ers of reasoning, and (to judge from the information he has accumulated from a variety of sources) with great assiduity of research, the abilities and the usefulness of this writer are neutralized by the supercilious contempt he invariably manifests towards every thing for which he cannot find a criterion in his own mind, or which he cannot reconcile to some customary standard of thought. He has subjected the Hindu system to a comparison with an abstract standard of his own erection, and as might have been expected, has condemned it, as being found wanting. It is possible that his ideas of perfection are not the most correct; but, admitting them to be so, such comparison is not fair. No work of man can be or is expected to be absolutely, though it may be relatively perfect, and this process therefore is more tyrannical than the bed of Procrustes. But let the legal system of the Hindu be compared, as we have compared some parts of it, and, as in justice it ought to be, not with the theories or it may be the reveries of ultra-perfectionists, but with the practical codes of other nations; and it will not be found wanting. It is to this comparison I should challenge Mr. Mill; and sound reason would adjudge him recreant if he refused to answer. There are, no doubt, many points in the Hindu law, which to the preconceptions of a European appear exceptionable; many there are also (for its authors were men) that are really so, and for which better provisions have been made by other legislators ancient and modern but where is the code to which similar imperfections may not be imputed? To our own we are attached from habit; and prepossession, therefore, makes us overlook many that perhaps exist and we endure many that are apparent for the sake of the whole. Mr. Mill's microscopic eye, however, overlooks none of them; for he seems to entertain at least as bad an opinion of the English as of the Hindu law. : It is not my intention to enter into a very particular examination of this work, though I shall probably have occasion to refer to it more than once in the course of these readings; at present I shall merely deduce from it a few instances of that short-sightedness of the mind I have here noticed, and of the wide distance nature has interposed between fact and speculation. FIRST INSTANCE. "Such are the principal branches of the duty of the sovereign; and in these various institutions may be contemplated an image of the Hindu government. It is worthy of a short analysis. As the powers of government consist of three great branches, the legislative, the judicative, and the administrative, it is re quisite to inquire in what hands these several powers are deposited, and by what circumstances their exercise is controlled and modified. As the Hindu believes that a complete and perfect system of instruction, which admits of no addition or change, was conveyed to him, from the beginning, by the divine being, for the regulation of his public as well as his private affairs, he acknowledges no laws but those which are contained in the sacred books. From this it is evident that the only scope which remains for legislation is confined within the limits of the interpretations which may be given to the holy text. The Brahmans, however, enjoy the undisputed prerogative of interpreting the divine oracles; for though it is allowed to the two classes next in degree to give advice to the king in the administration of justice, they must in no case presume to depart from the sense which it has pleased the Bráhmans to impose upon the sacred text. The power of legislation, therefore, exclusively belongs to the priesthood. The exclusive right also of interpreting the laws necessarily confers upon them, in the same unlimited manner, the judicial powers of government. The king, though ostensibly supreme judge, is commanded always to employ Brahmans, as counsellors and assistants in the administration of justice, and whatever construction they put upon the law, to that his sentence must conform. A decision of the king, contrary to the opinion of the Brahmans, would be absolutely void; the members of his own family would refuse it obedience. Whenever the king in person discharges not the office of judge, it is a Bráhman, if possible, who must occupy his place. The king, there, is so far from possessing the judicative power, that he is rather the executive officer by whom the decision of the Brahmans are carried into effect."