RECON INDIAN USAGE AND .lUDGE-MADE LAAV IN MADRAS BY THE SAME AUTHOR. Demy 8vo. 9s. A PROSPECTUS SCIENTIFIC STUDY OF THE HINDU LAW. PRESS NOTICES. 'If the bench of India is adorned with many men equal in talent and learning to Mr. Nelson, that country must be singularly fortunate in her judges. The work before us is one of the moi^t remarkable we have ever read. The author of it displays prodigious n;)tural acumen, great research, a liberal and unprejudiced spirit, and withal a modesty and courtesy towards those whose theories he denies, i-uch as are rarely cibstrved in a writer who cciuld justly claim to use a more audacious .-tjle. It is evident that Mr. N.lson has received rare gifts from nature, and has laboured to utilise them. Our only regret is tuat his manife'st judicial faculties are not exercised in a sphere of higher importance than in a district of the least of the three Presidencies.'— Law Journal, Nov. 19, 1881. 'AH well-wishers to the Madras Presidency must welcome Mr. Nelson's new work.'— Academy. ' The technical and unattractive title of Mr. Nelson's book conceals a critical essay on a subject of considerable social and political importance.' Saturday Review. * Mr. Nelsrns inquiries and arguments bear on their face the evidence of deep research, of oriiiiual aod powenul thought, of anxious and conscientious delibera- tion.'— I.vuian Mail. * Much attention is deserved by tlie two works of Mr. Nelson.' Sir H. S. Maine (in Harli/ Law and Custom). J'ai commence cecompte-rendu avec I'intention de dire beaucoup de bien de ce livre et je m'apertfois, en finissaut, que je n'ai gu6ie fait que le critiquer. Mon opinion sur louvra^e n'a pourtant pas chang6 en chemin. Je le crois toujours encore juste, et vrai dans le tond, en progres quant a la fa^on d'envisager oes etudes, plain d'id^es et suitout d'intentions excellentes, 6aiinemment utile.' Professor Bakth (in Rtvue Critique). London ; KEGAN PAUL, TEENCH, & CO., 1 Paternoster Square. INDIAN USAGE AND JUDGE -MADE LAW IN MADRAS J. H. iNELSOX, M.A. SOME TIME FELLOW OF KING'S COLLEGE, CAMBRIDGE : OF THE MIDDLE TEMPLE BARRISTER-AT-LAW : A DISTRICT JUDGE IN MADRAS : AUTHOR OF • A VIEW OF THE HHiDt LAW ' ' THE SCIENTIFIC STUDY OF THE HINDt LAW' ETC. ' The usage of the country, or common law of the Hindoos, is very different from the written law, which is in a great measure obsolete among themselves. Before the introduction of a new code, we ought to have employed men qualified to collect all that could be found of usage or Hindoo common law. Many of the rules would have appeared trifling and absurd, and even con- tradictory, but from the whole a system might have been formed much better adapted to the genius and condition of the people than our theoretical code" Sir Thomas Mcnbu LONDON KEG AN PAUL, TRENCH, & CO., 1 PATERNOSTER SQUARE 1887 ^,t «0X 897. C/LC.;. 7^-^ {The rights of translation and of reproduction are reserved) CONTENTS. PART I. TXDIAN rSAf^E. f HAP. I. INTRODUCTORY II. ' USAGE IS HIGHEST DHARMA "... III. ' REASONS FROM LOCAL USAGE AND THE (JASTRAS ' IV. THE MRTCCHAKATIKA V. OBSERVATIONS ON NARADA VI. HALHED's CODE OF GENTOO LAWS . VII. THE KAMA-SUTRA OF VATSYAYANA VIII. THE JOINT FAMILY PAGE 1 24 44 63 79 99 1.31 149 PART 11. OLD JUDGE- MADE LAW. I, SCHOOLS OF HINDU LAW ..... II. THE LAW FOR NON-BRAHMANS III. CUSTOMS NOT JUDICIALLY RECOGNLSED IV. UNION IN THE HINDU FAMILY V. ON THE SON COMPELLING THE FATHER TO DIVIDE VI. ON A COPARCENER ALIENING JOINT PROPERTY VII. PRESUMPTIONS IN FAVOUR OF INFANTS VIII. THE widow's right IX. ZAMINDARTS not IMPARTIBLE .... X. PERSONS TO BE ADOPTED .... XI. FABRICATED LAW-BOOKS ..... XII. ADOPTION BY A WIDOW .... Xlll. A SUMMARY ....... 179 188 191 204 207 22.5 236 238 242 248 2.51 253 255 .710 CONTENTS PART III. CHAOS. CHAP. I. INTRODUCTORY ..... II. THE FIRST HALF-DOZEN CASES . III. THE CRISIS OF 1881 IV. RETROGRESSION IN 1882 . V. THE PRIVY COUNCIL ON THE SIVAGIRI CASE VI. MOVING FORWARD AGAIN ? . VII. A SUMMARY. CONCLUSION 263 270 293 315 337 340 357 INDEX 37' INDIAN USAGE PART I. CHAPTER I. INTRODUCTORY. In 1882, about a year after the publication of my Prospectus of the Scientific Study of the Hindu, Law, Mr. Justice Innes, then one of the puisne judges of the High Court of Judicature at Madras, and one justly esteemed for his great experience, learning, and ability, addressed to the Governor of Madras, Mr. (now Sir M. E.) Grant-Duff, a printed letter of 110 pages, in which he did me the honour of invitino- earnest attention to my published writings on the matter of Hindu law as administered at Madras, and, in particular, strongly denounced the commission that I had ' demanded,' as being ' not necessary or desirable,' but, on the contrary, calculated to 'be productive of extreme inconvenience and public mischief, not to say deplorable disaster.' Part of his ' Prefatory Letter ' ran as follows, namely : — /I 1 INDIAN USAGE * Mr. Nelson's assumptions are in many respects ill- founded, and his statements of facts are often reckless and inaccurate, and the conclusions drawn erroneous. His opinions are however asserted with such assurance, and are so constantly reiterated, that they are almost certain to find acceptance with the half-educated por- tion of the population of Southern India. ' They are calculated to create deep and widespread doubt in the minds of the public as to the authority of the decisions of the High Court, ard to foster litigation upon questions long deemed finally deter- mined ; and thus to unsettle titles and depreciate the value of property. ' I would not be supposed to assume thut the Govern- ment of Madras would be induced to give effect to the proposals of Mr. Nelson, but unless some exposi- tion of the unsoundness of his views be put forward, there is reason to fear that a contmually increasing agitation of the public mind will ensue, which will foment litigation and raise a serious obstacle to the efficient performance of its duties by the High Court. ' The prospect of the release from all law, except that of the individual will, has a great attraction for the multitude, and this is what in his latest work Mr. Nelson holds out. He advocates the enactment of a short relieving and enabling Act. " The desired enactment should recognise and proclaim the general right of the Indian to consult his own inclination in all matters of marriage, adoption, alienation, testation, and the like."^ ^ Prospectus of the Scientific Study of Hindu, Laxc, p. 182. INTRODUCTORY d ' Fair criticism upon the administration of the law by the Court would of course be allowed to pass un- noticed, and even m regard to unfair criticism it would be unseemly for the Court to enter into a controversy with Mr. Nelson. But having in view the mischief to the public interests which further silence as to ]\Ir. Nelson's published opinions is likely to occasion, I think an answer should be given them.' I lost no time m publishing a short reply to this letter, addressed to Mr. Innes himself, in which I objected strongly to the mode in which I had been dealt with, and to the serious and deplorable mis- representation of my views and opinions in which Mr. Innes had permitted himself to indulge. Prin- cipally I objected to the unfairness of mainly directing the attack against fugitive pieces written for the Royal Asiatic Society and Madras Literary Society, and never intended for general publication, whilst almost ignoring my Prospectus, which contained the prin- cipal things I had had to say about Hindu law. I also took special pains to expose one by one the very numerous misstatements that disfigured almost every part of the letter. I did not at the time think it necessary or ad- visable to undertake the task of defending myself against Mr. Innes' attack generally, unless (whicli seemed to be very unlikely) the Government should call upon me to do so ; and I have not since found any occasion to add to what I have already written by way of reply to that gentleman. Nor have I any intention now of reopening a closed matter. But B 2 INDIAN USAGE having observed that some of Mr. Innes' statements and arguments are common more or less to a number of opponents, I intend to devote some attention to their refutation. For example, Mr. Innes (at p. 87). thinks it ' idle to ask if any such rules ' as those made by the Madras High Court, as to presuming the union of a Hindu family and the like, ' could possi-. bly have brought about the disastrous consequences alleged to have followed from the administration of the law by the High Court in cases of inherit- ance, succession, &c.' And I shall do my best to demonstrate that the making of such rules, without due consideration and knowledge, most certainly has produced consequences that cannot but be disastrous. The late lamented Doctor Burnell, who, though unhappily not found to be good enough for a seat on the bench of the Madras High Court, no doubt was one of the shrewdest and most observant, as unques- tionably he was one of the most learned and accom- plished, of Mofussil judges, penned, when he knew himself to be almost at death's door, the folio win o- memorable words of warning, to be found in his 'Introduction' to Manu, p. xlv : — 'The preceding pages will show that Sanskrit law was pursuing a course of spontaneous development ; this has been interrupted, and English doctrine has been pitchforked into Sanskrit texts. Is it likely that a satisfactory result will ever follow ? The whole subject now is in a chaotic state, and so great is the uncertainty that valuable property is commonly sold for a thousandth INTRODUCTORY 5 part of its value. So for the present policy cannot be viewed with complacency.' Here we have the testimony and warning of a most able judge, who worked continuously for many years in some of the most important districts of the Madras Province, principally in Tanjore, the 'garden .of South India ' ; and who, by his extraordinary ac- quaintance with Oriental languages and literatures and ideas, was specially qualified to form a correct opinion upon his subject-matter — who can read them, and doubt for a moment that the administration of Sanskrit law has not been so satisfactory as Mr. Innes and his supporters fondly imagine, and that the question of its radical reform is one of real and pressing import- ance ? I have already shown in my Prosjyecius what prac- tical lawyers as well as Orientalists have said about Hindii law in Madras. For myself, after spending up- wards of twenty years on the bench in such districts as Madura, Tanjore, and Chingleput, I have no hesita- tion in affirmmg that at the present moment, in con- sequence of endless conflicting and unsatisfactory judgments of the Madras High Court, it is impossible (or very difficult) in any disputed case to guess what may be the ultimate decision upon wdiat to the un- instructed lay mind would seem to be the simplest possible questions of Hindu law ; that (as a general rule) it is impossible to say in what person, or persons, the dominion of any given field actually resides ; or what powers of alienation (if any) a given ostensible owner of land may, or may not, possess ; and that b INDIAN USAGE ordinarily one who buys, or lends money on the se- curity of a piece of land, say a flourishing Zamindari, does a most hazardous thing, and may, not improbably, lose all his money and, in addition, be plunged into ruinous litigation. And, further, I unhesitatingly affirm that there must be an immense number of persons in the Madras Province who, in consequence of such judgments, are quite unable to know whether they, or their relatives, have been legally begotten, adopted, or married. Unquestionably, the principal and most fruitful error in the administration of Hindu law in Madras has been that of supposing that positive law, in its most strict sense, applicable to every inhabitant of India, whether dark-skinned or fair, whether Brahman or non- caste, and to every conceivable case, is to be found by adequate research somewhere in the pages of certain Sanskrit works, such as the Manava- dharma-^astra, the Mitaksara, and others ; and that such law must always prevail in judicial controversy when opposed to local usages and customs. How grievously the Madras High Court has erred in this respect may be imagined when Mr. Innes, in strenuously attacking my writings, has felt himself compelled to make the following painful confession (at p, 92) :— ' It may however be that whereas the Hindu law recognises the existence of peculiar customs in differ- ent parts of India, and directs (especially in the case of those not belonging to the four castes) that their customs shall be respected, the High Court has laid INTRODUCTORY 7 down rules in regard to customs which practically prevent their recognition to the extent to which they ought to be recognised, and has in tliis respect, unin- tentionally perhaps, failed to carry out the Hindu law in its true spirit, and imposed much inconvenience on families who have governed themselves by customs recognised in their community as legal.' I was even more surprised than gratified by this confession, coming from such a quarter. But, at the end of his letter Mr. Innes shows plainly that, at all costs, the Madras High Court intends to continue to perform its self-imposed duty of civilising the ' lower castes ' of Madras, that is to say, the great bulk of its population, by gradually destroying their local usages and customs, the safety of which the royal proclamation of November 1, 1858, by express words, guarantees. It was Her Most Gracious Majesty the Queen who said, ' We disclaim alike the right and desire to impose our convictions on any of our subjects. . . . We will that generally in framing and administering the law due regard be paid to the ancient rights, usages, and customs of India.' Mr. Innes, however, as the representative of the Madras High Court, has announced (at p. 110) : — ' To adopt Mr. Nelson's suggestions, whether as reoards the hiijher or lower castes, would commit us to chaos in the matter of the Hindu law we are now called on to administer. What is contemplated would result in our abdicating the vantage ground we have occupied for nearly a century, in which, if we continue to hold it, we may hope gradually to remove the INDIAN USAGE differentiations of customary law, and bring about a certain amount of manageable uniformity. It would be to commit us to the investigation and enforcement of an overwhelming variety of dis- cordant customs among the lower castes, many of them of a highly immoral and objectionable character, which if not brought into prominence and sanctioned by judicial recognition, will gradually give place to the less objectionable and more civilised customs of the superior castes.' If the Government of Madras had called upon me for an explanation of my conduct in constantly ' calling in question the administration of the Hindu law by the High Court of Madras,' this announcement of Mr. Innes would alone, I conceive, have been held to be an ample justification of anything I may have pub- lished in this behalf. For, what can be politically more dangerous in these times, to say nothing of the injustice of it and the cruelty, than thus to set about destroymg gradually and methodically the local usages and customs of by far the greater part of over thirty millions of people ? If the thing to be de- stroyed were the local usages and custouis of the (relatively) educated and influential small minority, consisting of Brahmans and others, the intended ac- tion of the court might be less dangerous, in that it would at once provoke and arouse adequate opposi- tion. But the dumb masses of South India will make no sign under any oppression they may suffer, so long as it continues to be anyhow tolerable, and we may know nothing of their feelings till, in a moment INTRODUCTORY V of excitement, they begin to work incalculable mis- chief. ' Usage is highest dliarma (it is) mentioned in the Vedas, and approved by tradition ; therefore, a prudent twice-born (man) should ever be intent on this,' is a most important maxim of Manu (I. 108) ; perhaps the most important of all the Aryan maxims that have come down to us. I purpose devoting a chapter or two to an examination of its meaning and teaching. For the present it is enough to state my belief that the right interpretation of it suffices in itself to prove that our entire system of administra- tion of Hindu law is erroneous, and, indeed, absurd. Next, perhaps, in importance to the error of look- ing for positive law in the Sanskrit qastras comes the error of supposing that all the inhabitants of South India who are not Brahmans or Mahomedans, are either Ksatriyas, Yaiqjyas, or Qudras, and as such are amenable to the above-mentioned law, or at all events to the greater part of it. I have already dealt with this matter at some length in my View and Pros2Jectu8, and have no- thing new to add in the way of information. It may be useful, however, to say a few words with reference to Mr. Innes' observation at p. 91 : ' There have been, so far as I am aware, no cases before the High Court in which people of the lower castes or tribes, vulgarly classed as Hindus, have repudiated that classification, or claimed or pleaded under a different law of succession, inheritance, caste, reli- gious usage or institution from that of the Hindu.' 10 INDIAN USAGE I would observe as to this that the circumstance, if existent, is not to be wondered at, or considered incapable of explanation, on the hypothesis that the great bulk of the population of the Madras Province are not true Hindiis, and therefore are not subject to the general law of the Sanskrit qastras. Maravans and Kalians, and all ordinary ryots, of course, are exceedingly ignorant and helpless, and but little given to generalisation ; and probably none of them has ever yet reflected upon his racial, or religious, or legal status. Moreover, the word ' Hindu ' either is not known to them, or is barely known only in the sense of non-Muhammadan ; so that if a low-caste suitor were asked whether or no he was a ' Hindu^ in the full scientific sense of the word, he would have no idea what was meant by the question, however ingeniously it might be framed. Or, if by any pos- sibility he could be made to understand what was meant, he would, of course, claim to be a Hindii of the highest rank, just as every London shopman nowadays claims to be a gentleman, and for very similar reasons. An excellent illustration of the ignorance and apathy of suitors in this respect occurs to me out of my own judicial experiences. At Combaconam, about the year 1868, I was rehearing a case that had been dealt with by my predecessor as an ordinary case of Hindii law, when, by accident, it came out that the parties were not Hindiis, in any sense of the word, but Jains. I asked the pleader engaged by one party what was to be done, and he said he supposed the INTRODUCTORY 11 parties were Hindus of a kind ; upon which I sug- gested that, as a test, he had better ask the opposite party, who appeared in person, what was the name of his god. He did so, and the answer was ' Arugan.' This proved conchisively that the parties were not Hindus, and accordingly I asked the same party what were his (;ristras. He could not tell me. I then asked him what law he wished to be administered to him. He answered, with complete unconcern, ' Mas- ter's pleasure.' Whot I did upon that I do not re- member, nor does it matter. No doubt, however, I went on to administer the Hindu law in vogue, and without the slightest objection being raised on either side. The next greatest error I take to be that of imagining that certain speculative treatises, e.g. the ]\Iitaksara, believed to be highly admired or respected, and in a sense popular, in certain towns or districts, have the force of codes of law wherever the admira- tion, or respect, or popularity of or for them is be- lieved, for whatever reason, to exist. I have already protested against this error in several places ; but it will be necessary for me to attack it yet again, prin- cipally in connection with its pernicious development, the 'Schools of Law' doctrine, of which (I regret to see) Professor Jolly appears to have become enamoured. And from this error comes yet another error, of great importance to Brahmans, I mean that of treat- ing nearly all Brahmans, wliethcr Bans or Ayyangdrs^ or Ayyavfi^ or whatever they may be, as being identi- 12 • INDIAN USAGE cal in point of law, j ust as if such things as kulas and cdkhds and caranas had never existed, and the Brahmans of South India formed one single happy family. No doubt the Namhudris are admitted to be outsiders, and to deserve, as such, exceptional treatment. But this exception only proves the rule. I have, perhaps, said enough upon this head in my Prospectus. It is from these errors, mainly and principally, that (in my humble opinion) have arisen the fifteen false principles that I ventured to expose in my View in the following form, namely : — 1. That there exist, or formerly existed, in India certain ' Schools of Hindu Law ' ; and that such schools have authority in certain imaginary parts of India, such as the Karnataka kingdom, the Andhra countr}^, the Dravida country, &c., &c. 2. That the so-called ' Hindu law ' is applicable to all persons vulgarly styled ' Hindus' and to their descendants, however remote, and whether pure or not pure. 3. That a custom which has never been ^judicially recognised ' cannot be permitted to prevail against distmct authority. 4. That a state of union is the normal and proper state of a Hindii family, and therefore non- division should in all cases be presumed until the contrary be proved. 0. That, as to ancestral property, a son, and therefore a grandson, may compel a division against the will of his father or grandfather. INTRODUCTORY 13 6. That a member of an undivided family can aliene joint ancestral proj^erty to the extent of his own share. 7. That ' self-acquired 'property ' ordinarily is indivisible. 8. That debts incurred by the managing member of a Hindu family should be presumed, in favour of a minor, not to have been incurred for the benefit of the family. 9. That the widow of an undivided coparcener, whether childless or not, has no title to anything but maintenance. 10. That ancient Zaminddris are not divisible because they are ' of the nature of principalities' 11. That one, with whose mother the adopter could not legally have married, must not be adopted. 12. That the Aliyasantdnada Kattu Kattale is a work of authority on the law of South Kannada. 13. That ^survivorship ' is a principle upon which the rule of succession in part depends. 14. That a widow can adopt a son with the consent of her husband. 15. That a Hindu family may be at one and the same time divided and undivided. In defending these principles, Mr. Innes has thought proper to assert with regard to each of them that I have averred ' that the High Court of Madras has made the false rule ' ; and has taken great pains, in several instances, to show that it is not true, that this court first made the rule in question, but some other court or person made it, and the Madras High 14 INDIAN USAGE Court only adopted it, or if this court did make the rule, the Privy Council has sanctioned it. And any one who reads his letter might very naturally suppose that I had rashly and spitefully imputed to the Madras High Court things of which it was wholly innocent. A glance at ray View, however, will show that I have done no more than to impute to the Madras High Court that, habitually, in deciding questions of Hindu law it relies on principles which to me appear to be false. It has been perfectly im- material to me who first gave shape to any principle, or who (to use Mr. Innes' words) ' may be especially responsible for any doctrine.' All I have sought to do is to attack, and if possible destroy, certain false principles, by whomsoever invented, promulged, or sanctioned Whenever possible, I have honestly traced the false principle to its source. And in one instance, that of the ' Schools of Law ' doctrine, I have actually given the very same history of the principle, that Mr. Innes has himself given for the purpose of proving 'the recklessness of assertion that character- ises my work ' ! And here I think I may very properly take the opportunity of repudiating, and most emphatically, the idea (which I know has occurred to some) that, in publishing my View and Prospectus, I have thought to lower the Madras High Court in the estimation of the public by treating its decisions with something of derision and contempt. I can honestly say that such thought has been far from me. When I acted as Registrar of that court, some twenty years ago, INTRODUCTORY 15 its President was that admirable judge, Sir CoUey Scotland ; and two of the puisne judges were Messrs. Holloway and Collett, than whom it would be difficult anywhere to find more able and trustworthy occupants of the bench. It was at their hands I received the most valuable part of my legal training, and it would be strano;e indeed if I reo:arded with feelino-s other O o o than those of kindliness and sympathy a tribunal to lA hijh, through them, I owe so much. Of Mr. Justice Lines, too, I would desire to be understood to speak only in the terms of praise, as being an able, a learned, and a high-minded j udge. But, unfortunately for Hindu law, it has been its peculiar fate to suffer most from the very talents and ability that have been brought to bear upon its admiuistration. Had Jones and Colebrooke not been the giants they were, the errors into which they unavoidably fell would have been comparatively un- fruitful in mischief. Had Strange been less strong, his lofty utterances would have done less harm : and in these latter days if Scotland and Holloway and others had been less clever, less self-reliant and masterful, the question of Hindu law would not stand now where it does. It is useless, worse than useless, to hide the un- pleasant fact that during the last eighty years or so Indian judges have been trying, like the German painter, to evolve a camel out of their inner conscious- ness. Only, instead of one artist attempting the feat, scores have had a hand in the picture, one taking the head, another the tail, and others other parts. 