the case place the fact of endowment beyond a doubt." Pages 85, 86.

50.

Jajmani

"The Vakeel's Guide"
or
"A Compendium of the Laws"

by T. Subbamracharyar

Pub. by Higginbottom, Madras, 1866.

"Customs may be either general or particular.... A particular or local custom may be defined to be an usage which 'has obtained the force of law, and is, in truth, the binding law within a particular district, or at a particular place, of the persons and things which it concerns.' A custom, therefore, insofar as it extends, supercedes the general law. ...A custom must have been continued; because 'any interruption would cause a temporary ceasing; the revival gives it a new beginning, which will be within time of memory, and, thereupon, the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only for ten or twenty years will not destroy the custom. As, if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed though they do not use it for ten years, it only becomes more difficult to prove; but if the right be anyhow discontinued for a day, the custom is quite at an end. ...A valid custom must have been peaceable, and acquiesced in, not subject to contention and dispute; for, as such a custom derives its force and authority from common consent, the fact of its having been immemorially disputed, either at law or otherwise, would be a proof that such consent was wanting. ...A custom must be reasonable, or, rather, it must not be unreasonable. 'A custom', therefore, 'may be good, though the particular reason of it cannot be assigned, for it sufficeth, if no good legal reason can be assigned against it.' Thus, a custom in a parish that no man shall put his beast into the common till the third of October would be good; and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and, therefore, bad: for; peradventure, the lord will never put in his, and then the tenants will lose all their profits. ...A custom ought to be certain. And, therefore, a custom that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? But a custom, that lands shall descend to the next male of the blood exclusive of females, is certain, and, therefore, good. So a custom to pay two pence an acre in lieu of tithes is good, but to pay sometimes two pence, and sometimes three pence, as the occupier of the land pleases, is bad, for its uncertainty. ... A custom, though established by consent, must, when established,

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be compulsory and not left to the option of every man, whether
he will use it or no; therefore, a custom that all the inhabi-
tants of a particular district shall be rated toward the main-
tenance of a bridge will be good; but a custom that every man
is to contribute thereto at his own pleasure, is idle and ab-
surd, and indeed no custom at all. ...Customs must be consistent
with each other - one custom cannot be set up in opposition to
another; for, if both are really customs, then they are of equal
antiquity, and must have been established by mutual consent,
which to say of contradictory customs is absurd. ...With refer-
ence to the interpretation of customs, it will be sufficient to
mention the general rule, which is, that customs especially
where they derogate from the general rights of property, must
be construed strictly. They are not to be 'enlarged beyond the
usage'. ...Besides local customs properly so called, there are,
in different parts of the country, certain usages existing,
which, unless excluded expressly or impliedly by agreement be-
tween parties, regulate to some extent, the relation of landlord
and tenant, or affect the reciprocal rights of incoming and
outgoing tenants, and are usually known as 'customs of the coun-
try'. Now, a custom belonging to this class need not be shown
to have existed immemorially, but will be established on proof
of a usage, recognized and acted upon in the particular district,
applicable to farms of a like description with that in regard
to which its existence is specifically asserted." Pages 94-96.

(Note: These quotations are taken by the author from "Broom's Commentaries on the Common Law of England.")

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Jajmani

"A Digest of Hindu Law on Contracts
and Successions"

with a commentary by Jagannatha Tercapanchanana.

by H. T. Colebrooke. In 3 volumes.

Pub. in Calcutta and London, 1801

7. "Nareda notices the distinction of servants by class. He is called a laborer by class, and has a distinct subsistence.

"The meaning is, whatever be the servant's class, he should perform the work of it; and his subsistence and abode should also be regulated by his class. For instance, the use of arms, and a habitation in the best place, for a Chatriya; clearing forests and the like, and a habitation in the worst place, for the lowest Sudra." Page 207 II.

16. "Vrihaspati describes an apprentice; Arts, consisting of work in gold, husbandry, and the like, and the art of dancing and the rest, are called human sciences; let him who studies these, perform work in his teacher's house."

"In the expression, (gold, husbandry, and the like', are comprehended work in wood, traffic, and the rest. Dancing and the like include singing and so forth. In the Chintāmeni the text is read, 'arts, as the manufacture of vessels of gold and the like, and the art of dancing and so forth, are called etc. etc.'. In fact, skill in business which requires study, but is different from sacred science, is human knowledge. This sense results from the text. He should perform, in the house of his preceptor or teacher, work relative to the art to be learned by him; as the manufacturer of golden vessels, and the like, in the house of an instructor who works in gold; not labor of a different nature, as the thatching of a house and the like." Page 212, II.

23. "Nāreda: Laborers should be considered as of three sorts: highest, middle, and low; the hire of their labor should be proportioned to their strength and to the benefit derived from their exertions."

"A soldier is the highest of these; a servant in husbandry is middlemost; a carrier of burdens is lowest; this is the three-fold distinction of hired servant." Page 217, II.

24. "Vrihaspati: The servant for pay is declared to be of many sorts; another is the servant for a share of the gain. Of all, a low, a middle, and a high rank is propounded."

"A servant hired for a day, a month, a fortnight, six months, or a year, must perform the work engaged for, and he receives the promised reward."

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"The soldier is the highest of these; the ploughman is the middlemost; the porter is declared the lowest, and so is a servant employed in the business of the household.

"A servant of the second description is declared to be one hired for a share of the gain, in the service of a person living by agriculture, or by attendance on herds of cattle; no doubt he shall receive a share of the grain produced, or of the milk." Page 218, II.

26. "Nareda: Four servants are declared to be those who perform pure work; but they who do impure work are the slaves of fifteen sorts (some properly so called, others improperly).

"Work is declared to be of two sorts, impure and pure: impure work is assigned to the slave; pure work, to the servant.

"Four servants; a pupil, an apprentice, a hired servant and a commissioner." Page 222, II.

27. "Vrihaspati: Cleaning the house, the gate way, the necessary, and the road, removing the dirt and rubbish, and all other impurities.

"Attending the master at his pleasure, and rubbing his limbs, are to be considered as impure work; and all other work as pure." Page 223.

28. "Catyayana: The sons of slaves must absolutely do the work of removing urine and ordure, attending their naked master, and handling cows and the like." Page 223, II.

29. "Nareda: One born of female slave in the house of her master, one bought, one received by donation, one inherited from ancestors, one maintained in a famine, one pledged by a former master.

"One relieved from a great debt, one made captive in war, a slave won in a stake, one who has offered himself in this form, 'I am thine', an apostate from religious mendicity, a slave for a stipulated time.

"One maintained in consideration of service, a slave for the sake of his bride, and one self-sold, are fifteen slaves declared by the law." 224, 225.

36. "Menu: A Sudra, though emancipated by his master, is not released from a state of servitude; for of a state which is natural to him, by whom can he be divested?" 232, 233.

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37. "Menu: Both him of the military and him of the commercial class, if distressed for a livelihood, let some wealthy Brahman support, obliging them, without harshness, to discharge their several duties.

"A Brahmana, who, by his power, and through avarice, shall cause twice-born men, girt with the sacrificial thread, to perform servile acts without their consent, shall be fined by the king six hundred panas." Page 234.

38. "Menu: But a man of the servile class, whether bought or unbought, he may compel to perform servile duty; because such a man was created by the self-existent for the purpose of serving Brahmanas."

Jagamath's comment: "The expression, 'a state which is natural to him', has no such meaning as supposed in the objection. What does it mean? When a Sudra is born, is servitude to all men born with him? Or servitude to no one in particular, but general, and by which he afterwards becomes the slave of him who takes him? Not the first; were it so, that Sudra might be taken as a slave by all twice-born men; and if any Sudra, not serving any person, were accidentally starved or the like, it would be a sin on the part of all twice-born men; a person cannot compel any Sudra, whom he meets on the road, to perform servile duty. Nor is the second supposition right; for servitude requiring a permanent connection, there cannot be a state of servitude without a master to be served; consequently it is proved, that the son of a female slave forsaken by her master is not, at the moment of his birth, slave to any man. Even though a state of servitude were admitted to belong to that Sudra, there would be no use in thus supposing a perfect, but unconnected servitude; for, even though he were a slave generally, yet, unless he be received in donation or otherwise by any one man, he cannot be forcibly seized by him."

"On this point the best opinion is this: as property in gold, silver, and other effects received, may be devested by gift, sale, or other alienation; but not the dominion over a wife, though received like gold or the like; (for a husband and wife are not divorced by desertion or neglect;) so a slave is not emancipated. But that is technical, not actual; for, during the period of desertion, there is no sin on the part of his master in not supporting him; and his master has no power over wealth then acquired by him. 'A state natural to him' is mentioned as a cause; and 'natural' signifies produced at the creation, when the servile class was produced; namely his natural subsistence by servile attendance.

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"If any slave, emancipated by his master, has undertaken
servile attendance on some other person, and afterwards the
former master claims him; what is the rule in that case? He
belongs to the second master; because, in fact, he accepted
his service at the very moment when his former servitude was
ceasing. What is said of a Brahmana compelling a man of the
servile class to perform menial offices, is intended to author-
ize the servitude of a Sudra, after forbidding that of a Csha-
triya and a Vaisya. By the expression "compel him to perform
servile duty", is declared the propriety of employing a Sudra
in menial offices, whether bought or unbought. The word
'bought' implies slave in general; 'unbought' denotes hired ser-
vant and the like; consequently there is no offence in employ-
ing him on slavish work, though he be a servant only. This is
expressly declared.

