Introduction

On 18 March 1898, during a session dedicated to Indian affairs chaired by Mountstuart Elphinstone Grant Duff (1829–1906), several British and Anglo-Indian personalities gathered at the Society for Arts to discuss Henry Sumner Maine’s legacies. On that occasion, Charles Lewis Tupper (1848–1910) was responsible for presenting the paper he had meticulously prepared, which had been followed by a fruitful discussion on the topic of “India and Sir Henry Maine”. Ten years after Maine’s passing, this event should be understood as both an act of homage and an opportunity to elucidate the extent of Maine’s influence on Indian affairs, and vice versa. Tupper commenced his address with the following remarks:

The principal object of this paper is to attempt to indicate some of the impressions which may be entertained by any Indian civil servant of fairly long experience in regard to the work which Sir Henry Maine, as a jurist and a statesman, did for India. He did so much for Indian policy, Indian administration, and Indian studies that any member of my service who is in a position to realise to some extent what Maine achieved in these matters might be excused if he ventured to record his gratitude.

It is noteworthy that among those in attendance, there were individuals who had not anticipated learning about the intimate connections between the legal and political history of British India and Maine’s life and work. Instead, Maine was renowned for his remarkable academic contributions, the courses he delivered that trained numerous legal professionals, and his journalistic activities. As Alfred Lyall (1835–1911) observed:

[I]n England Sir Henry Maine was chiefly known as a great jurist, a brilliant lecturer, a writer on ancient law, and an investigator of the growth and descent of custom; but he had not been so well known as an Indian legislator and adviser on Indian administration, and, therefore, this paper would be of great use.

In the interest of fairness, it must be acknowledged that Maine’s experience in British India, over a century later, still warrants further investigation. Despite his considerable renown, Henry Sumner Maine retains a certain degree of enigmatic quality, particularly with regard to certain aspects of his life that remain less well documented, including his childhood and his sojourn in India. His success can be attributed to the publication of Ancient Law in 1861. As a result of this work, he made significant contributions to the field of comparative law and to the understanding of the origins of property rights and succession rights as a legal historian. He was an eminent scholar of Roman law, playing a pivotal role in the second resurgence of Roman legal studies in the nineteenth century. This revival was initially spearheaded by the Germanic historical school of law, as exemplified by the works of Puchta and Savigny. However, Maine is not a historicist and is more inclined to engage with philological and anthropological works on the evolution of Indo-Aryan human societies. It is noteworthy that he published his other major works, including Villages-Communities and Early History of Institutions, upon his return from India in 1872. It is now rare to analyse village communities without referring to Maine, as his academic works are widely regarded as authoritative in this field. However, the relationship between his works and his time in British India has not been the subject of much scholarly attention. This article aims to shed light on this relationship, at least in part.

In order to achieve this, I will present an argument in three chapters. The first chapter will elucidate the state of play of the literature review on the relationship between Maine and India and will also include some additional historical analysis on Maine’s journey in India. The second chapter will examine the emergence of the social unit of “village” and of “village communities” in British India, with a particular focus on the relevance of this to Maine’s works. Finally, the third part will analyse the direct relation between Maine’s analysis of village communities and the concrete implications in British India, with a particular focus on British Punjab. It will then synthesise the different understandings of village communities in the nineteenth century and demonstrate how, in practice, village communities as interpreted by Maine had little resonance in British Punjab.

I. Henry Sumner Maine’s journey in British India as a Law Member of the Council of the Governor General: literature review and historical analysis

A. Henry Sumner Maine in British India: the state-of-play of the existing academic literature

As previously suggested, his Indian experience has been the subject of relatively limited attention among scholars. In examining the extant literature on the subject, it becomes evident that the most impactful studies are as follows: (a) Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism by the political theorist Karuna Mantena; and (b) the book chapters, including: “The influence of Sir Henry Maine on agrarian policy in India”, as examined by the historian Clive Dewey; “India and Henry Maine” by Gordon Johnson; and “Maine and change in nineteenth-century India” by the historian C. A. Bayly. Of these studies, Karuna Mantena’s analyses have had a significant and enduring impact on the historiography of Henry Sumner Maine, as well as on the broader fields of historiography of political theories and the history of imperial ideologies in British India. Alibis of Empire was among the first books to re-examine Henry Sumner Maine’s intellectual postures and link them to his administrative position in British India. The primary hypothesis put forth by Mantena is that Henry Sumner Maine, in his capacity as an administrator, exerted a direct influence on the ideologies that underpinned British India’s policies. Henry Sumner Maine’s arrival in British India occurred at a particularly pivotal moment, following the Great Rebellion of 1857, which marked the inception of the Raj. Accordingly, as Mantena’s research indicates, Maine represents a pivotal figure, introducing a more conservative ideology that challenged the liberal ideology that had characterised the British Empire since the 17th century.

In light of the context in which the book was published, it is evident that this research offers valuable heuristic contributions, including the visibility of an almost forgotten figure, a historical analysis of imperial ideologies, and a focus on the political and fiscal history of British India. However, in the context of a historiographical revival, it is important to critically examine this approach. In general, the assumption that a single individual, namely Maine, was the primary agent of such a significant ideological transformation may give rise to the notion that a direct causal relationship existed, which is otherwise not readily apparent. This may result in an overestimation of the impact that a single individual could have on the governance of British India. This stance precludes an understanding of Maine as a receptacle of his sociopolitical environment. In addition, despite some developments on the codification process in British India, the British Indian society is largely absent from the equation. It is therefore important to place the Indian experience at the centre of the discussion.