16 INDIAN USAGE What wonder then if the result is a miserable and ludicrous failure ? Not only has none of these judges ' seen,' as Hindus would say, the living camel of Hindu law, for if it ever lived, which is exceedingly improbable, it died centuries ago : the existing translations of the ' recollections ' of it are so few and scanty that no one who is ignorant of Sanskrit can hope to form a just idea of its size, proportions, and shape. And, at the present moment, strange and incredible as it may appear, the Hindu law of the ' Madras School ' practically is but little more than a crude mass of contradictory and dubious aphorisms, based on an inadequate translation of a non- professional commentary on but thirty-six verses of a sectarian Smrti. And this in the presence of the fact that a truly immense body of Sanskrit legal literature is known to exist, and to be (at all events in part) available for use. Is this scandalous state of things to be permitted to go on? Surely not. I hope to be able to show in due course that during the last ten years or so a radically false system has been producing its necessary results in great abundance, and things have been fast going from bad to worse, so much so that the end cannot now be far off. Two courses, and (in my humble opinion) two courses only, are open to us, if we would loyally carry into effect, in spirit as well as in letter, the terms of the royal proclamation quoted above, and, without im- posing our English convictions on our Indian fellow- subjects, pay due regard, in administering Hindu INTKODUCTORY 17 law, to the ancient rights, usages, and customs of India. The first, and to my mind by far the preferable, course is to appoint a commission, such as I have before recommended, to ascertain and report on the existing usages and customs of the various tribes and castes, Brahman and non-Brahman, of the Madras Province ; and upon the report so obtained base a set of simple provisional rules for the guidance of the courts, which rules might gradually be modified, added to, and improved, as experience suggested, until at length codification of them might hopefully be attempted. The smiles and sneers of hostile critics notwith- standing, I still fail to see any special difficulty in the way of effecting this series of operations.^ That some- thing of the sort might be done is shown, to some extent, by the recent publication of Mr. Tupper's three volumes of ^Punjab Customary Law! The first of these volumes, according to the preface, ' is desio-ued to illustrate the history of the treatment of Customary Law in the Punjab ; ' the second ' contains abstracts of a considerable number of the Tribal Records of various districts and notes from the Settlement Reports ; whilst the third is intended to assist Settlement Officers in the compilation of Tribal Records, and was also meant to suggest the outline of a General Code of Tribal Customs, in case it had been resolved to pre- pare one.' It is true that we have not the sort of Tribal and Settlement Reports that Mr. T upper has See Sir Thomas Munro's opinion, on the title-page. C 18 INDIAN USAGE turned to use, but we could very soon get tliera. And District Officers, both Revenue and Judicial, would very rapidly collect thousands of answers to intelligent questions set by the commission. The difficulties to be encountered in this respect seem to me to be very trifling ; whilst the cost of the whole pro- ceedmg would be nothing, or next to nothing. And the errors and defects of the original inquiry could be satisfactorily remedied by careful systematic judicial observation during a space of, say, ten or twenty years before attempting codification. m making the inquiry the gratuitous services of intelligent natives belongmg to all the castes, par- ticularly of heads of villages and castes, retired Government officials, managers of temples, and the like, would be largely availed of, and, I make no doubt, gladly rendered. It would be impossible for class prejudices and vested interests to interfere to any great extent with the formation of their various reports, and, if treated with due consideration, they could hardly fail to interest themselves in the per- formance of their honourable duty, and to furnish correct and valuable information. At all events, why not make the experiment, which, if unsuccessful, could not possibly do any harm ? At the worst, if the questions set were unintelli- gent, and the answers defective, and the inquiry generally scientifically worthless, we should still have a framework of real living usage, upon which we might hopefully work and build, instead of the shape- IXTKODUCTORY 19 less inorganic structure that now does duty for Hindu \aw. The other, and less proti table, course would be to appoint a commission of native Pandits, from Tanjore, ]\[adura, Combaconum, and other centres of Hindu life, to report on the books (or parts of books) that to their knowledge, or in their opinion, contain the law customarily followed by the several castes at the present day ; get the selected books (or parts of books) translated, and at once proceed to codiiication. The conceivable objections to this course are numerous and weighty, and the difficulties to be en- countered in pursuing it by no means contemptible. But I believe it to be feasible. And most certainly the code of Hindu law that would be achieved would be immensely superior to what we have now, the reported decisions of the Madras High Court. What- ever its defects, from a scientific pomt of view, it would be Hindu in letter and in spirit, and, as such, satisfactory for the most part to the native miiid. It would not be a sickly hj^brid clothed in a foreign garb. In preparing this code it would, of course, be essentially necessary to leave untranslated all ternis of art, such as dhanna, ddydcla, vibhalta, and the like, and to abstain altogether from indulgence in ' apt equivalents.' Still more necessary would it be to abstain from ' pitchforking English doctrine into Sanskrit texts.' Probably, therefore, it would be ad- visable to entrust the work to an eminent foreigner, say Professor Max Miiller, or Professor Jolly. If 20 INDIAN USAGE due attention were paid to essentials of tliis sort, and to brevity — I would not have the code contain more than .500 sections at most — a very passable work might be produced. But, for obvious reasons, I would vastly prefer a collection of usages and customs to a code of Sanskrit law. The latter might do somethmg for the Brahmans, but (I fear) it would do little or nothing for the non- Brahmans, that is to say, for the great bulk of the people. Many of these non-Brahmans undoubtedly have customs, e.g. polyandry, that are not only op- posed to, but actually irreconcilable with, the re- cognised Brahmanic system of the Sanskrit (;astras ; and it would be simply impossible to decide questions of partition and the like, arising amongst such persons, in accordance with any rules deducible from such qastras. So that, if a code of the kind were to be drawn up, probably it would soon be found to be unworkable, for the benefit of any but Brahmans, and a few tribes that more or less closely imitate the Brahman mode of life ; an.l it would be necessary after all to ascertain and commit to writinoj the usao-es and customs of the great body of non-Brahmans. In other words, it would soon be found necessary to keep the code for the Brahmans, and appoint a commission (as suggested by me) for the others. I do not purpose going farther for the present into this very important question. The main object of this book is to bring to public notice the uncertainty that has been caused during the last ten years or so by conflicting decisions on a few questions of para- INTRODUCTORY 21 mount importance, connected mainly with the con- stitution of the so-called Joint Family. To this end I must give abstracts of a considerable number of cases, comments on each, and conclusions as to the probable results of the aggregate. If, as I hope to be able to do, I succeed in showing that the state of Hindu law in ^Madras is past praying for, no doubt the plan of operations I have suggested, or something like it, will be taken into consideration by the Government. Another object I have in view, one of less import- ance, is to revise and improve, as well as I can, what I have written about some of the fifteen ' false prin- ciples ' dealt with in my View. A considerable space of time has passed sinc3 the Vieiv was written, dur- ing which I have been able to put together a good deal of additional information bearing on matters discussed in its pages, and 1 shall be glad if I can strengthen certain positions I took up in 1877. A few miscellaneous chapters on usage, Manu, Narada, the Gentoo Code, the Joint Family, and other necessary subjects of study, will make up the first part of this book. Then will come chapters on the ' false principles.' Lastly, the third part will consist of the review of decisions. I must here take the opportunity of tendering my hearty thanks to the Orientalists and scholars who have done me the honour of reviewing, or noticing, my little works on Hindu law. As I have no Sanskrit, and can only utilise the labours of others in making short excursions into the dangerous field of Oriental learning, I had not hoped for serious 22 INDIAN USAGE criticism of my humble efforts, such as I have been favoured with by savants like Professor Earth. That such a one should have taken the trouble to point out in the most kindly manner some of my numerous errors and shortcomings, is an honour to me as welcome as it was unexpected ; and I have endeavoured to show my appreciation of it by aiming in this present work at greater carefulness and mode- ration. I may observe, however, that some of the errors of which I have been found guilty are not mine, but those of eminent Sanskritists. For example, it was my lamented friend, Doctor Burnell, who told me that ' Cudra ' comes from the root cvid, and means ' sweater.'' I cannot but regret that Mr. Mayne should have been advised to speak, in the preface to his third edition of his Hindu Laic, of Professor Earth's review of my Prospectus, m such a manner as necessarily to lead his readers to suppose that the reviewer had snuffed me out, with every circumstance of ignominy. In justice to myself I must quote the more important parts of the last section of Professor Earth's mono- graph in the Revue Cntique, of August 28, 1882. They run as follows : — ' J'ai commence ce compte rendu avec I'intention de dire beaucoup de biende ce livre, et je m'aperc^ois, en finissant, que je n'ai guere fait que le critiquer. Mon opinion sur I'ouvrage n'a pourtant pas change en chemin. Je le crois toujours encore juste, et vrai dans le fond, en progres quant a la faqon d'envisagcr ces etudes, plein d'idees et surtout d'intentions excel- INTRODUCTORY 23 lentes, eminemment utile et malheureusement justifie en beaucoup de ses attaques. . . . Meme pour le pro- fane, il est visible que sur bien des points il y a abus, que la loi qu'on applique n'est pas toujours celle a laquelle les parties auraient droit et que, dans cette application, la jurisprudence n'est parfois consequente, ni avee la loi, ni avec elle-meme. II est impossible de ne pas condamner avec I'auteur les envabissements progressifs de qq judge-made law, dont certaines exigen- ces en matiere de transmission des biens et de statut personnel sont vraiment iniques et de nature a porter de graves atteintes a la prosperite du pays. On lui pardonne alors ses vivacites, ses exagerations et sa trop grande facilite a faire, comme on dit, fleche de tout bois. Car ce livre, ecrit avec une opiniatre con- viction, est avant tout une oeuvre de combat, et c'est comme tel qu'il faut le juger, si on veut etre equitable en vers lui.' I am entirely at one with Mr. Mayne in thinking this monograph to be a model of ' acute, candid, and courteous criticism ; ' and I sincerely wish that more such were forthcoming. I do not profess to be an Orientalist, or a ' philologue,' and am only too happy to be corrected, when my ignorance of Sanskrit misleads me (as from time to time it must) into error. My sole object in writing about Hindi! law is to arouse attention, by all available means, to a neglected and very important question. 24 INDIAN USAGE CHAPTER II. ' USAGE IS HIGHEST DHARMA.' The apliorism ' Usage is highest dharma ' occurs in Verse 108 of the First Lecture of Manu, and is thus amplified and explained by the words next follow- ing : — ' (It is) mentioned in the Yedas and approved by tradition ; therefore a prudent twice-born (man) should ever be intent on this. A Brahman who has fallen away from usage gets not the fruit of the Veda ; but (if he be) attached to usage, he enjoys the full fruit. Thus devotees, having seen (that) the course of dharma is according to usage, comprehend usage to be the final root of all austerity.' See Burnell's Manu. Verse 107 states, in brief, the subject-matter of the whole book. ' In this (treatise) dharma is fully declared, also the good and bad qualities of actions ; likewise, also, the perpetual usages of the four castes.' Then, verses 111-18 give a more extensive ac- count of the contents of the work, the last of which are declared to be ' the eternal dharma of countries, castes, iamihes ; also the dharmas of heretics (and) of iruilds.' 'usage is highest diiarma ' 25 TtikiDg' tins whole passage as it stands^ tlicre can be no doubt, it seems to me, that the author of Mann (or whoever may have written the first lecture thereof, by way of a preface to the work) considered that for all human being's, whether regarded as in lividuals, or as joined together in companies or nations, and whether Brahmans, women, Qudras, heretics, or bar- barians, the long established usage peculiar to each individual (or aggregate) constitutes highest dharma, for each his (or its) own. The question then arises, What is dharma ? And the answer is, that this phrase or expression cannot be satisfactorily rendered in English, inasmuch as it represents a primitive concept, w^holly foreign (and indeed incomprehensible) to the modern English mind. And it is for this reason Burnell has in some places in Manu left the phrase untranslated. In a ]iote to p. 40 of my Prospectus I have attempted to give a rough explanation of it in the following words : — This mysterious word has been greatly misunder- stood. It w^ould seem to be connected with a root signifying to ' hold,' and possibly may mean the in- herent efficacy of acts, that holds up a man through life. Dharma is not at all comparable with our ^virtue'' (manliness), or with our ^ duty ^; still less docs it resemble our ' law.' According to Haradatta (see Max MiiWer, An. Sus. Lit., 101), ' dharmn (virtue) is the quality of the individual self, which arises from action, leads to happiness and final beatitude, and is called apin-va, supernatural.' According to Nilrada, 26 INDIAN USAGE in the good old times men conformed themselves to dharma alone, and then there was no room for vyavahcira, or mere ordinary business. When the cor- ruption of morals bred avarice, hatred, and the like, vyavahdra necessarily came into existence. See V. N. Mandlik, Introd. Hindu Law, Ixx. I have lately had my attention drawn to a curious and difficult passage in the Mahdbhdrata ( Vanaparva, 246), which seems to throw some light on the mean- ing of ' dharma,^ as used in the text under notice, and in Manu generally. According to the transla- tion now being published by Protap Chundra Roy (Calcutta), Savitri is made to say that : ' They who have not their souls under control acquire no dharma by leading the four successive modes of life, viz. celibacy with study, domesticity (dliarmam), retire- ment into the woods, and renunciation of the world. That which is called dliarmam is said to consist of vijndnam (trae knowledge). The wise, therefore, have declared dharmam to be the foremost of all thmgs, and not the passage through the four succes- sive modes. By practising the duties of even one of these four modes agreeably to the directions of the wise, we have attained to dharmam, and, therefore, we do not desire the second or the third mode, viz. celibacy with study or renunciation. It is for this, again, that the wise have declared dharmam to be the foremost of all things.' The meaning of the passage (briefly) seems to be that Savitri, who is endeavouring to rescue her husband from the clutches of Yama, argues thus : True religious merit cannot ' USAGE IS HIGHEST DIIARMA ' 27 Le 'attained by those who do not control their souls ; on the other hand, it is attained by those who properly pass through even one of the four successive modes : I and my husband have so passed through one of them, namely, domesticity, and therefore we have no need to pass through another. Here, then, ' dharm.a ' seems to stand by itself for (i) general merit, (2) the special merit of domesticity, and (3) true religious merit — the foremost of all things. And this last is said to consist in ' vijndna,' true knowledge. It would seem to be not improbable that as in this passage so in Manu three kinds or degrees of ' clharma ' are intended to be spoken of. Thus, for example, in VIII. 9, true religious merit obviously is intended. The text is : ' For a man performing the dharma declared by revelation and tradition obtams fame here and after his death extreme happiness.' With this compare 11. 13 : 'A knowledge of dharma is ordained for • men not given up to wealth and pleasure ; of those who would know dharma the Yeda (is) the supreme authority.' Also II. 1 : ' Learn the dharrna which is followed by the learned (and) good, by those ever free from spite and passions, (and) which is acknowledged by the mind.' On the other hand, we have in I. 115 the special dharma of gambling, and in 114 that of women; whilst in I. 99, and other texts, ordinary dJiarma is meant. The connection of dharma (in its highest sense) with vijfiana, true knowle(]ge, is illustrated by the name of the autlior of the Mitaksara, Vijnrine(;vara or ^8 INDIAN USAGE Vijiiana Yogi. And Anquetil Diiperron (Leg. Orient. p. 92) tells us that VijfianeQvarudu was the name of a Telugu King, ' who had collected the laws of which is composed the book of right,' i.e. (it is to be presumed) the Vijndnecvariyam. The word dharma would seem to be connected with the Greek Themis, the Anglo-Saxon Deman, the English Doom, and other cognate words. And in some respects it agrees exactly with Themis, e.g. in denoting what is meet and right because established by im- memorial usage, as opposed to statute law. Themis personified is the goddess of law and order, the patroness of existing rights, and Dharma may mean much the same. Themis also is used for punishment, and so is Dharma. According to Talboys Wheeler {Historij of India, iii. 212 et seq.) 'the edicts of Priyadarsi inculcate goodness, virtue, kindness, and religion, as summed up in the one emphatic term Dharma.'' On the other hand, the Kama-sutra (see below p. 134) regards dharma as obedience to the v^astras in the matter of sacrifices and the like. Perhaps, on the whole, ' blessedness,' as having in it a decided religious tincture, would come as near as any other word to the meaning of dharma in the passage under notice. But, having indicated in a rough general way what ordinarily it denotes and connotes, I shall prefer to leave the word untranslated. Usage ' is highest dharma,' which again consists in true knowledge, and ' the prudent twice-born man will ever be intent on this.' Where, then, is ' usao-e ' USAGE IS HIGHEST DHAKMA ' 29 to be found? An answer is afforded by Mann I. 108, quoted above. Other constituents of dharma are mentioned in II. 12 : ' The Veda, tradition, good custom, and what is pleasing to one's self, that (the wise) have plainly declared to be the fourfold defini- tion of dharma.'' Evidently, usage is to be discovered by searching the Veda and dharmac^iistras (see II. 10), and one's own conscience. But it is only a twice-born man who can so dis- cover his usage and dharma : Qiidras, and women, and all others must look elsewhere for information. This is rendered sufficiently plain by a considera- tion of the following circumstances. The so called Code of Manu begins with the statement that the Seers come to Manu, and ask him to tell them ' truly in order the rules of all the castes, and of all the castes that arise between (them).' And (as Burnell points out) ' Medhatithi says these laws refer to only the Brahmans, Ksatriyas, and Vai(;yas, not to the Qudras. Confer IV. 80, 81, from which it is evident that this is correct. Medhatithi might have quoted the Apas- tamba dharmasutra (i. I. 5) to the same effect, also verse 91 of this lecture.' Whereas Manu is represented (in I. 107) to have declared in this treatise ' the perpetual usages of the four castes,' I, 91 declares specifically : ' One duty the Lord assigned to a Qfidra — service to those (before mentioned) classes without grudging.' And IV. 80, 81 run as follows : — ' One may not give advice to a Qudra, nor (give him) the remains (of food), or (of) butler that has been offered. And 30 INDIAN USAGE one may not teach him the law, or enjoin upon him rehaious observances. For he who tells him the law, and he who enjoins upon him (religious observances), he indeed, together with that (Qudra), sinks into the darkness of the hell called Asamvrtta.' And in his note thereon Burnell says that, according to Medha- tithi, advice means here in regard to the Qudra's con- duct, not simply friendly advice. Whilst the com- mentators affirm that, where the author of Manu does seem to give advice to Qudras, it is only to family servants that he gives it. And similarly X. 126, says : ' There is not any commission of sm in a Qudra, and he ought not to receive the initiation ; he has no authority in respect to a rule of right, and no restraint in consequence of a rule of right.' It appears clearly from several passages in the Satapatha-Brdhmana (translated by Eggeling) that, before its publication, the Brahmans and Ksatriyas had firmly established themselves in positions high above that of tlie Yaiqyas, or ordinary clans ; and that, whilst the Ksatriya preyed on the Yaiqya, the Brahman attached himself to, and lived upon, the Ksatriya. Thus, Vol. I. 82 shows the Ksatriya to be the oppressor of the Vaiqya ; I. 94 that the former was served by the latter ; II. 66 that the former lived on the latter ; 11. 228 that the people must go down before the Ksatriya ; whilst II. 270 essays to prove (by the story of Varuna and Mitra) the necessity of a king who desires success, always having Avith him a Brahman to speed his deed. For Mitra, or intelligence, is the Brahman, and Varuna the nobility. 'usage is highest dharma ' ol The priesthood is the conceiver, and the noble is the doer. This alliance between the King and the priest seems, at all events in theory, never to have been abandoned. And, whether we look at the Smrti or the drama, at the Kama-sutra or the Gentoo Code, we shall everywhere find, I imagine, abundant indica- tions of the two privileged classes keeping apart from and lording it over the masses. Indeed, judging from the materials at my disposal, I should suppose that Sanskrit works generally have been composed for the two first classes alone : mainly, of course, for the Brahmans. It is no doubt owing to the exclusion of Qudras and women, and die lower classes generally, 'from immediate access to the more original sources of in- formation' that the epics and similar compositions were intended for their edification, as is pointed out by Sayana in his commentary on the Black Yajur Yeda. See Burnell, Introduction to Manu, p. xxiii. For Qudras, women, and heretics, therefore, and practically for almost all but virtuous Brahmans and kings, Manu has no information to give as to their proper conduct in life, other than that ' usage is highest dhavma ' ; and it only remains for them to ascertain, each for himself, as best he may, what his own particular usage may be. The twice-born man, as we have already seen, is to search the scriptures and his own conscience for his usage ; and in order to facilitate such search for the future, the author of Manu gives his reader some 32 INDIAN USAGE information as to usage in respect to sundry niatters, such, e.g. as partition. But, he does not sa}?