Explaining Sir Henry

His work is phenomenal...and most relevant today

Minoti Chakravarti-Kaul, who's been studying Henry Maine's works the best part of her academic life, is our guest at Brin Croft, taking my mother, his great grand-daughter, through an extended but gentle tutorial on the work of Sir Henry Maine.
"Anything in Europe that has to do with law tends to go back to Greece. They had very famous philosophers to give guidance on governance, from which the Romans borrowed. Where under some circumstances Greek law determined Roman Law Sir Henry found their provenance in ancient law"
"But why did he go to India in the first place?"asked mum
"What Maine recognised was that what they developed - the Pax Romana - was a copy of the spirit within which law developed, as well as being borrowed....when Sir Henry was asked to go to India it was after the Indian Mutiny or what is called the first independence movement in India and a large part of the country was at a critical point...very critical juncture... a need for a reformulation of the rule of law, keeping in mind the ancient roots and Maine who had just published his Ancient Law, was seen as an expert to show the way self-consciously or otherwise to a form of law that to some extent might mimic an earlier imperial process of Pax Romana - that is to say Pax Britannica or a rule of law that could keep the peace.


"

This process was manifest in Greater Punjab that is a large part of northern India which includes Pakistan of today, and here Pax Britannica built on the foundations of custom and famously passed the Punjab Laws Act of 1872 in recognition of such roots. Maine thus helped to lay the foundations of a very important principle of governance - ruling people by their own laws, particularly in village communities which in northern India held 90% of the land. This was in recognition of the self-governaning capacities of village communities which organised land use patterns and joint tenures which resembled the two or three field system in pre-feudal Europe.
"Where do you begin this story? Where would the revenue of the Indian Government after the take-over from the East India come from? It would not be based on pillage and piracy, nor on trade, but on a positive new move to establish a new law, not an imported law from England. Yet it was recognised that law in England had roots in custom.
"
"So how did this work?" asked Mum
"Where did production come from? Land. Agriculture. Natural resources including forestry. One major insight into this...how can I prove what I'm telling you? The change would be like this. Each of the provinces of the Empire in India would have a Lieutenant-Governor who would be advised by a Council with a legislative section able to make laws. Each province's law-making was legalised by legislation - in the case of Punjab, the largest  province, which then included Pakistan, the largest part of British India, for instance - the Punjab Laws Act of 1872, which was based on recognising custom....Punjab had 31 Districts including Delhi right up to the Afghan border and south east to the river Jumna - the huge greater Punjab.""
"How did anyone determine the law?" I asked, fascinated
"In the case of Punjab it was the custom of the village community. Every village would negotiate a principle which became known as  that of Joint Revenue liability for calculating the tax for the entire village and paid jointly by them collectively."
"How did they do that?" Theodora asked
"It was a huge process"
Here we are getting to the core of how law was made by the people on the ground. I was at last beginning to understand something that had long roused my curiosity about my brilliant ancestor. Where did he find and how did he obtain his data; what were - apart from his own creative mind - his primary sources?


Henry Maine

"There was a statement taken from the people on the principles involved. The people who had the land who were to pay the taxes were known as the malikan-deh or those who was recognised long before the British had stepped into Delhi in 1803. The Afghan ruler in Delhi  Sher Shah Suri had taken over from the heir of the first Mogul ruler Babar and had established a method of realising land revenue which the British took over. The Afghans were very much evident in India as there were large caravans of traders and cattle herders who moved across northern India right up to Calcutta, travelling via the Grand Trunk Road from Kabul made famous by Rudyard Kipling in his novel Kim. Today this is called Sher Shah Suri Marg or National Highway 1.
"There was a statement taken from the people on the principles involved. The people who had the land who were to pay the taxes were known as the malikan-deh (proprietory body of the village). Sir Henry didn't create this.

