BOOK II. more rude and defective attempt at the classification СНАР. 4. of laws, than what is here presented. The most essential and obvious distinctions are neglected and confounded. Though no arrangement would appear more natural, and more likely to strike even an uncultivated mind, than the division of laws into civil and penal, we find them mixed and blended together in the code of the Hindus. The first nine of the heads or titles, as above, refer to civil law; the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, to criminal law; the sixteenth and seventeenth return to civil, and the eighteenth to criminal; while the tenth relates partly to the one and partly to the other. Another ground of division, well calculated, as being exceedingly obvious, to strike an uncultivated mind, is the distinction of persons, and things. This was the ground-work of the arrangement bestowed upon the Roman laws. It is that of the arrangement which continues to prevail in the English; rude as it is, at once the effect, and the cause, of confusion.' It will be seen, however, that even this imperfect attempt at a rational division was far above the Hindus. In the order in which the titles follow one another, The Romans, by the ambiguity of their word jura, which signified either rights or laws, were enabled to use, without manifest impropriety, such expressions as, jura of persons, and jura of things: for though it was absurd to talk of the rights of things, things having a right to nothing, yet it was not absurd to talk of the laws of things. In their expressions jura personarum and jura rerum, there was, therefore, only confusion of ideas, and ambiguity. The English lawyers, from two of their characteristic properties, blind imitation, and the incapacity of clearing confused ideas, have adopted the same division; though in their set of phrases, rights of persons, and rights of things, there is not only confusion and ambiguity, but gross absurdity. СНАР. 4. no principle of arrangement can be traced. The BOOK II. first eight of the heads may be regarded as allotted to the subject of contracts; but a more rude and imperfect division of contracts cannot easily be conceived. Not to dwell upon the circumstance of beginning with loans, one of the most remote and refined contracts, instead of the more obvious and simple, we may observe that the subject of purchase and sale is divided into two parts; but, instead of being treated in conjunction with one another, one occupies the third place in the list of titles, the other the eighth; and a number of heterogeneous subjects intervene. "Concerns among Partners" is a title which occupies the middle place between that of "Sale without Ownership," and "Subtraction of what has been given;" with neither of which it has any relation. Nonpayment of wages or hire" stands immediately before "Nonperformance of Agreements," though the latter is a general title in which the former is included. The latter indeed is remarkable; for it is so general that it includes the whole subject of contracts, though it is here placed as only one, and the last, save one, among nine different titles or divisions of that subject. Several of the titles are nothing but particular articles, belonging to some of the other divisions; and are with great impropriety made to stand as separate and primary heads. The contracts, for example, between master and servant, are part of the great subject Location, or letting and taking to hire, including services as well as things; yet are these contracts here treated of under two distinct titles: the one, 66 66 Nonpayment of wages or hire," the other, "Dis BOOK II. putes between master and servant," and even these are separated from one another by two intervening subjects. "Concerns among partners," is an article, little, surely, entitled to stand as a separate head among the primary divisions of law, since the rights of individuals in a joint property fall under the same distinctions and rules which determine their rights in other property. Where one branch of one great topic, as transfer of ownership, is taken up, and concluded, it would appear a very necessary arrangement to pass on to another: when transfer by contract, for example, is finished, to begin with transfer by descent. Such obvious rules appear to have had A very odd attempt at a further generalization upon the first nine titles appears in Mr. Colebrooke's Digest. His first book, On Loans, corresponds exactly with the first title in the Institutes of Menu. His second book, On Deposits, is divided into four chapters, which are exactly the 2nd, 3rd, 4th, and 5th titles in the list of Menu. His third book, which is entitled, "On the Nonperformance of Agreements," is divided into four chapters, and these are the same with the four succeeding titles in the classification of Menu.