"Until a Sudra, emancipated by his master, be taken by
another, as thus explained, he may be remanded; and a Cshatriya
and Vaisya may be employed in servile duties with their consent.
They may be released from servitude by the favor of their mas-
ter, and cannot be again seized without their own consent.
A master, employing a Sudra, whether he be a hired or a com-
missioned servant, in menial offices, shall not be amerced; but
if he employ a Cshatriya or Vaisya in servile duties, against
their will, he shall be amerced. Such is the concise state-
ment of the law." Pages 235 - 237.

35. "Nareda: Of those slaves the first four (one born in the house, one bought, one received, and one inherited) are not of right released from slavery; unless they be emancipated by the indulgence of their masters, their servitude is hereditary.

"That low man, who, being independent, sells himself, is
the vilest of slaves; he also cannot be released from slavery"
Page 231.

39. "Nareda: Over the slave who, having given himself in
this form, 'I am thine', goes to another, the second master
does not acquire absolute dominion: at pleasure the former own-
er may reclaim him." Page 237.

40. "Nareda: They who are stolen and sold by thieves, and they who are enslaved by force, should be liberated by the king; their slavery is not admitted." Page 239.

42. "Nareda: Among those, whoever rescues his master from imminent danger of his life, shall be released from slavery, and shall receive the share of a son."

Jagath points out in the above that when a servant in
preserving his master has undergone such risk that he 'is him-
self preserved by the act of god', then only is he released from
slavery." Page 241, 242.

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43. "Nareda: One maintained in a famine is released from servitude, on giving a pair of oxen; for, what was consumed in a famine, is not discharged by labor alone." Page 243.

45. "Nareda: One pledged is also released, when his master redeems him by discharging the debt; but, if the creditor take him in payment of his demand, he becomes a purchased slave." Page 245.

46. "Nareda: Paying the debt with interest, a debtor is released from servitude; and a slave for a fixed period is also emancipated by fulfilling the stipulated term." Page 245.

62. "Nareda: Let the master, for whom work is performed, pay wages to the servant, according to their agreement, at the beginning, the middle, or end of his labors, as may be settled between them. "Wages not being stipulated, let the factor, the herdsman, and the servant in husbandry, respectively, receive a tenth part of the profit on goods fold, of the milk, and of the grain." Pages 260, 261.

66. "Vrikaspati: Let the man who guides the plough-share have a third or a fifth part of the grain if no special agreement be made." Page 264.

57. "Vrihaspati: Let the ploughman, to whom food and vesture are given, take a fifth; and let him who is supported by the profit alone, receive a third part of the grain produced." Page 264.

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had not already been carried into execution, the plaintiffs should sue out execution thereof: that the plaintiffs accordingly sued out execution, and had been put in possession of nearly all their rights, when the Dacca Provincial Court, on the petition of Lukee Nurain Sahoo and others, passed an order directing that execution should be stayed, leaving the plaintiffs the option of instituting a regular suit to establish their rights. They in consequence instituted the present action against Sham Serma and others, Bramins, and Pulta Ram Sahoo, Kishen Ram Sahoo and others (31 persons) of the Sahoo caste, in order to compel the latter to employ them as Prohits, and the former to abstain from performing religious ceremonies in the houses of the latter to their (plaintiffs) prejudice.

"Sham Serma and the other Bramins denied that the plaintiffs had the exclusive right of performing religious ceremonies in the houses of the Sahoos of Chapulpara. They declared that the office of Prohit was not hereditary, but that the Jujman was at liberty to employ whatever Bramin he pleased, as his priest, and that they had officiated as priests of the Sahoos of Chapulpara by their express desire.

"Pulta Ram and the other Sahoos resisted the claim of the plaintiffs, on the plea that it was optional with them to employ as Prohits whatever Bramin they pleased. They stated that they were justly dissatisfied with the plaintiffs, as they were in the habits of demanding such exorbitant fees for the performance of sacrifices and other ceremonies, as rendered it impossible for them to have them performed properly.

"The Zillah Judge was of opinion that the right of the plaintiffs to officiate as Prohits of the Sahoos of Chapulpara by virtue of the partition above alluded to, was clearly established both by the evidence adduced in this case, and by the decrees passed in favour of the plaintiffs by the Judge of M unmunsing, and the Register of Tipperah. He therefore passed a decree, directing that Pulta Ram and the other Sahoos residing in Chapulpara should employ the plaintiffs as Prohits in the performance of sacrifices and other religious ceremonies; and as it appeared that, notwithstanding the former decrees, the Sahoos had contumaciously refused to employ the plaintiffs, they (plaintiffs) were enjoined to apply to the Court, in case they should persist in their refusal, in order that the Court might punish them by the imposition of a heavy fine.

"The defendants appealed to the Provincial Court of Dacca. The Bramins produced no new plea. The Sahoos contended, that the Jujman had a right to employ any Prohit he pleased, and that the mere circumstance of residing in a village, which the plaintiffs claimed to have fallen to their share, did not render it incumbent on them (Sahoos) to employ them as Prohits. They also contended, that as the plaintiffs were not their Kool Prohits or family priests, that they were justified in not employing them. The respondents (plaintiffs) denied the right

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of a Jujman to dismiss his Prohit, alleging that the right of performing the duty of Prohit was frequently bought and sold like other property. The Provincial Court, seeing no reason to alter the decision of the Zillah Court, confirmed it, and dismissed the appeal with costs.

"Pulta Ram and the other Sahoos, presented a petition to the Provincial Court, praying the Court to consult with their pundit, as to how the Hindoo law stood with regard to this case, and to review their Judgment. The Court having consulted their pundit, received a vyuvustha which declared that a Jujman, who was dissatisfied with his Prohit, was at liberty to dismiss him, and that every person was at liberty to appoint his own Prohit.

The Court on this applied to the Court of Sudder Dewanny Adawlut for permission to review their Judgment.

"The Sudder Dewanny Adwalut, on the receipt of the application of the Provincial Court, submitted the case for the opinion of their Hindoo law officers; who gave the following answer:

"In the question proposed by the Dacca Provincial Court, it is not clearly stated whether the Jujmans (defendants) came to reside in the village at the time of the partition, or afterwards: nevertheless it would appear from the petition of the Ritwigs or officiating priests (plaintiffs), written in the Persian language, that the Jujmans came to reside in the village a considerable time after the partition had been carried into execution.

"An officiating priest cannot claim the right of performing the duty appertaining to his office, for persons who may chance to come to reside in a village, which has fallen to his (the priest's) lot by reason of a partition.

"It is not enjoined in the Shaster, that the mere residence of a person in a certain place can authorize a claim, on the part of an officiating priest to the performance of the sacerdotal duty for him.

"The Jujmans in question admit, in their petition in the Persian language, that they have occasionally employed the officiating priests in question, and indeed therein complain of the exorbitance of the sacrificial fee (dukshina) demanded by the aforesaid priests.

"Now, notwithstanding these said priests are not the hereditary family/priests of these Jujmans, still, if an officiating priest, appointed to officiate by the will of the Jujman himself,

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and being utterly immaculate (or uncontaminated), be discarded
by his Jujman, the latter is liable to a fine, and the priest
can claim the right of performing the sacrificial duty for him.

"An officiating priest, who is afflicted with disease; one who hath not performed expiation, though degraded from the rank of his tribe; one who is insane; one anathematized; one who seeks refuge with the enemy of his Jujman, for the purpose of working his ruin; one who mars the reputation of his Jujman by a disclosure of his faults; one destitute of the knowledge required in the Shaster and Shastrangu for the discharge of the sacerdotal functions, may be discarded by his Jujman.

"Should an officiating priest discard a Jujman not de-
graded, or disqualified as above, or should a Jujman abandon
an irreprehensible priest (one not disqualified as above) then
the priest in the former case, and the Jujman, in the latter,
would be liable to a fine of 200 panas."

"(The authorities cited by the Pundits in support of the
above opinion are taken from the 'Vivada Bhungarnuvu' of 'Jug-
gurnatha Turcapunchanana', the 'Digest of Hindoo Law, trans-
lated by Mr. Colebrooke').

"An officiating priest discarded by his Jujman in consequence of his being afflicted with disease, or disqualified in any of the modes above enumerated, cannot claim the right of performing sacrificial duty for such discarding Jujman; relinquishment in these cases being authorized by the Shaster.

"Should a sacrificing priest (whether he be an hereditary
priest, or one appointed by the will of a Jujman himself), de-
mand from his Jujman a higher sacrificial fee than the latter
is well able to afford to pay for the performance of sacrificial
duty, for which no specific amount of fee is ordained by the
Shaster; and should the Jujman, in consequence, discard the said
priest, the priest may lay claim to the right of performance of
sacrificial duty for the discarding Jujman; since the desire,
on the part of the priest to obtain an exorbitant fee is not
specified in the Shaster as a reason for abandonment."

"The Court of Sudder Dewanny Adawlut, after considering the
case as detailed in the application of the Provincial Court,
and the above vyuvustha, granted that Court permission to re-
view their judgment, transmitting at the same time a copy and
translation of the vuyvustha of their pundits.

"The Provincial Court having readmitted the appeal, and
taken another vyuvustha from their pundit, proceeded to recon-
sider the case. They observed, that the plaintiffs founded

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their claim on the circumstance of the Sahoos residing in the village of Chapulpara: but that neither the vyuvustha of their own law officer, nor that of the law officers of the Sudder Dewanny Adawlut upheld this plea. They further observed, that under the vyuvustha of the Sudder Dewanny Adawlut, a Jujman discarding a Prohit, who was not disqualified, is subject only to a fine of 200 panas. They therefore passed a decision reversing their former judgment, which confirmed the decree passed by the Zillah Judge, and dismissed the claim of the plaintiffs. The full costs were made payable by them.