The system of land revenue settlements with village-communities resulted in records of rules which were put down in the Village Administration Paper which was known as Wajib-ul-Arz ('this which is declared as right') - containing all the customs of the villagers as 'our' rules. These were originally written down by the Afghan ruler - Sher Shah Suri. He laid the foundations of this kind of revenue settlement which was later taken up  by the Mughals of whom the greatest was Akbar.  These rules were not foisted on the villagers. It was their declaration. The script used to record such declarations was Shikasta."
"This is wonderful, Minoti" I said "I learn, I learn!"
All of this has been described in detail in Minoti's Common Lands and Customary Law: Institutional Change in North India over the Past Two Centuries Oxford University Press, 1996, some of it plagiarised by other academics I suspect.
In a break, Mum mentioned that she was born in 1917 in Sir Henry's home, 27 Cornwall Gardens
"You know what happened?" said Minoti making a diversion "A lot of people who served in the government of India were coming and buying houses in the neighbourhood of Cornwall Gardens and so many such people came to live there, a man called Henry Thring, came to refer to this area of Kensington as 'Maine's Village Community.'"
"Simon. You are our Sutradhar... to continue, Theodora (this is my mother's first name; one I've never used, but which she and Minoti enjoy)...I'm giving proof of why these customs were not dated. These villagers were asked to recount their history as far back as they could remember. The settlement officers were recording the history of each village. They recorded these in Shikasta - a written language not a spoken language (shikasta, shekasta شکسته shekasteh). These histories are called Shajra Nasb, Shajra-e-Nasab (shajra - map, nasb - fate - the fate of the village) [see: Wajib-ul-Arz, Riwaj-i-ams]. We use the word 'history' to describe our past. They use the word 'mapping'. These are the stepping stones to understanding the work of Sir Henry. I have seen these records, heard them being read out by the patwari."
Minoti" I said "None of this was mentioned by George Feaver in his biography of Maine"
"I know he told me when we met that he'd missed out about common property resources in India and all that"
"So how did Maine encounter these things?"
"Because the settlement officers recorded their findings in reports that would have gone to the Lieutenant-Governor...proceedings which would certainly have got to Maine via the Viceroy and thence to the Secretary of State who would certainly have discussed them with Sir Henry as the Legal Member of the Viceroy's and later the Secretary of State's Council in London.."
Mum joined in "I remember as a little girl at Henmead Hall, my grandfather's wife, Fanny, seeing all these 'dry old books by some relative of ours' and getting rid of them. I was a little girl but I remember seeing all these books by Sir Henry with 'John Murray', his publisher's name, engraved on them."

Maine, Henry Sumner, Ancient Law: Its Connection With the Early History of Society, and Its Relation to Modern Ideas, London, John Murray, 1861
Maine, Henry Sumner, Village-communities in the East and West; six lectures delivered at Oxford, London, John Murray, 1871
Maine, Henry Sumner, Early History of Institutions, London, John Murray, 1875
Maine, Henry Sumner, Dissertations on Early Law and Custom, New York, John Holt, 1883
Maine, Henry Sumner, Popular Government, London, John Murray, 1886

"I'll give you a link. You know of Paul Vingradoff who occupied Sir Henry's Chair - Chair of Historical and Comparative Jurisprudence at Oxford. You know what Vinogradoff did? Paul went to India in, I think, 1923, and he looked at the village papers regarding tenancy to find out whether Sir Henry Maine had got his information from the grassroots. So he followed Sir Henry's track in India by going to seek out his sources, with regard especially to The Punjab Tenancy Papers."

Looking at Minoti's old map of Kanjhawala

Mum was having difficulty concentrating and Heather brought her in some lunch so we took a break.
I am increasingly aware of the originality of Minoti's research focus. So much scholarship in this area has been done by political scientists. They begin with an interest in the working of power and tend to see the gathering of village details - the recording of a Shajra Nasb, the fate map of the village, from the village accountant, the patwari, by an imperial settlement officer as a means of refining a process of subordination and oppression. Minoti who can 'dance' with vexation, as she delivers public lectures, at political injustice and human silliness, is coming from a different place. She is intrigued with the possibilities of discovering, as did Maine the scholar, the enduring complexity and effectiveness of the self-governing capacity of village communities with customary law, and from there, extending the possibilities of such very old systems to the modern enthusiasm for bottom-up governance and local autonomy, with its implications for creating ecologically sound and sustainable self-governing communities

.


Kanjhawala ...from a review of Minoti's book in English Historical Review

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With Minoti off the Garbole Road

In the afternoon Richard drove Minoti and I to the high moors south of Strathnairn to see Inverness-shire from that narrow road 1000 feet higher than Brin Croft. A mile and a half along the road he turned sharp left along a dirt road towards a line of turbines harvesting the wind that blow over the tops. The blade tips of the turbines trailed wisps of vapour - a thin vortex of spinning air - emanating power, embracing the wind in great gasping turns, shadows sweeping the ground. What a pleasure to learn that both the Swiss and the German governments, responding to an educated public dislike of nuclear power, are phasing it out over the next few decades. I'd like to think that there is a growing population prepared to be more frugal in its use of energy, to live more sustainably, to turn away from consuming, to think about new ways of living together on the earth, to question brilliantly and shrewdly the grim mantra of growth.