+ The whole of this passage is founded on misconception. We had occasion to observe, at the close of the last lecture, the misapprehension which prevailed with respect to the exemption of Brahmans from capital punishment. This is one only of the innumerable misconceptions of their situation in Hindu society, which has obtained among foreign nations from the earliest times. Not the least gross of these, is that which ascribes to the whole body a sacerdotal character; and which Sir Wm. Jones has unaccountably countenanced, by translating in the Institutes of Menu the words used to designate an individual of the first caste, Brahma Rather of the courts as established by lawso he ought to be; and so, also, is our king actually, in his capacity of chief magistrate. History of British India, vol. 1, page 130, Analysis of the Hindu Constitution; and see the book to the end of the chapter. ་་ nak” and Viprak† “priest,” and the feminine of them Brahmana and Vipra "priestess." The latter mistake is particularly remarkable, as the wives of Brábmans, though they assist in the private devotions of their family, not only never of ficiate as priestesses, but have no part in the public ceremonies of religion, except as spectators. The truth is, the first caste of Hindus, though from their birth eligible to the priesthood, are not priests ipso facto; the conduct of religious ceremonies, though the first, is only one of their many duties: they are, also, professionally the savans, or men of letters, to whom the interests of science and literature is committed in all its branches; the hereditary teachers of the other classes both in sacred and profane learning; and especially the lawyers. To these different occupations and their subordinate divisions they applied themselves as to so many distinct professions, the respective members of which never interfered with each other, any more than our divines do with our physicians, or either of these with our jurists. And hence has proceeded the several distinctions actually obtaining among the Bráhmans in Southern India: these are, first, Vaidica Brahmana, subdivided into Sástris men of science, Acharya teachers, and Pujáris priests; the two former of these may perform the higher offices of religion in the solemn sacrifices &c. or act as Purohita, domestic chaplains, &c., but the last only conduct the public worship in the temples, and are considered as an inferior class:-secondly, Lokika or Niyogi Brahmana, secular Bráhmans, who gain their livelihood by the several worldly occupations permitted to the caste. These distinctions are now become hereditary; but as this is founded solely on custom and not on law, the restriction is more nominal than real, as any Niyógi family may become Vaidica, if the head of it qualifies himself by the study of the sciences; and vice versa any Vaidica may betake himself to worldly pursuits, sinking thereby, perhaps, in the estimation of his fellows, but not forfeiting his privileges and distinctions as a Bráhman. The various courts provided for the administration of justice by the laws of India, the respective jurisdiction of these courts, and the precision with which the powers of the king or presiding magistrate and the assessors or judges are distinguished, have been already stated; with this in your remembrance, let me request your attention to another passage in Mr. Mill's work. * Brahma, greatness, eminence; also the Pedam, from Brin, great. + The intensitive ti combined with the root pri, protect, fill. SECOND INSTANCE. "After the care of protecting the nation from foreign aggression or from internal tumult, the distribution of justice was the next duty of the king. In the first stage of society, the leader in war is also the judge in peace; and the regal and judicial functions are united in the same person. Various circumstances tend to produce this arrangement. In the first place there are hardly any laws; and he alone is entitled to judge who is entitled to legislate, since he must make a law for every occasion. In the next place, a rude people, unused to obedience, would hardly respect inferior authority. In the third place, the business of judicature is so badly performed as to interrupt but little the business or pleasures of the king; and a decision is rather an exercise of arbitrary will and power, than the result of an accurate investigation. In the fourth place, the people are so much accustomed to terminate their own disputes, by their own cunning or force, that the number of applications for judicature is comparatively small. As society advances, a set of circumstances opposite to these are gradually introduced; laws are made which the judge has nothing to do but apply; the people learn the advantage of submitting to inferior authority; a more accurate administration of justice is demanded, and cannot be performed without a great application both of attention and of time: the people learn that it is for the good of the community, that they should not be allowed to terminate, either by force or fraud, their own disputes; the administration of justice becomes then too laborious to be either agreeable to the king or consistent with the other services which he is expected to render; and the exercise of judicature becomes a separate employment, the exclusive function of a particular order of men. "To this pitch of civilization the Hindus had not attained. The administration of justice by the king in person, stands in the sacred books as a leading principle of their jurisprudence, and the revolution of ages has introduced no change in this primeval practice."