-1. Loans, 2. Deposits, 3. Nonperformance of Agreements: These, according to the logic of the Digest, are the grand classes of contracts, and the titles which belong to them. The last of the titles, it is evident, cannot belong to any particular class: Nonperformance is incident to all classes of contracts. Either, therefore, this is an improper title altogether, or it ought to stand as the title of the whole subject of contracts and then Nonperformance of Agreements would include, loans, deposits, and every thing else. Under Deposits the Digest includes the following sub-titles: 1 Deposits, and other bailments; 2. Sale without ownership; 3. Concerns among partners; 4. Subtraction of gifts: of which the last two have no more to do with deposits than they have with loans, or any the most remote branch of the subject; and the second is either a part of the first, and ought to have been included under it, as relating to the sale of things deposited, or that also has no connexion with the title. Let us next contemplate the sub-titles included under Nonperformance of Agreements. They are, 1. Nonpayment of wages or hire; 2. Nonperformance of agreements, chiefly in association; 3. Rescission of purchase and sale; 4. Disputes between master and herdsman: As if these included all the agreements of which there could be nonperformance. The first and last of them, moreover, are the same thing, or the last is a portion of the first. It is needless to carry the criticism further. СНАР. 4. no influence in the framing of the Hindu systems of BOOK II. law when the subject of contracts is ended, the principal branches of criminal law are introduced; and, after these and some other topics are finished, then follows the great subject of inheritance.' In order to convey, in as narrow a compass as possible, an idea of the maxims and spirit of Hindu jurisprudence, it will be convenient not to follow the mangled division of the Hindus themselves. Omitting the laws, which regulate the political order, which determine who are to govern, who are to obey, and define the terms of command and obedience laws are conveniently distributed under the three usual heads; I. Civil laws, though Civil is a very objectionable term; II. Penal laws; and III. The laws of judicature, or those which fix the mode in which the judicial services are rendered. Under each of these heads, such particulars have been carefully selected from the multitude of Hindu laws, as appeared the best calculated to convey an idea of the leading qualities of the Hindu code, and of the stage of civilization at which it may appear to have been formed. I. Under the first of these heads, Property is the great subject of law. To this we may confine our illustrations. It is needless to remark, that the sources of acquisition, by occupancy, by labour, by contract, by donation, by descent; which are recog It is curious, though somewhat humbling, to observe how far great men may let authority mislead them. "The articles," says Dr. Robertson, "of which the Hindu code is composed, are arranged in natural and luminous order." Disquisition concerning India, Appendix, P. 217. СНАР. 4. BOOK II. nised in almost all states of society, are recognised in Hindustan. It is in the accuracy with which the intended effects of these incidents are defined, and in the efficiency of the means taken to secure the benefits they convey, that the excellence of one system above another is more particularly observed. Though property, in the first stage of its existence, was probably measured by occupancy, and the one ceased with the other,' the privilege was early conferred of alienating for a valuable consideration, or of transferring by purchase and sale. As this is a very simple compact, it appears to admit of little variety in the various stages of human improvement. In an age, however, in which the means of detecting fraudulent acquisitions, and of proving the good faith of contracts and bargains, are imperfectly known, purchases and sales, made in public, are alone considered valid. The laws of our Saxon ancestors prohibited the sale of every thing above the value of twenty-pence, except in open market; and it is with a pleasing kind of surprise we find, that similar circumstances have suggested a similar expedient to the people of Hindustan. "He," says the law of Menu, "who has received a chattel by purchase in open market, before a number of men, justly acquires the Lord Kames, Historical Law Tracts, p. 123, 154. Grotius de Jure Belli ac Pacis, lib. II. cap. ii. 2. Blackstone's Commentaries on the Laws of England, book II. c. i. The annotator on some of the late editions of Blackstone differs from the doctrine in the text. But that writer seems to have mistaken an important circumstance, carefully attended to by the great lawyers quoted above, that when the commodities of the earth began to be appropriated they were not without owners, but the common property of the race at large. 2 L. L. Ethel. 10, 12. L. L. Edg. Hickes. Dissert. p. 30. |