"The plaintiffs, being dissatisfied with this decision, applied to the Court of Sudder Dewanny Adawlut for the admission of a special appeal. They pleaded that the fine of 200 panas was merely levied as an atonement for the crime of discarding the Prohit. They urged that the Shaster did not authorize a Jujman, under any circumstances, to discard a Prohit, who did not labour under any of the disqualifications enumerated in the vyuvustha of the law officers of the Sudder Dewanny Adawlut; that it was clearly proved that the Sahoos had been their Jujmans for many generations, and that as they (appellants) did not labour under any of the disqualifications above enumerated, their claim could not be controverted. They prayed that the pundits might be consulted, as to the validity of the abandonment of a faultless Prohit, notwithstanding the payment of the fine by the Jujman.

"Previously to the admission of the special appeal, the Court put the following questions to their pundits: 1st, is a Jujman authorized, under any circumstances, to discard a faultless Prohit, whether he be a family Prohit, or one appointed by the Jujman? 2nd, If a Jujman discharge a faultless Prohit, and pay the fine, must he afterwards employ the same Prohit or not?

"The pundits gave the following answers:

"Answer 1st, 'A Jujman has no power to discharge a Prohit whether he be a family Prohit, or one appointed by himself, if the Prohit be without fault, and labour under no disqualifications; for it is laid down in the Shaster, that a Jujman, who discards a faultless Prohit is punishable by fine. A faultless Prohit, therefore, he cannot discard.'

"Authority, Munnoo in the 'Vivada Bhungarnuba', 'Vivada Chintamunee' and other tracts: 'If a Jujman discard a Prohit who is faultless, and capable of performing the duty of Prohit, or if a Prohit discharge a faultless Jujman, he is liable to fine of 100 puns.'

"Answer 2nd: 'If a Jujman discard a faultless Prohit, and pay the fine due for that offence, it is necessary for him to

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perform Prayushchitta (atonement), and to reappoint the Prohit;
for a Ritwig and Prohit are equal; and it is incumbent on them,
that they, in all matters laid down in the Shaster, be careful
to do everything for the advantage of their Jujmans, and to re-
move harm from them: if any discharge a Prohit, who should be
looked upon as father, mother and gooroo, he is guilty of such
a crime, as excludes him from eating and drinking with his
tribe in this world, and will cause him to be hereafter born
in the body of a rakhis, or demon. This crime is called Oopu-
patuk. Moreover, it is necessary to serve such a person (a Pro-
hit) as a father or mother: and the person who takes away (or
withholds) the dukshina, or other gifts usually given by Juj-
mans, which are the means of subsistence of Bramins, is guilty
of a serious offence. Let the person who discards his Prohit,
having paid the fine to the Raja, and made the atonement (pray-
ushchitta) laid down in the Shaster in retribution for that
offence, again appoint the Prohit to his office. This is en-
joined by the Shaster. It is also incumbent on the Raja to
levy the fine from any of his subjects who act contrary to his
duty, and to compel him to keep to his duty (dhurum). The Raja
is culpable, if he do not take notice of such thing.'

"Authorities, 1st, 'Vyasa Moonee' written in the 'Prayush-
chitta Mitacshara'. 'A mother, father, husband, a teacher of
munturs, an instructor, an elder brother, a Prohit, etc. are
(esteemed in the light of) gooroos.'

"2nd, Munnoo in the 'Prayushchitta Madhuva': 'To forsake a gooroo, the Veds, the consecrated (or sacrificial) fire, or a son; to deny the future state, the Deity, the Veds, or a gooroo, is considered to amount to the crime of Oopu-patuk.'

"3d, Munnoo in the 'Prayushchitta Madhuva': 'Whoever
without cause forsakes mother, father, or gooroo, is an offender;
it is incumbent on the elders (the great and noble) of this
tribe to prohibit his appearance at the worship of the Deity,
the Sraddha, and other family ceremonies.'

"4th, Munnoo in the 'Kurma Vivaka Prakurn', quoted in the
'Prayushchitta Madhuva': 'The person who does not perform ser-
vice to an instructor, a performer of sacrifice, a gooroo, an
adorer of the Deity and the Moonees, shall after death be born
in the body of a rakhis, or demon.'

"5th, Munnoo: 'A person guilty of the crime Oopu-patuk
(a) must perform penance. This penance is thus described by
Koolook Bhut: Let him perform the same penance as he would for
killing a cow, or let him, according to his caste and abilities,
perform the 'Vritta Chundrayuna. (b)"

'(a) See Ward's account of the Hindoos, quarto ed. vol. 1, p.404

(b) See Ibid, page 415.'

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"6th, Dikshita in the 'Achara Madhuva': To support a mother, a father, a gooroo, a wife, an orphan relation, a traveller, the consecrated fire, who are all entitled to support, is proper, and will benefit the supporter in the next world.'

"7th, Vrihat Bisnoo in the 'Achara Madhuva'. 'Munnoo has said: There are but three ways in which Bramin can get a livelihood without sin, viz. teaching the Veds, causing the performance of burnt sacrifices, and receiving gifts.'

"8th, Vriddha Goutuma in the 'Kurma Vivaka Prakurn': 'Whoever deprives a Bramin of the means of subsistence will, after his death, be born seven times in the body of a frog.'

"9th, Vrihat Munnoo in the 'Smritee Sunskara': 'It is incumbent on the Raja to fine any person who forsakes his father, mother, son, teacher, or a faultless prohit, and to make him return to his accustomed duty.'

"10th Vriddha Yajnyavalcya: 'It is incumbent on the Raja to fine, and keep to his accustomed duty any one who, without cause, forsakes father, mother, wife, son, gooroo, or Prohit.'

"11th, Yainyavalcya in the 'Rajdhurm Prakurn', in the 'Mitacshara'. 'If any kool, jati, srenee, gun or janpud, forsake their duty, let the Raja fine them, and keep them to it.'

"12th, Mitacshara, in explanation of the above terms: 'Kool means tribes, as Bramins and others; jati means caste as the moordhavushikta and others; srenee means sellers of betel leaf and persons of similar occupations; gun goldsmiths and others; janpud, barbers, washerman, etc. If any of these forsake his faith, let the Raja fine him according to his crime, and compel him to return to his duty.'

"13th, Munnoo: 'If the Raja omit to fine an offender, or fine an innocent person, his reputation will suffer in this world, and it will be brought against him, as a crime, in the world to come.'

"The Court, after perusing this vyuvustha, admitted a special appeal; and as the respondents, notwithstanding due notice, did not appear to defend the appeal, it was decided ex parte. The Court observed, that under the vyuvustha, a Jujman cannot discard a faultless Prohit; that the appellants did not labour under any of the disqualifications which would authorize the respondents to discard them; and that they were capable of performing the duty of Prohit. They therefore (present R. Ker and G. Oswald) passed a final judgment, reversing the decision of the Zillah Judge, and the second decision of the Provincial Court, and provided that the appellants should be put in possession of their right to officiate as Prohits in the houses of the 31 Sahoos of Chapulpara, as claimed by them. The costs in all the Courts were charged to the respondents."

Pages 332 - 340

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64.

Jajmani

The Law and Custom of Slavery in British
India.

by William Adam.

Pub. by Smith, Elder & Co., London,
1840.

"Slavery exists legally under the British government in India as an effect of the legal existence which it possessed under the former Hindu and Muhammadan governments. The British government affirms, administers, and enforces, with exceptions to be hereafter mentioned, the Hindu and Muhammadan laws of slavery; and hence, in order to acquire a just view of the subject, it is necessary to consider, first, the Hindu law; second, the Muhammadan law; and third, the British law of slavery in India. In explaining the Hindu and Muhammadan laws of slavery, I shall present only those general views that are necessary to understand the force and effect of the law of slavery as administered by British authorities, without going into the numerous and minute details which the two former systems of law embrace.

"The provisions of Hindu law limiting the liability to slavery are first to be noticed. Hindu institutions recognize four classes or orders of men subject to them, the sacerdotal, military, commercial, and servile classes, and all who do not belong to those four are outcastes, foreigners, barbarians, and impure. With reference to this division of the Hindu race, the law of slavery expressly provides that a member of the first or sacerdotal class never can become legally a slave, and this limitation is extended to females of that class, whose enslavement is declared null and void and punishable by amercement, as is that of a man of the sacerdotal class by the highest amercement which the law imposes. A further limitation is, that members of the military, commercial, or servile class can, under certain circumstances, become slaves only in the direct, not in the inverse, order of the classes, and that under certain other circumstances they may be made slaves to persons of an equal class, and even in the inverse order of the classes. Thus the customs of Hindu society suppose that a man, from various considerations - for the payment of debt, for instance - may voluntarily make himself the slave of another, but this can be done only in the direct order of the classes; that is, a member of the second class can make himself a slave only to a member of the first class; a member of the third class only to one of the first or second; and a member of the fourth only to one of the first, second, or third class. On some accounts also the law permits the servitude of men of the military, commercial

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and servile classes to one of an equal class. Once however
that a man has ceased to be his own master, he may be subjected
to slavery in the inverse order of the classes, that is, a man
of inferior caste may hold in slavery a man of superior caste.
Thus a man of the military class holding a slave of the commer-
cial class may deliver him to be the manipulated servant of a
freeman of the servile class. According to the spirit of Hindu
institutions, and the spirit as well as the letter of Hindu
law, a state of servitude is natural to men of the servile
class* without exception or limitation; but then no individual

*Institutes of Menu, Chap. VIII, v. 414.

of that class can be a slave to an individual of any of the
other classes without special legal grounds, independent of the
general liability. The numerous aboriginal tribes of India
are regarded as members originally of the military class, who,
by their omission of holy rites and neglect of Hindu institu-
tions, have gradually sunk to the lowest of the four classes;
and they are practically held to be liable to slavery to the
Hindu race. There are, further, certain outcastes so degraded
that they are considered wholly unworthy to perform even the
most menial offices of slavery, and they are in consequence
practically exempted from liability to that state, just as much
as a member of the sacerdotal class, although from a directly
opposite cause.*

*Colebrooke's Digest of Hindu Law, Vol. II, P. 370-375; p. 349;
Institutes of Menu, x, 43, 44, 50-56.