In contrast, historians Clive Dewey and Chris Bayly situated Maine’s journey in British India within its broader context. As experts in the history of British India, they were able to comprehend the complexities of the sociopolitical context in which Maine arrived in 1862. Dewey’s expertise on British Punjab’s agrarian policies enabled him to establish a connection between these policies and Maine’s influence by the end of the 1880s, as evidenced by the acknowledgements of four Punjabi personalities to Maine. Bayly employs the paradigm of utilitarianism-liberalism versus conservatism, which is well-known to political scientists. However, he subverts the original duality, which is also a temporal duality in Mantena’s analysis, by demonstrating that colonial policies were influenced by conservatism prior to Maine’s arrival in British India. Additionally, he conducts a distinctive examination of a series of occurrences that transpired during the mid-19th century, which may elucidate the reasons behind the receptivity of British Indian administrators towards Maine’s stances. Consequently, he challenges the interpretative framework put forth by Mantena, suggesting that colonial administrators were open to considering and potentially integrating Maine’s proposals for various reasons, including those pertaining to social, political, and economic matters. It must be acknowledged that there is a paucity of evidence to suggest that Maine exerted any significant influence on the agrarian policies that ultimately led to the enforcement of the Punjab Alienation of Land Act (1900). Furthermore, the paternalistic governance that has hitherto characterised British Punjab, as evidenced by a substantial body of research, is also being revisited. Similarly, Bayly is highly critical of the assumptions regarding the impact of Maine on British Indian society. This is partly due to Maine’s historicist approach, which presents a fragmented view of such society and cultivates cultural and religious separatism, according to Bayly’s interpretation of Maine’s posture—which had been questioned already.

Eventually, historian Gordon Johnson presents a multifaceted, dynamic, and nuanced portrayal of Henry Sumner Maine. Johnson was arguably the first researcher to distinguish between Maine’s analytical and theoretical works and his role as a Law Member, offering a perspective on Maine that was not that of a grand mastermind behind immense legal reforms, but rather one constrained by the scope of his position. This paper will adopt and refine this methodological position. The paper will mobilise manuals and letters from mid-nineteenth century, along with a comprehensive bibliography. Excluding the linear causality as implied in Mantena’s works, Maine’s experience in British India will be analysed within its complex background, and the relationship Maine formed with the Raj will be seen as an entanglement, resting on a reticular dynamic combining Maine’s intellectual background and the colonial institutions. Contextualisation should facilitate the positioning of Maine as a receptacle of his context within the administration of British India, rather than an omnipotent actor.

B. Henry Sumner Maine and his journey in British India: some historical elements

A substantial corpus of literature exists on the life and works of Maine. The focus of our research is the examination of Maine’s relationship with India, a topic that has been the subject of limited scholarly attention, as already developed in the previous section. It is of particular interest to examine Maine’s legislative work and his relationship with the Governor General of India. At the time he accepted the role of Law Member, James Bruce (1811–1863), the Earl of Elgin, was serving in this position. After a twenty-year tenure in the British dominions and colonies, the Earl died of a heart attack in the mountains surrounding Dharamshala. Following two brief interim periods, John Lawrence was appointed Governor General, a position he held between 1864 and 1869, which largely coincided with Henry Sumner Maine’s time in India. This point is underscored by the historian Gordon Johnson, quoted earlier, who wrote that:

“In between Elgin and Mayo, and thus during most of Maine’s tenure of office, the Viceroy was Sir John Lawrence, an appointment notable perhaps for the lack of enthusiasm with which it was made, since Lawrence, having served long and successfully in the Punjab, possessed a qualification which was universally held to bar a man from being Viceroy: actual knowledge of India itself. Lawrence was associated—indeed was an essential part of—an approach to Indian administration which stressed direct personal and discretionary rule, and, in the light of his experience in the Punjab, he believed very much in patriarchal government on the spot without too many regulations and without much interference from superiors” .

In light of the above, it would be beneficial to provide a brief overview of John Lawrence and the sociopolitical context in which Maine arrived in British India, before embarking on a discussion of his role as a Law Member.

1. John Lawrence (1811–1879) and British India in the Mid-Nineteenth Century

John Lawrence (1811–1879) played a significant role in the establishment of the colonial administration of British Punjab, one of the last provinces to be incorporated into the British Empire in the Indian subcontinent in 1849. Originally from Ulster in Ireland, he was sponsored as a writer in 1827, pursuing his training at Haileybury College. Demonstrating proficiency in multiple languages and excelling in his examinations, he arrived in the Bengal Presidency in 1829. Notwithstanding his health issues, his linguistic abilities in Bengali, Urdu and Persian facilitated his rapid advancement within the colonial administration, becoming renowned for his adaptability and his proficiency in bureaucratic procedures among his superiors. He commenced his career as a collector, subsequently assuming the role of settlement officer in the vicinity of Delhi. He then served as a civil and sessions judge before being appointed Chief Commissioner of the Jullundur doab in 1846. This region had recently been confiscated from the Sikh Empire. He assumed this position with considerable success, in accordance with the expectations of the Governor General of the time, Lord Hardinge (1785–1856). In general, he considered himself the defender of the peasantry and sought to reduce the proportion of lands retained by the aristocratic families who were prospering in Jullundur at that time. He also sought to transform obsolete feudal services into monetary payments. Moreover, in contrast to other administrators, he supported the complete annexation of the British Punjab, aligning with the broader annexation policy of the then Governor General, Dalhousie (1812–1860). Due to his proximity to the Governor General, who recognised the value of Lawrence’s work, Lawrence was appointed as a member of the Punjab Board of Administration in 1849, which had recently been established. In 1853, the Board was dissolved, and Lawrence was promoted to the position of Chief Commissioner of the Punjab, with the responsibility of leading a team of two commissioners. In 1857, when the Sepoys’ Revolt broke out, he exhibited exemplary control of the situation, due to his effective collaboration with his subordinates and the local aristocracy. In 1859, he assumed the role of first lieutenant-governor of the Punjab. Subsequently, due to health concerns, he was compelled to relinquish his duties and return to Great Britain. However, in 1863, he was appointed Governor General, assuming the role in January 1864 and becoming the third Governor General of the Raj. During his five-year tenure, he was confronted with a mounting financial deficit, contentious relations with other governors and commanders-in-chief, and the devastating Orissa famine that resulted in millions of deaths. Furthermore, he sought to modernise the country by developing its infrastructure and implementing a comprehensive policy to safeguard the North-West frontiers, drawing upon his professional expertise. He retired from his role in India in 1869 and relocated to England, where he became involved in local politics, being elected to the London School Board for the Chelsea district.