- that this information is in any degree obligatory on all twice-born men : or that the ' recollections ' (Smrtis) of other writers like himself are to be ignored. On the contrary, he expressly says that the Veda is the supreme authority for those who would know dharma (II. 13) ; and that there may be opposite texts in the Veda, each of which is dharma because each was declared by the wise (II. 14). Where, therefore, the author ' reminds ' readers of what is in accord with one of two opposite texts in the Veda, another author may remind his readers of what is in accord with the other ; and what each says will be right, and (in certain circumstances) proper to be followed. Thus, admittedly, divergences of excellent usage are to be looked for in different countries. And, if it be asked where may the best usage be found ? answer is made by II. 17, 18 : ' The (country) which is be- tween the divine rivers Saras vati and Drsadvati, that land, fixed by the gods, (the wise) call Brahmdvarta. What custom of the (four) castes (and) the mixed castes has been handed down by course of succession in that country, that is called good custom.' The next verse gives the names of four countries that are ' next ' to tlie best, that is (according to the commentators), in- ferior. And then comes the important declaration : ' All men in the world should learn their own proper behaviour from a Brahman born in that country,' i.e. Brahmdvarta. ' USAGE IS HIGHEST DHARMA ' 33 So far, therefore, the author of Manu teaches three tlimgs : (1) Dharnia depends upon usage, which is to be found in both f^ruti and Smrti, ultimately, of course, and mainly in the former. See below, p. 133. (2) The best usage is that of the Brahmdvarta country. (3) All twice-born men should learn their usage from a Brahman born in that country. As we have seen above, it is clear that the ex- pression ' all men in the world ' must be limited in the first place to the twice-born. A further limitation seems to be intended by II. 7, 8, which point out that a ' learned man ' should certainly be firm in his own dharma, because ' a man performing the dharma declared by revelation and tradition obtains fame here and after his death extreme happiness.' I gather from this that the author writes almost entirely for a small class of learned men, principally Brahmans, and solely for their spiritual benefit. If they learn each his own proper usage or dharma (blessedness) from a duly qualified teacher like himself, they will obtain eternal happiness. In this view of the aim and object of the author of ^lanu, ' lair' as we understand the phrase, or (as I have defined it) 'an aggregate of rules of conduct that courts of justice habitually recognise and enforce,' is not to be looked for in his teachings. If, here and there, we find in Manu what looks like the setting of a law proper, we should regard it as a mere recom- mendation to the wise to follow the established and best usage of Brahmdvarta^ rather than a command to any to do or forbear from some act. D 34 INDIAN USAGE And thus to treat the Manava-dharma-qastra as a religious essay on usage, rather than as a code of positive law, is to act entirely in accordance with the history of the work as ingeniously constructed by Burnell in his Introduction thereto. According to him, this qastra (or treatise) on dharma most prob- ably, almost certainly, was published by some Panjilb Brahman about the year 500 a.d., under the Calukya sovereign Pulakegi, at Kalyanapuri, with the object of popularising Brahman teaching, and particularly of instructing the king of a Mleccha (or beyond the pale) country as to the right mode of making all men do their religious duty. And it was called ^ Manava,^ not from the mythic sage Manu, but from the Brahman gotra called ' Mdiiaca ' ; and by way of compliment to the Calukyas, who claimed to be ' Mdnavyas^ Burnell thinks that the work was also ' intended for practical use in the tribunals,' though not in the way supposed by English lawyers, being ' essentially a religious book, and not, as in England, and most of Europe, a profane treatise on uiere law. The ordeals mentioned are all, e.g. religious ceremonies.' The only text of Manu cited by Burnell in sup- port of his proposition, that it was also intended for practical use in the tribunals, is VIII. 3, which runs as follows, namely : ' Day by day (he should judge) separately (cases) under the eighteen titles by reasons (drawn) from local usage and the treatises.' Now, the word for ' treatises ' here is ' cdstra,' which (according to the note) means a body of teaching on ' USAGE IS HIGHEST DHAR^IA ' 85 a subject, whether ascribed todivme or human origin ; and it seems to me to be very doubtful whether it may not mean here the Yedic compositions, generally, rather than the Manava-d.-Q and other Smrtis. For, in verse 8 of the same Lecture it is de- clared that the King should determine suits ' relying on the eternal law ' ; and in verse 11 it is declared that the three assessors of his deputy should be 'learned in the Yeda' ; which (it will be remembered) is stated in 11. 13 to be 'the supreme authority ' of those who would know dharma. I do not forget, of course, that, according to II. 6-12, tradition, as em- bodied in the dharmaqastras, is one of the constituents of dharma. Still, I cannot help thinking that we cannot safely infer from VIII. 3 that the author in- tended his work for ' practical use in the tribunals.' In connection with this point, VII. 43 may be consulted with profit. It is to the effect that the King should learn the Vedas from those who know them, as also policy, logic, and knowledge of self : ' but business from the people.' This text agrees with VIII, 41 : ' A king knowing dharma should cause his own dharma to be established, after making careful inspection of the dharmi of the different castes and country folks, and of the dharma of the (differ- ent) guilds, and of the dharma of the (different) families.' This must not be supposed to mean that the King is to set aside the dliarmas of the castes, &c., but that he is to ratify and confirm, or (as Jones renders it) ' establish them,' as his own. Compare Gautama XI. 12-22, which declares amongst oth^- 3 6 INDIAN USAGE things that the King should learn the state of affairs from those who (in each class) have authority, and decide accordingly. And Narada (II. 17, cl. 1-4) speaks of separate laws for heretics, traders, com- panies, quarrels between father and son, &c. In quarrels between gamblers, other gamblers are to be consulted, and decide (II. 16, cl. 4). Taking these and other texts together, I venture to think that the intention of the author of Manu probably was to declare that the King, in judging, whilst taking his general views of usage and dharma from learned Brahnians, should (wherever necessary) take his views of any special usage or dharma applic- able to the particular cnse, from lay persons, such as merchants, cultivators, headmen, and others capable of informing his mind. See below, pp. 88-9 1 , and 119. However this may have been, it is quite certain that Medhatithi, in commenting (about the year 1000 ?) on the above quoted text, VIII. 41, observes that the dharmas of the castes and others are to be regarded, ' if they are not repugnant to the law {dharma ?) given by tradition.' And Kulluka (of the fifteenth century ?) said the same. Whilst the Smrticandrika (of the thirteenth century ?) is sup- posed by Professor Jolly (at p. 34) to show as dis- tinctly as possible that the Smrti is to be placed above custom (^Acdra). As regards the commentators, it is to be observed in the first place that their assumption is distinctly opposed to the introductory statement of Manu (1. 118), that 'Manu has declared in this treatise the ' USAGE IS HIGHEST DHARMA ' 37 eternal dharma of countries, castes, families ; also the dharmas of heretics (and) of guilds.' Manu can be said to have declared these dharmas only in the sense of declaring their existence, and (by implication) their propriety ; and if they exist, they must neces- sarily be separate from, and, in a measure, opposed to, the dharma of the twice-born. Certainly, the author of Manu did not pretend to teach the dharmas of here- tics, and Mlecchas, and outcastes generally. And, as a fact, he has not taught the dharmas of guilds and families ; but as certainly he has recognised and pro- claimed their existence. Then, take the very important text, YIII. 46 : ' Whatever may be practised by good and virtuous men of the twice-born castes, let (the king) cause that to be ordained (as law), if it does not conflict with (the laws of) districts, famihes, (and) castes.' Surely we have here the strongest possible recognition of the validity of the usage of any district, or family, or caste, that may happen (or seem) to be ' opposed ' to the usage declared in the Smrtis. Medhatithi would appear to have been struck by this, since he contradicts another commentator who tries to ex- plain away the obvious meaning of this highly important text ; whilst Kulluka would refer it to settling a lawsuit. It is possible that the (apparently) unwarrantable opinions of Medhatithi and Kulliika, and the author of the Smrticandrika and others, upon usage may be accounted for upon the following hypothesis. If, as would seem to be by no means improbable, they 38 INDIAN USAGE should be taken to have been thinking, not of the general dharmas of whole countries and classes, but of the case of a special dcdra (or custom) of twice - born men, as the thing opposed to the Smrtis ; and as being opposed, not to general teaching of the Smrtis, but to special directions covering the particular case — if this view of their opinion is to be taken, no great difficulty would, I think, be occasioned in practice by what they have said. The words of the text in the Smrticandrika upon which Professor Jolly relies, as refuting the argument in my View (at pp. 115-17) upon the question of usage verms law, are not given ; but, from what the learned professor says, I gather that, logically, it is not in itself of great weight, and should not be con- strued as practically stultifying the author, who immediately afterwards gives the world a whole chapter of dcqadharma (country dharma), obviously as a specimen of the exceptional dharmas intended by Manu and other Smr.is to be upheld. The argument subsequently put forward by Professor Jolly appears to me to be quite unsustain- able. It is to the effect that we are to be obliged by the following ' climax,' established in a preceding chapter of the Smrticandrika. The Veda, where opposed to the Smrti, must prevail. And both of them must overrule custom (^Acdra)^ or a verdict of an assembly of learned Brahmans. In the first place, as I have shown above, the author of Manu expressly provides for the case of two (apparently) contradictory texts of the 'N'eda ; ' USAGE IS HIGHEST DHARMA ' M9 and (by implication) he also provides for the case of a text of a Smrti (apparently) contradicting a text of the Veda. For, such contradictory text must neces- sarily be a ' recollection ' of an eternally existing but forgotten text of the Veda, and therefore equally good and valid with the other text. Then ' custom ' (Acara) is, I take it, to be distinguished, and broadly, from the dliarmas of countries, &c. Its very juxtaposition with 'a verdict of an assembly ' would seem to further limit it to a special custom of a small body of men, probably learned men, supposed to have deviated by chance from the established path. In all this nothing, it seems to me, forbids the supposition that, where precise words of a Smrti give information as to rio^ht usas^e, and a few learned men have adopted a course different from the recom- mended course, one seeking to do right should prefer- ably follow the Smrti ; and that the rational and bene- ficent declarations of Manu, touching the dliarmas of countries, &c., are not to be understood as being in fact limited by words not expressed, and which virtually destroy the whole force of such declarations. A further development of the meaning of the aphorism ' Usage is highest dharma ' is to be found in Manu VII. 201-3, which shows that the proper course for a conquering king to adopt towards the con(juered country is (amongst other things) to worship its gods and righteous Brahmans ; to appoint one of its inhabitants its ruler, giving him ' precise directions ' ; and to ' make authoritative their laws 40 INDIAN USAGE as declared.' He was not to set to work to destroy their usages, as being in his opinion inexpedient and immoral : he was to do precisely what Her Majesty the Queen did in her proclamation (referred to above in the introductory chapter) of November 1, 1858. And, similarly, the Yajiiavalkya Smrti (I. 342) says : — Of a newly subjugated territory the monarch shall preserve the social and religious usages, also the judicial system and the state of classes as they already obtain. See, too, Vishnu III. 42 ; and below, p. 107. The Province of Madras, of course, was never conquered by an Arya monarch ; but surely the above directions of Manu are applicable in spirit to the case of that country, if Manu as a whole is to be in any degree, or for any purpose, applied thereto. For, no doubt, the whole of the Madras Province was more or less under the sway of the Calukya dynasty, for whose special instruction (according to Burnell) the Manava-d.-Q. was composed ; and both as being a conquered country, and as being a mkccha (outcaste or barbarous) country, it must have been entitled many centuries ago to have its own peculiar dharma established by its overlord. And hence it is that Ellis, that admirable inquirer and- observer, was enabled to declare unhesitatingly that the Brahmans never fully introduced the law of their Smrtis into the South, and, though they suc- ceeded in abolishing the Jaina faith, were compelled to wink at many inveterate practices of the people of South India. {Transactions Madras Lit. Soc. Part I.) According to Manu, ' usage is highest dharma,^ ' USAGE IS HIGHEST DIIAKMA ' 41 as well for the most virtuous Brahm;ai as for the lowest outcaste or most inveterate heretic ; only, whereas the Brahman is to find his dharma mainly by searchmg the Qruti and Smrti, wherein his usage is fully described, others, less fortunate, must be content to follow the customs of their respective tribes. Custom, as Professor Jolly admits (at p. 36), was never replaced by the Smrtis. And, if it is true, as he thinks, that custom 'occupied a subordinate position in the eyes of the Brahmans, except so far as it had been, and was constantly being, em- bodied in the authoritative works of the Smrti writers,' it must be remembered that, as a body, the Brahmans have troubled themselves only about the usage of Brahmans, not at all about the usage of non- Brah- mans, who constitute the great bulk of the popu- lation of Madras. In remarking on the important passage of Gautama referred to above, Professor Jolly says (at p. 35) : ' Similar rules occur in other Smrtis. But it is no- where asserted that, in case of a conflict between custom and the Smrti, the Smrti may be overruled.' 1 have, however, pointed out that Manu VIIL 46, asserts this very thing m most distinct terms. And 1 trust that I have done something towards making it clear that a special aim of Manu is to teach those concerned that ' usage is highest dharma ' ; not only for the privileged classes, for whose benefit alone its author wrote, but also for the irresponsible masses, who ordinarily require no law for their guidance, except, of course, the criminal. 42 INDIAN USAGE In conclusion, T must call attention to the danger of assuming that, because certain writers of law treatises have declared a usage to be extinct or pro- hibited, therefore such usage in fact has died out. Take the case of niyoga (levirat). Manii certainly (in IX. 59) gives as valid the approved rule for performing it, before expressing strong disapproval of the practice : and by numerous subsequent texts, e.g. IX. 146, 167, 190, sanctions the practice. But Brhaspati declares that it is prohibited in the present (Kali) age. And later writers (it is said) without exception assume that niyoga is quite obsolete and impossible. Nevertheless, Marco Polo tells us that when he travelled in India ' a man takes his brother's wife, and all the people of India have this custom.' And, further, he tells us that the King, having five hundred wives of his own, forcibly took to himself the wife of his brother, who discreetly made no opposition to his will. Then, Mandelslo, who travelled in India in 1638, says (at p. 56) of the Vishnu sect : ' They have this particular custom in this sect, that they permit not the women to burn themselves with their husbands, but they oblige them to perpetual widowhood, even though the husband died before the consummation of the mar- riage. It is not long since that, among them, the younger brother was obliged to marry his elder brother's widow, to raise up seed to him ; but this custom is abolished by an express law, which con- demns the woman to celibate.' And doubtless the writer of the monograph on the Vaishnava Tottiyans ' USAGE IS HIGHEST DIIARMA ' 43 of Madura, quoted at p. 141 of ray View, had niyoga in view when he spoke of their priests compelling unwilling wives to consort with their husbands' brothers and near kinsmen. It is not at all unlikely, it seems to me, that niyoga in different forms may still survive among some of the non-Brahman castes of Soutli India. Anyhow, it must be dangerous to assume the contrary. Ihis chapter as a whole will be found to be admirably illustrated by some texts remarked on below, pp. 146-7. 44 INDIAN USAGE CHAPTER III. 'reasons from local usage and the castras.' In my second chapter I have quoted Manu VIII. 3, which says about the King : ' Day by day (he should judge) separately (cases) under the eighteen titles by reasons (drawn) from local usage and the Qdstras.' And I have ventured to dissent from Burnell's opinion, that we have here authority for the proposi- tion that the Manava-dharma-Qastra was intended ' also for practical use in the tribunals ' ; since it appears to me to be by no means improbable, but on the contrary probable, that no more may be meant here by the word ' cdstra ' than the Vedic literature generally, with which naturally the King's Brahman councillors and Mantris should be familiar. For example, see IV. 260 : ' A Brahman living by this conduct, who knows the Veda-qdstras, freed from sin, is ever glorified in the Brahma- world.' And y. 2 speaks of Brahman s 'who know the Veda- qdstras.' Whilst XII. 94 shows that the Veda-cdMra is the Veda itself; and XII. 99 says : ' The eternal Veda-cdstra supports all existent things.' There would appear to be no reason why the cdstra referred to here should not be taken to be the Veda. On the contrary, excellent reasoDs may be adduced 'REASONS FROM LOCAL USAGE AND THE ('ASTRAS ' 45 for holding that the ^jistra here referred to is the Veda and no other. In the first pL^ce, the ' reasons,' of course, are to be drawn from the (^astras, not by the King himself, but by his ]>rahmans and ministers, who (according to the first verse of Lecture VIII.) must know ' mantras ' ; by which we must understand Vedic texts. Then, after the enumeration of the eighteen topics of law, VIII. 8 says : ' Let (the king), relying on eternal law, determine the affairs of men, who mostly dispute on these topics.' No doubt he is to rely on the eternal Veda, residing in the breasts of his learned advisers. And V. 11 is more specific. It says : 'In what country three Brahmans learned in the Vedas and the king's learned deputy sit, (the wise) have said that assembly (is) of Brahma.' These three texts taken together seem to show tolerably conclusively that the King, or in his absence his deputy, should sit in judgment with not less than three Brahman assessors learned in the Vedas ; whilst other texts that I have given in Chapter II., notably, Manu VII. 43, also point to the conclusion that the author of Manu looked upon a knowledo-e of the Vedas as constituting the only necessary profes- sional equipment for the King's assessors in judgment. Whilst, on the other hand, there appears to be no text of Manu that requires or recommends, either ex- plicitly or implicitly, that the King (or his learned deputy) should consult the dharma-qastras, or Maw- books,' when sitting in court as judge. And, lookino- 46 INDIAN USAGE to my own experience of Brahmans, of their doings and sayings, I should certainly think it more con- sistent with their genius that they should desire a judge to come to court with assessors well versed in the Vedas, in other words armed with all valuable knowledge, than that they should desire him to come to court with a number of treatises on mere law, and make his assessors refer to them from time to time as if ignorant of their business. As I understand the Brahman mind, there must be something to it posi- tively indecent in the spectacle of a judge or an asses- sor turning for help in court to some written treatise, and thus openly in the eyes of all men admitting his knowledge to be less than universal. And then it must by no means be forgotten that the Manava-dharma-qastra (in the opinion at least of Burnell) was written mainly for the benefit of an irresponsible, all-powerful tyrant, accustomed almost from his cradle to regard his own wisdom as perfect, his own will as indisputable. Is it conceivable that such a one would tolerate for a moment the idea of his being obliged or controlled, in the exercise of omnipotence, by the words of a pretentious 'law- treatise,' and that openly before all his subjects? Or, is it conceivable that a presumably wily courtier, like the author of j\Ianu, would presumptuously offer so to oblige or control a typical tyrant? To my mind either thing is absolutely inconceivable. A man like Pulakeqi, the (supposed) king for whom Manu was written, may very well have been pleased to nmuse himself occasionally with giving judgment, sur- ' REASONS FROM LOCAL USAGE AND THE yASTKAS ' -17 rounded by Bralim;uis wlio knew, or were suid to know, the whole Yeda, and listening perhaps to their words of wisdom ; for in so doing he would rather increase his own personal importance in the eyes of his subjects, and add to the awe with which his decisions would be regarded. But, 1 cannot figure him to myself turning over the pages of a 'law-book ' for guidance, and publicly acknowledging the exist- ence of vulgar limits to his power. When Eastern kings sit in judgment, law and law-books, it seems to me, are out of place and an absurdity.^ In my next chapter will be found a description of an Indian trial of the good old times, from which readers will be able to judge for themselves whether or no it is probable that works like the Manava- dharma-qastra were used or ' intended for practical use ' in the tribunals of ancient India. The text at present under discussion shows that, whatever may be the meaning in it of ' qdstras-,^ the King should ' draw reasons ' for his judgments in the first instance, and mainly, from 'local usage.' And I have discussed ' usage ' in my second chapter. Pro- fessor Jolly (at p. 35), after showing that in old ' Compare what that eminent ruler of men, Sir Thomas Munro, said in a private letter to his fatlier, dated September 21, 1798 : ' We have no ancient constitution or laws to overturn, for there is no law in India but the will of the sovereign ; and we have no people to subdue, nor national pride or animosity to contend with, for there are no distinct nations in India, like French and Spaniards, Germans and Italians. The people are but one people; for, whoever be their rulers, they are still allllindcios: it is indiiferent to them whether they are under Europeans, Mussulmans, or their own Rajahs. They take no interest in polilical revolutions.' Gleig's Life, i. 203. 