* That the assertion contained in the concluding paragraph is directly opposed by the fact, is fully proved by the observation made in the last lecture on the text of Brihaspati, as quoted in the Madhaviyam, respecting the four superior courts, and the authorities there eited relative to the fifteen inferior courts of the Hindus. The passage in the preceding lecture, above alluded to, is as follows: "Brihaspati says that the court of Jus History of British India, vol. 1, page 127, Judicial Duty of the King, and see the following paragraphs, tice above mentioned (the king's court) is of four descriptions. "The seat of justice is declared to be four fold; namely, Pratishta, Apratishtà, Mudrità, and Sástrità; and the persons constituting it, likewise of four descriptions." The terms here used would appear to he only the denominations of the king's court, the Aula Regis, in its several states. This court, as formerly with us, was held wherever the king resided. It was called Pratishtità when stationary in the capital, as our Court of Common Pleas was made by Magna Charta, and as the Court of King's Bench and the other courts into which the old Aula Regis resolved itself now are; it was called Apratishtità when made ambulatory, as our courts originally were liable to be, by the prince being on a progress through his dominions, or, for any other reason, absent from his capital. It was called Mudrità, when the Prádwiváca, having the custody of the great seal, presided in it instead of the king. It was called Sastrità when the king was personally present, and in the terms of our law (which are now a fiction, and bad, probably, become so in this country before the dissolution of the Indian empire) pleas were held coram ipso rege. This statement seems to be confirmed by the author of the Mádhaviyam, who says: "Brigu notices other and inferior courts, different from the principal one (that is the one, in the singular, described under the four denominations above stated) held in the vicinity of the royal palace." He (Brigu) says, that the places to which disputants engaged in a suit resort to obtain decisions of their causes, may be said to be of ten or fifteen kinds; namely, 1. Aranya Sabhd, (from aranya, forest, wilderness, and sabha, court,) the forest court. This court, however, does not appear to have been established, like ours of the same denomination, for the preservation of the king's vert and ve nison, nor for the lawing of mastiffs, but for the protection of men. In former times in India, when it was customary for persons to retire, not from civil life only, but from society, those who entered into the third order, Vánaprastha “anchorites," resorted in numbers (as some do even at present) to the forests and wilds of India, which their ancient writers described as being covered with hermitages (see the translation of 'Sacóntala by Sir William Jones). These were under the protection of the prince within whose dominions the lands they inhabited were situated, and this court was erected for their benefit. 2. Sárthica Sabhá (from sartham, an assembly). This court is described to be "for decisions arising among persons collected for travelling either on pilgrimage, for commercial affairs, or the like." -Sartham may also be rendered market, fair; and this court may, therefore, be assimulated with our court of pie-poudre, in its civil, or the court of the clerk of the market, if it had any criminal jurisdiction. 3. Sainaca (a derivative from séni, an army). Court martial, or rather a court for deciding differences among military men, like our ancient court of chivalry. 4. Grámàpyub haya vasi-Sabhà (from gráma a township, ubhaya both, and vási an inhabitant.) A court for the de-, cision of differences arising among villages people, happening to be at times in the forest, with the army or elsewhere. This is one definition given of this court by the author of the Madhaviyam; but according to another and more correct description of it, it was, as its name implies and as it is explained in Smriti-chandricà, a court for the decision of suits respecting boundaries, trespasses, and other matters in dispute between the inhabitants of different townships distinct from that of the parties in dispute. It nearly resembled our hundred and county courts. 5. Ubhayanumata Sabha (from ubhaya both, and anumuta consent). A court of arbitrators, chosen by the consent of both parties, from, 1st, Culicah, heads of caste; 2dly, Sarthi muchya, leaders of pilgrimages, caravans, &c.; 3dly, Pura-nivasi, residents in cities; 4thly, Grámanivási, residents in towns. That a majority may concur in the decision, the numbers of arbitrators should be the same as the assessors in the king's court, that is three, five, or seven. From the second of these numbers in Sanscrit, pancha, "five," courts of arbitration are now called panchayet, under which name they have by a recent regulation been established in every village in the dominions under the presidency. 6. Gráma Sabha, town or village court. This is our court baron, for a village township nearly resembles our manor, all the inhabitants having according to their tenures an interest in the soil; the Mírásidar being the freeholder, the Ulcudi-payacari the copyholder, the Sugavási the tenant on lease, and Paracudipayacári the annual tenant. In the northern and western countries the Maudel and Patel was the lord, and no doubt presided in this court; in the Tamil countries, for the most part, the Másidars are botli the freeholders and the joint lords, and probably conducted the business of this court, when it existed, as they did the praverticam or general affairs of the township, without any superior agency. 