The modes in which those who are liable to slavery may be-
come actually and legally slaves, are various. With reference
to the legal modes of creating the actual state of slavery, one
Hindu legislator, followed by various other authorities, has
enumerated fifteen different sorts of slaves, and another has
reduced them to seven. Keeping in view the former division, I
shall, for the sake of brevity and perspicuity, follow the
latter. None of the different sorts of slaves about to be
enumerated are to be confounded with any description of ser-
vants. Hindu legislators carefully distinguish on the one hand
between the service which a pupil of sacred knowledge owes to
his spiritual teacher, which an apprentice in any art or trade
owes to his instructor, which a hired servant owes to his mas-
ter, and which a commissioned servant owes to his employer, and
on the other hand the service which a slave must give to his
owner. The servant, of whatever description, can be legally
required to perform only work which is religiously and ceremon-
ially pure, involving no loss or degradation of caste: the
slave may be required to perform all work, whether pure or im-
pure, however offensive or degrading." Pages 12-14.

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"The powers possessed by masters or owners over their slaves are absolute. Hindu law 'treats the slave as the property of his master, familiarly speaking of this species of property in association with cattle, under the contemptuous designation of bipeds and quadrupeds. It makes no provision for the protection of the slave from the cruelty and ill-treatment of an unfeeling master, nor defines the master's power over the person of his slave; neither prescribing distinct limits to that power, nor declaring it to extend to life or limb. It allows to the slave no right of property even in his own acquisitions, except by the indulgence of his master."

*Colebrooke, cited in Harington's Analysis, Vol. III, P.743; Colebrooke's Digest of Hindu Law, Vol. II, PP. 365-368; Macnaghten's Translation of the Mitacshara in Hindu Law, Vol. I, pp. 227, 229.

Page 17.

"The modes of enfranchisement from slavery provided by the law are various, and with reference to them, all slaves are divided into two classes, those whose slavery is permanent and hereditary, and those whose slavery is temporary and personal." Page 17-18.

"The modes in which temporary or personal slaves may be enfranchised, are also various." Page 19.

"There are only two descriptions of persons recognized as slaves under the Muhammadan law: first, infidels made captive during way; and secondly, their descendants. These persons are subjects of inheritance and of all kinds of contracts, in the same manner as other property. The general state of bondage is subdivided into two classes, and slavery may be either entire or qualified, according to circumstances." Page 20

"It now remains to show what is the British law of slavery in India; and this might be stated in a single sentence, viz. that it is a confirmation, with modifications, of the Hindu and Muhammadan laws of slavery; but in order to do justice to the British government of India, and to furnish a clear conception of the whole case, it is necessary to explain the principle on which that confirmation professes to be based.

"An extensive territory by cession or conquest had, through the agency of the East India Company, become subject to the crown and sovereignty of Great Britain. A primary and essential duty of every just government towards its subjects is that of publishing and enforcing an equitable system of law, adapted to their actual condition and circumstances, and calculated to

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protect them in the secure enjoyment of their rights, natural and acquired. In the view of this obligation, by various statutes in the reign of George III., a supreme court of jurisdiction, consisting of a chief justice and three other judges was established at Calcutta, and the benefit of the laws of England, as far as applicable to India, was extended by the legislature to all persons residing within the town of Calcutta, and subsequently to all British subjects, natives of Great Britain, or their descendants, resident in India or elsewhere within the limits of the East India Company's exclusive trade. But the laws of England were justly deemed inapplicable to the native population, who, whether Muhammadans or Hindus, were previously in possession of their respective written laws, under which they had acquired property by descent, purchase, gift, and other modes, and which they had been educated and habituated to regard and venerate as sacred. There was accordingly, in the statutes above mentioned, a reservation of the laws and usages of the native inhabitants of Calcutta in cases of 'inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party, as well as the rights and authorities of fathers and masters of families;' that is, in all such cases, native laws and usages were to be recognized and maintained. In 1772, the laws and usages of the native inhabitants of the provinces were as distinctly recognized. In that year, a plan for the administration of justice in the provinces was adopted, and it was provided 'that in all suits regarding inheritance, marriage, caste, and other religious usages or institutions, the laws of the Koran with respect to Muhammadans, and those of the Shaster with respect to Gentoo, shall be invariably adhered to. On all such occasions the Moulavies' (interpreters of Muhammadan law) "or Brahmins' (interpreters of Hindu law) 'shall respectively attend to expound the law, and they shall sign the report, and assist in passing the decree.' Instead of the judicial plan of 1772, a more comprehensive system of law and regulation was established by the Marquis Cornwallis in 1793, and in that system also the following rule was laid down for preserving to the natives their own laws and usages: 'In suits regarding succession, inheritance, marriage, and caste, and all religious usages and institutions, the Muhammadan laws with respect to Muhammadans, and the Hindu laws with regard to Hindus, are to be considered the general rules by which the judges are to form their decision.' This, then, was an original, and has always continued to be a primary, rule of British law in India; and if the fundamental principle of all civil laws is, that they ought to be 'suitable to the genius of the people' subject to their authority and operation, the wisdom, the justice, and the humanity of adopting and adhering to it, must be pronounced equally honorable to the British nation and government, and conducive to the protection and contentment of the natives of India.

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68.

Jajmani

"Under this rule, however, - this wise, just, and humane rule- for giving the natives the benefit of their own civil laws regarding succession, inheritance, marriage, caste, and all religious usages and institutions, the question early arose whether it was applicable to cases of slavery. In 1798 this question was referred to the Sudder Dewany Adawlut, the supreme court of civil judicature on all questions of native law, and it was explicitly admitted by that court that slavery was not included in the letter of the rule. Slavery, as we have seen, both in the Hindu and Muhammadan systems, has provisions of law proper to that subject, and distinct from those which regulate succession, inheritance, marriage, and caste. Nor can slavery be deemed one of the religious usages or institutions either of the Hindus or Muhammadans. The rule is not, at least directly and strictly, applicable to questions of personal freedom and bondage, and the Sudder Dewany Adawlut had the strongest ground for denying that slavery was included in the letter of the rule. And yet, in the face of this admission or denial voluntarily made by the court, that body, as if straining a point- not to extend the shield of justice over those whom the mere letter of the law would have left unguarded,-but to inflict a lasting curse on society, and to rivet the fetters of the slave, whom, by their own acknowledgment, the plain and direct letter of the law would have liberated from his bonds-that body, as if straining a point for such a purpose, delivered the opinion that the spirit of the rule for observing the Muhammadan and Hindu laws was applicable to cases of slavery, and this construction was confirmed by the governor-general in council, under date the 12th April, 1798. This construction has never been reversed, and it is the foundation on which slavery in British India legally rests at the present day.* "

*Harington's Analysis of the Laws and Regulations, Vol. I, p. 1, 5, 6, 20, 67, 68; Macnaghten's Hindu Law, Vol. I, p. 113.

Pages 24-26.

"In endeavoring to form a sound and accurate judgment of the legal effect on slavery of this complicated state of Hindu, Muhammadan, and British law, the first fact important to be borne in mind is, that until the recognition of Hindu civil law by the British government in 1772, that law had no legal force or obligation wherever the authority of the Muhammadan government extended, during a preceding period of from 700 to 750 years. By this it is not meant to be affirmed that Hindus, during that period, under the Muhammadan government, did not practically observe their own laws of succession and inheritance, marriage and caste, and even of slavery; but that those laws were not recognized and enforced by the Muhammadan government, and that the only law recognized and enforced by that government, was the law of Islam. This

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is a necessary consequence of the spirit and principle of the
Muhammadan religion, and of all Muhammadan govern-
ments. By the Muhammadan law a foreign province or
country becomes annexed to the Muhammadan dominions
by the mere act of conquest and the exercise of even a part
of the law of Islam in it; and to establish the law of Islam
within the Muhammadan dominions is mandatory on Mu-
hammadan rulers, and not optional to them. Even ques-
tions of inheritance among non-Moslem subjects are not
left to the decision of any other than a Moslem tribunal,
but must be decided according to the Muhammadan law,
and by Moslem judges, for every judge must be a Moslem.
During the whole period of the Muhammadan history in
India, though Hindus were employed in the highest offices
of trust and emolument, yet a Hindu judge was never
heard of, and assuredly no Muhammadan Kazi could ever
have been found to administer the civil laws of the Hindus.
It follows that the Hindu law, including the law of slavery,
however it may have been reverenced and observed by the
Hindus themselves, or tolerated by the more enlightened
Muhammadan princes, had no force or obligation during
the whole period of the Muhammadan rule, and that it
was in every legal sense a dead letter until it was re-enact-
ed by the British government in 1772, and confirmed by the
system of law and regulation promulgated in 1793. Up
to the former of these periods, the Hindu law had no vital-
ity. It could not be pleaded in any court of justice. It
could not form the ground of any judicial decision. It was
legally as if it had never been." Pages 30-31

(From Remarks on the Husbandry and Internal Commerce
of Bengal, London, 1806, p. 129)

by Mr. H. T. Colebrooke.

