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So many, however, and important were the powers BOOK II.
CHAP. 3. which this class reserved to themselves, that the kingly dignity would appear to have been reduced to that of a dependent and secondary office. But with this inference the fact does not correspond. The monuments of the Hindus, imperfect as they are, convince us, that their monarchs enjoyed no small share both of authority, and of that kind of splendour, which corresponded with their own state of society. They had two engines intrusted to them, the power of which their history serves remarkably to display: they were masters of the army; and they were masters of the public revenue. These two circumstances, it appears, were sufficient to counterbalance the legislative, and the judicative, and even a great part of the executive power, reinforced by all the authority of an overbearing superstition, lodged in the hands of the Brahmens. These threw around the sovereign an external lustre, with which the eyes of uncultivated men are easily dazzled. In dangerous and disorderly times, when every thing which the nation values depends upon the sword, the military commander exercises unlimited authority by universal consent; and so frequently is this the situation of a rude and uncivilized people, surrounded on all sides by rapacious and turbulent neighbours, that it becomes, in a great measure, the habitual order of things. The Hindu king, by commanding both the force, and the revenue of the state, had in his hands the distribution of gifts and favours; the potent instrument, in short, of patronage; and the jealousy and rivalship of the different sets of competitors, would, of their own accord, give him a
BOOK II. great influence over the Brahmens themselves. The CHAP. 4. 6
distribution of gifts and favours is an engine of so much power, that the man who enjoys it to a certain extent is absolute, with whatever checks he may appear to be surrounded.
Next to the form of government, in determining the political condition of the people, is the body of law, or the mode in which the rights of individuals are expressed and secured. For elucidating this important point, in the history of the Hindus, materials are abundant. The detail, however, or even the analysis, of the Hindu code, would far exceed the bounds, to which, in a work like the present, this topic must be confined. An accurate conception of the character and spirit of the Hindu laws, and of their place in the scale of excellence or defect, is all I can attempt to convey.
See what is observed by three great authors, Hume, Blackstone, and Paley, on the influence of the crown in England. See also what is observed by Lord Bolingbroke, on the same subject, in his Dissertation on Parties.-M.
What is here said, however, of the absolute power of Hindu princes is wholly inconsistent with much that has been previously advanced of the unbounded authority of the Brahmans; neither is quite true. Hindu princes and Brahmans are held in check by many considerations, and, in the original system, their several powers were evidently designed to control and balance each other.-W.
Amid the imperfections adhering to the state of BOOK
CHAP. 4. law among a rude and ignorant people, one is, that they preserve not their maxims of justice, and their rules of judicial procedure, distinct from other subjects. In the law books of the Hindus, the details of jurisprudence and judicature occupy comparatively a very moderate space. The doctrines and ceremonies of religion; the rules and practice of education; the institutions, duties, and customs of domestic life; the maxims of private morality, and even of domestic economy; the rules of government, of war, and of negotiation; all form essential parts of the Hindu codes of law, and are treated in the same style, and laid down with the same authority, as the
" It is not quite correct to say that the Hindus do not preserve the ordinances of daily life, distinct from rules of judicial procedure. The original precepts as presently noticed, are classed under various titles, but these again are arranged under three great divisions; A'chára, ceremonial and moral laws; Vyavahára, jurisprudence; and Práyáschitta, religious law, expiation or punishment for crime.-W.
? Examine that important specimen of an original Hindu book of law, the Institutes of Menu. See too the confession of Mr. Colebrooke in the preface to his translation of the Digest of Hindu Law on Contracts and Successions; a work compiled a few years ago, under authority of the English government, by some of the most learned and respectable of the Brahmens.-M. There is no such confession. An extract from a letter of Sir William Jones is cited by Mr. Colebrooke, in which probably the expression alluded to occurs. “ The law of contracts,” it is there stated, “ bears an inconsiderable proportion to the rest of the work.” Nothing is said of “jurisprudence and judicature," and Sir William Jones is speaking not of Hindu law books in general, but of a recent compilation, the Code, translated by Mr. Halhed. Mr. Colebrooke gives a very different view of the arrangement of Hindu law. “The body of Hindu law comprises a system of duties, religious and civil. Separating the topic of religious duties and omitting ethical subjects, Hindu lawyers have considered civil duties under the distinct heads of private contests and forensic practice; the first comprehends law, private and criminal, the last includes the forms of judicial procedure, rules of pleading, law of evidence, written and oral, adverse titles, oaths and ordeal.” Pref. to the Digest, p. xi.--W
BOOK II. rules for the distribution of justice. The tendency
of this rude conjunction of dissimilar subjects is, amid other inconveniences, to confound the important distinction between those obligations which it is the duty of the magistrate to enforce, and those which ought to be left to the suggestions of selfinterest, and the sanctions of morality; it is to extend coercion, and the authority of the magistrate, over the greater part of human life, and to leave men no liberty even in their private and ordinary transactions; while it lessens greatly the force of the legal sanction in those cases in which its greatest efficiency is required.
