colviii 



customs were looked on as a kind of natural enemies of tlie common 

 law, and strict proof of them was required, they got little help in court. 

 Probably many tenants in past times failed to establish customary 

 rights, or have been discouraged by the failure of others from asserting 

 them, in cases where the decision would now be the other way.'^ 



As regards the rights of the lord of the manor to the waste. Sir 

 F. Pollock says, **" the waste of the manor is, in modern legal theory, 

 so much of the lord^s land as his predecessors have not found it worth 

 while to take into cultivation on their own account or to let out to 

 tenants/^ The tenants enjoyed various privileges over these lands, 

 and these liberties have ripened into rights. This theory reverses the 

 facts, but not without some qualifications. " A great many of the 

 manors, now or formerly existing, represent ancient communities in 

 which, little by little, the authority of the community was engrossed 

 by the most considerable man in it, until he became the. lord and 

 the other landholders became his dependents. But a manor might 

 also be formed without going through the earlier stages at all. 

 Free dependents and emancipated serfs might gather round a lord 

 until they formed a community comparable in size to the old free 

 township. Under such conditions we should expect usages to spring 

 up imitated from those of the old communities, and modelled as far as 

 possible on them; but these usages would, in such a case, really owe 

 their force to the permission and consent of the lord, as they were 

 feigned to do by the theory of the lawyers in the case where the lord 

 was only an overgrown member of the township. Thus we have 

 a possible class of cases in which the theory to some extent answers 

 to the real facts." 



(9) Note on the discussions in the Madras Presidency as regards the 

 preferential rights of Mirasidars and resident ryots to cultivate 

 waste lands in their villages as against strangers and the final 

 settlement of the question. 



Mirasi claims were cropping up continually in the first half of the 

 century and produced quite a literature of their own which will be 

 found collected in Mr.. Huddleston^s compilation, entitled " Papers on 

 Mirasi Right." These claims were troublesome to deal with for seve- 

 ral reasons. In the first place, the traditional feelings of the early 

 English administrators, derived from the state of landed property in 

 their own country, was opposed to the recognition of such claims, 

 incompatible as they seemed with the right of Government to claim a 

 large share of the produce of land, which was denominated rent and 

 which entitled it, according to English notions, to be regarded as the 

 absolute proprietor of land. There was much also in the state of the 

 country to favor such an impression. These Mirasi claims were of a 

 pronounced type only in a few districts and in others, they were vague 

 and undefined, and in some to all appearance, hardly a trace of them 

 had been left. In some of the southern districts, notably in Chingle- 

 put and Tanjore, the Mirasi right was in full operation ; in several 

 other districts it was in various stages of decay, although a traditional 

 feeling in regard to it still existed ; in others again, especially in the 

 Northern Circars, even this traditional feeling had become effaced. 

 Wherever by previous mis-government and heavy assessments, land 