"Slavery, indeed, is not unknown in Bengal. Through-
out some districts, the labors of husbandry are executed
chiefly by bond-servants. In certain provinces, the plough-
men are mostly slaves of the peasants for whom they labor;
but treated by their masters more like hereditary servants
or like mancipated hinds than like purchased slaves, they
labor with cheerful diligence and unforced zeal.

"In some places, also, the landholders have a claim to
the servitude of thousands among the inhabitants of their
estates. This claim, which is seldom enforced, and which
in many instances is become wholly obsolete, is founded on
some traditional rights, acquired many generations ago, in a
state of society different from the present; and slaves of
this description do, in fact, enjoy every privilege of a

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freeman, except the name; or at the worst, they must be considered as villains attached to the glebe, rather than as bondmen laboring for the sole benefit of their owners. Indeed, throughout India, the relation of master and slave appears to impose the duty of protection and cherishment on the master as much as that of fidelity and obedience on the slave, and their mutual conduct is consistent with the sense of such an obligation; since it is marked with gentleness and indulgence on the one side, and with zeal and loyalty on the other.

"Though we admit the fact that slaves may be found in Bengal among the laborers in husbandry, yet in most provinces none but freemen are occupied in the business of agriculture." Pages 244-245.

(From the official paper of 1812)

by Mr. H. T. Colebrooke.

"We find domestic slavery very general among both Hindus and Musalmans. More trusty than hired servants, slaves almost exclusively are employed in the interior of the house, for attendance on the members of the family, and in all the most confidential services. Every opulent person, everyone raised above the condition of the simplest mediocrity, is provided with household slaves; and from this class chiefly are taken the concubines of Musalmans and Hindus; in regard to whom it is to be remembered that concubinage is not among people of these religions an immoral state, but a relation which both law and custom recognize without reprehension; and its prevalence is liable only to the same objection as polygamy, with which it has a near and almost necessary connection. In the lower provinces under this presidency the employment of slaves in the labors of husbandry is nearly, if not entirely, unknown. In the upper provinces, beginning from Western Behar and Benares, the petty landholders who are themselves cultivators are aided in their husbandry by their slaves, whom they very commonly employ as herdsmen and ploughmen; and landholders of a higher order have in a few instances the pretensions of masters over a part of their tenants long settled on their estates, and reputed to be descended from persons who were acknowledged slaves of their ancestors. Their claims to the services of these hereditary serfs are nearly obsolete, and scarcely attended with any practical consequences. The serfs pay rent and other dues for the lands which they till and the pastures on which they graze

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their herds, and are not distinguished from the rest of the peasantry, unless by a questionable restriction of the right of removing at choice. But those employed in husbandry by the inferior class of landholders are strictly slaves; and their condition differs from that of household slaves only as the one is occupied in outdoor work and the other in business of the interior of the house. The employment of slaves in handicraft is more rare, but not entirely unknown. It would be difficult to form a computation of the number of slaves throughout the country, or of the proportion to the free population. Any steps towards the preparation of an estimate which should approach to accuracy would involve inquiries which must excite alarm, and could not but be attended with circumstances offensive to the people. But taking a more general view, it may be stated that slaves are neither so few as to be of no consideration, nor so numerous as to constitute a notable proportion of the mass of population. The number, which certainly is not relatively great, has been kept up, or, to apply language of commerce to this subject, the demand for slaves has been supplied-lst, by their marriages among themselves, or with free persons; 2d, by the sale of free children into slavery within the country; 3d, by importation from abroad, whether by sea or land, previous to the late prohibition of that traffic."

Pages 246-248.

(Mr. D. Liston on Slavery in Gorakhpur)

"Mr. Liston's information respecting slavery in the district of Gorakhpur in Oude has been quoted in part; but it seems desirable to give in full the paper in which it is communicated to the editor of the Journal of the Asiatic Society of Bengal, Vol. VI, P.950, in the number of that publication for November, 1837.

'Translation of a Servitude-Bond granted by a cultivator over his family, and of a Deed of Sale of two slaves. By D. Liston, Esq., Gorakhpur.

SERVITUDE-BOND
Translation

DEED - ABHEEMAN KOOROOMEE and his children's ploughbond for fifty-one rupees, written, signed, rupees fifty-one, 51.

(Place for the master's name)

WRITING-ABHEEMAN KOOROOMEE, inhabitant of Futapoor, perguna Sidowa Jobena Elaka Sooba Oudes Zillah Gorakpur, having

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received a loan of fifty-one (51) rupees from (the above mentioned individual), I have granted a bond agreeing to pay interest for the said rupees at eight anas per month; for these same rupees I of my own will and accord execute (t (this) deed of Hurwuhubundhee (i.e. of absolute bondage) '(to have force) over my whole family for the driving of a plough, and for remaining always at hand to execute every kind of labor that may occur. If I remain absent a day from my plough or work, then shall I be held responsible to the extent of a rutee weight of gold for each day's absence. If I go anywhere in the manner of flight, then let my whole family be seized. If any other person give (me) a greater sum, he must pay at once principal and interest of this loan. That man may then take my family. If he do not give the money, then may my family be seized without dispute; any other interfering will be in vain indeed. This is written that the first engagement may remain in force.

'Written 29th Falgon, year 1244, forty-four, at Emelia.'"

## DEED OF SALE OF TWO SLAVES

### Explanation and Translation

"Dhodho Mahto Kumkur, of his own will and accord, sells Ajunsia and Rupia, having executed and delivered a deed of sale of slaves signed or a mofurkutee loonkutee.

"(I do not find the five or six first lines very intelligible, but what follows presents no great difficulty.)

"The deed commences with the invocation usual in Sanscrit documents of Sosti Sri; the two first lines are taken up nearly with the enumeration of the titles of Vikramajit and of Salivahun's power. In the fourth line the forty-third year of some king is indicated. Alumgir is then mentioned, and the thirty-second year of Nawab Mirza Amani Beg spoken of. Then follows the year of the rule of the Honorable English Company, viz. the thirty-third, Mr. Currie being administrator (local). The locality Gorakhpur, south of which runs the Ganges, and to the north the Gunduk. The country Bharuthkum, sirkar Gorakpur, sooba Aoadh, Akternuggur, perguna Sedooa Jobena, talooka Bansgaon, tuppah Thadeebaree. The twenty-fifth year (of the rule) of Babu Esri Kumar Sah (talookdar), the twenty-second year (since the establishment of the English perguna). Sekh Jumaludin being foujdar and tehsildar at the tehsildaree of Peronna.

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"In the village of Buderuha a sale of slaves was effect-
ed. Purchaser, Udho Singh; amount, 43 furakabad rupees.
Seller, by name Dhodho Mahto Kumkur (Kuhar or bearer) of his
own will and accord, he sells Bulbhader's wife and son, two
adults. The woman's name Ajunsia, the lad's name Rupia,
(this) slavery-bond being executed and delivered. The woman's
age 22, complexion fairish. Rupia's age 28, complexion
dark, eyes dark. Of these people Dhodho Mahto Kumkur
has completed the sale; wherever they go, thence they may
be brought back, as slaves they are sold to perform every
kind of work; wherever they may flee, thence they may be
seized and brought back without objection or complaint or
murmur, without obstacle may they be brought from under
the king's or prince's throne; whoever receives these ser-
vants, he may (legally) be adjured - the Hindu by the
sacred cow; - the Musalman by Husen, by the Sekh, Seyd,
Mogul, Peytan, Sumbut, year 1894, month Jet, dark half
13th day, Sunday, year 1244, place Buderuha, two ghurees
of the day being spent, this was written and signed."

Pages 268, 269-271

"Mr. A. D. Campbell says: 'In the territories under the Madras government slaves are of two distinct descriptions: the one includes the great slave-population termed 'agrestic slaves', or such as are usually employed in the field, though occasionally also in other labor. These consist exclusively of Hindus who become such by birth alone, in the peculiar castes which the usage of India has doomed to hereditary bondage. This species of slavery does not exist at all in the central provinces of the Indian peninsula, such as the ceded districts or Mysore, peopled by the Carnatacka nation; and I believe it is also unknown in the Northern Circars, Nellore, etc., or in the country where the people speak the Telinga language; but it is common in the southern provinces of the peninsula, or wherever the Tamil language is spoken, and it assumes its worst form on the western coast of the peninsula, or in the provinces of Malabar and Canara. The other description of slaves consists of those who may be termed domestic, from being employed only in the house itself. This kind of slavery may be found all over the Madras territory, but it is exceedingly rare.'" Pages 126-127.

"From this view of slaves as natives of the country,
the question arises by what means they have been subjected to
this condition. The origin of Hindu slavery may with
great probability be traced to conquest; but a full exposition
of the grounds of this opinion would lead to an amount of
antiquarian and historical discussion which would be un-
suitable to my present purpose. Without going into many

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details, it may be remarked that in the existing condition of
the country there are four distinct classes of the popula-
tion: first, Christians, the most recent conquerors; second,
Muhammadans, whose authority the former superseded;
third, Hindus, whom the Muhammadans subdued; and
fourth, the Aborigines whom the Hindus conquered and
subjected. These four classes include each numerous sub-
divisions, and they are largely intermixed, but the distinc-
tion of each from the rest is clearly marked. As far as all
accessible evidence enables us to judge, the Aborigines were
the first occupants of the soil, and the Hindus were their
first conquerors; and in completing their conquest they
drove many of the Aboriginal race into the forest and moun-
tain fastnesses, where their descendants are still found;
many they consigned to slavery such as now exists, impos-
ing upon them at the same time the Hindu religion; and
many they appear also to have incorporated with themselves
as free, but still inferior and servile, castes.