It is evident that Lawrence’s life was significantly influenced by these events. In 1857, a significant insurrection occurred in the northern regions of the Indian subcontinent, regarded by some as the inaugural manifestation of Indian nationalism. The colonial army was able to control the revolt, but when viewed as a failure of the existing system, it resulted in the nationalisation of the Company and the advent of the Raj, which was established under the authority of the royal and parliamentary powers and marked the beginning of the imperial regime. However, the evidence suggests that, while Punjab was annexed, the imperialistic mode of governance was already in place prior to 1857 and was in fact being implemented concurrently with the administration of Punjab. The general tendency to rely less on personal power and more on an impersonal bureaucracy led to the erosion or, rather, transformation of the role of intermediaries. While John Lawrence is often associated with a paternalistic mode of governance that was exacerbated in British Punjab, as evidenced by Gordon Johnson’s views in the aforementioned quote, it is more accurate to suggest that such a mode of governance was actually being weakened by then. British Punjab did not escape the general tendency towards institutionalisation.

In light of the evolving administrative landscape of British India, it is now possible to examine Maine’s particular role and experiences as a Law Member working in collaboration with Lawrence.

2. Henry Sumner Maine, as a Law Member collaborating with Lawrence

While the aftermath of the 1857 Rebellion was being discussed and among the priorities of the colonial government—the proclamation issued by Queen Victoria on 1^st November 1858 announced indeed some major changes toward the local population—Maine was delivering his courses in the Inns of Court on legal history. Gathered in 1862 in a book that was published then, they were entitled Ancient Law, which is, a real best-seller at that time. Writing a legal comparative analysis on the evolution of property systems and inheritance rights across societies, Henry Sumner Maine already shows his interest towards the Indian society. In fact, his press articles in the Morning Chronicle and Saturday Review were also the opportunity to narrate on domestic as well as foreign affairs, including the British East India Company policies.

Ancient Law was in the process of publication when Maine was approached by Charles Wood (1800–1885), Secretary of State for India, to occupy the position of Law Member at the Council of the Governor General. Charles Wood had heard about Maine’s reputation. To quote Maine’s biographer and friend Duff:

Before the end of the year in which Ancient Law appeared, Sir Charles Wood, the late Lord Halifax, offered Maine the Law Membership in the Council of the Governor-General, the same office—somewhat, however, exalted in power and dignity—which had been so brilliantly filled by Macaulay (…). Maine took counsel with his friends, and I for one, having seen the wretched condition of mind into which he had been thrown by feeling himself obliged to decline the former offer, strongly urged him to go, not at all because I believed that his medical advisers were mistaken, but because I thought that he would infallibly die at home, and that it would be a great deal better for him to die in much prosperity in India than to die in great adversity in England.

The conjunction of Maine and Lawrence represents the union of an intellectual and a civilian. As previously stated, the historiography and historical sources provide only limited information regarding this couple. The biographies of both individuals made only brief mention of their relationship. John Lawrence’s biographer, the historian Smith R. Bosworth, informed us that:

The Legal Member was Sir Henry Maine, who, before he came out to India, had set a permanent mark on thought and literature by the publication of his book on ‘Ancient Law’, and has certainly left his stamp on the Statute Book of India by the many wise laws which, in conjunction with his chief, he was instrumental in maturing and carrying through both Councils.

In a letter to his friend Eastwick dated 18 February 1864, John Lawrence outlined his position and provided a brief account of his meeting with Maine. Maine was described as a person of considerable charm and agreeability. As he undertook the journey to discharge his political duties, traversing the route between the capital city of Calcutta and the summer capital of Shimla in the mountains of the Punjab region, meeting with princes and conferring titles and honours, Maine was by his side. In a letter dated 19 October 1864, Lawrence wrote to Charles Wood that Maine was “was much struck with all he has heard and seen”.

Duff, on his side, provided a more detailed account of the relationship between Maine and Lawrence, while regretting that his role is so little mentioned by biographers of the Governors General of India. It is clear that Maine was affected by the absence of English society and his wife, who was unable to accompany him. However, he demonstrated remarkable adaptability to the Indian environment, consistently available to accompany Lawrence during his visits with prominent figures. To reword Duff, Maine’s tenure, which was extended by two years beyond the customary term, and he enjoyed excellent relations with each of these distinguished figures, yet his name is notably absent from the late Mr. Theodore Walrond’s Life of Lord Elgin and Mr. Bosworth Smith’s biography of Lord Lawrence. In William Hunter’s Life of Lord Mayo, there is a lengthy letter, comprising 88 pages, written by the Law Member James Fitzames Stephen (1829–1894). While primarily focused on the history of Indian legislation following Maine’s return to Europe, the letter offered insights into his role as a Law Member.

This discrepancy between biographies and perspectives is thought-provoking. It suggests that, despite Maine’s contemporaries being influenced by his dedication to work and sense of duty and impressed by his academic reputation following the publication of Ancient Law, it is instead Maine and his subsequent contributions that would have been most significantly shaped by the example of British India. Also, it provided some illustration to the lack of visibility of administrative positions occupied in colonial settings by British officers or intellectuals. At last, this is also contingent upon the constraints of the role as a Law Member.