7. Paura Sabha (a derivative from pura, a city) city court. This no doubt exercised nearly the same functions as the courts which sit in Guildhall, and were, like those, composed of the inhabitants of the cities within which they were held. 8. Gana Sabha (from gana, a herd, crowd). Family court, formed by the assembly of all the members of the same family. 9. Sréni Sabha (from sréni, a line). A court composed of members of the eighteen inferior tribes, (Sudras). 10. Chútur-vidya Sabha (from chatur, four, and vidya science). A court held by persons learned in the four great sciences of logic, theology, law, and ethics. Qu, may not this have resembled our university courts? 11. Várgi Sabha (from vergi, a promiscuous assembly). A court formed of all descriptions of people. In a verse quoted from Càtyayana in most of the authorities, it is described to consist of Páshánda, beretics; Puga, traders and artizans; Viráta, military men; Sréni, the Sudra tribes; Samúhastha, all descriptions of persons gathered together. The assemblies of the right and left factions, common at Madras, are held to be of this description, and are not, therefore, illegal in themselves if peaceably conducted. 12. Cula Sabha (from cula, tribe, family). It is defined to be "a court formed of persons of the same Gótram as the parties," that is, descended from the same common ancestor. 13. Culica Sabha (from culica, heads of tribes or families). A court composed of ancient persons of the same Gótram as the plaintiff and defendant. The Gana, Cula, and Culica courts took cognizance, especially, of what is termed technically Samvid-vyetieramam, all transgressions against the discipline and peculiar customs of the tribe or family; they had, also, jurisdiction, probably to a limited extent, in civil causes between the members of the tribe or family: but they had no jurisdiction in criminal cases, and did not, therefore, resemble the domestic courts of the Romans, in which the Pater-familias presided, and punished the faults of his wife and children even with death. 14. Niyucta Sabha (from niyucta, appointed). The court of the Pradwivaca with his three assessors. The enumeration of this court proves the identity of the four courts first mentioned, and the distinctions I shall make with respect to the functions of the Prádwiváca. He presided as chancellor, with the authority of the great seal, in the king's court, which was then called Mudrità; and as lord His wife, and by the Lex Julia, his daughter for adultery ; his son, for anything or nothing. chief justice he presided in a court entirely distinct, and not necessarily held in the neighbourhood of the palace. 15. Nripati Sabha (from nrïpati prince). A court held by the king only with Brahmans and the rest. This appears to describe theSástrità court, but being here reckoned among those of inferior jurisdiction, it may be explained to mean a court held by the prince alone in cases of emergency, when in a distant part of his dominions, and during the absence of the Prádwiváca. The Smriti Chandrica states the three first of these courts to be ambulatory, the next ten stationary, and the two last it makes the same (erroneously, I think, but different practice in this respect might exist at different times) with the Mudrità and Sástrità courts. I shall notice only one more passage in this work, it is that relative to legal definitions. These, as shewn in the first lecture, are to be sought in the Siddhantam authorities, where it is no exaggeration to say, they are as perfect as human reason can make them. Mr. Mill, ignorant of this, and careless as ignorant, ventures on this subject the following assertions. THIRD INSTANCE. "In respect to definitions the Hindu law is in a state which requires a few words of elucidation. Prior to the art of writing, laws can have little accuracy of definition; because when words are not written, they are seldom exactly remembered, and a definition whose words are constantly varying, is not for the purposes of law a definition at all. Notwithstanding the necessity of writing to produce fixed and accurate definitions in law, the nations of modern Europe have allowed a great proportion of their laws to continue in the unwritten; that is, the traditionary state, the state in which they lay before the art of writing was known. Of these nations, none have kept in that barbarous condition so great a proportion of their law as the English. From the opinion of the Hindus that the Divine Being dictated all their laws, they acknowledge nothing as law but what is found in some one or other of their sacred books. In one sense, therefore, all their laws are written. But the passages which can be collected from these books leave many parts of the field of law untouched; in these parts the defect must be supplied either by custom, or the momentary will of the judge. Again, as the passages which are collected from these books, even where they