BOOK II. their title to the inheritance."1

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As the interpretation of the phrase "addicted to any vice," may receive any latitude, according to the inclinations and views of the expounder, a gate is here thrown open to unlimited injustice. Inconsistency, and even direct contradiction, is a characteristic of the Hindu laws, which it does not appear to have been thought even requisite to avoid; as it is expressly enacted, that when two laws command opposite things, both are to he held valid.3 This attribute is fully exemplified in the laws of inheritance. It is declared that, "on the failure of natural heirs, the lawful heirs are such Brahmens as have read the three Vedas, as are pure in body and mind, as have subdued their passions; and they must constantly offer the cake; thus the rites of obsequies cannot fail."4 Yet it is added, in the very next clause or sentence, "The property of a Brahmen shall never

In a simple state of society it might not have been difficult to appre ciate and verify such grounds of exclusion. As relations became more complex, the impossibility of enforcing these exceptions was evident, and they ceased to be regarded. The comparative merit of co-heirs forms no rule for unequal partition, and is therefore no source of endless dispute,' or unlimited injustice.'-W.

2 Laws of Menu, ch. ix. 214.-M. It 'should be borne in mind, however, that this applies only to sacred texts,' proceeding from the impossibility of supposing either to be wrong. It does not apply to conflicting laws in general; on the contrary, any law incongruous with the code of Manu is declared invalid.-W.

3" When there are two sacred texts, apparently inconsistent, both are held to be law, for both are pronounced by the wise to be valid and reconcileable. Thus in the Veda are these texts; Let the sacrifice be when the sun has arisen, and before it has risen, and when neither sun nor stars can be seen; The sacrifice therefore may be performed at any or all of those times."

Ib. ii. 14, 15.

Laws of Menu, ch. ix. 188.

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be taken as an escheat by the king; this is a fixed BOOK II. law; but the wealth of the other classes, on failure of all heirs the king may take." Not unfrequently in rude nations, as if one misfortune ought to be aggravated by another, those who labour under certain maladies, or bodily defects, are excluded from inheritance. This principle is fully adopted by the Hindus, and carried to an unusual and monstrous extent. All those persons who are lame, all those persons who are blind, all those who are deaf, all those who are dumb, impotent, or affected with an incurable disease, as leprosy, marasmus, gonorrhoea, dysentery, are denied a share in the partition of their father's effects, and are only entitled to a maintenance from the family. When a man has sons

1 Laws of Menu, ch. ix. 189.-M. There is no incompatibility or contradiction. The second clause is merely a qualification of the first, which applies to the property of a Brahman alone. "Misra and the rest hold that the first text of Manu relates to the property of Brahmanas, but the wealth of Kshatriyas and the rest shall be taken by the king alone." Digest. iii. 537. There are other texts to the same effect. It is not the part of candid criticism to contrast detached passages without reference to those by which their purport is to be explained.-W.

2 It should be born' deaf. The exclusion may be regarded as harsh, but it is not arbitrary or without cause, being founded on the notion that such persons are incompetent to conduct the affairs of the household, to procreate issue, and to perform religious rites, which are essential to the preservation of the family. The persons so excluded are to be maintained by the heir, without stint, according to the best of his power.' Manu. -W.

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3 Colebrooke's Digest. part II. book V. ch. v. sect. 320, 321, 325, 329, 331. In Halhed's Gentoo Code they are thus enumerated; one born an eunuch, blind, deaf, dumb, without hand, or foot, or nose, or tongue, or privy member, or fundament, and one who has no principle of religion, as well as the victims of various diseases. Gentoo Code, ch ii. sect. 5. The law is thus stated in the Institutes of Menu; eunuchs and outcasts, persons born blind or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage. But it is just, that the heir who knows his duty should give all of them food and raiment. Laws of Menu, viii. 201, 202.

BOOK II. by wives of different castes, they inherit in the pro

CHAP. 4.

2

portion of the mother's rank, and the son by a concubine is entitled only to one half of the share of him who is born of a wife.' The laws which define proximity of kin, and fix the order of collateral succession, are numerous, minute, and in nothing remarkable. It is particularly to be noted that daughters are debarred from a share in the inheritance of their fathers. The woman, indeed, among the Hindus, is so restricted in the means of acquiring property, that she is almost excluded from its rights. The exceptions consist in certain presents;

Laws of Menu, viii. 149, &c. Halhed's Gentoo Code, ch. ii. sect. 2. Colebrooke's Digest, part II. book V. ch. vii.