48 INDIAN USAGE works like Manu and Gautama, ' local and caste usages are also emphatically recognised,' goes on to observe that ' the more recent Smrtis, in which the constitution of a judicial assembly is treated in some detail, refer occasionally to custom as a ground of decision, but they direct that, in general, the king or his judge shall take the written law of the Smrti (Smrti- cdstra, dharma-qdstra, Smrti) for his guide in decid- ing any lawsuit. These considerations tend to show the range of authority which had been early acquired by the Smrtis.' From these observations (as I understand them) it is to be inferred that, whereas in ancient times the King was directed to rely, when sitting as judge, at all events mainly on local usage, the idea of law was so greatly developed in the course of several centuries that the King came to rely, when so sitting, mainly on written ' law-treatises.' But, the only authorities cited in sup- port of them are Narada and Brhaspati. Now, the dates of these two according to Professor Jolly (at pp. 50 and 64) are the fifth or sixth century a.d., and (at the earliest) the sixth or seventh century a.d., respec- tively. And the date of Manu, according to Burnell, is probably 500 a.d., but may be later. Indeed, looking to all that Burnell writes about the existing recension of Manu, we may (it seems to me) safely suppose that it may have been written several centuries later than 500 a.d. Where, then, in the present state of our knowledge is there room for the above infer- ence ? It may be that Narada and Brhaspati are much later compositions than the Manava-dharma- ' REASONS FROM LOCAL USAGE AND THE ^ASTRAS ' 49 QRstra, but as yet it cannot be said to be certain that they are sucb. Unfortunately, Professor Jolly has not thought it necessary to discuss the words of the texts of Narada that he cites, without quoting, on this occasion (I. 1, 8, 16, 31), and I am not in a position fairly to combat his arguments. But the texts cited may be considered as they appear in his own trans- lation. I. 1, cl. 8 appears to be a wrong reference, since it speaks only of family councils and other courts. I. 1, cl. 16 says : ' The eight constituent parts are the king, his officer, the assessors, the law- book, the accountant, and scribe, gold and fire, and water.' I. 1, cl. 31 says : ' Taking the law -code for his guide, and abiding by the opinion pronounced by the chief judge.' Now the 'eight constituent parts' of a judicial proceeding must surely be regarded as a fanciftil and purely arbitrary arrangement, such as the Hindu mind delights in, and like many others in the same chapter. No serious meaning can be attached to words that in themselves attribute as much essen- tial importance to drinking water as to the 'law-book.' And, after all, we may quite fairly suppose that the ' law-book 'intended was not an actual corporeal book, but the knowledge of the Vedas or Smrtis generally resident in the minds of the King, his officer, and the assessors. For, the next chapter of Narada tells us (like the other Smrtis) that the King's assessors should be ' men skilled in matters of law,' and that the judges of all lawsuits should be ' persons familiar with many branches of science,' and that a right judgment E 50 INDIAN USAGE may be passed by ' ten men versed in the Veda and jurisprudence,' or by ' three men familiar with the Veda.' Again, since the King's officer (or delegate) is a ' constituent ' of a judicial proceeding only in the absence of the King, it is clear that the Narada's ideal court of justice did not need the presence in it simul- taneously of the ' eight constituents ' ; it could, in fact, get on very well with only three of them present. On the other hand, the declaration of the plaintiff, which is not one of the eight constituents, is pronounced by I. 1, cl. 7 to be ' the essence of a judicial proceeding.' As regards I. 1, cl. 31, it appears from the note that Colebrooke translates the first words of it thus : ' placing the sacred code of law before him.' Neither translation, it seems to me, warrants us in supposing that an actual corporeal book is here intended, or that anything more is intended than that (in the correspond- ing words of Manu VIII. 8) quoted at the begin- ning of this chapter, the Kmg should judge, ' relying on eternal law,' i.e. the Vedas, as known to, and ex- pounded by, his assessors. See below, pp. 77, 106, 134. Of Brhaspati the Professor says that in one text the author ' speaks of the issue of a lawsuit as de- pending on the customs of the country, reasoning, and the counsel of the lay public,' all of which corresponds tolerably well with the directions of Manu and Gau- tama referred to above, and in my second chapter ; but in another text the author speaks of the issue depending on a Smrti text recited by the judges. Clearly, therefore, the testimony of Brhaspati upon this important and interesting question is nugatory 'reasons from local usage and the gASTRAS ' 51 for practical purposes. Probably, when he wrote these two apparently, but not necessarily, contradictory texts, the author had different classes of altercations and circumstances in contemplation. When he wrote one, he may have been thinking of disputes between merchants and others ; when he wrote the other, he may have been thinking of questions of religion or morals arising between virtuous Brahmans. Even if it could be reasonably contended that Narada has spoken strongly in favour of deciding suits according to Smrti texts, I could not allow that his unsupported opinion should be held to outweigh, or even counterbalance, the plainly and 'emphatically' enunciated rules upon the point to be found in Manu, Gautama, and others, as admitted (or rather stated) by Professor Jolly. For, certainly, Narada cannot as yet be regarded as a champion of a new school, teaching practice that had superseded old and obsolete practice. His mere opinion must be taken for what it may be worth, as compared with the opinions of many others. What, however, Narada really thought of the value of mere law appears tolerably clearly from I. 1, cl. 11. ' The law, the issue of the case, the conduct {of the parties), and an edict from the king — these are the four feet of a judicial proceeding ; eacli following is weightier than the preceding.' The least weighty, therefore, is the law ; the most weighty is the King's edict, which (as I. 1, cl. 12 tells us) 'depends on the king's pleasure.' Then I. 1, cl. 34 says that in a trial ' where religious and secular rules are at variance, the 52 INDIAN USAGE secular rules have to be put aside, and the religious precepts to be followed.' And, again, cl. 35 goes on to say: ' The law ordains to take logic for one's guide when" the sacred law cannot be applied, for the evi- dence in a lawsuit is more decisive than the law, and overrules the law.' And cl. 24 says : ' That is not a judicial assembly where the elders are missing, nor are they elders who do not pronounce a just opinion, nor is that a just opinion w^hich is against equity.' It seems to me that what Niirada looked for in a judge was equity and good conscience, not acquaint- ance with the contents of the latest editions of law- books ; and that he would have been intensely aston- ished if any one had suggested to him that a judge should enter his court-house preceded by a Peon carrying the best recension of Manu. Of the supreme will of the King, Narada speaks in the very plainest terms in his last chapter. Thus, cl. 19 says : ' Wisdom is the ornament of kings ; it shows itself in their sayings ; whatever they pro- nounce, right or wrong, is the law for litigants.' And cl. 21 says : ' Whatever a king does for the protection of his subjects, by right of his kingly power, and for the best of mankind, is valid ; that is the rule.' Again, cl. 24 says : ' The rulers of the earth have made regulations for the purpose of main- taining order ; the king's sentence is even more weighty than these regulations.' This does not look like prescribing reliance on the latest editions. Whilst, however, I am unwilling to believe (in the absence of sufficient evidence) that the practice of * REASONS FROM LOCAL USAGE AND THE ylSTRAS ' 53 using ' law-treatises ' for information and guidance prevailed at any time in such primitive tribunals as may have existed in India from time to time under powerful monarchs, I see no harm in assuming, for argument's sake, that such practice in fact existed ; and I will go on to consider very briefly the practical question, in what way should such books be turned to use now, in the courts established by the British Government. In doing this I shall take it for granted that most persons will at once admit the propriety of using them in a manner agreeable to the spii-it of the books themselves, as also to the idiosyncrasies and wishes of the various races to whom the so-called Hindu law is administered ; and shall avoid as far as possible the influence of English notions as to precedent, authority, customary law, and other matters more or less germane to the question from the point of view of the mere lawyer. First, with regard to Manu, a text of which forms the subject-matter of this chapter. In looking to turn this treatise to practical use, undoubtedly the first thing to be considered is that it professes from first to last to be no more than a ' body of teaching ' on ' dharma ' ; which, whatever else it may be, is nothing in the least like ' law ' proper. I have already attempted to give an idea of the meaning of this word in Chapter II. And I have further suggested that Manu may properly be taken to be a treatise on that ' true knowledge ' which in itself constitutes ' true religious merit,' or, as I have suggested, 'blessedness.' 54 INDIAN USAGE And, if so, we should search its pages, not so much for ' laiD^'' rules of conduct ' laid ' or set by princes or others, as for a perfect way of life, revealed in the eternal Veda, and republished by the eminent author. The next matter to be considered is the date of the work. It may, indeed must, make a vast differ- ence, for one who would turn Mann to profitable use, whether the work is to be supposed to have been written 3000 years ago or 1000. Now, Burnell has recently fixed the date as being (probably) of about 500 A.D., and I imagine that few can read his Intro- duction to Manu without, at all events, feeling doubt as to the possibility of the very early dates assigned to it being approximately correct. For my own part, I have given m the Prospectus some reasons for think- ing that our present text is of a much later date than 500 A.D., at all events of one later than the time of Hiouen Thsang's visit to India in the middle of the seventh century. Then comes the question, for whose instruction and benefit was this treatise written ? AVhen Sir William Jones first introduced it to the notice of the world, he (for the moment) imagined it to be an all- sufiicing code of law, compiled xmd published in very early times by an heroic lawgiver, ' Manu,' for the use and benefit of all the dwellers in the continent of India. But this idea has long since been exploded. And now Barnell has declared that the Manava- dharma-qastra is ' a popular work, intended for Rajas and similar persons, and was not originally intended for the use of Brahmans ' ; the many details which ' REASONS FROM LOCAL USAGE AND THE gASTRAS ' 55 refer solely to Brahmans having been inserted in it ' because kings are bound to see that all do their clharma or duty.' And he pronounces it to be ' essen- tially a religious book,' not a ' profane treatise on mere law.' Assummg Barnell's view to be in the main cor- rect, I think it may be safe and prudent to regard Manu as a trustworthy authority (so far as it goes) upon the usages ordinarily observed by various classes of Indians between, say, 1000 and 1500 years ago, particularly by the Brahmans and Ksatriyas, or kings. And, so regarding the work, we may still turn it to most profitable use in hearing and deciding suits between Hindus. Indeed, it cannot well be doubted by any who are competent to offer an opinion on the subject, that a judge who knows and understands his Manu, cceteris paribus, is infinitely better qualified than one who does not, to do justice in an altercation of almost any kind between Brahmans, or even non- Brahman Indians. But, he must understand as well as know the teaching of the book, or it will easily mislead him. Particularly, he must comprehend the leading principle that for every human being, whether a Brahman, a woman, a Qudra, a heretic, or a Mleccha (barbarian), there is a separate usage, a separate dJiarma (blessedness) ; and that what is good for one is not necessarily good for another. And, since Manu plainly and emphatically recog- nises the existence, at the time when it was composed, of various and conflicting usages, it may reasonably be inferred (it seems to me) that the author of it may 56 INDiAN USAGE have coDtemplated the possibiUty of future genera- tions gradually adopting new usages, more or less opposed to those which he recommends. In any case he must have foreseen the probability of adherents of fjakhas and caranas other than the Mdiiava continu- ing to observe their own proper usages. In using Manu, therefore, we must recollect that any observ- ance recommended therein is not necessarily one for all time, and certainly is for a particular limited class. Take for example the teaching about niyoga (levirat), which first shows how the thing is to be done accord- ing to rule, and then goes on to disapprove and condemn in the strongest terms the doing of it (IX. 59-68). Clearly we have here a concession to the usage of some, accompanied by the expression of a hope that the objectionable practice would some day be abandoned as ' a law fit only for cattle.' And compare with this the teaching about drinking, and eating, which seems to show that the author did not expect certain objectionable and sinful habits to be at once abandoned by Brahmans and Ksatriyas. That most of the usages recommended by Manu are for Brahmans alone, is perfectly plam, as I have already observed. And many of them are for a very small class indeed, namely, the select few, learned and virtuous persons who were ready and willing to devote their whole lives to the acquisition of true knowledge and true religious merit. And, lastly, the author's public, as regards the Brahmans at least, would necessarily be confined at first, for the most part, to those who, like his patron, were connected ' KEASONS FKOM LOCAL USAGE AND TUE gASTRAS ' 5 7 with the Mdnava school. For, according to the com- mentary on Paraskara's Grihiya Sutras : ' Vasishtha declares that it is wrong to follow the rules of another cakhd. . . . Whosoever leaves the law of his qdkhd and adopts that of another, he sinks into blind darkness, having degraded a sacred Rishi.' And other authorities for this proposition may be cited. Finally Max Miiller says : ' Only in case no special rule is laid down for certain observances in some Grihiyas, it is lawful to adopt those of other families.' For a discussion of this matter see Chapter III. of my Fr osj? edits . Having considered the aim and scope of Manu, and its date, and the classes to which its teachmg was addressed, a judge should next proceed to select for use the parts that promise good fruit. Mixed up with much that is useful, there is in Manu an immense amount of mere rubbish which must be carefully rejected. And beside rubbish there is much of obvious exaggeration and ornament, designed to em- phasize doubtful truths. Great discretion must be exercised in winnowing the whole mass, and securing a valuable residuum, for application (subject to nume- rous restrictions) principally to Brahmans, and oc- casionally, but in a much less degree, to such non- Braliman tribes and castes as may appear to follow in the wake of the Brahmans. So much for Manu, which for certain reasons is the most important, as unquestionably it is by far the most interesting, of the older Sanskrit ' law-books.' With reference to chronologic priority, I should have 58 INDIAN USAGE spoken first of the dharmasutras that still exist, and which are said to belong distinctly to the Vedic period of Sanskrit literature. But my suggestions with regard to the use of Manu apply for the most part equally well to the dharmasutras, and indeed to the Sanskrit ' law-books ' generally. The principal thing to be remembered about the dharmasutras, for our present purpose, is that, whilst four of them belong to the ' old ' or ' black Yajw Veda/ the other two do not.^ The four ' black Yajur Veda ' sutras, called Baudhayana, Apastamba, Hiraniya-Kesin and Ka- thaka, are thought (see Jolly, p. 38) to have been com- posed in South India. And (as I have shown in my Prospectus, p. 62) there are grounds for believing that the Apastambiya school prevails particularly in the Madras Province, excluding the Northern Cirkars and the Western Coast. Probably, therefore, in suits between Brahmans these four works, or at all events Apastamba, should be consulted in Madras more frequently than Manu, which appears to be connected with a school that has died out. The oldest sutra of all, the Gautama, is thought by Buhler and Jolly certainly to belong to the Sama Veda, whilst Jolly says that the Vasistha siitra seems to have originated in a school studying the Rigveda. ^ Burnell observes in his Introduction to Manu, p. xxiv : ' That the text has heen universally received, though a black Yajur Veda treatise and not of universal significance, is to be attributed to the fact that this Veda is still the most commonly followed one : in South India about eighty-five per cent, of the Brahman population adheres to it.' We do not yet know what proportion of this population follows the Apastamba and other fakhas, without paying attention to the Manava-d.-^. ' REASONS FROM LOCAL USAGE AND THE fASTR^S ' 59 The origin of the Vishnu Smrti, also called a sutra, seems to be still involved in doubt. AVhilst it is extremely difficult to determine in what degree the ' black Yajur Veda ' siitras, and Manu, which must be closely connected with them, should be applied to the resolution of questions arising nowa- days between Apastambiya and other Brahmans resident in the Madras Province, it is still more difficult to limit the application of the Yajfiavalk^) a Smrti ; which (see my Prospectus) is an exposition of Yoga doctrine designed for the people of Mithila, and is connected certainly with the ' white Yajur Veda,' and not improbably with Buddhism. Its suspicious origin and connections ^ notwith- standing, this Smrti (according to Jolly, p. 48), though less celebrated than the Code of Manu, has exercised an immense influence on the modern development of Indian law, through the medium of the Mitaksara and other Indian commentaries of the Yajnavalkya Smrti. And the learned Professor goes on to account for this by supposing that Manu had become some- what obsolete when the commentators of the Y. Smrti wrote ; and they found the Y. Smrti more accordant with the usages of their own time, and therefore selected it as the basis of their works. As to this, I would observe, in the first place, that the commentaries ' In addition to what I have suggested in the Prospectus as circum- stances of suspicion against Yajnavalkya, we may ohserve the mode in which tlie Seer is spoken of in the Sathapatha Brdmhann, in several places, as holding opinions contrary to the opinions of others, upon such important matters as the eating of the flesh of cows, which he recom- mended, nnd as having been cursed by Karaka Adhvaryu. 60 INDIAN USAGE of VijfianeQvara and Apararka are referred by the Professor to the 11th and 12th centuries ; whilst Medhatithi's date according to Burnell is 1000 a.d., and Manu may be of the 8th or 9th century. And, in the next place, whereas the Y. Smrti itself is a copious work, the author of the Mitaksara could get out of it only thirty-six verses as matter on which to comment at large, in the part on inheritance. I cannot think it probable, therefore, that Vijnanesvara selected the Y. Smrti as the basis of his work because he found Manu obsolete. It is far more likely, it seems to me, that he may have done so because he had new and peculiar views of his own to propound, and preferred to take up entirely new ground, using the Y. Smrti as a convenient peg. I have already, both in the View and in the Prospectus, protested for many reasons against the daily increasing importance that is attached to the Mitaksara. I will only add here a bit of testimony from the pen of Professor Jolly. He says (at p. 1 2 1 ) : ' Before closing this subject, I must not omit to note that judging Mitaksara doctrine on its merits, it is hardly possible to take a favourable view of it. It is too much opposed to the old text law and to modern usage to be looked upon as more than a theoretical development.' Perhaps it would not be unwise, in dealing with the digests and commentaries generally, to look upon all doctrines in them opposed to the old text law and to modern usage as no more than ' theoretical developments,' fit only for discussion by idealists. ' REASONS FROM LOCAL USAGE AND THE fASTRAS ' 61 Putting all these on one side as unworthy of serious consideration, we may doubtless find in books of this class much that is of permanent value. And possibly in none of them will more valuable assistance to the inquirer be forthcoming than in the unjustly condemned and despised digest of Jagannatha, which was translated by Colebrooke, and ordinarily goes by his name. It appears from Colebrooke' s letter at II. Strange, 175, that the old Madras Pandits made great use of Jagannatha : and it would seem to be but reasonable for a Madras judge to turn for information and guidance to a work believed in and used by the Madras Pandits, rather than to the Mitaksara and other works that Colebrooke (who never lived in the Madras Province) pronounced, for reasons of his own, to be authorities better adapted to the needs of the Madras people. Some quite modern compilations would appear to be of practical value, as, for example, the Andcciranirnaya, which is described by Burnell {Introduction^ Manu, xxxvii.) as bemg a small manual of practices usual in Malabar, Cochin, and Travancore, and opposed to the Sanskrit law, and an unquestionable authority for the peculiar customs of Malabar, though not as yet noticed by the High Court, which, however, has gravely accepted as genuine the impudent and stupid forgery styled the Aliyasantanada Kattu Kattale. With reference to books of this class, I would wish to invite attention once more to the Ddyadaca- rhli^ a most interesting little work, compiled probably 62 INDIAN USAGE not more than a century ago, by a native of South India, and edited by Burnell. According to its editor, it 'contains all the chief rules laid down in the received treatises, and, so far, cannot contribute false notions.' It is the ' chief rules ' that specially need to be established ; and surely it must be profitable to consult compendious works like the Ddyadaqaqhld in which (of necessity) only such rules are exhibited. 63 CHAPTER IV. THE MRICCHAKATIKA. Mr. Innes (at pp. 18-20) has made much of the nmth chapter of the Mricchakatikd, as proving beyond the possibility of doubt that at Ujayyini, in about the second century after Christ, there existed ' a judicial tribunal appointed by the king ; the judges holding office, as do the judges of the High Court, during the sovereign's pleasure ' ; and an aggregate of rules of conduct administered by that tribunal, and ' contained presumably in the Mdnava-dharma-qdstra referred to by the Chief Judge, as his guide, in communicating to the king the sentence which according to Manu it was unlawful to pass, and that which the king might Lawfully pronounce. See Manu Ch. VIII. § 380. Toy-Cart, Act IX.' And Professor Jolly (at p. 68 of his Tagore Lectures on Hindu Law) has ventured on a somewhat simihir conclusion. He says finally : — ' I have dwelt thus long on these analogies betweeen one of the most celebrated Sanskrit plays and the teaching of the later Sniritis, because they contain most valuable evidence in favour of the practical character of these works.' Amazed at these statements, and feeling pur- 64 INDIAN USAGE suaded that they must be far too bold and compre- hensive to be warranted, I have studied the ninth chapter of the ' Clay -cart'' (as done into English by- Wilson, and into French by M. Regnaud) rather carefully, with the result that 1 have arrived at the opinion that, taken as a whole and rightly understood, this amusing scene shows tolerably conclusively that nothing at all resembling criminal law (as Englishmen now understand the phrase) was ad- ministered (or known) at Ujayyini in the early part of the Christian era. Both because I would wish to justify, if I can, this my opinion, and because the matter is in itself one of some little importance and interest, I purpose examining here the ninth chapter of the ' Clay-cart ' at some little length. The first thing to be noticed, perhaps, though a trifle, is the circumstance that, upon arriving at the place of trial, the judge asks the servant (the 'huissier '), who has just swept the floor -and arranged the seats, to show the way to the court, not being in a habit (apparently) of sitting regularly in one place. The next thing is the constitution of the tribunal. The so-called 'judges ' are three in number: first the President, or judge proper, second the Headman of the merchants, and third the Kayastha scribe. Now, certainly, according to Manu, the trial should have been held in the presence of the King's delegate and (as explained by Medhatithi) not less than three Brahmans. See above, p. 45. And in any case it must have been wholly unnecessary and highly improper THE MKICCHAKATIKA 65 — I will notsay illegal, because from my point of view no ' laic^ is to be found or expected in a work like the Mritxhakatikd — for a merchant, however respectable, and for a Kayastha scribe to sit in judgment upon a Brahman nobleman like Charudatta, the defendant in this trial. According to Wilson, the Kayastha class was in old times specially obnoxious to Brahmans. The day's work begins with the President lectur- ing his assessors on the duty of a judge as regards patience, impartiality, and the like. He then asks whether there are any complainantsready to beheard, it being doubtful (apparently) whether there will be anything for the court to do. The scribe goes out to see, and comes back in a state of trepidation, with the news that the King's brother-in-law has come in person with a complaint. Hearing this, the judges are alarmed, and at once become unwilling to begin business. The President solemnly obseiwes : ' This announces, like an eclipse at sunrise, the fall of a considerable man.' And then he causes it to be inti- mated to the King's brother-in-law that the judges are too busy to attend to him. AYhereupon the com- plainant at once sends word to them that, if that is so, he will tell the King, and get the President dismissed, and another judge appointed in his place. His words terrify the court, and he is