touch upon parts of the field of law, do so in expressions to the highest degree vague and indeterminate, they commonly admit of any one of several meanings, and very frequently are contradicted and opposed by one another. When the words in which laws are couched are to a certain degree imperfect, it makes but little difference whether they are written or not. Adhering to the same words is without advantage, when these words secure no sameness in the things which they are made to signify. Further, in modern Europe, the uncertainty adhering to all unwritten laws, that is, laws the words of which have no certainty, is to some degree, though still a very imperfect one, circumscribed and limited by the writing down of decisions. When on any particular part of the field, a number of judges have all, with public approbation, decided in one way, and when these decisions are recorded and made known, the judge who comes after them has strong motives, both of fear and of hope, not to depart from their example. The degree of certainty, arising from the regard for uniformity, which may thus be produced, is, from its very nature, infinitely inferior to that which is the necessary result of good definitions rendered unalterable by writing; but such as it is, the Hindus are entirely deprived of it. Among them the strength of the human mind has never been sufficient to recommend effectually the preservation, by writing, of the memory of judicial de cisions. It has never been sufficient to create such a public regard for uniformity, as to constitute a material motive to a judge; and as kings, and their great deputies, exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What judicature would pronounce was, therefore, almost always uncertain, almost always arbitrary." In the course of the first lecture I stated, in remarking on the Institutes of Menu, that "in the actual administration of Hindu jurisprudence, especially in latter times, it had never ranked higher than a mere text book, which the Indian jurists consider of little authority unless accompanied by some commentary, or incorporated into some digest," and this position is illustrated and confirmed by the authority of the Indian jurists themselves, in the introduction to the last lecture. The passage in the last lecture just referred to is as follows: "The other point I wish to notice is the statement I made in the course of the last reading, that the ancient text books were at present of no authority, unless accompanied by some commentary. I shall now go further and say, that the sole authority of Hiudu law, as it has in latter times, and does now operate, are contained in the Siddhántam, the conclusions or decisions of the authors of the *Mill's Hist. of Brit. India, vol. 1, p. 170. "Exactness," and Definitions of the Hindu Law. several digests and commentaries, according to the schools to which they respectively belong. Brihaspati says: Cóvalam Sástram asrétya Receiving only the mere Sastram,* Legal investigation without reference to due authority, Is productive of the destruction of justice. The word here rendered due authority, yucti, signifies literally connection, but the word Nyúya must be supplied, and the passage read Nyáya yucti hina “without the connection or consistency given to it (the mere Sástram) by reason ;" and this consistency every school agrees is to be found in the Siddhántam of the writers of which each admits the authority. This text is simply quoted without further explanation by Tercapanchánana and thus translated in the Digest (see page 128, vol. 21, Brihaspati.") "A decision must not be made solely by having recourse to the letter of written codes; since, if no decision were made according to the reason of the law (or according to immemorial usage, for the word yucti admits both senses) there might be a failure of justice." The jurists of India (of the south at least) interpret what is here called the "reason of the law," in the manner I have already stated. It hence follows, (and it is not necessary to establish the fact, to quote further authorities though many exist), that in the actual administration of justice the decisions of the established legal authorities, and these only, should be admitted as the actual law. The text books, like the institutes of the Roman law, and even the reasonings of the jurists on which these conclusions are founded, appertain properly to the schools in which the law is taught, where they are of the greatest utility, but can have no weight in courts in which the art is practised. The definitions of the Hindu law are not to be sought in the text books, from which chiefly Mr. Mill would seem to have derived his notions of them; his references in this part of his work being confined to Menu and Halhed's "Gentoo Code," which is scarcely any thing more than a collection of texts. These, it may be conceded to him, "leave many parts of the field of law untouched;" which, however, are neither supplied by custom nor the momentary will of the judge," but by the conclusions or decisions of a succession of writers, ancient and modern, belonging to various schools, *The Mula smriti, or original text books. |