"That this is the origin of Hindu slavery is rendered prob-
able by various considerations. Menu, (VIII.415) the great
Hindu legislator, in enumerating the various descriptions of
slaves recognized by Hindu law, begins with "one made
captive under a standard," or in battle, as if this was the
most important and most numerous class of slaves; and the
commentator's illustration of this description of slavery is
taken from the Mahabharat, the great national poem of the Hin-
dus, where a Hindu warrior is represented as thus address-
ing a vanquished prince:- 'Fool, if thou desirest life, hear
from me the conditions: thou must declare before a select
assembly and before the multitude, 'I am a slave.' On
these terms will I grant thee life. This is a settled rule
for him who is conquered in battle.' That this rule was
applied on a large scale, is evident from many authorities."
Pages 132-133.

"With regard to agrestic or indigenous slaves," says Mr. Baber, "like those of Malabar, the only ancient books that make any mention of slaves are Kerula-ootpatiwiwahara Malla and Vitynana Shooriam Granddham, and all that is narrated therein of them, to the best of my recollection (for I have them not to refer to), is, that they were the first and sole cultivators in Kerula Rajium," (in the country or kingdom of Malabar) "having been created" (that is, created or made slaves) "for the use of the Brahmins."* This is

*Hamilton, Vol.II,p.181. Mr. Baber's Letter, as above, p.565

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confirmed by the following extract from the Kerala Utpatti, one of the books referred to by Mr. Baber, and of the first part of which a translation appears in Wilson's Catalogue of the Mackenzie Collection: - 'They' (that is, the Brahman colonists who had been settled in Malabar by Parasu Rama) 'also established bondage and husbandry, and protected the slaves and husbandmen, and appointed villages and heads of villages, ---and protected and preserved them from lessening and falling.' (Vol. II, p. 81). In the same work (p.92) there is an enumeration of eighteen inferior castes who came from foreign countries and settled in Malabar, but among these slaves are not found, the reason obviously being that the dominant Brahmans obtained their slaves from among the Aboriginal inhabitants of the country whom they had subdued." Page 134.

"The province of lower Behar, as at present divided, contains a considerable extent of that range of hills that runs across the greater portion of Hindoostan from the Ganges to Malwa and Goojrat. This line of mountainous country has long been known to be peopled by various tribes, whose origin, whose difference from each other, and whose absolute alienation from the Hindus, have been matters of curiosity and are as yet a mystery to all researchers. The press of population upon the adjoining plains has driven multitudes of Hindu families to settle by force or by sufferance in these yet uncultivated pergunnahs; and many of these emigrations are sufficiently recent for the local authorities to obtain a tolerable account of the origin and progress of the settlers in their new position. Of some instances," says Mr. Augustus Prinsep, from whose papers this extract is taken, "I propose to give a brief sketch. The facts have been collected by personal acquaintance with the country, and I was induced to observe the customs of this district with attention from the same motive that now leads to a publication of these remarks - a belief that s similarit with the early practices of India might be discovered, and, if discovered, might be useful to those who may have to guide our future territorial policy." For the sake of illustration I shall quote only one of the instances which Mr. Prinsep has adduced: - 'At the beginning of the seventeenth century, or a little more than two hundred years ago, a scion of one of the families of the Bhojpoor Raja, whose estates lay near Rhotas in Shahabad, being urged by the spirit of adventure, and probably discontented with his subdivided heritage, proclaimed his intention of seeking lands above the Ghats, or beyond the range of hills that rise on the south side of the river Soane, and invited followers to join in the undertaking. Some thousands of

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Rajpoots collected round the standard raised by Bhugwant Roy, who (in the year 1021, Fussily, as the tradition of the pergunnah fixes the date) led his army into that part of the Ramgurh district which has been ever since and was perhaps before called Palamoo. One encounter with the inhabitants was sufficient to insure the conquest of the country, which, containing several cultivable and some already cultivated plains between the lines of hills, became a valuable prey to a multitude in search of a vacant territory. The chief of the invaders, assuming territorial dominion, proceeded to divide the lands of the pergunnah between himself and his followers, who, increasing innumbersons, as the fame of his success spread abroad, took possession of all existing villages, to the exclusion of their former occupants. The revolution has been so complete, that at the present day the original and wilder inhabitants of the pergunnah are found to have no fixed interest or property in the soil, and earn a livelihood only by slavery and hired labor.' - 'Such was the condition of this province when taken possession of by' (the British) 'government, as purchaser at auction, in the year 1814.' - 'The household of the Raja, and of every considerable jageerdar, was a perfect feudal establishment. It was a matter of pride to be surrounded by a train of vassals under the titles of burkundauzes' (guards,) 'fakeers' (devotees,) 'shikarees' (huntsmen,) 'and bATS or bad feroshes' (family poets or bards,) 'and a still larger retinue of serfs called kumeas, whose state of bondage is the counterpart to the condition of the servi of the eighth and ninth centuries in Europe.' Such is the most probable origin of Hindu slavery; and that Muhammadan slavery originated in a like cause, is still less doubtful, since, according to Muhammadan law, 'they only are slaves who are captured in an infidel territory in time of war, or who are the descendants of such captives. Perhaps there is no point of law which has been more deliberately and formally determined than this.' - (Macnaghten's Principles and Precedents of Muhammadan Law, Preliminary Remarks, pp. xxx, xxxi.)" Pages 135-136.

"In like manner Muhammadans are represented as having largely recruited their ranks by the same means, particularly in the district of Bahar, (Hamilton, Vol. II, pp.652, 653); and with reference to the Madras presidency, it is stated by Mr. Campbell that 'under the spirit of proselytism which characterizes the Musalman faith, a male infant is no sooner purchased than it is circumcised; and whether male or female, it is invariably brought up in the Muhammadan creed, which, if it be a Hindu (as is usually the case,)

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irrevocably excludes it from all return to its parents or
relations." Page 141-142.

"The first and most important class of slaves consists of those who, being chiefly employed in the labors of the field, are called agrestic or predial slaves. Mr. Colebrooke says that 'in the lower provinces under this (the Bengal) presidency, the employment of slaves in the labors of husbandry is nearly, if not entirely, unknown.' This is not quite correct. Thus Hamilton says that in the district of Dacca, 'when an estate to which slaves are attached is sold privately, the slaves are commonly sold at the same time;' and the inference is that slaves are attached to estates only for the purpose of cultivation. In like manner in Silhet some slaves are stated by the same authority to have been 'hereditary slaves for several generations,' and it is added that they 'are sold along with the estate on which they reside.' In the same district of Bengal one of the magistrates estimated the class of slaves at one-sixth of the whole population, and considering the very remarkable subdivision of landed property in that district, many of the slaves are most probably employed in the cultivation of the ground for or with their masters. In Assam, according to Dr. McCosh, 'all the drudgery of the household and the labor of the field is performed by slaves.' Mr. Liston states that in the Gorakhpur district the landholders, in order to water and cultivate their lands, employ bond-servants; and the servitude-bond of which he has given a copy purports to have force over the bond-servant and over his whole family 'for the driving of a plough and for remaining always at hand to execute every kind of labor that may occur.' In the upper provinces, according to Mr. Colebrooke, beginning from Western Behar and Benares, there would appear to be three descriptions of predial slaves. The first are bond-servants by whom throughout some districts the labors of husbandry are chiefly executed. The second are the slaves of the free peasantry or petty landholders. In certain provinces the ploughmen are mostly slaves of this sort. The masters or owners are themselves cultivators, and are aided in their husbandry by their slaves, whom they very commonly employ as herdsmen or ploughmen. Those who are employed in this manner in husbandry by the inferior class of landholders are strictly slaves, and their condition differs from that of household slaves only as the former are occupied in outdoor work and the latter in business of the interior of the house. The third class are a species of serfs on the estates of the larger landed proprietors. In some places the landholders have a claim to the servitude of thousands

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district to water and cultivate their lands. They 'are
paid at half a cooly's rate, and are at the same time li-
able to fine in case of absenting themselves from their
superior's work.' A cooly is the very lowest description
of free laborer, and the rate of wages he receives in the
country, out of large towns, probably never exceeds two
annas or fourpence sterling per day. Half a cooly's rate
will enable a bond-servant to purchase only a very scanty
supply of the coarsest rice and pulse, without any salt,
or fish, or vegetables, except of the last what he can pick
up wild in the fields, to make them palatable. With these
specific facts and statements resting on sufficient author-
ity - the starvation-allowance given to bond-servants, the
power sometimes at least exercised of selling separately
members of the same family, and the practice of selling
slaves, like chattels, with the lands which they cultivate,
with or without their own consent - it is impossible to be-
lieve that the predial slaves found under the Bengal pres-
idency receive universally that gentle and indulgent treat-
ment which Mr. Colebrooke alleges.

"But it is under the Madras presidency that predial
slavery in India is presented in its worst forms; and in
the letters of Mr. Baber and Mr. Campbell to the board of
commissioners for the affairs of India, we have a complete
view of it. In the following account I shall chiefly aim
to give a clear and connected summary of their statements.

"Predial slavery does not exist at all in the central
provinces of the Indian peninsula, such as the ceded dis-
tricts or Mysore, peopled by the Carnatacka nation, and it
would appear to be unknown also in the northern Circars,
Nellore, etc., or in the country where the people speak
the Telinga language; but it is common in the southern pro-
vinces of the peninsula, or wherever the Tamil language is
spoken, and it assumes its worst form on the western coast
of the peninsula, or in the provinces of Malabar and Canara.