directed forthwith to come and tell his story. Upon this he swaggers into the court, gorgeously apparelled, treats the judges wdtli utmost insolence, telling them that their continuance in office depends upon his goodAvill, and actually offers to sit in their seats, but finally waives his privilege. QQ INDIAN USAGE At last he begins his story, which is to the effect that he has just found the body of a famous young woman, Yasantaferea, in his pleasure-garden, where he was taking a stroll. Evidently she has been robbed of her jewels, and murdered by strangulation — but he is not to blame in any way. Then, upon Yasan- tasena's mother coming and mentioning the name of Charudatta as that of a lover whom Yasantasena had been visiting, the complainant denounces him as the murderer ; but gives no reason for suspecting this great nobleman, a Brahman noted for his extra- ordinary charity, by which he has completely ruined himself, of having committed so mean and monstrous a crime. And, since the body was said to have been found on the complainant's own land, suspicion would naturally first point to him as being the culprit, in the opinion of any Eastern judge. Moreover, at the very beginning of his story, the complainant (who wrongly believes that he has himself murdered the woman) makes most damaging slips, the direct bear- ing of which is at once appreciated and remarked upon by the President. The proper and natural effect of the complaint, therefore, as made, is to arouse suspicion against the maker of it. And, indeed, it seems to be intended that the judges should be understood to suspect his guilt from the very begin- ning ; whilst the President is made to show sympathy for Charudatta, and to indulge from time to time in remarks touching Charudatta's high character, and the great antecedent improbability of his having done wrong, as pretended. THE MRICCHAKATIKA 67 However, Charudatta is sent for, and at once appears, and after he has reluctantly admitted that the young woman in question was his mistress, and has answered certain questions not altogether satis- factorily, the President, at the command of the King's son-in-law, takes Charudatta's seat from him and permits the complainant to occupy it in triumph. This significant act is but the forerunner of gross irregularities to come. Soon the trial is interrupted by a pohce officer suddenly presenting himself before the court and successfully demanding audience as a complainant on his own behalf ; and when Charudatta's friend Maitreya improperly intervenes in Charu- datta's behalf, the King's brother-in-law attacks Maitreya, and a fight with sticks ensues in open court, which the judges do nothing to check, the presence of guards and others notwithstanding. In the course of this fight certain jewels tumble down from the waist-cloth of Maitreya, and it is im- mediately suggested for the prosecution that they must be articles forming part of the supposed stolen property. But this suggestion is negatived by the evidence of the supposed dead woman's mother, who inspects the jewels and says they are not her daughter's. Charudatta, however, admits that they are Yasantasena's jewels, but, for reasons of his own, declines to explain (as he could) the history of them ; and the President threatens him with corporal punish- ment to be inflicted if he do not speak truth. He speaks, but not to the point, and not satisfactorily ; and the King's brother-m-law declares that he must be F 2 68 INDIAN USAGE taken to have confessed — which most certainly he did not do — and that the proper punishment for his crime is death. Thereupon the mother of the woman Vasantasena, who might naturally be supposed to desire that justice should be done upon the murderer of her only child, the support of her old age, and who claims to be complainant in place of the King's brother-in- law, strenuously protests against the assumption of Charudatta's guilt, and declares him, her daughter's great benefactor, to be quite incapable of doing the horrible act imputed to him. The old woman is forcibly removed from the court for her pains, and no heed is paid to her protestations. In spite of her testimony, and in spite of Charudatta's admitted and known good character, and his ac- cuser's admitted and known bad character and suspi- cious evidence, and of the circumstance that whilst on the one hand no one had seen the accused person do the deed, or near the scene of the offence, on the other hand the officer sent by the court to inspect the body had reported that it had been carried off by wild beasts — in spite of all these things, the court, without a moment's hesitation, finds the prisoner guilty, and proceeds to its decision ; which in effect is, that the court finds the accused person Charudatta guilty of murder, and accordingly humbly recom- mends to His Majesty the King that the said Charudatta, being a Brahman, be punished in the mode prescribed for persons of his class by the venerable Manu, to wit, not with death, but with THE MRICCHAKATIKA 69 banishment beyond the reahn, his goods not being confiscated. This recommendation having been carried to the King, the order is immediately returned that the prisoner shall be punished with death. And then come Charudatta's observations upon his trial and sentence. He denounces them as unjust, inasmuch as he had not been subjected by his judges to ordeal ' by poison, by water, by weighing, and by fire,' before deciding the question of his guilt. If he had been worsted in ordeal, his body might very properly be given over to the saw. But, as it was, he had not had a fair trial : his condemnation rested entirely upon the false word of an enemy : and a result of it would be punishment in Hell for the King and for his descendants. Upon a careful consideration of this scene as a whole, I cannot avoid the conclusion that no real, serious trial is to be supposed to be described in it ; and that the reader is intended to understand that, from the moment when the President before beginning the hearing of the case delivered himself of the ill- omened remark made to all within hearing, that the complaint of the Kmg's brother-in-law plainly an- nounced the fall of some great man, but one result of the sitting could ensue. In other words, I take it that the writer of the ' Clay-cart ' intended in its nmth chapter to hold up to ridicule (in a pleasant and safe way) the notoriously servile and abject be- haviour of the Brahmans employed by some tyrant to hear and determine as judges causes in which he or 70 INDIAN USAGE his relatives or friends were interested ; by showing that when they did their work, justice was wholly disregarded and trampled under foot, and instead of a fair and trustworthy investigation there was prac- tically nothing to be expected but a pretended and merely illusory inquiry. The introduction to the play states specifically that one of its objects is to dis- play the ' villainy of the law.' With regard to Mr. Innes's contention that any- how the play shows that there existed at Ujayyini, ' in about the second century after Christ, a judicial tribunal appointed by the king ; the judges holding office, as do the judges of the High Court, durmg the sovereign's pleasure,' I must observe in the first place that the date of the Ilricchakatikd would appear to be as yet quite uncertain. Professor Jolly states that it ' must have been composed before the time of King Criharsha, 600 a.d., but it is probably not much older.' But he gives no authority or reason for this statement ; and in the absence thereof, and after considering what Wilson says on the subject, I must take leave to consider it to be quite possible that the play may be of comparatively recent date, perhaps even of the eleventh or twelfth century. Then, it is not correct to say that the tribunal represented in the Mricchakatikd consisted of judges appointed by the King. There was but one judge properly so called : the merchant and Kayastha scribe were no more than his assessors on a particular occasion. And, as for the judge holding office during the Sovereign's pleasure, it is quite clear, from the THE MRICCIIAKATIKA 71 unresented threats of the King's hrother-in-law, that the judge must be taken to have held office durmg his Sovereign's pleasure, only in the same manner as he so kept his head on his shoulders. Of the ' aggregate of rules of conduct administered by this tribunal,' I cannot myself find a trace ; and I am at a loss to understand what Mr. Innes can have meant by the use of this expression. I now come to the most important of Mr. Innes 's statements, namely, that the above-mentioned aggre- gate of rules of conduct (of which I maintain not a trace is anywhere to be found) must be presumed to be contained in the Manava-dharma-^astra. As to this, the first observation that occurs is, that at present no man knows which of the two, the Mric- chakatikd and the Manava-d.-q., is the earlier work. The former may, as some suppose, be of the second century of our era, whilst the latter may, as Burnell supposes, be of a date not earlier than -±00 a.d., pro- bably of about the year 500, and, quite possibly, may be by several centuries later than 500 A, d. It is undoubtedly true that the sentence recom- mended to be passed on Charudatta is in part in accordance with the Manava-d.-(}., VIII. 380. But this circumstance in itself proves nothing, inasmuch as it is quite possible, and not at all improbable, that this sentence was founded on a traditional maxim or proverbial saying of the mythic Manu, which in the course of time came to be embodied, with other like sayings, in the Manava-d.-q. See VIII. 12-4, which indicates the existence of a tradition of the 72 INDIAN USAGE kind. It is of course impossible to assert positively that the judge's words were taken by the author from a copy of the existing Manava-d.-Q. And that they were not so taken is rendered highly probable by several circumstances. In the first place, whilst the sentence is in accord- ance in part with Manu VIII. 380, it is not also in accordance with the associated section, Manu YIII. 379, wliich (according to Burnell's Manu) runs as foUows, namely : ' Shaving the head is ordained as (the equivalent of) capital punishment in the case of a Brahman, but in the case of the other castes capital punishment may be (inflicted).' According to Mega- sthenes, shaving was the punishment reserved for the worst criminals. And the Damathat^ or Burmese Laws of Menu (see Richardson, p. 129), confirms Mega- sthenes' statement. Narada, too (at II. 14, cl. 9, 10), prescribes shaving of the head, with banishment, &c., for Brahman criminals in lieu of execution. Second : Charudatta, who, as a Brahman of noted piety, might be expected to know simple matters of customary procedure quite as well as the President, complains that his trial was unfair, in that he had not been allowed to clear himself by ordeal ' by poison, by water, by weighing, and by fire.' In de- fault of such clearance, but not otherwise, he says his body might justly ' be given to the saw.' But the Manava-d.-Q. does not speak of these four ordeals, though they are the very four observed by Hiouen Thsang in India in the middle of the seventh century, and prescribed by Narada for great offenders ; whilst TPIE MRICCIIAKATIKA 73 (as shown above) it does forbid the mfliction of capital punishment on a Brahman. Third : The Manava-d.-cj. expressly prescribes modes of procedure adapted to doubtful cases, of which, assuredly, Charudatta's was one, namely, that of making oath (VIII. 109-13), and that of ordeal by (1) fire, (2) water, and (3) head-touching (VIII. 110, 111). Why did not the President adopt these modes, or one of them ? Fourth : Before passing sentence, and whilst en- deavourmg (or pretending ? ) to elicit the truth, the President threatens to ' give over the prisoner's deli- cate body to cruel punishment,' presumably by the saw, as suggested by Charudatta's observations upon the sentence passed, and in direct contravention of the supposed law of Manu. Fifth : At the end of the defence the King's brother-in-law cries out, 'There is no longer any doubt that he must be executed.' Sixth : Gautama says (at VIII. 12, 13) : ' 12. (Such a Brahman) must be allowed by the king immunity from (the following) six (kinds of oppro- brious treatment) : 13. (i.e.) He must not be sub- jected to corporal punishment, he must not be imprisoned, he must not be fined, he must not be exiled, he must not be reviled, nor be excluded.' Now, by ' such a Brahman ' is meant, as I gather from the preceding verses, a superlatively excellent Brahman, one not only versed in all knowledge, but whose works are entirely unexceptionable. Such a one should enjoy complete immunity from punish- 74 INDIAN USAGE ment ; but all other Brahmans are implicitly left obnoxious to punishment, whether corporal or other. Seventh : Certain incidents of the trial, such as the writing of the complaint on the floor, the attend- ance of the merchant as an assessor, and of the scribe and beadle, and Charudatta's objection to the non- recourse to ordeal, may be to some extent (as sug- gested by Professor Jolly) in consonance with the prescriptions of Katyayana, Brhaspati, and others ; they are not also in consonance with rules to be found in the Manava-d.-q. Eighth : The King does not accept and give effect to the sentence recommended by his judge, but himself passes sentence of death. If the Manava-d.-g. at that time was the actual, positive law of the land, it is difficult to understand how even the worst of Indian tyrants could be represented as venturing to set it aside on an occasion like this. Moreover, he is made to add that any one who committed in the future a similar offence would be similarly punished. And, as observed above, Charudatta complains of the in- justice, not of sentencing him to death, which he admits to be just on the hypothesis of his guilt, but of denying him a fair trial. For these and other reasons I am of opinion that we have in the trial scene of the Mricchakatihd no evidence whatever to show that, at the time of the pro- duction of the play, the Manava-d.-Q. was the actual, positive law of Ujayyini or elsewhere, but the con- trary. To me it seems to be probable, if not certain, that the punishment of Charudatta depended not THE MRICCIIAKATIKA 75 upon the contents of any Smrti, but wholly and solely upon the King's good pleasure. Indeed, the President says as much in announcing his decision. Addressing Charudatta, he observes : ' It was our business to investigate the affair ; the rest depends upon the King.' Then, turning to the beadle, he says : ' Inform the King that, after Manu, the guilty one, being a Brahman, ought not to be punished with death, but,' &c. From this I gather that the judge should be taken to have made a bid for popularity, or an endeavour to quiet his own conscience, by bringing to the King's notice the existence of an obsolete moral precept, that he well knew would not be attended to for a moment. See above, p. 52. Mr. Innes's statements appear to me to be suffi- ciently dealt with by these observations, and I will now say a few words about Professor Jolly's view of the trial scene in question, which briefly is that it goes to show that the procedure found scattered up and down the pages of the later Smrtis, as those of Brhaspati, Katyayana, and others, was substantially adopted by regularly constituted Indian courts of law at, say, the beginning of the seventh century of our era. As remarked above, Professor Jolly helps me to show that at all events the procedure of the Manava- d.-Q. was not followed by the learned President of the court depicted in the Mricchakatikd ; it only remains for me to speak about other Smrtis. The most noticeable feature in the judicial pro- ceeding, in the opinion of the learned Professor, is the scribe writing down on the floor ' all the statements 76 INDIAN USAGE of the parties and mtnesses.' Now, this is not a warrantable account of what really happened. What alone the scribe appears to have written down, was an abstract of the complaint, as amended by the Presi- dent ; and as soon as he had written this down, the King's brother-in-law effaced the whole of it with his foot. I do not find that the depositions were, nor was any part of them, taken down in writing on this occasion. And if, as Professor Jolly seems to aver, the rules of Brhaspati and the rest direct that ' all the statements of the parties and witnesses ' should be written down, those rules certainly must have been disobeyed. But, indeed, it is not reasonable to suppose that the whole proceedings in a case would be written out in extenso on the sandy floor of a hall. Next, the learned Professor points out that ' Katyayana says that a few virtuous merchants shall be present at every judicial assembly,' which very possibly is the case. But, on this occasion only one merchant was present, and he was present not as a spectator or amicus curice^ and to ensure propriety of procedure, but in the capacity of a judge — a very differ- ent matter. As I have shown above, a merchant and aKayastha are represented as sitting in judgment on a noble Brahman in a capital case. Their doing so surely would have been in the eyes of all Hindus a very unusual and most improper proceeding, though indeed Charudatta did not object to it. Perhaps this is to be accounted for by supposing that he was (as he seems to have been) hopeless of obtaining justice, and apathetically resigned himself to an inevitable fate. THE MHICCTIAKATIKA 77 Nothing need be added to what I have already- said about the sentence and Manu, or about Charu- datta's observations anent his trial and sentence. The only remaining incident noticed by Professor Jolly is the enumeration by the President of the qualities required in a judge, of which ' a thorough knowledge of the law books ' is said to ' rank first.' But I regret being compelled to aver that this is by- no means the fact. The French is, (the judge) ' doit connaitre la loi,' and as soon as I read it I presumed that the Sanskrit could mean no more than that the judge should have that vague knowledge of the whole subject-matter of the Vedas which properly every good Brahman ought to possess. Accordingly I referred to the original, and found (as I expected) that the word which Professor Jolly considers to be equivalent to ' law books ' is (}astra. Now qastra, according to Burnell (v. Manu, p. 13, n. 5), is ' a body of teaching on any subject, either of divine or human origin.' And the commentator on the text of the Mricchahatikd explains the meaning by saying, the author goes on to indicate the qualities of one who comprehends Nydya. See above. Chap. III. Certainly it seems to me to be something like making a mountain of a molehill to present these few unimportant and doubtful matters as positively indicating that, some thirteen centuries ago, Indian judges like the one portrayed in the Mricchakatihi were in a habit of consulting the latest editions of law-books, and conscientiously guiding themselves thereby, in administering justice to suitors day by day. 78 INDIAN USAGE To my miiid it is far more reasonable to regard the trial scene under notice as (probably) faithfully re- producing ordinary incidents of mock trials held in an unknown age ; and to suppose that the authors of Brhaspati and the rest had similar incidents in con- templation when they composed their works on law as it ought to be, and naturally made mention of them in suitable places. However this may be, I think a prudent man will do well to hesitate to modify his opinion of the ' practical ' character of works like the Manava-d.-q. in view of any evidence upon the subject to be extracted from the trial scene m the MricchakatiM. I have not thought it necessary to investigate the other well-known Sanskrit trial scene, that in the Qakuntald. Mr. Innes is under the impression that the one now dealt with is ' the one solitary picture, so far as is known, contained in ancient Sanskrit litera- ture, of the administration of justice in a Hindu king- dom,' as also that ' it is enough for his purpose.' And Professor Jolly speaks of but one trial scene. It may not be unprofitable, however, to quote here the words of Professor Barth (in his note to p. 416, Revue Critique, 1878, in which he does me the honour of reviewing my View of the Hindii Law). He says : ' II y a dans la litterature sanskrite deux relations bien connues d'affaires judiciaires. L'une, qui se trouve dans Qakuntala, est regime par ces procedes sommaires de tout temps prises en Orient, cette brieve justice, comme Chardin dit quelque part, qui n'est souvent qu'une prompte injustice.' 79 CHAPTER V. OBSERVATIONS ON NARAD A. In bis preface to Narada Professor Jolly expresses the hope that his translation of ' the most luminous, complete, and systematic ancient treatise on Hindu law will be welcome to those who take an interest in the practical aspect of Hindu law,' inasmuch as 'it occupies a far more distinguished position in the development of Hindu law than the Code of Manu, perhaps the very highest ; ' whilst it is specially laudable in that its laws ' are not mere theoretical rules and precepts, but such as have doubtless been administered.' And the same author tells us in his Hindu Laiv, at p. 56, that upwards of half the (^lokas, of which the Narada Smrti consists, are quoted in the Digests. Clearly, therefore, Nfirada should be a work of considerable importance in the eyes of Indian judges. I purpose making m this chapter some observations on its date, character, and practical value. The date of Narada is at present unknoAvn, and can only inferentially and approximately be guessed at. I believe it is universally allowed that the Narada Smrti is of a later time than both Manu and Yajfiavalkya. And, so thinking. Professor Jolly for 80 INDIAN USAGE divers reasons concludes that ' the composition of this work has to be placed in the fifth or sixth century a.d.' But, since Burnell has shown us that Manu's date probably is about 500 a.d., and may be even later by some centuries, we cannot but doubt the propriety of placing in so early a time a work that shows so great a development of law proper as does the Narada Smrti, at all events in form and theory. Moreover, the current version of the work appears to be founded on an earlier and considerably larger version — indeed, may be said to be practically an abridgment of it — and a considerable space of time may reasonably be supjDosed to have elapsed between the dates of these two versions. If we suppose an interval of 500 years to separate Manu and the current version of Narada, then as the former, ac- cording to Burnell, is to be placed at about the beginning of the sixth century, Narada may be placed in the eleventh century. Or it may even be a little later. If Narada belongs to the eleventh century, it is of the same century as the Mitaksara (according to Biihler), and one great argument in favour of using the latter as ' the paramount authority ' for Madras disappears. For, obviously, when the choice lies between an aggregate of (supposed) laws proper, and a number of ' mere theoretical rules and precepts,' nothing can warrant the adoption of the latter if they are not believed to be far more modern than the former, and faithfully to represent great changes of both usage and theory. OBSERVATIOXS OX NARADA 81 As with the date of Narada, so with its origin and authorship, nothing is known about them. We can only guess that some learned Brahman took a prose work on law, and reduced it to verse in this instance, just as was done in the case of Manu and other Smrtis. In what country this reduction took place, and in connection with what religious school, there is nothing to show. With regard to the contents of the book, Jolly observes {Hindu Law, 49) that it 'is the only work of its kind in which civil law is treated by itself without any admixture of rules relating to rites of worship, penances, and other religious matters. At the same time civil law and legal procedure are seen in a far more advanced state of progress in the Narada Smriti than in any of the Smritis previously noticed.' The book consists of two nearly equal divisions, of which the first treats of 'judicature,' particularly of the constitution of courts of justice, evidence by witnesses, and five kinds of ordeal, viz. by weighing, fire, water, poison, and sacred libation ; and the second treats of various laws in order, under eiirhteen ' heads of dispute,' which differ materially from Manu's 'eighteen titles,' viz. recovery of a debt, deposits, concerns among partners, recovery of a gift, &c. Most of these subjects, of course, have little or no interest for the lawyer of the present day. But a few of them, e.g. ' partition of heritage,' are as im- portant to-day as ever they were. And some of the rules laid down seem to deserve special notice. Q 82 INDIAN USAGE I have already had occasion to notice Narada's doctrines about law, as compared with the King's judgments, the use of law-books in judicial pro- ceedings, and other matters. It is observable that Narada throughout the first chapter attaches com- paratively little authority and importance to law, and insists, very properly, on the judge taking logic for his guide, and thoroughly considering the evidence before him, and the conduct of the parties. Thus, in I. 1, cl. 36 we have the observation : ' Holy law is of a subtle