In his account, Stephen outlined the legislative process that operated under the Executive Department prior to the formation of the Legislative Council. The Legislative Department was not independent and constituted a subdivision of the Department of Internal Affairs, with one of the Assistant Secretaries tasked with the preparation of drafts for bills in the event of a need to legislate. It appeared that under the administration of Lord Lawrence, the responsibility in question had become sufficiently significant to warrant the establishment of a distinct Legislative Department. It was anticipated that proposed legislation would not be initiated by the Legislative Department, but rather by a motion tabled by other government departments as required. According to Stephen, this principle was rigorously adhered to by both Sir Henry Sumner Maine and himself. Of the numerous pieces of legislation enacted during their respective tenures, apart from those that revoked, consolidated, or amended existing legislation, none were initiated by the Legislative Department.

In his capacity as a Law Member, Maine was responsible for working on a total of 209 pieces of legislation before the Governor General’s Council in India. However, as Stephen’s analysis indicated, the position of Law Member, despite its prestige, was not a particularly powerful one. Maine’s primary responsibility was to facilitate discussions on proposed legislation. He discharged his duties in an exemplary manner, juggling a variety of legal subjects, requiring a perfect mastery of legal technique, which did not fail to impress his contemporaries. Duff provided a meticulous account of Maine’s minutes and speeches in his biography. The minutes and speeches offered insight into the numerous legal themes that Maine was working on and hardly any direct and linear connection can be made with his academic work. Tupper categorizes Maine’s legislative work into four main classes: a) Legislation to update laws common to England and India, bringing them up to current standards. This included acts like the Mercantile Law Amendment Act and the Indian Companies’ Act, b) Enactments that affected civil practices or religious beliefs of the Indian people. Examples included bills for the remarriage of native converts and civil marriage for natives, c) Draft chapters of the Indian Civil Code, prepared by the Law Commission in England. Maine was able to get the succession law draft passed through the Council, d) Legislation for provinces that did not have their own Legislative Councils, as the Imperial Legislature also served as the Local Legislature for these areas.

In his account, Stephen also offered a tribute to Maine. For example, Maine promoted the Indian Succession Act in 1865. Maine is also the one who expressed reservations about the legitimacy of Anglo-Hindu and Anglo-Muslim laws in capturing the reality of Indian traditions. This was mainly because such laws were created through a collaboration between British administrators in the early 18th century, who lacked the requisite knowledge at the time, and the local religious elites, who were opportunistic in Maine’s understanding. Furthermore, he expressed regret at the accelerating and denaturing role that colonial courts had played thus far. Additionally, as an advocate of Roman law, he was a proponent of codification to regulate judicial interpretation and limit the influence of local religious elites. During Maine’s tenure, significant codifications were prepared for implementation under his successor’s tenure. These include the Indian Evidence Act (1872), the Revised Code of Criminal Procedure (1872), and the Indian Christian Marriage Act, also known as the Native Marriage Act (1872).

In conclusion, Maine was fully engaged in his responsibilities as a law member. His strict adherence to the established procedure was evident in his reluctance to exceed the scope of his designated duties. Additionally, Maine accompanied John Lawrence on various excursions, where he had the opportunity to interact with other prominent administrators, including George Campbell. Following this, he returned to Britain and proceeded to author his subsequent works, which reflected the insights gained from his journey.

II. Maine and the village-communities: An Exploration of the Indian Experience

The village community is not a concept invented by Henry Sumner Maine. In fact, it can be traced back to the fiscal history of British India and the colonial administration’s pluralist approach to land management and taxation and this will be exposed here. Indeed, when Villages Communities in the East and West by Maine was published first in 1871, the concept of the village community was a prominent feature of 19th-century social and political discourse. From the late 19th century onwards, researchers devoted increasing attention to its origins, frequently associating it with the work of Henry Sumner Maine, who exerted a considerable influence on its theoretical development on an international scale. Theories pertaining to village communities were a source of considerable fascination, as evidenced by the work of prominent figures such as American historian Charles McLean Andrews, who published an essay on the subject in 1891, and Ross Denman Waldo, who in 1880 synthesised existing theories in his work on early institutions. These included ideas from Georg Ludwig von Maurer, Erwin Nasse, Emile de Laveleye, Edward Augustus Freeman, John Mitchell Kemble, and Henry Sumner Maine.

In England, Germanic Romantic theories on the genesis of society found fertile ground. English historians incorporated the “Teutonic” village community theory into their understanding of English constitutional evolution, linking it with patriotic and libertarian ideals that resonated across the political spectrum. The influence of the German Romantic school is evident in the British historians’ view of Saxon institutions as precursors to village communities and the Saxon witenagemot as the origin of the British Parliament.

A. Defining the village-communities in Maine’s works

Maine offered a complex study of village communities, which certainly gave rise to different, sometimes contradictory interpretations. It’s possible to understand the concept by accepting its polysemic character. Indeed, Maine’s analysis of village communities could be defined under three levels: a) a structural level, b) a historical level, and c) the methodological level.

On a structural level, the village community relies “on the aspect of an assembly of co-owners, a group of related individuals possessing an estate in common”, which is “more than a brotherhood of individuals linked by blood or an association of partners”. It is a “patriarchal society”, characterized by joint management of territorial resources, so that “their personal relations are confused with their property rights”, which govern three fundamental elements: collective ownership, patriarchal interdependence and patriarchal society. Thus, the village community in its structural sense has become inseparable from the history of collective ownership and inheritance rights.

