colvi 



without fuller elucidation of their meaning — were put to ignor'ant and 

 uneducated men, to men, therefore, who, like all ignorant men, are 

 capable only of thinking in the concrete and in connection with actual 

 facts, and were put, moreover, with reference to a state of facts which 

 ceased to exist twenty years ago. Perhaps, Sir, it may be said that 

 the rights about which enquiry was made were customary rights — 

 rights arising under a custom. But here, so far from having my ideas 

 cleared, 1 find myself in greater difficulties than ever. For it appears 

 to me, that in the papers relating to the recent Panjab yettlement, 

 the word ' custom ' is used in a sense certainly unknown to jurispru- 

 dence, and I believe also, to popular usage. A custom is constantly 

 spoken of, as if it were independent of that which is generally, if not 

 universally, considered to be the foundation of a custom. According 

 to the understanding of lawyers, and I should have said according to 

 the understanding of all men, barbarous or civilized, the foundation of 

 a custom is habitual practice, a series of facts, a succession of instances, 

 from whose constant recurrence a rule is inferred. But the writers of 

 these papers perpetually talk of customs of eviction, or of enhance- 

 ment, or of rack-rent, and in the same breath admit the non-existence 

 of any practice of the kind alleged. Some broadly state that there 

 never was an instance of the customary right being exercised ; nearly 

 all allow that its exercise was as rare as possible, nor do they attempt 

 to show that the rare instances of its exercise were not simple acts 



of violence I do not pretend to have an exhaustive 



acquaintance with the voluminous literature of Indian revenue settle- 

 ments ; but I know something of it, and I think I can see that the old 

 investigators of Native customs proceeded on a mode of enquiry which 

 is perfectly intelligible. They enquired for the most part into prac- 

 tices and into facts, not into vague opinions. They inferred a rule 

 from the facts they believed themselves to have discovered, and then 

 they stereotyped it. No doubt they may have made mistakes. They 

 may have generalised too rapidly, may have neglected local exceptions, 

 and may have made a usage universal which was only general or even 

 occasional. ^^ 



N.B. — The occasion for the above speech was the following : 

 Soon after the Panjab was annexed, there was a revenue settlement of 

 the Province and in the course of it, large numbers of tenants were, 

 after enquiry, declared to possess permanent occupancy rights. Twenty 

 years later, there was a revision of settlement, in which it was alleged 

 that a mistake was committed in declaring the tenants to have occu- 

 pancy rights, and that further enquiry showed that they were merely 

 tenants-at-will, and it was proposed that those who had been recog- 

 nized as permanent tenants should be transferred to the. latter class. 

 Sir Henry Maine protested against the injustice of the proposal and 

 pointed out that the results of the earlier enquiry were likely to be 

 more correct than those of the later. 



(8) Extract from Sir Frederick Pollock's *' English Land Laws." 



As regards the successive steps by which '' common land," held 

 as separate property not by individuals but by communities, became 

 saleable and marketable property, Sir Frederick Pollock remarks 

 in his '' English Land Laws " as follows : 