nature, and has to be treated with great care. An honest man may become a thief, and a thief an honest man.' What seems to be must be carefully distino-uished from what is. ' It is ri^ht to examine a O CI fact strictly, even though it occurred in the inquirer's own sight. He who ascertains facts by rigid inves- tigation does not deviate from justice ' (I. 1, cl. 67). And again, I. 2, cl. 21 says : ' As a blind man, heedless, swallows fish with the bones, so does he who enters a court of justice, and then pronounces a per- verse opinion from mistake of facts.' See below, p. 148. The fifth Chapter contains a great number of rules about witnesses, which evince a considerable know- ledge of human nature and great common sense, and have been praised by Sir Thomas Strange and even Mill. One thmg specially noticeable about them is the oft- repeated injunction that in all disputes the witnesses shall be taken from the class of the dis- putants. Thus, in disputes between members of a family, persons of the same family shall be witnesses. ' Among companies of artisans, men who are artisans OBSERVATIONS ON NARADA 83 sliall be witnesses ; and men of one tribe among those of the same ; foresters among those living outside ; and women among women.' The reasons for this rule are obvious. One of them is given incidentally in I. 5, cl. 95 : ' If the witnesses were to disagree with one another as to place, time, age, matter, usages, tribe, or class, such depositions, too, are worthless.' From this it appears that the judge should always take into consideration, amongst other important matters, the ' usages ' of the parties ; and the witnesses should be taken from the class of the disputants, as being presumably able to furnish information in respect to their usages. I have already show^n that in quarrels among gamblers other gamblers are to be consulted, and to decide them. Witnesses must be ^ blameless, decent, and intelligent persons,' and hkely to know the facts of the case and the concomitant circumstances. But above all they must speak truth. This is insisted upon with utmost earnestness. Ordeals of five kinds are described in detail in five several chapters ; whilst two others are mentioned, or seem to be mentioned. And Professor Jolly seems to think this circumstance in itself goes a long way towards proving that Xarada is of much later date than Manu and Yajnavalkya, and that the law had been greatly developed in the interval separating Manu and Narada. But I think it would not be safe to lay much stress upon this. For Narada, while it fully describes five kinds, barely (if at all^) mentions • It seems to me to be doubtful whether Narada really refers to tn-o additional ordeals, both because the presence in it of a detailed description 84 INDIAN USAGE two other kinds of ordeal. The Vishnu siitra describes the same five that Narada describes. A ad Yajnaval- kya speaks of as many as five kinds. And Mann may properly be held to speak of four kinds, since the oath is in fact an ordeal, differing but slightly from the ordeal by sacred libation. And it is observable that this latter form was forbidden to be used in the case of a Brahman in later times. (See note 5, p. 196, Bur- nell's Manu.) Possibly, therefore, the author of Mann may have known and disapproved of the ordeal by libation; as also of the ordeal by weighing, which (according to Narada) is the one proper for a Brahman. It is conceival:»le that the author of Manu intended to recommend the oath pure and simple for Brahmans, and this and the other three ordeals for men of the other classes. Hiouen Thsang, in the seventh century, observed in India the use of Narada's four principal of five ordeals in itself malies it improbable that the author should have known of more ; whilst the supposed references to two more, the ordeal of picking a bit of gold out of a vessel containing hot oil, and that of chewing rice, are not incapable of being explained away. The supposed reference to the former is to be found in the text (I. 1, 16) that enume- rates the * eight constituent parts ' of a judicial proceeding, amongst which are gold, fire, and water (see above, p. 49). Now, the Satapatha Brdmhana (see II. 1, 1, 5 ; III. 2, 4, 8 and 9 ; 3, 1, 3 ; IV. 5, 1, 15 ; III. 3, 2, 2 ; 3, 3, 0) shows that gold is Agni's seed, which he poured into the water, and therefore gold, with fire and water, was an important object in the sacrifice ; and aLso that a piece of gold was tied to the ring finger of the Adhvaryu as a symbol of truth, in order that he ' might handle the Soma hy means of the truth.' And Manu (VIII. 1 13) directs that the Vai<;ya shall swear by his gold. It is not improbable, therefore, that gold may have been included in the ' eight constituents ' as being a symbol of truth, to be touched in swearing. As regards the chewing of rice, since it is men- tioned irrelevantly, without explanation, at the very end of the description of the ordeal by libation, and apparently as part and parcel of it, it would seem to be not unreasonable to suppose that it may in fact have been some- thing ancillary to the fifth ordeal. OBSERVATIONS ON NARADA 85 ordeals. And it is these four that are spoken of in the Mricchakatikd, as we have already seen. Lastly, it is observable that Narada (I. 5, cl. 107) professes ' to state the rule of ordeals, as it has been laid down by Manu, for the four classes severally.' Chapter III. deals with the recovery of debt, and contains some highly importjint rules. The first of these is that, after the death of the Father, the sons shall pay his debt according to their respective claims, if they separate ; or else, if they do not separate, that son who takes the burden of a paterfamilias on him- self shall pay it. In default of the sons paying it the gi-andsons shall pay it, or the great-grandsons. The obligation ceases with the fourth descendant. If the Father is sick, mad, superannuated, or long absent, the son shall pay his debt even while he is alive. If sonless, the widow must pay her husband's debt. So if she inherits his estate : for, whosoever takes the estate, must pay the debts. But, debts con- tracted by the Father from love, anger, drunkenness, in gambling, and in bailing, need not be paid by the son, or (presumably) by the widow. The Father shall not pay his son's or wife's debts, unless contracted by his order, express or implied. But ' any parcener may be compelled to pay another's debt contracted by joint tenants while they were all alive ; but if they be dead, the son of one is not liable to pay the debt of another.' The rules about payment to be observed in the case of a wife going to live with another man, as his wife, are very curious. I do not pretend to understand 86 INDIAN USAGE tliem all ; but the general proposition is clear, that he who takes the wife of a debtor, with her wealth and offspring, must pay the husband's debts. And in the case of a man taking the widow of a poor and sonless man, the taker must pay the other's debts ; ' for the wife is considered as the dead man's property.' And it is a principle that ' wives and goods go to- gether ; he who takes a man's wives takes his property too.' After proclaiming the dependence and disabilities of women in respect to alienation, and of slaves and sons, Narada goes on to observe that three persons, and only three, are independent in this world, namely, the King, the teacher, and ' in ever}^ class throughout the whole system of classes he who is the head of his family.' Whereas women, sons, slaves, and attendants are dependent, ' the head of a family is subject to no control in disposing of his hereditary property.' Further, the author observes that after sixteen a boy ' is independent in case his parents be dead ; during their lifetime he is dependent, even though he be grown old.' The Father has the greater authority, then the Mother, and in her default the firstborn. What one of these does, as head of the family, is valid ; ' what a dependent person does is invalid.' The Father, or in his default the Mother, and in her default the firstborn, ' these are never subject to any control from dependent persons ; they are fully entitled to give orders and make gifts or sales.' I think it is clear that Narada contemplates a widow left with adult sons, taking upon herself the entire OBSERVATIONS ON KARADA 87 management of the family and its estate ; and, generally, tlie most able member of a family, whether male or female, so doing. What is necessary in a head of a family is ability. With this the youngest son may succeed his father as manager. (See Head of Dispute, xiii. cl. 5.) If I am warranted in so thinking, we have here a most noteworthy and important principle to rely on in the very numerous class of cases in which (so- called) reversioners impeach alienations made by widows, on the ground that they are incompetent to aliene. In such cases it is usual to assume that the widow, as such, has next to no power over immov- ables, and is in no degree invested with the j^ersona and attributes of a male head of a family ; but I venture to doubt whether this doctrine is in accord- ance with Hindu usage. And, as I have shown in my Prospectus (at p. 125), it was known to Father Bouchet, in the eighteenth century, that, though daughters did not inherit like sons, it often happened that a capable female managed all the affairs of a group of families, and in one instance such a one was charged with the maintenance and support of more than ninety individuals. The second division of Xarada, on ' laws,' begins curiously enough with the second Head of Dispute, from which circumstance Professor Jolly mfers that the author was conscious that the topic of ' recovery of debt,' already treated of, should properly have come in as the first Head of Dispute ; and that tlie omission so to deal with it was owing to the pre- 88 INDIAN USAGE euiinence at first of the desire for redress for non- payment of debts, among the motives for going to law. In the first nine Heads of Dispute, the only things I need remark on are the rules about gifts, and a rule about the dependence of wives and others. In the first place, what alone may be given is savings that remain 'after expenses for the maintenance of the family have been defrayed.' The gift of ' the whole property of a man who has a son ' is expressly for- bidden, as also is that of 'joint property,' that of a son, a wife, and other things. Both the giving and the taking of invalid gifts are declared to call for punish- ment as illegal acts. As regards the dependence of wives and others, II. 5, cl. 39 says : ' Three persons, a wife, a slave, and a son, have no property ; what- ever they acquire belongs to him under whose domi- nion they are.' This appears to be the very maxim, given in exactly the same words, in Manu VIII. 416, on which the note in Burnell's edition remarks that ' the epic is fond of emphasising this rule ; it occurs three or four times in the Mahabharata.' The tenth Head of Dispute, ' Breach of Order,' corresponds with the ' breach of compact ' treated of in Manu, 218-20, but contains much more explicit and intelligible doctrine, and, undoubtedly, is one of the most important, if not actually the most import- ant, of all the teachings of the existent Smrtis. For, it amounts in efi'ect to this: Whilst the true religious merit of the twice-born, ^particularly of the virtuous Brahman, is of utmost consequence to the State, and OBSERVATIONS ON NARAD A 89 the King will look to occupy hiiuself principally, in time of peace, in seeing that the twice-born do their religious duty, still there are other things worthy of his attention, one of which is to preserve order amongst the various trading and labouring com- munities into which the great mass of his subjects is divided, by establishing and enforcing the temporal usages peculiar to each. I think the whole chapter, a very short one, is well worth quoting here. It runs as follows, namely : — 1. Tho, general rule settled among irreligious men, citizens, and the like is named Order ; the head of dispute concerning offences against it is named Breach of Order. 2. Let the king maintain order among the asso- ciations of irreligious men, of citizens (or sectaries who detract from the authority of the Yeda),^ of com- panies of artisans, traders, and soldiers, and of various tribes and the like, both in solitary places and in frequented spots. 3. Whatever be their duties, their occupation and prescribed rules, and whatever be the conduct en- joined to them, that let the ling approve. 4. Let him restrain them from acts which are injurious to his interests, which in their nature are vile, or which obstruct his affairs. 5. Let him not tolerate promiscuous assemblies of persons of different rank^ military array without cause, and reciprocal injuries. ' Surely the words between brackets ishould como after ' irreligious 90 INDIAN USAGE G. Those especially should be pmnshed who in- friDge the rule of the association ; they should un- dero'o fear and terror, beins; avoided like diseased persons. 7. And if wicked acts, unauthorised by moral law, are actually attempted, let a king who desires prosperity repress them. This may be compared with Manu VIII. 41, which I have already commented on (at p. 35), and which enjoms the King to establish as his own clharma the various dharmas of castes, country folks, guilds, and families ; whilst the next following verse gives a reason for so doing, that ' men who attend to their own occupations, performing each his own occupation, become dear to the world, even though they are far away,' in point of social station. It will be observed that Narada evidently has in contemplation, as objects for the King's special attention, not only castes, country folks, guilds, and families, but associations and companies of men of all kinds, whether resident in towns or in solitary places ; and, whatever their special prescribed rules and conduct, the King is to approve them, except in so far as he may find them opposed to public policy and moral law. All who vio- late the rules of their respective communities are to be punished and boycotted. I have already shown, in my remarks about witnesses, how Narada would have the Kmp; learn what the usao-es of various communities may be. It cannot be doubted, it seems to me, by one having this chapter before him, that Narada, whatever he may have desired to be done with San- OBSERVATIONS ON NARADA 91 skrit ' law books,' in altercations amongst learned Bralimans and a few others, certainly did not desire disputes arising amongst the lower orders to be de- cided by reference to books like the Mitrdvsara. This passage may profitably be read in connection with the very important deqa dharma chapter of the Smrti- candrika, a translation of most of which by Burnell will be fomid at p. 115 of my Vieic. The twelfth Head of Dispute, on the duties of man and wife, contains many remarkable provisions. Not only does it permit various kinds of Niyoga (levirat) ; it so speaks of them as to show clearly that this institution was firmly established and perfectly moral and laudable at the time when Narada was written. Further, it authorises the wife of a man who, though impotent with her, is potent with another woman, to take another husband. For the woman is the field, and ' he who has no seed for it must not possess it.' Again, where women leave their husbands for others, ' their offspring belong to the begetter, if they have come under his dominion, in consideration of a price he has paid to the husband ; but the children of one who has not been sold belong to her husband.' There is nothino- wronj? in sexual intercourse with other men's wives where the husband is an offender, or has abandoned his wife, or is impo- tent or consumptive. Absent husbands need not be waited for very long by amorous wives. And, lastly, the chapter winds up with this very suggestive rule : ' Therefore let the King take special care to restrain the women from sinful intercourse with men of other 92 INDIAN USAGE classes than their own.' But a Qudra woman ' may take three husbands in the inverse order of classes,' just as a Brahman ' may take three wives of other classes in the order of classes.' Similarly, Vaigya women may have (in all) three husbands, and Ksatriya women two. I do not know whether Narada may rightly be said ' to occupy a far more distinguished position in the development of Hindu law than Manu ; ' but certainly many of the rules contained in it appear to be (in the words of Manu) ' fit only for cattle.' The thirteenth Head of Dispute relates to the 'par- tition of heritage.' The first rule is that sons may divide the Father's estate, according to their order, after his death ; and daughters (or their issue) may divide the mother's estate after her death. But, certain things are not divisible — for example, any favour con- ferred by the Father, or any gift made by the Mother to one of her sons ; for the Mother, like the Father, is ' competent to bestow gifts' Here, then, we have the existence of two separate estates, the Father's and the Mother's, clearly established. Or, ' when the mother's menses have ceased, and the sisters have been married, or when cohabitation has ceased, and the father's carnal desire is extinguished,' the daughters may institute a division. Another rule is : 'Or the Father, being advanced in years, may himself institute the division among his sons ; either dismissing the eldest witli the best share, or however else his inclination may prompt him.' For, ' the Father is the lord of all,' and may OBSERVATIONS OX NARADA 93 do as he pleases ; unless his mind is disturbed by disease, anger, love, or the like, so that he cannot properly exercise his will, and loses his independence. Otherwise, the eldest brother may support the rest like a Father, if they consent. Or the youngest may do so, if capable. ' The prosperity of a family depends upon ability ; ' and ' he who maintains the family of a brother studying science shall take a portion of the wealth gained by science, though he be ignorant himself Where the Father separates the sons from him, he should take two shares for himself. Where a division takes place after his death, the Mother takes a share equal to a son's share, as also does an unmarried daughter ; but the eldest son takes a larger, and the youngest a smaller, share. Various rules are laid down for illegitimate sons of many kinds. For example, a damsel's son by an unknown father should present the funeral cake to his mother's father, and inherit his property. And the son of a woman who has been sold by her husband to another, presents the cake to his begetter. When no such sale has taken place, the illegitimate son of a married woman, ' obtained ' by anotlier, presents the cake to his mother's husband. The son of two fathers presents the cake to both severally, and takes a half share ' respectively of the inheritance of his begetter and of his mother's husband.' This is a curious pro- vision, inasmuch as, according to Narada's view (shown above), the ' seed ' should belong to the owner of the ' field,' i.e., in the present case, tlie luisband. 94 INDIAN USAGE And this is Manu's view of wliat is to be held, in the absence of an agreement to the contrary, in IX. 52-53. Baudhayana and other writers take different views of the position and rights of the son of two fathers (^Dvydmusydyana, or Bijin). As regards widows — ' Amongst brothers, if any one die without issue, or enter a religious order, let the rest of the brothers divide his wealth, except the wife's separate property ; ' but she is to be maintained and protected by them, so long as she remains faith- ful to her deceased husband. In default of husband's kinsmen, her own kinsmen are to be her guardians. Nothing is said directly about the wife of the separated brother taking his wealth for his sons or daughters, if he leaves any, or for herself. Apparently she takes only in the capacity of manager, as suggested above. Plain and satisfactory rules are laid down for cases in which it may be doubtful whether partition has or has not taken place. Thus, it is declared that 'those brothers who live for ten years, performing their religious duties and carrymg on their transactions separately, ought to be considered separate, that is certain.' And if, such persons, ' not being accordant in affairs, should give or sell their shares, they may do all that as they please ; for they are masters of their own wealth.' On the other hand (as shown above), the gift of 'joint property ' is expressly pro- hibited. It would be a good thing for Madras if these two rules were consistently observed by the courts. ' A son born after division shall alone take the OBSERVATIONS ON NARADA 95 paternal wealth.' What of a son born before division ? It cannot be supposed that he will be worse off than he would be if born later. ' Or he shall participate with the coparcener reunited icith his father.^ But the position of such ' coparceners ' is quite unintelligible in the English. ' The share of reunited brothers is con- sidered to be exclusively theirs ; otherwise — i.e. on failure of reunited brothers — they cannot take the in- heritance ; it shall go to other brothers when no issue is left.' Professor Jolly appears, after due considera- tion, to have preferred this rendering to three others ; what must they be like ! The list of twelve sorts of sons given by Xarada differs in some respects from that given by Manu, which again differs from lists given elsewhere. As usual, it is divided into two equal divisions ; of which the first comprises those sons who are to be considered ' heirs ' as well as ' kinsmen.' In this division N arada places none but real sons. After the ' legitimate son ' he names next the son begotten (by niyoga) on a wife. Then come the son of an appointed daughter, the damsel's son, the pregnant bride's son, and the son born secretly. Amongst those who are not ' heirs ' the adopted son comes second, after the son of a twice- married woman. And the author expressly states that the twelve sons are named in order according to their respective rank ; and that they (or the first six of them?) succeed in their order, the inferior taking in default of the superior only. Ac It is observable that the Pandits place these in what they suppose to be their chronologic order. First come Manu and Yfijuavalkya ; then tliree works by Lukkee Deher, Muddun Pareeja:;, and Chandeesur ; next two by Pacheihputtee Misr, and two by Jiiuuta Vilhaua, neither of which is styled the Dayabhaga. The last of all is a treatise by Sirree Kisheu Terkiiliingkar, The sutras, and Narada, and some other well knowu works appear not to have been used in compiling the Code. 102 INDIAN USAGE almost any page with the certainty of finding at once some Indian principles, and Indian reasons for them, quite unadulterated with English notions, absolutely free from English phrases, analogies, comparisons and ' apt equivalents.' We have in it at least a tolerably faithful picture of usage, not at all disturbed by the malign action of a cheap and un- satisfactory medium. Search it as we may, from beginning to end, we shall find here no traces of the lawyer's handiwork, not a single allusion to ' a joint and undivided family,' or to the ' managing member,' to ' survivorship,' to ' coparcenary,' or to any of the jargon of the present day. All will be simple and natural, at least from the orthodox Brahman's stand- point ; and the layman who reads the book will be persuaded that, after all, Hindu law need not be a very difficult subject of study. Like Narada, the work consists of an Introduction, and a number of chapters, each on one of the usual topics, such as ' Lending and Borrowing,' the 'Division of Inheritable Property,' 'Justice,' ' Trust or Deposit,' ' Gift,' ' Wages,' and the like. But it is much more extensive in object and details. And, jDossibly in accordance with instructions received, it deals much more elaborately than does Narada with certain subjects of practical utility, such as the division of ' inheritable property.' The Introduction consists of two parts, (1) an ac- count of the creation, and (2) an ' account of the quali- ties requisite for a magistrate, and of his employment.' The former of these shows that in the beginning haliied's code of gentoo laws 103 the four castes sprang from the principle of truth, and for a long space of time thmgs went on properly, each caste following its own appropriate occupation. The Brahman studied and taught, worshipped and sacrificed, and received gifts ; the Ksatriya studied and worsliipped and fought ; the Vaiqya studied and worshipped and looked after commerce, the tending of cattle, and agriculture ; and the Qudra busied him- self in serving the superior castes. This agreeable state of things was gradually broken up, owing to the prevalence of sin of all sorts, and Brahma was caused to reflect within himself, and to write a qastra for the improvement of mankind. After this, and when many kings had ruled the world m turn, King Yena arose (compare ManuYIL 41 and IX. 66), 'in whom every sign of an inhuman disposition plainly appeared.' He put down worship and works of piety and the execution of justice, and on being warned by the Brahmans that all kinds of wickedness and confu- sion would be occasioned by his misrule, particularly adultery and a mixture of castes leading to the creation of a criminal tribe of half-breeds, to be called the Varna-Sunlara, he laughed at them, and said, ' Let us see, since the tribe of Varna- Sanhira is produced, what its religion and manners must be.' Then he sent for a Brahman woman, and lay with her, and begot a son on her. And by similar improper con- nections many half-breeds were begotten, until the country was filled with outcaste tribes, of whom a long list is given. At last the Brahmans put this impious tyrant to death, and from his body miraculously raised 104 INDIAN USAGE up a son and daughter capable of together iDroduclng a pious and efficient race of kings. After a while the new King consulted the Brahmans as to the disposal of the Varna- Sankara, and they instructed him to refrain from putting these tribes to death, and after taking steps to prevent the formation of new tribes in the future, to ' let the existing tribes remain, appoint them their several occupations, and direct them to the exercise of piety.' The King hearkened to their words, and summoned all the new tribes to appear before him. They appeared, and after chastising them for their insolence, the King agreed to do as requested, and ' appoint them several occupations, and settle their Vaima, or peculiarity, and property of tribes.' Then the Brahmans addressed them, saying, ' You are of the castes of Sooder, let each person amongst you declare what employment he is willing to exercise.' Thereupon the tribe of Kerrum first stepped forward, and begged the Brahmans, as being Pandits, to make a proper investigation. And ac- cordingly it was settled that they should ' perform the service of the n^agistrate,' and should have due faith in the Brahmans and in the gods, and be the first in rank of the Qudra castes. Then the Amhastas were disposed of, and after them numerous tribes were dealt with, including at the last Candalas^ and leather- sellers, and drumbeaters, and various low castes usually regarded as mere non-castes, beyond the pale. This fanciful and absurd explanation of the origin and development of the castes is not without its use, iialiied's code of gentoo laws 105 inasmuch as it shows with unmistakable clearness that, in the oj^inion of these selected Brahman lawyers, the so-called laws of the Dharmaqastra were not revealed or intended for the benefit of the great mass of the population existing in India a hundred years ago, but (at the most) only for the very small fraction of it that could properly be held to represent the four original and pure castes ; whilst it is not unreasonable to suppose that they may have approved the tradition of the incorporation of the Varna- Sankara with the (yudra caste, only because they entirely ignored the right of Qudras to any connection with holy law and Hinduism, except in the capacity of obedient and humble servants of the Brahmans, who would obey all orders and ask no questions. In other words, they may have assented to the admission of the general population to the status of Qudras, because in their eyes that status involved no more than the privilege of serving. The account of the qualities and employment of the Magistrate, by which is meant the chief magis- trate or ruler of the country, extends over eleven quarto pages, and gives an excellent idea of the Brahman view of what the ruler ought to be and to do.