The historical or evolutionary definition of the village community places it within a process of individualization of society, an archetypal pattern in Maine’s theory, according to which society moves from “status to contract”. This historical scheme then includes “levels of sociability that logically and chronologically precede [the state], such as those of the family or village communities”. The historical definition of the village community can be taken from the studies of C. L. Tupper, undoubtedly one of the greatest connoisseurs of Maine’s theses in British India. Comparing him with Émile de Laveleye (1822–1892), he noted that both agreed, despite their differences, that collective ownership preceded individual ownership—I will develop this further in the next Chapter. Maine indeed outlined the evolutionary pattern of human societies as follows: a joint family, the original community, evolved into a house community, which in turn gave rise to the village community.

The methodological definition allowed to consider the village community as a focal point linking Eastern and Western society, in Maine’s theory, acting as a common denominator that makes it possible to compare Teutonic and Indian village communities. This idea is echoed by Clive Dewey, who explained that:

In this context of the new methodology, the Indian village community has acquired a new dimension. It ceased to be a simple Indian village community; it became a village community that still existed. Suddenly, the description of Indian village communities and the theories woven around them by Indian officers came under urgent scrutiny by Western intellectuals, while the interpretations developed in the West to account for European village communities began to fascinate Indian officers.

While Maine’s conceptualisation of village communities was influential, it is essential to recognise that this concept had its origins in the fiscal and administrative history of British India. An examination of this context will elucidate how Maine’s ideas both drew from and contributed to the ongoing discourse surrounding Indian social structures.

B. Village communities and Fiscal History of British India

If India was taken as a typical example of an Indo-Aryan society, Maine was also open about his debt to Indian administrators. In his work on Ancient law, he made reference to Elphinstone’s administrative reports. In the preface to the inaugural edition of Village-communities in the East and West, he elucidated this point with remarkable clarity:

For such knowledge of Indian phenomena as he possesses the writer is much indebted to the conversation of Lord Lawrence, whose capacity for the political direction of the natives of India was acquired by patient study of their ideas and usages during his early career. The principal statements made in the text concerning the Indian Village Communities, have been submitted to Mr. George Campbell, now Lieut. -Governor of Bengal, who has been good enough to say that they coincide in the main with the results of his own experience and observation, which have been very extensive.

Discussions related to the village as either an idealistic entity or, later, a social entity were already happening in British India. They could be dated as earlier as beginning of nineteenth century and the history of concepts is studies by the French anthropologist Louis Dumont (1911–1998) and the Indian historian Soumyendra Mukherjee (1933-). In an article entitled “The village community from Munro to Maine” and published in Contributions to Indian Sociology in 1966, Dumont presents a framework for understanding the diverse historical meanings associated with the concept of the village community. He identified three distinct sets of meanings: the village community as a political entity, as a body of co-owners, and as an emblem of traditional economy and politics, as well as a guardian of Indian patriotism. This chronological study is pertinent to an investigation of the emergence of this notion within the discourse of the colonial administration of British India.

In his study, Louis Dumont situated the emergence of the notion of the village community within the context of a conflict between administrators over the adoption of a specific tax regime. At the end of eighteenth century, from the time of Charles Cornwallis’s administration, which gave rise to a series of 44 regulations, British India experienced three different tax systems, each with a specific spatio-temporal application: the zamindari, ryotwari and mahalwari systems. The zamindari system was based on the creation of intermediaries, known as zamindars, who acted as a link between the colonial power and the inhabitants of the villages. That system was promoted in and around Bengal as a Permanent Settlement by the 18^th century. The ryotwari system, promoted in Bombay and Madras, was based on a direct tax levy on cultivator-owners. The mahalwari system was based on the identification of a social body that is collectively responsible for paying property tax. This system has been retained in the North-West Provinces and the British Punjab and is linked to the village community.

In the context of the rejection of Cornwallis’ system and the subsequent emergence of alternative fiscal regimes, a new concept emerged that would become central to the development of the “village community”, first articulated by officers such as Thomas Munro (1761–1827). Those who advocated the ryotwari system initially evoked the expression “republican villages”. The term “republican” is an attribute that refers to an egalitarian ideal, which these communities were supposed to embody in Thomas Munro’s view. His contemporary, Lieutenant-Colonel Mark Wilks (1759–1831), who served as the Political Resident at the Court of Mysore, followed suit in 1810. In his Historical Sketches, he cited Munro’s authority, referencing Munro’s report of 15 May 1806. In this report, India was defined as a collection of small republics, whose composition and management of internal affairs have remained unchanged, while dynasties and political regimes have evolved. British officers were impressed by this stable, surviving cell in a chaotic whole. The Fifth Report of the House of Commons of the British Parliament of 28 July 1812, on the affairs of the East India Company, echoes Munro’s words almost verbatim.

The result is a concept of an autonomous collective entity, existing in virtual autarky within the dominant political discourse. S. N. Mukherjee emphasised this point, stating that this is:

The image of the traditional Indian society that has been handed down to us by the British administrator scholars from Munro to Moreland is that of a stagnant society ruled by a despotic regime, with a large army of bureaucrats, over millions of peasants, living in fraternal self-sufficient communities, exercising their communal right of hereditary occupation of arable land, virtually independent of one another and of the central government.