2 The appearance of accuracy given by minuteness of detail has sometimes been quoted as a proof of refined knowledge; but it is a proof of the very reverse. Henry tells us (Hist. of Britain, i. 320) that the laws of the Druids provided with great care for the equitable division of the effects of the family according to the circumstances of every case. The ancient laws of Wales descend to very long and particular details on this subject, and make provision for every possible case with the most minute exactness. Leges Wallica, lib. ii. de mulieribus, cap. i. p. 70. The refinement and niceties of the Mahomedan law of succession are perhaps still more remarkable. See Mahomedan law of succession, Works of Sir William Jones, iii, 467, and the Al Sirajiyyah, with Sir William's Commentary, lb. 505. In fact, the want of skill to ascend to a general expression, or rule, which would accurately include the different ramifications of the subject, is that which gives occasion to this minuteness of detail.

3 Those who are unmarried at the death of the father are directed to receive portions out of their brothers' allotments. Laws of Menu, ix. 118.

"Three persons, a wife, a son, and a slave, are declared by law to have in general no wealth exclusively their own: the wealth which they may earn is regularly acquired for the man to whom they belong." lb. ch. viii. 416.-M. This is by no means the case. In the absence of direct male heirs, widows succeed to a life interest in real, and absolute interest in personal property, Next, daughters inherit absolutely. Where there are sons, mothers and daughters are entitled to shares, and wives hold peculiar property from a variety of sources, besides those specified by the text, over which a husband has no power during their lives, and which descends to their own heirs, with a preference, in some cases, to females. It is far

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what was given in the bridal procession; what was BOOK II. given in token of love; what was received from a brother, a mother, or a father; and this property is inherited by her daughters in equal portions with her sons. If she die without issue, her property falls to her husband or to her parents, and is subject to nearly the same rules of collateral succession as are established in regard to the property of males.1

The idea of a joint-interest in the property of the family, while it early established the right of succession in the children, served to exclude the right of devising by will. As the property belonged to the parent in common only with his offspring, it could. not be regarded as just, that he should have the power of giving it away from them after his death. It is only in stages of society considerably advanced, that the rights of property are so far enlarged as to include the power of nominating, at the discretion of the owner, the person who is to enjoy it after his death. It was first introduced among the Athenians by a law of Solon, and among the Romans, probably, by the twelve tables. The Hindus have, through all ages, remained in a state of society too near the simplicity and rudeness of the most ancient times, to have stretched their ideas of property so far.3 The power of disposing of a man's possessions

from correct, therefore, to say that women, amongst the Hindus, are excluded from the rights of property.-W.

Laws of Menu, ch. ix. 192 to 197. Colebrooke's Digest. part II. book V. ch. ix.

2 Kames's Historical Law Tracts, i. 162.

3 The right of devising property by will is clearly no proof of advance in civilization, by the instances given. The Athenians, in the days of Solon, the Romans, in those of the twelve tables, and the Arabs, at the birth of Mohammed, were certainly less refined than the Hindus, at the time that the Code of Manu was compiled. The case is imperfectly weighed. It

BOOK II. by testament, is altogether unknown to their

CHAP. 4.

laws.1

The same notion of a joint-title, in all the members of a family, to the property of the whole, had originally an effect, even upon the power of donation. Individuals were not at liberty to alienate by gift any part of the common stock. This, however, is a right which is recommended by motives more powerful and frequent than that of disposal after death, and was therefore much sooner introduced. The first instances were probably sanctioned by religious pretexts. By the laws of the Visigoths it was permitted to make donations to the church; and by those of the Burgundians a free man was allowed, after dividing his means with his sons, to

would have been very inconsistent to have given a man power to do that on his death which he might not do whilst living. In ancestral property the occupant had joint right only with his sons, analogously in some respects to our entailed estates, which, with all our high civilization, we have not acknowledged to be disposable of by bequest; and therefore he could not have the right to bequeath at his pleasure. It is also to be recollected that the laws of the Hindus are to be looked at not with the eye of a jurist only, but with reference to their religious origin. One of the great objects of the descent of property is to provide for the perpetual performance of obsequial rites to the whole body of deceased ancestors. These cannot be properly discharged by aliens to the family, and therefore they cannot have a valid claim to succeed. A man cannot will that a stranger shall perform his family rites in preference to his kinsmen, and cannot, therefore, make away with property essential to their celebration. The state of the law is not a question of greater or less social refinement, it arises out of, and is inseparable from the religious origin of the code, and would remain the same, whatever degree of social civilization might be attained, so long as the religion was unchanged.-W.

1

Impressed, when I began to study the history and character of the Hindus, with the loud encomiums I had been accustomed to hear on their attainments, and particularly their laws; which were represented as indicating a high state of civilization; this fact, which is broadly stated by Mr. Halhed, (Preface to the Gentoo Code, p. liii.) very forcibly struck me. Rude as the Arabs were at the time of Mahomed, their ideas of property included the right of devising by will. See Koran, chap. 5.