A reaction to posting this clip:

18th and 19th century follies were at least decorative....late 20th and early 21st century wind farms are just as much follies....only totally non decorative. The power they generate is a tiny fraction of our communal needs...

Me: Wind and sun alone, even without wave, tide and geothermal power, exist in renewable abundance. Our present problem is one of harvesting - a challenge we're only beginning to understand. Meeting our communal needs via fossil fuel is unsustainable. Public hostility and the precautionary principle have raised doubts among leading democracies - Switzerland and Germany for a start - about further nuclear investment.

** ***
Vexing news from the Ano Korakiana website - despite the cash being allocated and supposedly guaranteed for the restoration of the old Philharmonic building just south of Venetia at the top of the village, work has been stopped for the last two months, possibly longer as we noticed when strolling up that way in February through April this year...

Ο "Καλλικράτης" έχει τελικά επιπτώσεις ακόμη και στο εκτελούμενο έργο του κτιρίου της Φιλαρμονικής.Οι εργασίες έχουν εδώ και 2 μήνες σταματήσει, αφού οι υπηρεσίες αδυνατούν να πληρώσουν το εργολάβο, παρότι τα χρήματα είναι κατατεθιμένα στο λογαριασμό του έργου.

**** ****

Last September I got an email asking to use some of Jack's films for a documentary about how TV had treated the countryside:

Dear Mr Baddeley. I found your contacts via the web, and I hope you do not mind me contacting you? We are making a documentary for BBC4 which will be a celebratory look at the relationship between the countryside and television over the years, and across the genres - from drama and comedy to factual programmes in seminal British television. We have interview contributions from Kate Humble and Bill Oddie, John Craven and Bill Bryson to name a few. We would dearly love to include extracts from 'Out of Town' by your late step-father Jack Hargreaves, however, we are having trouble tracking down the owners of the material. We are particularly interested in the material he produced while at Southern TV, in black and white. I wondered if you had any knowledge of who might hold this material, or can point me in the correct direction? I have tried contacting one of the dvd distributors for the later series, however, they seemed unsure, and directed me to an Australian company. If you could offer me any advice, I would be most grateful, as we feel it would be an important addition to our programme. Please don't hesitate to contact me if you require further information. Many thanks in advance. very best wishes Dee Edmonds, Production Manager, Crocodile Media Ltd, Glasgow

I pointed Dee towards the South West Film and Television Archive and got thanks and a payment of £200 for using the material they chose, in discussion with Jennie at Plymouth, with rights over its specific use in Crocodile's programme for the next 5 years, then forgot about it. I got an email from Tony Herbert, member of the informal JH Committee, a few days ago:

Dear Simon. My apologies if you already know of this but before doing anything else I must mail you as I have noticed in Radio Times that a new series is starting on BBC4 on Sunday 29th May at 9pm entitled 'Welly Telly - The Countryside On Television', exploring how British TV's coverage of rural issues has changed over the years. According to the write up tributes are paid to Jack. The programme is repeated on following Thursday at 8pm. Best wishes Tony

I'm not keen on television about television. It reminds me of 'resurrection bolly' - a barrack room stew of the previous week's leftovers. Even so my heart took a little dip at the whimsical 'Welly Telly', even though briefed on the need for catchy titles as bait for commissioning editors - to quote from a diary entry:

You know I was listening to a podcast in which Aris Roussinos, who'd rather run an olive oil plantation on ancestral land in Corfu, makes his current crust as a TV development producer - a job my stepfather did as well as actually broadcasting. Aris was speaking about the 'massive crisis' in TV broadcasting (10.14 in the Word podcast 20 May '10 with a reference to Aris' article 'Why do they commission this rubbish' here, and the removed YouTube 'Monkey Tennis' episode here) and the struggle to invent programmes that would keep up viewing. "It starts with a catchy title", he'd said. You need that to catch a commissioning editor's short attention scanning hundreds of ideas ... I don't think Amy or Guy were listening to me. "Aris spoke about an idea for a film about gay Taliban - (from 16.50 in the podcast) "not that new so... "