While proponents of the ryotwari and mahalwari systems appear to concur on the continued existence of these miniature societies, they diverge in their approach to these communities. This discrepancy is what led to the emergence of the term “village community”. The relationship between the debate surrounding the various tax regimes and the stance adopted by certain administrators with regard to village communities—which can be summarised as a question of whether to support these communities or, conversely, accelerate their demise—has been the subject of a detailed study by Clive Dewey. As he reports, in the Charter of the Selective Committee of the East India Company in 1832, Charles Metcalfe, an advocate of the mahalwari system, observed that “village communities (…) are little republics having almost everything they need within them, and are almost independent of all external relations”. The longevity of these communities is exemplified by the observation that they “seem to last when nothing lasts”, as evidenced by the Charter’s reference to one of the earliest documented instances of the phrase “village community”. Conversely, the utilitarians who endorsed the ryotwari system were administrators in the Bombay administration who were sceptical about the purported success of the village community. The colonial officer R. N. Gooddine, who published a report on the Deccan in 1852, questioned whether village communities had led to any moral and intellectual progress. Considering the prevailing conditions of poverty and unrest in South India at the time of British colonisation, the officer was compelled to conclude that the answer was negative. Other authors have described these communities as unnatural, given that, in principle, laissez-faire should have resulted in the formation of individualistic rather than collectivist societies.

From 1806 to the first half of the 19th century, divergent attitudes towards the fiscal regime to be adopted led administrators to defend, on the one hand, the hypothesis of several autonomous societies living within the Indian subcontinent, which were initially “small republics” and later qualified as “village communities”. In this ideological dispute, some administrators adopted a less definitive position, and Louis Dumont identified them as the foundation of the village community theory developed by Maine. The French anthropologist drew attention to the case of two British officers who adopted such an approach: Elphinstone and Campbell. Elphinstone rejected the conceptualisation of a village that would be governed by a single chief, instead proposing a council made up of chiefs, divisions, or families (probably the descendants) of the proprietors. He also specified that there were four classes of inferior inhabitants: the permanent tenants, the temporary tenants, the ploughmen, and the tradesmen. Furthermore, he suggested that the proprietors generally traced their origin from a common ancestor. Elphinstone presented his conceptualisation of the village community in the initial volume of his two-volume History of India, published in 1841. In contrast, Campbell differentiated between two types of communities in his 1852 publication, Modern India. The first type comprises corporate villages, while the second encompasses democratic communities. The former are described as “municipalities”, governed by a single chief (in reference to Munro’s “small republics”). The latter are characterised by a common management structure and a division of land within the community. Considering that, Campbell’s writings provided the first outline of the link between village community, property and custom.

Thus, following these developments, Maines’s analysis of village communities is undoubtedly unique, in that it forms part of a comparative legal history of the origin and evolution of inheritance property within Indo-Aryan societies. However, it is also undoubtedly part of the various debates on the fiscal policy to be adopted that have shaken British India. This approach is therefore keen to demonstrate that Maine was also aware of the contemporary debates and literature. This will assist us in contextualising and comprehending the reception of village communities, particularly as conceptualised by Maine, notably in the administration of British Punjab, as discussed in my concluding chapter of this paper.

Having examined the theoretical foundations and historical context of village communities, we now turn to an analysis of how these concepts were operationalised—or contested—in the specific context of British Punjab. This case study will demonstrate the intricate interplay between theory and practice in colonial administration.

III. British Punjab and village communities: a critical approach to the direct application of Maine’s concepts in British India

The fiscal history of British India provided insight into the specific circumstances of British Punjab. Upon annexation of the province in 1849, the village was established as the basic societal unit for taxation purposes by British administrators, as exposed earlier. The governance of the North-West Provinces, a region that was progressively annexed from the beginning of the 19th century towards mid-19th century, provided a unique opportunity to extensively experiment with the practices of tax leverage at the village level. In this regard, the lieutenant-governor James Thomason (1804–1853) played a significant role, traversing the region and interacting with numerous villages. In Punjab, for the Board of administration, the governance body, it seemed prudent to utilise the extant practices. Furthermore, the assumption that the north-western regions would undergo similar developments was also prevalent among the administrative corps. Moreover, the majority of administrators dispatched to Punjab, whether civil or military, had actually been trained by Thomason.

The initial settlements organised by John Lawrence and his secretary Richard Temple, both of whom were acquainted with Thomason’s methodologies, were established in accordance with the same instructions as those set forth by Thomason. These instructions were then printed and distributed to the settlement officers. However, by the mid-1850s, the notion that the fundamental unit is not a village, but a tribe began to emerge in the writings of a particular officer, Edward Augustus Prinsep (1828–1900). Prinsep, born into a renowned family of businessmen and himself a brilliant administrator, was responsible for the organisation of the settlement in Sialkot, a Punjabi district, from 1851 to 1856. Published in 1865, his report is the first to suggest that Punjabis do not live in villages with abstract bonds but are still significantly tied to their blood relations, which are manifested in a tribal configuration. This decision constituted a controversy among his superiors, with the question of whether fiscal matters should be decided at the village level or the tribal unit being particularly contentious. The aforementioned information should be encoded in different registers: the wajib-ul-arz, or, in Persian, village administration papers, which contain a record of rights for the villages, and the tribal customary law document, both constituted by the Settlement officers. Two sets of legislation supported these positions: the Punjab Tenancy Act and the Punjab Land Revenue Act of 1868 on the one hand, establishing the village as a basic unit for revenue affairs, and the Punjab Laws Act of 1872, which established customary law as the primary norm for personal matters (family, succession, and religion).

By 1878, Charles Lewis Tupper was appointed to the position of secretary to the Revenue department in Punjab. In this capacity, he initiated the project of collecting customs by tribes and by districts. He is the first to set out instructions on how to gather customs related to family matters, which were sent to the settlement officers, and he explicitly referred to Prinsep. The compilation of the customary law, as gathered, is an occasion to mention the intellectual filiations, including Henry Sumner Maine.