Another topic, which it will be convenient to detach and premise, is, the division and arrangement which the Hindus have given to the matter of law. In marking a stage of civilization, this is a very characteristic circumstance. As the human mind, in a rude state, has not the power to make a good distribution of a complicated subject, so it is little aware of its importance; little aware that this is the ground-work of all accurate thought. In the In
More importance is attached to this subject than it merits. Confessedly, the laws of Manu were intended for an early stage of society, when it is more important to devise than to classify. Classification is the business of high refinement, and then, according to our author's own showing, is never very successfully performed : as observed by a competent writer on this subject, commenting on Mr. Mill's survey of Hindu law, “ the most refined and enlightened countries in Europe partake with Hindostan in this symptom of barbarism. In England, till the appearance of Wood's Institutes, or Blackstone's Commentaries, the law lay over a mass of authorities, from which its principles were to be extracted by the practitioner as well as they could be. Yet who would have objected to England in the middle of the 18th century, that she had not arrived at an advanced stage of civilization, because her jurisprudence was dispersed and unmethodized. Asiatic Journal, p. 12. By this test, the attempt to
stitutes of Menu, the most celebrated perhaps of all BOOK II.
CHAP. 4. the original compends of Hindu law, the titles, as they are there denominated, or divisions, of law, are eighteen, laid down in the following order :I. Debt, on loans for consumption; 2. Deposits and loans for use; 3. Sale without ownership; 4. Concerns among partners; 5. Subtraction of what has been given; 6. Nonpayment of wages or hire; 7. Nonperformance of agreements; 8. Rescission of sale and purchase ; 9. Disputes between master and servant; 10. Contests on boundaries; 11 and 12. Assault and slander ; 13. Larceny; 14. Robbery and other violence; 15. Adultery; 16. Altercation between man and wife and their several duties; 17. The law of inheritance; 18. Gaming with dice and with living creatures. It is not easy to conceive a
classify would place the Hindus higher in civilization than the English. That the later writers on Hindu law have not improved upon the method of Manu, is to be explained by the sanctity of the primitive code: it would have been irreverent to have disarranged the scheme there laid down, had it occurred to them as possible or advantageous to alter the classification.-W.
Laws of Menu, ch. viii. The division and arrangement of the same subjects, in the compilation translated by Mr. Halhed, are very similar, as will appear by the following titles of the chapters :-1. Of lending and borrowing; 2. Division of inheritable property; 3. Of justice; 4. Trust or deposit ; 5. Selling a stranger's property; 6. Of shares; 7. Alienation by gift; 8. Of servitude; 9. Of wages ; 10. Of rent or hire; 11. Purchase or sale; 12. Boundaries or limits; 13. Shares in the cultivation of land; 14. Of cities, towns, and of the fines for damaging a crop ; 15. Scandalous and bitter expressions ; 16. Of assaults; 17. Theft; 18. Violence; 19. Adultery; 20. Of what concerns women; 21. Of sundry articles. In the elaborate Digest on the subject of Contracts and Inheritances, which has been translated by Mr. Colebrooke, the titles of the books, as far as they extend, coincide exactly with the titles in the Institutes of Menu; thus, Book 1. On loans, and their payment; Book 2. On deposits; Book 3. On the non-performance of agreements; Book 4. On the duties of man and wife. The part of the work which relates to inheritance is included in one book, and is the same with the 17th title enumerated in the Institutes of Menu.