This was an hour long programme on BBC4 with impressive credentials. Alex James narrated. John Moulson directed and produced. Academic film and television critic Matthew Sweet, Jack Kibble-White, a experienced follower of trends on television, advised. Dick Fiddy of the respected British Film Institute condescended to his childhood enthusiasm for Jack's "very amiable slow delivery" looking at "old time crafts like whittling" or going "for a ramble with his dog". Interviewed were mainstays of countryside programmes, well known commentators on contemporary culture, a few bright comedians with snatches from famous comedies like The Good Life and Last of the Summer Wine. We watched for 15 minutes on Sunday - Mum, me, Minoti and Richard - then turned it off. Wondering if I was making hasty judgement - easy to do - I picked it up later on-line hoping I'd been unfair. The programme remained unsatisfactory. This is little to do with the talents who appeared and everything to do with the capacity of finance-strapped television to take a complicated theme - the way television over fifty years has presented the countryside to a thoroughly metropolitan population. I'd find it impossible in these circumstances to give so intriguing subject a smidgen of justice. Welly telly didn't just fail to comprehend, it didn't even know there was something to be comprehended. That's the scale of the disjunction that Jack, with one foot in the city, the other in the country, was trying - entertainingly - to explain. I wanted to be pleased by Welly Telly but the programme was taking us all down 'So What Street'; encyclopaedic in its coverage of countryside broadcasting or commentaries on it, though - Dee did not use the really early black and white film of Jack's Out of Town* even though we know some of this is in the archive - sprinkled with opinion and sentiment but weak on narrative, unwilling to take a position - politics appeared briefly and superficially with crowd pictures in Whitehall - and seemingly unable to explain; missing, or sidestepping, seismic changes in agriculture, the dislocation of rural populations, the disappearance of a way of life, the deep disconnection of most of us from the land, the transformation of the country mentally, if not wholly in activity, into the city of Britain - a metropolitan population surrounded by parkland.

I sent my opinion of Welly Telly to members of the JH Committee and got this reply from Ian:

Hi Simon. Not much of a case for the defence I'm afraid, you have summed it up pretty well. I have seen some very good documentaries on BBC4 but sadly this wasn't one of them, the lightweight nature of it leads me to suspect that it was made with an eye to showing it on other channels.  A particular downside was the involvement of Dick Fiddy of the BFI, a person I have some respect for but I don't think did himself any favours.  I contacted the BFI some months ago about their Out of Town holdings but not had the courtesy of a reply. A wasted opportunity really, there is a good programme to be made but that wasn't it. A small plus, as a lover of archive television in general, was the clip of Ted Moult's Farmers' Quiz, which I hadn't seen before and was quite extraordinary. I hope you and Tony have a useful trip to Mrs Bréhaut. I plan next Thursday to visit the British Library newspaper depository at Collingdale to work on the definitive episode guide. They have a complete set of Southern edition TV Times so I expect to make some good progress. Kind regards, Ian

Ian's reference to the farmers' quiz Top of the Farm '69 - rang a bell. I realised something that had been troubling me about Welly Telly; something I'd missed about my stepfather's approach to television. Ian referred to a bizarre clip in B & W - 'bizarre' because Vic Phillips pauses over five seconds before answering - an easy laugh at a frequent longeur in the early days of the medium. Then there was the matter of Jack's approach to sound. David Knowles of Lacewing reminded me only the other day of Jack's seemingly casual attitude to his soundtrack. Once he had superlative images - as he did from Stan Bréhaut in 21 years of Out of Town and later Steve Wagstaff for Old Country, JH would talk over a location film after approving a few, mainly symbolic, background dubs from the sound library - a splash, a crowd sound, a whistle and a bang - letting viewers fill in wth their imagination. I can see why Dee Edmonds for Crocodile Media would have though she'd be trespassing if she tried to bring Jack's archive B & W film to life with some similar composite of soundless film, library sound dubs and a commentary - something impossible without Jack.
Thinking about Welly Telly a few days later I realised it's greatest weakness was only marginally to do with different takes on the countryside. What was missing was an intelligent discussion of the art and grammar of television. Jack was praised at the end of Welly Telly as a pioneer of countryside broadcasting, but his greatest achievement was to find a perfect vehicle for his subject and a style of broadcasting, almost invariably live - not on location but in the studio shed and the live voice-over on a sound dubbed silent film - which allowed an avuncular and - in Dick Fiddy's infant memory - 'amiable' front for a cunning sometimes scathing critique of contemporary social mores.

Did they think about the skylarks when they built Mayfair

on the grazings that ran down to the Shepherd’s Market?

Did they worry about the snipe when they drained the marshes

behind St.James’s Palace to build Belgravia?

Where did the kite go when they dug the London sewers?

Do the piles they drove down through the beaver’s dam hold

firm the supermarket in Newbury High Street?

Who cooked the big trout that lay under the village bridge

at Wandsworth?  Who feasted on the last salmon that was

netted at Tower Hamlets?