The annexation of Punjab also coincides with two major evolutions, one contextual and one structural, which facilitate an understanding of the specificity of this governance structure. The contextual evolution pertains to the manner in which civil servants in British India were recruited. Since the end of the 18th century, when the status of civil servants was clarified, the mode of selection was nomination. This entailed an existing member nominating someone, who would then undergo proper training at Haileybury College before being dispatched to Calcutta. This mode of selection was subjected to harsh criticism by Macaulay, who served as a law member, on the grounds that the personal structure led to co-optation and nepotism, which in turn facilitated corruptive practices. By 1854, a new mode of selection was introduced, whereby all prospective civil servants were required to undergo an examination in London. This replaced the previous patronage system. In addition, the structural evolution, which commenced at the end of the 19th century, following the 1857 revolution, saw the advent of scientific developments in social sciences and biology, particularly in the fields of history, anthropology, and ethnology. The notion that such knowledge could facilitate the effective administration of the colonial empire proved highly appealing to many administrators. These new administrators, in contrast to their predecessors, owed their positions to themselves alone. They arrived in British India with the intention of governing with accurate methods. While John Lawrence still belonged to the old class of civil servants—although, as stated earlier, he had undergone the evolutions of his time and is no longer the same as his predecessors—Tupper and his contemporaries, on the other hand, are what the seniors called (not without a certain disdain) “competition wallah” who either come from Oxford or Cambridge (usually called “Oxbridgians”).

The theories of Henry Sumner Maine are, albeit imperfectly, known by these “competition wallahs”. Maine’s texts serve as a valuable source of reference for Tupper, who had the opportunity to engage directly with Maine during his time at Oxford. It would be reasonable to suggest that Tupper, Baden Powell and Ibbetson all held Maine in high regard. Tupper thus possessed both theoretical and practical expertise. In his second volume of the Punjab Customary Law, Tupper devoted a section to an analysis of customary law and also developed the concept of village communities. He then provides extensive quotations from Maine. However, it would be inaccurate to suggest that Tupper’s theoretical quotations are an unqualified endorsement of Maine’s work. In fact, Tupper made reference to other authors, notably Laveleye, and his approach to the study of village communities differed from Maine’s, or at least from the interpretation of Maine’s approach that Tupper presents.

Tupper’s analysis can be described as a comparative study between Emile de Laveleye (1822–1892), the Belgian economist, and Henry Sumner Maine. While Indian village communities occuped a significant position within Maine’s theoretical framework, Tupper asserted that this concept of village community, as delineated by Maine, lacked applicability in the context of Punjab. Moreover, Tupper suggested that Punjab did not exemplify the characteristics associated with this concept. Tupper’s interpretation of village communities and their relation to early institutions is that, according to Maine, these communities represented a stage in the evolution of Indo-Aryan societies where kinship ties have been superseded by land tenure. In some instances, the bonds of descent may be so attenuated that they are no longer recalled, or even if they are, they are of little consequence. The collective ownership of the land is of greater importance than the individual lineage. In order to provide a pertinent example, it is necessary to cite Maine himself (as also quoted by Tupper):

Many palpable facts in the composition of the community are constantly inconsistent with the actual descent of the villagers from any one ancestor (…). 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. A few steps more in the same course of development—and these the English law is actually hastening—will diffuse the familiar ideas of our own country and time throughout India; the village community will disappear, and landed property, in the full English sense, will come into existence.

While Emile de Laveleye, in his Primitive Property published in 1874, did not combine collective property with the demise of cognizance of blood descent, and this was a perspective that merited consideration. According to Tupper, analysing Laveleye’s theories:

In all nations, he [Laveleye] believes, by a slow and universally similar evolution, the commune and property were developed in the mark; and the mark was the common domain of the clan. The notion of property in the soil begins to spring up under the pastoral system, but it is limited to a sense of common interest in pasture lands of the tribe; individuals cannot claim a part of the soil as exclusively their own.

Tupper underscored the fact that these theories espoused fundamentally disparate perspectives on the evolution of social institutions. In Laveleye’s perspective, the tribe constituted the fundamental unit, with the clan subsequently establishing itself as a village community. In contrast, Maine’s theory posited that the family constituted the fundamental unit, with the village community emerging from an expansion of familial structures. Tupper further argued that the Punjab context was more closely aligned with Laveleye’s model than Maine’s, building on this comparison. He put forth the assertion that in the context of Punjab, village communities did not originate from house communities. In contrast, the joint family was typically regarded as the final stage of development, except in instances where it was derived from an existing village or constituted a tribal fragment.

Tupper observed that although large joint families were present, the house community was not a dominant feature of rural Punjab, in contrast to the situation in Southern Slavic regions. He put forth the argument that if house communities had constituted the foundation of property ownership, observable traces would have been left in the village system, which he did not find. Moreover, Tupper contested Maine’s assertion that land had superseded kinship as the fundamental unit of community in Punjab. He observed that the concept of shared ancestry and kinship remained a significant aspect of Punjabi peasant culture, often with a substantial factual basis. At last, Tupper proposed that if he could demonstrate that village communities were generally derived from tribes (barring government intervention or expansion from existing villages), it would be reasonable to conclude that Maine’s theory had only limited applicability to Punjab. This perspective emphasised the continued importance of tribal and kinship ties in Punjab’s social structure, contrasting with Maine’s model of evolution from family-based to land-based communities.

This critical engagement with Maine’s ideas by colonial administrators like Tupper exemplifies the dynamic nature of legal and social thought in British India. Furthermore, it prompts the question of the practical applicability of theoretical models to the diverse realities of colonial governance.

Even if William Rattigan (1842–1904), an eminent Punjabi judge who played a paramount role in compiling the case law on customary law in Punjab, did utilise Maine’s definition of village community in his preface (as a corporate entity with collective ownership), the reported case law actually linked the customary law to the tribal identity and to blood relations. The customs of each tribe, defined by a common ancestor, constituted the normative basis of personal matters (succession and family matters). The tribes were usually gathered in villages, and in that regard village communities were accorded only minimal consideration by judges in British Punjab when adjudicating private matters and in the limited cases where village communities were involved, it was through the lens of common descent. Two matters were identified as defining the parameters of village communities in relation to private matters: escheat and pre-emption.