^ The most noteworthy feature in it is the special prominence assigned to punishment, by which mainly the order and well-being of the State is to be preserved ; whilst, on tlie other hand, not a word is said about the establishment of courts of law, or the administration of civil, as distinguished from ' Confer the eud of the next following chapter. 106 INDIAN USAGE criminal, justice. This circumstance is specially im- portant as evidence going to disprove the allegations of those who would have us believe that private law, as Europeans understand the phrase, has been steadily developed in India since the time of the publication of the Manava-dharma-qastra ; and that the judge-made law of the English High Court is no more than an extension of the natural development of Sanskrit law that was effected in successive native courts of justice before English rule began. The first duty of the Magistrate is to give his people complete rest for four months in the year. During the remaining eight months he should collect the settled yearly tribute, and ' appoint Hircarrahs and spies throughout his kingdom, to inspect what employment each person pursues, and if tranquillity is preserved,' and inexorably punish men guilty of crimes. But, generally, he is to be ' patient and for- bearing, and support the burden of all his people.' Particular attention is to be paid to the selection of honest and capable counsellors, writers, and Hir- carrahs. The Magistrate must build and equip a strong fort where he may choose to reside, and make himself comfortable. But he must refrain from all excesses, keep a perpetual guard on himself, and carefully dis- tinguish between good men and bad. Then come directions about war. When he con- quers a country, the Magistrate ' shall pay worship to the gods of that country, and shall give much effects and money to the Brahmans of that province,' halhed's code of gentoo laws 107 and treat its people kindly, and select one of its royal family to rule over it. Compare my remarks at p. 40, above. Agents are to be set over each town, and over groups of two, three, five, ten, twenty, one hundred, and one thousand towns, respectively ; and news of every important affair is to be sent up to the Mao-istrate throuo'h all these ao-ents in succession. o o c The Magistrate should build a suitable building, and place in it ten good Brahmans learned in the Yeda-qiistra (see above, p. 44), and in the Qruti of the qastra, and ' acquainted with all business, and who know the excellencies and the blemishes of each particular caste, to inspect and control the affairs of the kinofdom, both relio-ious and otherwise.' If unable so to place ten Brahmans, he should place seven persons, or five, or three, or two ; ' and when- ever any doubt arises in the magistrate upon any circumstance he shall apply for a solution thereof to these Brahmans, who, coinciding in sentiments, shall give him an answer conformably to the castra ; according to which the magistrate shall take his measures.' If any dispute arises amongst the ryots, they shall go to the Brahmans for an ' ordination,' and whatever the Brahmans order ' from the inspec- tion of the castra,^ that shall the ryots do. The Pandit Brahmans are to perform various prescribed ceremonies, ' according to the qastra,' for the advantage of the Magistrate and of the subject. The men of the three lower orders are to obey the Brahmans ; and, whatever orders the latter may give, 108 INDIAN USAGE ' according to the qastra,' the Magistrate shall take his measures accordingly. Particularly he shall cause any who may forsake the principles of their own castes to return to their respective duties. He must put down theft and robbery, and reimburse those who cannot recover goods stolen from them. And adultery and violence are to be repressed. Likewise fornication amongst men of rank, and the drinking of wine. Finally, the Magistrate is to be careful about his counsels being kept secret, and must avoid sitting in council where he can be overheard, and taking counsel from foolish and irresponsible persons. The body of the work begins with the curious proposition that ' men are permitted to lend money, but they should not lend to women, children, or servants ' ; and all lending should be upon the credit of a pledge, a security, a bond or witnesses, which- ever may be preferred, but not otherwise. ' The pledge and security are to answer the payment of the debt, the bond and witnesses to prove its validity.' Then comes a set of rules about interest to be paid by men of different castes, the Varna-Sankara having to pay it at the rate of one anna per rupee per mensem, or 75 per centum per annum ; and others about pledges and security, and discharging and recovering debts. If a man dies or renounces the world in debt, his sons and grandsons shall contri- bute their respective shares to discharge his obliga- tions, and in certain cases the son and grandson must pay a man's debts whilst he is still alive ; but they haliied's code of gentoo laws 109 are not liable for debts contracted by him by gaming or drinking spirituous liquors. A father cannot be compelled to pay his son's debts, or a husband a wife's, unless incurred by his authority. If a woman borrows of necessity for the support of the family, her husband and son must pay the debt ; and in certain castes the husband, wife, and son are recipro- cally liable for one another's debts. If a Brahman dies childless, whoever succeeds to his estate pays his debts. If a Ksatriya dies childless and without kins- men, the Magistrate shall administer to his estate. Debts are to be recovered by importuning the debtor's friends, and then the debtor himself, doing; dharnd at his house (see my Prospectus, pp. 155, 156), and then arresting him and carrying him before mediators, and after a time by seizing his wife, chil- dren, and goods, and doing more dharnd ; and, lastly, by seizmg and binding the debtor's person and pro- curmg pa3niient ' by forcible means.' Brahmans may not be forced to work out a debt by day labour, but men of all the other castes may. If all these expe- dients are of no effect, apparently nothing can be done where the debtor admits his liability; but when he denies it, the creditor has no power himself to confine him, but shall take him before the Magistrate, who, if the debt is indisputably proved, shall order payment of it, and also fine the debtor as for an offence, according as he is of a caste inferior, equal, or superior to the caste of the creditor. No directions are given here, or, indeed, in any part of the work, as to tlie mode of executing; a decree. 110 INDIAN USAGE Chapter 11. deals with ' the division of inheritable property ' in considerable detail. It begins with the important general proposition that when a father, grandfather, great-grandfather, or similar relative dies, or loses caste, or renounces the world, or is desirous to give up his property, the sons, grandsons, great-grandsons, or other natural heirs may divide and assume his glebe land, orchards, jewels, coral, clothes, and other goods of whatever kind. Such property is called ' DCtya^ by which is meant what is capable of being thus left and mherited. If there is one son, he takes the whole ; if there are several sons, they all shall receive equal shares ; and so with grandsons, if there are several (and no son), they shall divide the property, and all shall receive equal shares ; and so with great-grandsons where there is no grandson. But, where a man dies, leaving several sons, and grandsons by a deceased son, these grandsons shall receive their father's share from their uncles ' in equal proportion with them,' z.^., I presume, which father's share shall be equal to the share of each of the uncles. In default of a son, grandson, or great-grandson, all goes to the adopted son, or adopted son's son or grandson ; and in default of these, to the wife. In case of non-division the property goes to the brother, but the wife shall receive food and clothes. This last is the rule according to the Pandits of Mithila. According to Jimuta Yahana and others, the husband's share, whether divided or not, goes to the wife or wives in default of sons, grandsons, or great- halhed's code of gentoo laws 111 grandsons ; and this ordination is approved, pro- vided always that the wife is, and (a thing to be noticed) continues to be, chaste. The wife may give to the Brahmans any part of what she inherits from her husband. If she ffives them the whole the gift is approved, but she is blamable. She may also sell or mortgage such property to procure herself necessaries. If there is no wife, the property goes to the un- married daughter or daughters. If such daughter marries, and has a son, he takes it ; if she has a daughter, that daughter takes nothing. Otherwise, upon the (succeeding) daughter's death her married sisters take. When daughters who take shares die leaving sons, these take equal shares jyer capita, like brothers born of the same parents. Then follow as successors the father, mother, brother, brother's son, and numberless other kinsmen, the last mentioned being a grandfather's grandfather's grandfather's daughter's son. In default of this relation, the pro- perty will go to 'the next near relation,' or ' to one of distant affinity.' In default of such heir, the Magistrate shall obtain the effects of the Ksatriya, Vaic;ya, or (^udra ; his teacher, or pupil, or fellow- student, those of the Brahman, or in default of these the Brahmans of his villa":e or neighbourhood. A very liberal and comprehensive definition of the wife's separate property is next given, and it is declared that (for the most part) it is in her disposal. Moreover, if her husband takes any of it, in times of plenty and prosperity, without her leave, he must 112 INDIAN USAGE repay her both principal and interest ; if he takes it with her leave, he repays only what he originally borrowed. In times of famine or great distress, or for religious purposes, he may take his wife's property and not return it. When the wife dies, her property received during the days of marriage goes to her un- married daughters in equal shares ; and failing such, to her married daughters, preferentially to those who have or may have offspring. In default of these it goes to her sons and grandsons, and the sons of the husband by other wives and their descendants. Failing all these, it goes to the husband, provided the marriage was one of five specified kinds ; and, in default of him, to the wife's brother, or mother or father. If the marriage was one of the three other kinds, the property goes to the wife's mother or father, and in their default to her husband ; otherwise to her husband's younger brother or his nephews. Failing these, it goes to various relations or connections in order, ending with any near connection coming after the husband's grand- father's grandfather's father's brother's grandson, and in default of any such it goes like the husband's property in similar default. The residue of the wife's property goes to her unmarried daughter and her son in equal shares ; if not, to the daughters who have or may have children ; or to grandsons, or daughters' sons, or other descendants of the wife or of her husband ; then to the husband if married in one of the five modes, and so on and so on through an almost interminable series. The rules about disqualification for inheritance are far more comprehensive than the corresponding rules halhed's code of gentoo laws 113 in Manu. Not only are the impotent man, the degraded, the blind, the deaf, the dumb, the idiot, and the like excluded from sharing, but also the son who strikes and beats his own father or fails to per- form his Qrdddha ; the man whose relatives refuse to eat and drmk with him because of his ill- behaviour and disobedience of the Vedas ; sick men, impostors, those who follow unwarrantable occupations, and others. Evidently a father would be justified, in many cases, by these rules in disinheriting his son< Excepting the son of one expelled from his tribe, born after such expulsion, the sons of disqualified persons shall receive their shares, and their women main- tenance. The rules about property liable to division dis- tinctly favour the industrious and capable. Whilst the property of a grandfather or father, or ' partnership concern,' with accruing gains, is declared to be divi- sible, it is expressly provided that when two or more are co-heirs, he by whose labour or prudent management, or at whose special risk, gain is produced, shall receive a double share thereof. And if one, without any ad- vance of property, should by his own mere diligence and efforts acquire any profit, his partners shall receive no share of it. And similarly where one, ' without employment of any stock in partnership, by his o^n efforts, in the exertion of any art, should acquire any profit,' he need not share it with partners less skilled in that art than himself, and shall give only a single share of it to partners equally skilled with liimself, retaining a doul)le sliare for liimself. 114 INDIAN USAGE A son who makes a profit by employing his father's or grandfather's property, shall give half of it to his father, and divide the rest "with his brothers, himself taking a double share. If he makes profit without an advance of propei'ty, he shall give half to his father, and keep the rest for himself. If he uses his brother's property and makes profit, he shall take a double share of that profit for himself and give his brother a single share, and his father half or a double share, according as he may be or not be a man of knowledge and skill. The species of property not liable to partition are numerous and important. Thus, ' if a person without employment of the joint stock, and without equal labour on the side of his partners (and exclusive of what a relation of equal aflF.nity may have given him), should acquire any profit, it is not liable to be shared by his partners.' And, if one of the sons receives a gift from his father or mother, the others cannot claim shares in it. If all the sons build them houses on parcels of their father's land during his lifetime, these shall not be divided. Sections 10-12, Chapter II., should be translated direct from the original Sanskrit, if it still exists, as they appear to contain exceptionally clear and valu- able provisions touching the Father's power over pro- perty and the modes of dividing it. And in settling this part of the law the Pandits would seem to have been unaware of the existence of differences of opinion about such matters in different ' schools of law.' In the first place it is plainly declared, both at the halhed's code of gentoo laws 115 beginning of the section dealing with the partition of the Father's earned property and at the beginning of the section dealing with the partition of property left by the grandfather and great-grandfather, that in no case can the sons compel the Father to separate them from him and divide the property among them. Division takes place by the Father's choice alone. Even if there is no expectation that the Father shall ever have another son, still the sons have not authority to take their ancestors' property from him. And nothing is said about the case of the Father being sick, or otherwise incapacitated from managing affairs. Next, the only limit set to the dominion of the Father over property of all kinds is the following, namely : — ' A father shall not so give away, or sell, the effects and glebe belonging to himself, or to his father and ancestors, as that his immediate dependants should be distressed for want of victuals or clothing ; if, re- serving so much as may be necessary for the imme- diate food and clothes of his dependants, he should sell or give away the rest of the property, he has authority to so sell and give away.' With this restriction com- pare the rule given below, at p. 122. If the Father by his own choice divides among his sons the (landed) property of his father and grand - ftither, he shall take to himself a double share and o-ive a sino^le share, neither more nor less, to each of his sons ; only to the elder son may he give something extra, one-twentieth of the amount divisible among the sons generally. The glebe, orchards, houses, rents, slave girls, and slaves of his father and ancestors, 116 INDIAN USAGE when brought to division, must be fairly and properly divided ; the Father may not then sell them or give them away without the consent of the sons. And so with glebe belonging to the grandfather, occupied for the first time by the Father, it must be fairly and j)roperly divided. His own earnings, and the remaining property of his father and gi-andfather (other than the glebe, orchards, &c.), the Father may deal with on different principles in effecting a division. Of the former he may reserve the bulk for himself. And after so doing, if he spends all he has, he may take food and clothes from his sons. And what he divides among his sons he may divide unequally, giving a larger share to any son who may have been particularly dutiful to him, or who may have a very large family, or may be incapable of earning his own living, than to the rest. Similarly, the Father may divide unequally the remaining property of his father and grandfather. But, if he is instigated by improper feelings — e.g. by a particular fondness for the mother of one of the sons -^in effecting an unequal division, such a division is not approved. If, however, the Father consents to divide his property with his sons at the joint request of them all, m this case he must divide it equally, giving no preference to any one on any account. Amongst Qiidras, the Father may give equal shares to his legitimate son and to his son born of a concubine ; and when he dies, his son by a concubine shall take half as much as the son by his wife ; or, in IIALHED S CODE OF GENTOO LAWS 117 default of legitimate descendants, or a wife, the ille- gitimate son shall take all. Wben the Father, in dividing with his sons, instead of tafcing a double share for himself, takes but a single shafre, equal to a son's share, he shall give a similar share to his childless wife ; or, if she has separate property, half a share, and when he reserves much for himself he shall give such share out of his own share. If other sons are born after the separation, they shall take their father's reserved share of his own property, with its increment, and also pay his debts incurred since the separation. The original sons shall have nothmg to do either with this reserved share or with the subsequent debt. As regards ancestral property, afterborn sons shall get their shares of it according to certain rules that are not very clear. Section 12, Chapter II, , deals with the division by sons when the Father dies, or renounces the world, or gives up all his effects, or is expelled from his tribe and relations. In such case ' it is not a right and decent custom that the sons should sliare, and receive amongst themselves the property left,' so long as the Mother lives. If she ' gives them instructions accordingly, then the sons have authority to divide it.' And at the time of division, if the Mother is desirous to receive a share, she shall take one share ; if not, she shall receive victuals and clothes ; or, if she has separate property, slie shall have half a share. About the right of the childless widow the autho- 118 INDIAN USAGE rities are said to differ, Jimuta Yahana and others giving her only mamtenance, whilst the Mithila Pandits give her an equal share with a son. Nothing- is said here about daughters' shares or maintenance, or about sons' widows. If the sons all agree to live together, the eldest son, or whichever is the most capable, shall ' take upon himself the command of the family,' and manage affairs like the Father, and the others shall obey him. But, whilst living together ' is the result of the general consent of all the partners,' to separate is the result of the inclination of any one of them. When dividing, they must set aside shares for absentees. And if they all agree to it, not otherwise, an extra one-twentieth may be given to the eldest son. The Father's debts must be paid, and promises carried into effect, and other necessary arrangements made. There is nothing remarkable in Section 13, about reunited partners. Section 14 contains several remark- able provisions. First : if a partner goes to a foreign country and remains there, after the lapse of an unlimited time he may (or his son, or even his great- grandson, may) demand his share. Second : amongst Cudras, if a woman leaves her husband and goes to live with another man, taking her son with her, and whilst living with this other man bears him a son, then each son shall take the goods of his own father, and also whatever his father may have given to the woman, and a share of her separate estate. (Compare with this the general rule of Narada given above at p. 91.) Third : we have contradictory rules of haliied's code of gentoo laws 119 Jlmuta Vahana and others, and of the Pandits of Mitliila, about aliening joint property without per- mission given by all concerned. The latter sanction unreservedly the doing this to the extent of the alienor's own share ; it being well understood, of course, that the alienor is one of a family of still unseparated brothers. The former sanction this subject to the proviso that it shall lead to no results inconvenient to the family. And the Gentoo Code approves this ordination. Fourth : an adopted son shall take only half as much as a natural son subse- quently born. Section 15 provides equitably for the reopening and rectifying the division (amongst sons) in case of mistake or fraud, and forbids it where all have agreed to unequal shares. It contains the following noteworthy observation : ' Every kingdom has its own customs, and every town has its own customs, so every tribe has its own customs ; if, according to those customs, an unequal division takes place, it is approved. If the mode of unequal division has passed regularly from father and ancestors, this also is approved.' Then follows a set of minute rules for the