Now they come to put central heating in the ploughman’s hovel.

They claim the sun that used to bake the hay.  And breathe

the breeze in which the pointing dog caught a hundred scents.

They walk out in trainers and T-shirts that say “Save the

Rain Forest”.

“Stand back!” they say.  “We have a right to walk where we please!”

But we look where they trod before and shudder for what

follows in their footsteps.

I said I must write a warning.  But I was angry and - as the

Japanese say - to be angry is only to make yourself ridiculous.

So we will live out our days in the cracks between the

concrete.  And then they will pour cement on top of us.

J.H.

1993

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 In Greece's big cities - Thessaloniki and Athens - citizen-journalist Teacherdude - Craig Wherlock - reports on continuing but peaceful street demonstrations against the government's austerity measures.
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Extract from page 2 of the translation of Maung Tet Pyo's Customary Law of the Chin Tribe translated by Maung Shwe Eik, Assistant Government Translator, British Burma with a preface by John Jardine, Judicial Commissioner of British Burma, Rangoon 1884. This book was one of the few books left from what must have been Sir Henry Maine's library, having his book plate inside the front cover. It seeemd to me that this extract captured rather well the point that Minoti was making to me about Maine's emphasis on the unwritten laws of village communities.

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An ugly story appears in the Inverness Courier of 27 May '11.

A young trainee gamekeeper called James Rolfe was fined £1500 for being found in possession of a dead Red Kite during a police raid on the Moy estate last June, where the Highland Game Fair started by mum's husband Angus over 25 years ago, is held every August. Rolfe is a pawn in an emotive conflict reflecting changing times, the incursion into the highland moors of a political battle whose chief protagonists and antagonists are city dwellers. New monitoring technology has played an instrumental part in securing Rolfe's unprecedented conviction; CSI Highlands. Moy is the ancestral home of the Mackintosh Clan, a beautiful place we know well. Victor Beamish and Celia Mackintosh are among 250 Scottish Estate owners who last year - weeks before a police raid on the Moy Estate - signed a letter to the Scottish Government Minister for Environment, Roseanna Cunningham:

Roseanna Cunningham

It is for us a straightforward decision to underline our view of illegal poisoning. Frankly, we condemn it out of hand and it has to stop. The message must go out to the people who indulge in such criminal behaviour that what they do is totally unacceptable to the overwhelming majority who have the true interests of the countryside at heart. We will continue to do everything we can to ensure that message is conveyed across the land management sector. We do not presume guilt nor refer to any particular incident, but the apparent deliberate poisoning of protected species in recent years has left us utterly dismayed. We also support the full weight of the law being brought to bear on those who are involved in illegal poisoning and endorse the efforts of the Partnership for Action against Wildlife Crime, in which our representative organisations are active and enthusiastic participants.

The fining of James Rolfe is a tiny breakthrough - the slapping of a foot soldier. Grouse shooting, or wing-shooting covering a wider range of game birds, is a business in Scotland - fuelled by a rich urban population's willingness to pay high fees for an opportunity to shoot grouse, pheasant, deer and duck. There are implicit pressures on the staff responsible for maintaining hunting spaces across Scotland to ensure their international customers return home feeling they've had value for money. Other Highland denizens, especially raptors, which reduce the customer's bag by preying on eggs, chicks or adult game birds are targeted by some veteran keepers, whose trainees are liable to learn from their older mentors. Poisoned bait put out to kill hooded crows, kills raptors too, but fudges the issue making convictions incredibly complicated. The Scottish Parliament is proposing amendments to the Wildlife and Natural Environment Bill, trying to get at people higher up than gamekeepers, by introducing a law of vicarious liability that would target their employers.
The level of monitoring is increasing with growing political committment to stopping the illegal killing of protected species. The economics of grouse shooting is opposed to the economics of wildlife tourism and the growing experience and political strength of those concerned with protection of threatened species - especially birds of prey. Rolfe's red kite was fitted with a satellite-tag  monitored by RSPB Scotland staff and adopted - as are many - by pupils at a local primary school. Its disappearance from the monitor triggered an alarm and search. The  discovery of crudely hidden dismembered remains eventually led to the raid last June on the Moy Estate by police in a fleet of vehicles supported by  representatives from the RSPB, Scottish SPCA, Scottish Natural Heritage, the National Wildlife Crime Unit, and the Scottish Government Rural Payments and Inspectorate.
When I'm at the Moy Fair in early August - an event I've enjoyed for over twenty years - I shall keep my ear to the ground