Focusing on escheat, this referred to as “the process under common law by which freehold land in England and Wales, which has become ownerless, reverts to the Crown as the ultimate owner of all land”. To quote the civilian Om Prakash Aggarawal (fl. 1939):

When there are no heirs, agnatic or cognatic, the question arises whether the village proprietary body should inherit, or the land will escheat to the Crown. There is always an ultimate right of escheat to the Crown. Custom may however show the village proprietary body to come in before the Crown in certain cases. In joint estates where a complete community of interest maintained, the succession of the proprietary body is usually provided for by the wajib-ul-arz in such cases.

As the property exceptionally reverted to the village community, failing any heir, judges of the Punjab Chief Court (and later High Court), defined village community with legal implications. Mainly, “in the event of a deceased proprietor dying without heirs, his estate would descend to the proprietary body only if the village is a homogeneous one and complete community of interest is maintained. When no general community of interest between the several landholders in the village has been preserved the estate of a heirless proprietor escheats to the Crown and does not devolve upon the proprietary body”. And actually, some decisions have explicitly excluded the definition of such village community only based on the existence of joint property. In a major decision, concerning a succession issue the Justice Protul Chatterji (1849–1917) ruled that:

But no such inference [on the existence of a village community] can be drawn where the proprietors are a heterogeneous body and where possession is essentially the measure of right. Here the right of escheat ought to be affirmatively established by cogent evidence. It would not always be safe to assume the existence of such right merely because under the existing revenue system there is a joint liability for revenue or where such land exists, because there is some common waste land for pasture and other purposes (…).

Being an exception, the general onus probandi lied on the community asserting to be the legitimate heir, and they have to demonstrate the common descent which can then create a presumption of the existence of a homogeneous or compact village community. Following the cases quoted by O.P. Aggarwal, it seems safe to say that the judges are quite reluctant to recognize the existence of a compact community with common interest, derived from a common descent, against the rights of the Crown.

At this stage, this chapter presents two principal conclusions, which focus on Maine’s legacies. Firstly, the implementation of Henry Sumner Maine’s concept of the village community in British India, particularly in Punjab during the nineteenth century, was intricate and not straightforward. While British colonial officials utilised the concept in the formulation of legislation pertaining to property and land tenure, critics such as Charles Lewis Tupper and Baden Henry Baden-Powell contended that Maine’s theoretical framework did not adequately align with the nuances of Indian society. Indeed, Baden-Powell critiqued Maine’s methodology, asserting that Maine’s conceptualisation of the village was overly abstract and lacked sufficient granularity. He advanced a more pluralist perspective on the genesis of societies, contrasting with what he perceived as Maine’s universalist approach. Some historians and anthropologists, including Irfan Habib and Louis Dumont, have further questioned the self-sufficiency and sociological reality of village communities as conceived by colonial administrators. More recent scholars have adopted a conciliatory approach, acknowledging Maine’s work as a conceptual framework for epistemological inquiry rather than as a means of justifying universal principles. It is argued that Maine was aware of the divergences between different village communities within Indo-European civilisation and that his concept was not intended to encompass the complexities of Indian society. Secondly, further implications of village communities in legal affairs may be identified in British India. However, it is not possible to determine the extent to which these are connected to Henry Sumner Maine. The concept of the “village community” was indeed employed in legislative debates and legal interpretations, particularly in the establishment of panchayats. This necessitates a positivistic and realistic approach to the village communities as a legal concept, whereby it appears that the colonial administration and judges were more instrumental in “recognising” and conferring legal effect upon village communities, rather than these communities existing as antecedent to the colonial legal system.

Conclusion

The objective of this article was to demonstrate that the connection between Maine’s theories, particularly his principal theory of village communities, and the governance in British India is not as clear as it is often assumed to be. It is beyond dispute that Maine made a significant contribution as an administrator and law member. However, his role was confined to the limits of his duties. It is evident that he did not actively promote his approaches. Rather, he learned: John Lawrence and George Campbell (and Elphinstone prior to his arrival in India) constituted reliable sources that Maine did utilise in his subsequent works. Upon his return, he continued to draw upon examples from India in his subsequent studies. Conversely, his theories enjoyed considerable popularity among British Indian administrators. In the context of evolving fiscal policies, the advent of the concept of village communities reflected the distinctive circumstances of British India. This concept was subsequently disseminated, particularly through the writings of Maine, although it had also gained currency independently. During his tenure in the British Punjab administration, Tupper was particularly attentive to the historical nuances of the concept of village communities. He drew intriguing parallels between this concept and the works of Maine, as did other administrators such as Ibbetson and Baden-Powell. However, Tupper also offered a nuanced interpretation of Maine’s theories, contextualizing them within the specific socio-political milieu of Punjab. At the time, the concept of collective ownership, as exemplified by the village, was being eclipsed by the persistence of tribal identity, a phenomenon that Tupper recognized as still being highly salient in the region. Ultimately, the implications of Maine’s work in India and the consequences of Indian journeys on his oeuvre remain enigmatic and intricate, necessitating further inquiry. But what remains certain is that it is imperative to transcend the notion of Maine as an isolated figure embodying an imperial ideological transformation.

Amanjit Kaur Sharanjit

Amanjit Kaur Sharanjit is a doctor, qualified in History of Law and Institutions. She recently defended her doctoral thesis, prepared within the Center for Legal Theory and Analysis (CTAD) at the Paris Nanterre University, under the supervision of Professor Jean-Louis Halpérin. It covers the following subject: “Le droit coutumier du Punjab britannique (1849-1947). Aspects et Enjeux d’un droit colonial ”.