"In order to form a just notion of the nature and ex-
tent of slavery in the peninsula of India, we must not con-
found predial slaves with those rude tribes that are infer-
ior to them in social consideration, but are notwithstanding
free and independent; such as the Moola or Kadda Coor-
amer, inhabiting the forests that separate Wynad from My-
sore, the Naiadees in Malabar, inhabiting the more open
parts of the lowland country, the Palgat Malaseers, chiefly
inhabiting the Anamalla forests, and the Mallakooder tribe
of mountaineers in Canara. Those tribes, the remnants of
the Aborigines of the country, are in a most deplorable
state of ignorance and barbarity, living almost in a state

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of nature, deemed unworthy of contact or association with
even the slave-castes, unacquainted with the regulations
of civilized society, and yet rendered amenable to its laws
and sanctions. The condition of these tribes demands the
earnest consideration of the philanthropist; but they do
not yield obedience to any superior, they are not liable
to be bought or sold, they are the unredeemed sons of the
forest, wild men of the woods; in short, they are not
slaves, and therefore are not embraced by our present in-
quiry. I hope that the time is not far distant when the
civilization of the numerous mountain and forest tribes
scattered all over India will be deemed a legitimate object
of government; but in the mean time their claims to atten-
tion are sufficiently distinct from those of the predial
slaves, although both probably belong to the same aborigi-
nal race. The freedom of the one class and the slavery
of the other constitute the distinction that is here con-
templated." Pages 163-168.

"There is an important difference also, not to be
overlooked, between the agrestic slaves of the eastern and
those of the western districts of the peninsula. In the
Tamil country the agrestic slaves are entitled to a certain
proportion of the harvest reaped on the land they cultivate,
and to prescribed fees in grain at each stage of the pre-
vious cultivation, as well as at certain national festivals.
Some of them who are outcastes possess also a right to all
the cattle which die from disease; and they eat the flesh
of such animals as well as that of snakes and other rep-
tiles. In general their food is the coarsest grain, but if
a judgment may be formed from their appearance, which is
generally that of stout athletic men, it is not deficient
either in quantity or quality. Besides food and clothing
the latter of which is scanty, the master also defrays the
expense of the marriage of his slaves, and presents them
with small gifts on the birth of each child. A slave too
may with his master's permission enlist in the army as a
native soldier, or may enter the service of an European
gentleman, (and many have done so without permission), exer-
cising all the rights of a freeman; but of late years the
enlistment of slaves or Pariar in the native army has been
prohibited by the government. On the western side of the
peninsula agrestic slavery assumes a far worse aspect, par-
ticularly in Malabar." Pages 168-169.

"The chief cause assigned for the superiority of the
agrestic slave on the eastern coast over his unhappy

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brethren on the western side of the peninsula is, that the landed tenures on the eastern coast vest most of the land, and of the agrestic slaves who cultivate it, in the hands of corporate village communities and of Hindu temples or other bodies, and not in the hands of individual landowners as on the opposite coast, although it does not very clearly appear in what manner this cause operates to produce such an effect." Page 169.

"Another distinction is between the predial slaves of the Hindu and Muhammadan divisions of the native community, and also between those who reside in the vicinity of the sea-coast and in the inland districts. The treatment of slaves belonging to Muhammadan masters generally is more liberal than that which the slaves of Hindu masters receive, and the difference is ascribed to the former being more frugal and industrious, having fewer ceremonies, and being in better circumstances than 'their more generous though too improvident Hindu neighbors;' - the meaning of which is, that Hindu slave-owners expend all their generosity on themselves, and allow the effects of their improvidence to fall upon their slaves. Agrestic slaves in the vicinity of the sea-coast and large towns are much better off than those in the inland districts, in consequence of the opportunities they possess, when their masters do not require their services, of subsisting themselves by working for strangers, cutting and selling grass and fuel, and serving as porters. In the inland districts no such opportunities occur, and when their master has no work for them to do, and their usual scanty allowance is either lessened or altogether withheld, the slaves are reduced to extreme destitution. Even on the sea-coast, masters very often refuse permission to their slaves to work for themselves; and in those instances when without work and allowances from their masters, they are in as great distress as those in the inland districts.

"A general feature belonging to agrestic slavery under the Madras presidency, is, that the slaves are all Hindus in name, however rude the forms of the Hindu religion which they practice, and that they become slaves by birth alone in certain castes which immemorial usage has doomed to hereditary bondage. These castes are believed never to have stood in any other relation to the free castes than that in which they now stand, and they are believed to be destined to stand in the same relation to the remotest posterity. One effect of this relation is, that apart from the service which each slave owes to his own master, all agrestic

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slaves are considered, as far as relates to caste distinctions, under bondage to all Hindu free-born persons; but those distinctions are confined to leaving the road and other external marks of inferiority, which of course would cease with slavery itself. These distinctions are rapidly wearing away, especially in Canara, and in north Malabar they are much less attended to than in the southern division, where, at Calicut, though it is the seat of a British court and the head station of the principal collector, they are perhaps even more prevalent than during the period of the native government. Mr. Baber shows that these invidious distinctions have led to unjust pecuniary exactions from the slaves, to affray, and even to murder.

"Another effect of this relation is, that agrestic slaves are liable to be called upon to perform certain acts of servitude to the whole Hindu community, and also to the government of the country. On behalf of the community, they are required to drag the enormous cars of the idols round the villages or temples, for which purpose immense cables, drawn by many thousands, are necessary. In Tanjore, in particular, from the great number of the temples and frequency of the festivals, this is a very onerous duty. The slaves are called to this duty by the official requisition of the government collector or magistrate, issued to their masters; and in one province, the omission, probably intentional, of the magistrate to enforce the attendance of any slaves on this duty, greatly impeded the Hindu festivals, and created a religious enthusiastic hostility dangerous to the government, which nearly broke out into open rebellion. Orders were therefore issued to cause their attendance as usual." Pages 171-173.

"The agrestic or field slaves in the Tamil country are employed by their masters in every department of husbandry; the men in ploughing the land and sowing the seed, and in all the various laborious works necessary for the irrigation of the land upon which rice is grown, the women in transplanting the rice plants, and both sexes in reaping the crop. Their labor is usually confined to the rice or irrigated lands; the lands not artificially irrigated, watered only by the rains of heaven, and producing what in India is technically called dry grain, being seldom cultivated for their masters, whose stock is concentrated on the superior irrigated soils, and any cultivation by the slaves in unirrigated land is generally as free laborers for others, or on their own independent account. They work in bodies together

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the village accountant registering the work executed by them, which he inspects; but they are not personally superintended by any one, nor placed under any driver. They usually work from about sunrise till sunset, with the intermission of a couple of hours for their meal during the middle of the day. They are not exempted from work on any particular day of the week, but obtain holidays on all the great native festivals, such as on those fixed for consecrating implements, the new year, and other great days. No particular task-work is assigned to them daily; it is sufficient that the slaves of each master execute the work necessary for the cultivation and irrigation of his lands. The lash is never employed by the master against his slave in the Tamil country." Pages 174-175

"The food, clothing, and habitations of the field-slaves are on the lowest possible scale. With respect to their dwellings, Buchanan states that they erect for themselves small huts that are little better than large baskets; and so very impure are all castes of slaves held that they are obliged to erect them at a distance from the habitations of the free castes. In Malabar the allowance of clothing consists of a waist-cloth to men, and a fragment to females which is just large enough to wrap round their loins, and is of the value of 6d. to 1s. In some districts this is given but once a year, but more generally twice. As a substitute for these waist-clothes it is very common with slaves, especially in the retired parts of the country, to wear bunches of leaves, generally of the wild plantain tree, supported by a fibre of some tree or vine. In Canara the allowance of clothing is six cubits of cloth, a blanket, and a cloth to cover the head, for a man; four cubits of cloth for a woman; and four cubits for a child. Hindu female slaves, according to established custom, wear no upper garments; but female slaves, particularly those belonging to Muhammadan masters, adorn their persons with necklaces of cowry shells, glass beads, brass bracelets, and finger and ear rings. In Canara the daily allowance of food to a male slave is one and a half sers, or about three pounds, of coarse rice, two rupees' (say a dollar's) weight of salt, and a little betel-nut and leaf, the three last-mentioned articles being optional; to a female slave one ser, or two pounds of rice; and to a child three-fourths of a ser, or a pound and a half. In Malabar the allowance to a male slave is from one and a half to one and three-quarters sers of rice, that is, from three pounds to three pounds and a half; and to a female slave from one to one and a quarter sers, that is, from two pounds to two pounds and a half.

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suggestions of these public officers of the East India Com-
pany's government for the reform of slave-law, prove that
parents sell their children as slaves; that children are kid-
napped to be sold as slaves; that girls are purchased to be
made prostitutes; that men and women sell themselves for
life, and involve their families in the same doom; that
slaves are sold by their owners to provide means for the
payment of arrears of revenue to the government, and by the
government in execution of decrees of courts of justice;
that by these sales slaves are removed from the places of
their nativity, parents are separated from their children,
and even mothers from their infants, husbands from wives,
and brothers from sisters; that the East India Company, by
the escheating of lands and estates and of the slaves at-
tached to them, become and are slave-holders; that agrestic
slaves in particular are ill-fed, ill-clothed, and ill-
 housed, and that they are neglected in sickness, age, and
 infirmity by their masters; that their masters have the
power of corporal punishment in their own hands; and finally
that many, Mr. Macnaghten says thousands, are wrongfully
detained in bondage, contrary to the letter and spirit of
the law. Such is slavery in British India according to the
clearly implied testimony of those who have benevolently
but unsuccessfully employed their official station and in-
fluence to rouse the government to remedy its most direct
and flagrant evils.

"The reforms of the law and practice of slavery that have been unsuccessfully proposed by the good and wise in India, enable us to estimate the spirit and operation of the East India Company's government in connection with that subject. However uninformed and apathetic the majority of European residents in India may be respecting slavery, its evils are known and acknowledged, undeniable and undeniable, by the government. The persevering and disinterested representations of some of the most enlightened and philanthropic servants of the East India Company have left the government no excuse on the plea of ignorance; and to remedy the admitted evils of slavery in India only two methods can be proposed, viz., regulation or abolition. All the reforms that have been enumerated, contemplate regulation - not without a view to abolition ultimately, and by gradual approaches - but primarily and principally regulation of an existing institution still to be maintained and enforced. Now it is a fact that since 1808, when Mr. Richardson under the Bengal presidency, and since 1812, when Mr. Baber under the Madras presidency, first endeavored to awaken the attention of government to the claims of humanity in connection with this subject, the law and the practice of slavery

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under the British government in India have remained essentially the same, without improvement or mitigation, up to the present year, 1840. During the whole of that period nothing whatever has been done to control the power of the master, to protect the rights, to lighten the burthens, and to increase the comforts of the slave, or to prepare the way for placing master and slave in a different relation to each other. This fact would seem to admit of different explanations." Pages 215-218.

"The only remaining ground of objection taken against the abolition of slavery in India is the alleged invasion of individual rights and the injustice of interfering with the private property which masters possess in their slaves. This places the question on the footing of right and justice, and viewed in this light there is no question of morality or of law that admits of an easier solution. In any disputed question of property, there are, at least, two parties; and in the present instance those parties are the master and the slave. The property in dispute is the body and labor of the slave. In these, the master claims an exclusive proprietary right; while the slave asserts that his body and the fruits of his labor are his own. In a civilized country, in a civilized age, under a civilized government, the mere statement of the case is decisive in favor of the slave's claim. It is impossible that any man can possess any property by a more intimate and perfect right than that by which every man possesses the property in his own person; and the property in the profits of his lawful labor follows as a necessary consequence, all acts of capture and violence, buying and selling, being vitiated and rendered null and void by the previously existing, permanent, and indefeasible right of the man to himself, a right which, like many other rights, may be long in abeyance, but which can never be lost, and may be always resumed when the fear of violence or the pressure of actual force is removed.

"But it will be said that the question does not lie between the master and the slave, but between the master and the government which has legalized slavery and legalized the master's property in the slave. To this it may be replied that human law is merely an expression of the will of individual men, and that no man or number of men can change wrong into right. The right, therefore, of the slave to himself is unaffected by the act of any government. But a government cannot be expected to admit its own solemn act to be wrong without good reason assigned, which may or may not convince, and therefore let it be further remarked, and

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repeated, if necessary, a thousand times, that even according to the existing law of slavery in British India, on the high authority of Mr. Macnaghten, 'Thousands are at this moment living in a state of hopeless and contented, though unauthorized bondage.' Let it be further observed that slavery in India has not been legalized by a formal enactment of the British Parliament, nor even of the British Indian government, but by a mere interpretation, and, as I firmly believe and maintain, by a gross and palpable misinterpretation, of a rule of law which, it is admitted by the expounders, makes not the slightest mention of, or allusion to, slavery. If this alleged misinterpretation of the law should be established by competent authority, then the whole question of slavery in India is settled, and in no instance does the master possess a legal any more than a rightful property in the slave." Pages 238-240.

"The painful and disgraceful truth is, that the East India Company, admitting - compelled by the testimony of their own most trustworthy servants to admit - the existence of slavery and the reality of its evils, have been content to continue to legalize slavery, to tolerate its evils, and to discourage, reject, or consign to forgetfulness every suggestion dictated by justice or benevolence for their removal or mitigation. In this matter they have deliberately and systematically disregarded and neglected a grave and solemn duty of government, involving the rights and liberties of hundreds of thousands of British subjects placed under their authority, and they have thereby, so far, shown themselves unworthy of the high trust reposed in them by the Crown and Parliament of Great Britain - unworthy of the respect and confidence of the friends of humanity and civilization throughout the world." Page 219.

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Definitions from the "Glossary of Technical Terms, Phrases
and Maxims of the Common Law"

by F. J. Stimson

Pub. Little Brown & Co. 1881

"Praedium. Land; an estate. Praedium dominans, the domin-
and, serviens, the servient, estate in a praedial servitude,
an easement enjoyed by the owners of one estate over another.

"Easement. A right, without a profit, enjoyed by an owner of land over land held by another; not an estate or interest in the land itself.

"Villein. A feudal tenant of the lowest class; at first a
simple bondman; afterwards holding land by base and uncertain
services. Villein socage; tenure in villeinage, but by cer-
tain services; Villein in gross; a bondman, annexed to the
lord's person, and freely transferable: villein regardant,
a villein annexed to the manor, transferable only with the
land.

"Tenure. I. Allodial tenure is not properly tenure at all, being absolute ownership, as distinct from, II. Feudal tenure; where lands were held of some superior lord by services or rent. Tenure differs:

A. According to the nature of the service. 1. Frank
tenure or Freehold; by free services. This includes
(a) Knight-service, (b) socage, (c) spiritual service. (a) Knight-
service, military tenure, tenure in chivalry, comprises
knight-service proper, where lands were held by the service
of attending the lord in war, furnishing armed men, horses,
etc., or paying escuage in commutation therefore; grand ser-
jeanty, a tenure of the Crown by performing some special or
personal service, which was not considered base because ren-
dered to the King; and cornage, a kind of grand serjeanty,
by winding a horn at the approach of the Scots or other en-
emies. All these tenures were abolished by the 12 Car. II c.
24. (b) Socage, service of the plough, comprising Free and
common socage, by fixed, free agricultural services; usually
rent, either in farm-produce or money; petty serjeantry,
which was a socage tenure held of the Crown, by some small
annual rent or render; burgage, a socage tenure in old bor-
oughs, affected by local customs. In socage tenures the
lands anciently descended to all the sons in common, which
custom persisted in Kent; whence the Kentish socage tenure
is called Gavelkind. (c) Spiritual service; which included
Frankalmoign and Divine service; (Frankalmoign (free alms);
a kind of tenure by spiritual services, without fealty, in

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land held by a religious corporation, to themselves and their successors forever. Tenure by divine service was where certain specified services were required, and the lord might distrain; whereas in frankalmoign he could only complain to the ordinary.) 2. Base tenure or Villeinage; which was either pure or privileged according as the services, though base, were certain or uncertain. This only survived in copyhold tenures. (Copyhold. Tenure of manor lands by copy of court roll, at the will of the lord, according to the custom of the manor. Originally pure villeinage, it has gradually become divested of its base services and approached a state resembling socage, and the lord cannot evict without cause or against custom.) (Customary freehold; a copyhold tenure held not at the will of the lord, resenbling freehold). (Ancient demesne or domain. A tenure existing in certain manors held by the crown at the time of Edward the Confessor or William the Conqueror. A species of copyhold with fixed services and certain privileges.)

B. According to the lord of whom the land is held; as (a) in capite, of the King, either ut de corona (as of the Crown) or ut de honore, in virtue of some honor, dignity, or manor of which the King was proprietor; (b) of a mesne lord, the origin of one variety of base fee; (mesne, middle; mean. An intermediate lord standing between the chief lord and the tenant paravail. (The lowest tenant of land was so called, he who held of the mesne lords, and was supposed to occupy the land.) (Base fee. 1. A fee with a qualification; determinable upon some collateral event. 2. A tenure in fee at the will of the lord.) (c) Of the lord of a manor, copyhold - (Manor, a feudal estate granted to a lord or great personage with the right to hold a court-baron. It consisted of terrae tenementales, bocland, lands held of the manor in freehold; and the demesne lands, terrae dominicales, reserved for the lords own use; which again were divided into lands held by tenants in copyhold (folcland), lands held by the lord for his own use, and the lord's waste used for pastures and common. (Court-baron (manorial courts) was a court, not of record, incident to every manor. In one sense it is a customary court, having jurisdiction over copyhold lands, surrenders, and admittances; in another, it was a common law court, similar in jurisdiction and nature to the hundred courts, sometimes independent both of them and even of the county courts.)

C. According to the duration of the interest (or the period of tenure.)

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person, for pay or other valuable considerations, enters in-
to the service of another and devotes to him his personal
labor for an agreed period. The test of such a service seems
to be, first, that the servant is bound to obey the reason-
able commands of his master to do all acts falling within
the scope of his employment, and, secondly, that the master
has the power of dismissing the servant on his neglecting
his duty, or for incompetence or gross misconduct, or on
giving notice of dismissal in accordance with the express
or implied terms of the contract. It would also seem that
a material difference in social position is essential to the
relation of master and servant, for tutors, clerks, govern-
esses, opera singers, and the like, are not servants; and
that the service must be exclusive; that the servant cannot
work for any one else, without his master's permission, un-
less his service is limited to certain times or otherwise.
The relationship between a master and a servant creates su-
periority and power on the one hand, and duty, subjection,
and, as it were, allegiance on the other.

"2. Servants are generally divided into menial or domestic servants, laborers and workmen, and apprentices. The rules of law as to the respective rights and duties of the master and servant in the absence of express agreement vary to some extent according to the nature of the employment."

W.H.Wiser