ascertainment of the fact by evidence, where division is affirmed and denied, and where there are neither eye-witnesses nor documents to prove it. Chapter III. (on Vyavahdra or 'Justice') con- sists of over thirty quarto pages, and is divided into eleven sections, on the 'form of administering justice,' ' appointing an attorney,' ' on not appreliending an accused party,' &c. &c., but contains little or notliing 120 INDIAN USAGE of any real value. Certainly it contains nothing from which I should infer that there had been any real development in law between the date of Manu and 1775. There is nothing in it to indicate that the Pandits who wrote it had apprehended the ex- istence of a difference between criminal and civil matters ; or that the Magistrate inquiring into a case of murder is to be distinguished from a mere arbi- trator settling a paltry dispute about money lent ; or that particular rules should be followed in dealing with certain classes of suits ; or that any general principles hold good for cases of all kinds. There is nothing in it to show how judgments and decrees are to be executed, or indeed how a suit should be conducted. And, everything connected with the administration of justice is subordinated to the one leading idea, that the Magistrate should preserve order by punishing delinquents, whether murderers or debtors, according to the Qastras, and for the good of the Brahmans. If the Magistrate for any reason is unable himself to examine a cause, ' he shall delegate a learned Brahman as examiner,' or in default of a learned Brahman a learned Ksatriya or Vaigya ; ' he shall never delegate a Qudra as examiner upon the qruti of the Qdstra or Veda-qdstra.'' A Qudra who ven- tures so to examine shall be fined two thousand puns of cowries. The Magistrate shall appoint as his assessors not less than ten honest Brahmans, ' know- ing in the Veda-qdstra and qmli of the Qdstra.'' Nothing is said about referring to the Mitaksara or iialhed's code of gentoo laws 121 other. ' law-books,' for guidance in hearing and determining causes. The next noteworthy rule occurs in Chapter VL, which regulates the shares of traders, artificers, and others. ' The mode of shares among robbers is this : If any thieves, by the command of the Magistrate, and with his assistance, have committed depredations upon, and brought any booty away from another province, the Magistrate shall receive a share of one- sixth of the whole.' If they receive no command or assistance from the Magistrate, they shall bring him one-tenth of the booty. Possibly this was one of the objectionable passages that Warren Hastings had in \'iew when he ineffectually tried to get the Gentoo Code Bowdlerised. ' Having the sanction of the (^dstraj this passage, in the eyes of the eleven Pandits, ' was therefore incapable of amendment,' and so re- mains in its place, a singular mark of the develop- ment that Hindu law has undergone since Manu. Chapter TIL, 'of gifts,' begins with approving an exception to the general rule, that one partner cannot give away goods belonging to the partnership without consent of the partners, contained in an ordination of Jimuta A'ahana and others, to the following effect : * From the goods in partnership, if any person gives away anything of that part to which he has a right, as his own share, the gift is approved, but the donor is blamable.' Next come rules about giving away one's wife, or son, or only son, in time of calamity. The wife may not give away or sell her son without her husband's order. And then we have a most 122 INDIAN USAGE important rule approved, the objections of Pandits unnamed notwithstanding : ' If a person, who hath an heir ahve, sells or gives away the whole of his property, the sale or gift is approved ; but it is to be imputed a crime in the vendor or giver.' But, never- theless, the general proposition holds good, that that alone can properly be given away wdiicli remains as an overplus after the expense of feeding and clothing all dependants has been met. (See above, p. 115.) Other detailed rules about gifts need no notice here. The next following chapters contain rules, some of them very curious, about slavery, wages, rent and hire, and purchase and sale. Slavery is hardly distinguishable from ordinary service, and apparently even a Brahman may find himself in a position of servitude. ' If a man sells the wife of a Brahman to any person, or keeps her to himself, it is not approved ; the Magistrate shall release the woman, censure the vendor, and hold him amenable.' ' If a servant, at the command of his master, commits theft, or murder, or any such crimes, in that case it is not the fault of the servant, the master only is guilty.' Prostitutes are entitled to their wages, and if a man cheats one of her hire, the Magistrate shall make him pay her double what he agreed to pay and fine him in a like amount. If a pimp and a prostitute have any dispute, the mistress of the girl shall settle the dispute. Chapter XII., on ' boundaries and limits,' begins with rules similar to those given in Manu, and then goes on to set out minute provisions about building. halhed's code of gentoo laws 123 draining, depositing filth, and the like. The next chapter deals with shares in the cultivation of lands, and amongst other things lays down the important rule that ' if a man gives to any person, for cultivating, land waste or not waste, he may not take it back from that person without some fault found in him,' Chapter XIV. is about cities and towns, and contains rules about cattle-trespasses. Chapter XY., ' of scandalous and bitter expressions,' begins by defining various classes of heinous ofiTences. It appears that ' Mahd Pdtuk is when a man murders a Brahman, or when, bemg a Brahman, he drinks wine, or when any person steals eighty ashrussics from a Brahman, or when a man commits adultery with any of his father's wives, exclusive of his own mother, or with the wife of a Brahman ; when a man hath committed any one of these crimes, such crime is called Mahd Pdtuk ; whoever continues intimate with sucli a person for the space of one year, his crime also is Mahd Pdtuk' And the nature of such intimacy is defined. ^Amoo Pdtuk ' includes adultery with the Magistrate's wife ; murdering a friend ; personating a Brahman ; reading an unorthodox Qastra, and forgetting the Yeda-qfistra ; spoiling goods bailed ; debauching a friend's wife ; and various delinquencies by no conceivable means capable of being thrown together in one category. The offences that together constitute ' Opoo pdtuk ' are even more promiscuous and dissimilar, the defini- tion including (amongst many other things) killing a Ksatriya, a Vaiqya, a Qudra, or a woman ; stealing 124 INDIAN USAGE petty articles ; cutting down green trees to cook rice ; living on a woman's earnings ; selling a wife without her consent ; neglecting to assume the sacred thread ; refusing to eat with a kinsman ; and a Brahman selling salt, milk, or other specified things. Another kind of offence is, ' when a man does any injury to a Brahman ; or smells at wine, or garlic, or onions ; or hath not a pure heart towards his friend ; or strikes any person on the buttock.' Yet another kmd is the killing an elephant, or a horse, or other specified animal, e.g.^ a snake. After these definitions comes a long string of punishments for those who falsely accuse others of having committed the various offences defined ; the magnitude of the punishment to be inflicted depend- ing generally on the relative rank and abilities of the offender and the complainant. The chapter ends with this : ' If a man of inferior caste, proudly affect- ing an equality with a person of superior caste, should speak at the same time with him, the magis- trate, in that case, shall fine him to the extent of his abilities.' Chapters XVI.-XIX. deal with assault, theft, vio- lence, and adultery in a manner even more extra- vagant, unjust, and idiotically foolish than does Manu. For example, if a man of an inferior caste, proudly affecting an equahty with a man of superior caste, should travel by his side on the road, he is to be fined according to his abilities. Or, if a Qudra breaks wind upon a Brahman, the Magistrate should cut off his fundament. But, if a man beats another so that his iialiied's code of gentoo laws 125 limbs are broken, the Magistrate shall make him pay the entire cost of his cure. If a man kills a goat, or a horse, or a camel, the Magistrate sliould cut off one liand and one foot from him ; if he castrates a bull, he is to be fined fifty puns of coteries ; if he kills an insect, he shall be fined one pun of cowries. Thefts are divided into open and concealed thefts, and thieves punished accordingly. Amongst oj^en thefts are giving short weight ; selling blemished goods for unblemished ; prescribing inappropriate medicmes, and so increasing the violence of a disorder, and then taking money from a patient ; winning- money at games of chance ; cheating partners ; getting property by perjury ; showmg tricks with conjurers ; extortion ; cheating, &c. &c. Concealed thefts are robbeiy, housebreaking, and the like. If a physician gives the wrong medicine to a man of a superior caste, he shall be fined a thousand puns of coicries ; if he gives it to one of an inferior caste, five hundred. If a man sells base metal for silver, the Magistrate shall break his hand, nose, and teeth, and fine him one thousand puns of cowries. If the Magistrate's coun- sellor gives advice void of justice, or gains a subsist- ence by constantly receiving bribes, the Magistrate shall confiscate all his possessions and banish him the kingdom. For stealing a man of an inferior caste the punishment is a fine of one thousand puns of coteries ; for stealing an elephant or a valuable horse, it is horrible mutilation and death. For stealing more than a certain quantity of grain or spice, a man shall bo killf'd ; for stealing less, he shall be fined. 126 INDIAN USAGE A man who steals flowers, or fruits, or grass belonging to a Brahman shall lose his hand. If a farmer, through carelessness, suffers the loss by theft of his landlord's share of his crop, the Magistrate shall fine him ten times the amount of the value of his own share. Numberless other rules about thefts and thieves are marked with equal injustice and absurdity. Violence, ' which has three distmctions,' is defined in the most extraordinary manner, but the definition is too long to give here. It seems to consist mainly in doing wilful, malicious damage to property, and the most atrocious punishments are to be inflicted on men who are guilty of it, even when the actual con- sequences of the ofl'ence may be far from serious. One example of ' violence ' will sufiice. ' If a magis- trate by violence forces a fine from a man who is guiltless, or confers favours upon one who is guilty, that magistrate shall pay a double fine.' The chapter on adultery is shocking, not so much for the reasons for which Halhed feared it would shock the Court of Directors, as on account of the cynical contempt that it shows for human suffering that may be undergone by a person of low caste, and the atrocity by which it seeks to protect the favoured classes. Thus, whilst a man is to be fined twelve puns of cowries for committing adultery with a woman of bad character or of an inferior caste, the ruflian who commits a rape on the body of his own slave-girl is to be fined only ten j'^uns of cowries. And if several ruffians join together in ravishing a slave-girl, each is to be fined only twenty-four such 'puns. On the other hand, if a man, in toying with an unmarried iialiied's cope of gentoo laws 127 girl of a superior caste, happens to put one finger where he ought not, he is to be put to death. Chapter XX., 'of what concerns women,' contains a curious medley of aphorisms and regulations, in which knowledge of the world and common sense on the one hand, and gross unfairness and unworthy- contempt for the weaker sex on the other hand, are tolerably equally displayed. A wife may be discarded for very slight cause, but a man who without good cause forsakes a virtuous wife that bears him a son shall be punished as a thief. Chapter XXL, like the last chapter of Narada, is on miscellaneous matters, but, unlike that chapter, contains ten several sections, each of some little length, on topics of considerable importance, such as gaming, quarrels between father and son, adoption, &c., some of which in Narada are dealt with in separate chapters. Gaming, to be approved, must be carried on publicly, with leave of the Magistrate, who shall take one-half of all the winnings by way of tax. Similarly the Magistrate shall take one-tenth of all profits derived from the sale of goods ; or one-twentieth where the goods are foreign, unless they consist of grain or the like, in which case the tax is one-sixth. A Qudra who gets the Veda-qastra by heart shall be put to death. And tremendous punishments are prescribed for persecuting or greatly molesting a Brahman ; and even for a Qudra always performing worship. Section 8 is a panegyric on punishment, in the form of n oood mnn-istrato who knows and follows the 128 INDIAN USAGE qastra, and inflicts punishment in accordance there- with, assisted by learned Pandits. One who punishes the guilty and rewards the innocent, ' has all the requisites for magistracy.' It is not stated that he should know and follow the Mitaksara, &c., or busy himself about ordinary civil suits. Less than twenty lines are devoted to the subject of adoption. Any child under five, and having brothers, may be given and taken. The adoption must be notified to the Magistrate, and carried out in public, and with ceremonies. A woman may adopt with her husband's consent. The last section of all, one of great length, consists of a confused mass of miscellaneous unconnected texts, some of which are of utmost absurdityj whilst others are of importance, e.g. : ' If a father, having borrowed money, from absolute inability neglects to pay the same, his son, if able to furnish the moneys, shall pay the debt.' And : ' When a debtor hath paid his creditor the sum of his debt he shall receive his bond back, and shall tear it, and shall also take a written release or receipt fi'om the creditor.' Other pro- visions commute the death penalty and mutilation penalties into fines, and allow for inability to pay them, as thus : ' If men of rank, or good principles, or of learning, commit such a crime as to deserve a capital punishment, and are not men of property, the magistrate shall take from them less than one hundred Ashrussies in proportion to their fortune ; if they frequently commit the same crime the magistrate shall confi^^cate all their property, by way of fine, and shall halited's code of gentoo laws 129 banish them the kingdom.' In other words, punish- ment is to be a mockery and a farce. I have already sliown in my Prospectus (at p. 172) that in S. India banishment used to mean quitting the city by one gate and re-entering it by another. Such, in brief, is Halhed's Gentoo Code. With all its faults, which are so numerous and weighty, as to make the work ridiculous and preposterous as a code of practical law, it is, it seems to me, and must remain, a monument of surpassing value, not only to the scientific student of usage and sociology, but also to the practical lawyer. For, whereas treatises like Mann and Yajnavalkya and Narada were written during (comparatively) ancient times of evolution and change, and bear on them evident marks of un- certainty, doubt, and speculation, and at best set forth tlie opinions or experiences of individual men or schools, the Gentoo Code was compiled but a century a^o, when the so-called Hindu law had achieved its utmost possible (true and legitimate) development, by a company of learned professors gathered indiscri minately from aU parts of Bengal, who were able in unison to expound, clearly and without hesitation — without indeed the slightest suspicion that they might ])e wrong or misinformed in any single parti- cular — what they believed to be the actual law of India as revealed in the Vedas, and as actually existent in the form of usage then, to tlieir own certain know- ledge. Moreover, it must be retr.embcred tliat tliese ])rofessors liad before them, and doubtless discussed, all the then accepted authorities ; and, being [)erfectly K 130 INDIAN USAGE acquainted with the intricacies and technicalities of the Mimamsa and other systems of interpretation, were in a position rightly to appreciate the merits of con- flicting opinions ; so that when they agree, as they almost invariably do, upon what English lawyers regard as doubtful points, it is tolerably safe to assume that the difficulties at present felt must be mainl}^, if not entirely, of our own creation. If this view of the practical value of the Gentoo Code is even approximately correct, many, no doubt, will be disposed to ask why the work was despised and rejected from the moment of its birth, and finally put aside. And I think a satisfactory answer to the question is not hard to find. I should be disposed to think that the work, as Halhed seems to have expected might not improbably happen, rudely shocked the feelings of the Court of Directors, and was at once, and very properly, rejected as a code of law for the subjects of a civilised government. And, once laid on the shelf, it would not be likely to emerge soon from obscurity, and compete in interest with works like Jones's Code of Mmm, and Colebrooke's Two Treatises, But, whatever may have been the causes that led to the efi'acement of the Gentoo Code at the time of its production, there can be no logical reason for refusing to examine it now, in altered times and circumstances, and for purposes that a century ago were not in con- templation. I have no hesitation in affirming my belief that the Gentoo Code is quite the most important work on Indian usage that as yet has come under my notice. 131 CHAPTER YII. THE KAMA-SUTEA OF VATSYAYANA. Three things are frequently spoken of by "Slanu, more or less in connection with one another, as specially important factors in the sum of human life, namely : (1) dharma, (2) artha, and (3) hfma, or (roughly speaking) blessedness, wealth, and pleasure.^ This (^astra, however, deals exclusively with dharma, and leaves it to others to teach the other two subjects to man. This has been done. And, strange as it may seem to an Englishman, there is excellent reason to beheve that, in the eyes of a Brahman who knows the Yedas, duly authorised treatises on ' wealth ' and ^pleasure ' are, equally with dharma-qiistras, part of the Holy Law. Thus, we learn from the opening verses of Yajnavalkya that : ' Whatever is declared by a person who has in an eminent degree knowledge of the soul in its relations, the same should be [held as] Law.' Also that : ' If two texts of the Law be op- posed to each other, one argument founded on usage is of force ; but the dliarma-cd.itra is of greater force than the artha-c/lstra.^ ^ Thus, VII. 27-28 says : ' A king properly inflicting it (punisliment) prospers in all three (virtue, pleasure, and wealth), hut a sensual, unfair, and base (king) verily perLshes by punishment. For punishment, very glorious, and hard to be borne by the undisciplined, destroys a king, together with his kin, when he has indeed departed from justice.' K 2 132 INDIAN USAGE "Whilst artha is inferior in importance and au- thority to dharma, no doubt kdma, by which is meant ' the enjoyment of appropriate objects by the five senses of hearing, feeling, seeing, tasting, and smell- ing, assisted by the mind, together with the soul,' is similarly inferior to artha. But this branch of the law should not, therefore, I think, be despised as being of no value : and I purpose to give in this chapter a short account" of one of the most elaborate and important treatises on it, namely, the Kdma-sutra of Vatsyayana, as translated and annotated for the Hindoo Kama Shastra Society, in 1883. After saluting dharma, artha, and kdma, the Introduction goes on to explain that the Lord of Beings laid down rules for regulating the existence of men and women with regard to the aforesaid three subjects, in one hundred thousand chapters. The rules of dharma were reduced to writing by Manu ; Brihaspati compiled those relating to artha ; and Jidma was expounded by Nandi, the follower of Mahadeva, in a thousand chapters. Various succes- sive reductions of this last work were made, and finally Yatsyayana utilised, and put together in one treatise, the results of the labours of seven prede- cessors, who had expounded each one branch of ^Y7m«, together with the lengthy reduction of Babhravya. Who Vatsyayana was, there is nothing to show ; but materials exist for approximately determining his date, which is to be placed between the first and tenth century of our era. The most important piece of evidence to show this is the circumstance that THE KAMA- SUTRA OF VATSYAYANA 133 Yaraliamiliira, who is supposed to have lived at the end of the tenth century, appears to have horrowed largely from Yatsyayana for his Brhatsanhita. At the close of the work, this is what our author says of himself : — ' After reading and considering the works of Babhravya and other ancient authors, and thinking over the meaning of the rules given by them, this treatise was composed according to the precepts of the Holy Writ, for the benefit of the world, by Vatsyayana, while leading the life of a religious student at Benares, and wholly engaged in the contemplation of the Deity. This work is not to be used merely as an instrument for satisfying our desires. A person acquainted with the true prin- ciples of this science, who preserves his Dliarma (virtue or religious merit), his Artha (worldly wealth), and his Kama (pleasure or sensual gratifica- tion), and who has regard to the customs of the people, is sure to obtain the mastery over his senses. In short, an intelligent and knowing person, attend- ing to Dharma and Artha and also to Kama, without becoming the slave of his passions, will obtain success in everything that he may do.' The work contains in all about 1,250 (;lokas, which in the translation are distributed over seven parts, with chapters and paragraphs. The second chapter is on the acquisition of dharmay artha, and kdma, and explains the terms. Man should practise all three of them, at different times, and in such a manner' that they may harmonise together and not clash in any way. Compare ^lanu 134 INDIAN USAGE IV. 176 : 'One should forsake wealth and pleasure which may be devoid of right ; and even right (acts) which result in pain, and are also reproved by the world.' And V. 56 : ' There is no fault in eating flesh, nor in (drinking) intoxicating liquor, nor in copulation, (for) that (is) the occupation of beings, but cessation (from them produces) great fruit.' Man should devote his boyhood to the acquisition of learning, and lead the life of a religious student until he finishes his education. Artha and kdma are for his youth and middle age. In his old age he should perform dharma, and thus seek to gain release from further transmigration. By dharma is meant obedi- ence to the qastras, which command men to do certain things, as, for example, ' to perform sacrifices, which are not generally done, because they do not belong to this world, and produce no visible effect ; and not to do other things, such as eating meat, which is often done because it belongs to this world, and has visible eff*ects.' Dharma should be learnt from the qruti and those conversant with it ; ^ artha from the King's officers and experienced merchants ; kdma from the Kama- sutra and the practice of citizens. Of the three, ' if they come together,' the first is better than the second, and the second than the third. ' But artha should always be first practised by the King, for the livelihood of men is to be obtained from it only. Again, Kama being the occupation of public * This is noticeable. See above, p. 50. THE KAMA-SUTKA OF VATSYAYANA 135 women, they should prefer it to the other two, and these are exceptions to the general rule.' The objections of opponents are then refuted, and particularly those of the Lokayatikas, who deny the utility of obeying religious ordinances. The right opinion is that dharma, artha, and kdma should all be practised in moderation, and no one of them at the expense of the other two, by one who would attain happiness here and hereafter. Chapter iii. tells us that sixty-four arts and sciences, as singing, playing on musical instruments, dancing, writing, drawing, acting, &c., are subordinate to hima, and should be studied with it by all, even by young maids before marriage, and after it with the consent of their husbands. Those who say that women are prohibited from learning Mma, because they should not study any science, are wrong. A public woman who studies these sciences, and who is of a good disposition, obtains the name of ' Honour- able ' and a seat of honour in an assemblage of men. Moreover, she is ' always respected by the King, and praised by learned men, and her favour being sought for by all, she becomes an object of universal regard.' Compare with this the character with which the herohie is clothed in the Mricchakatikd ; and see Wilson's observations on Eetcerce in his Theatre of the Hindus. The daughter of a king, too, ' as well as the daughter of a minister, being learned in the above arts, can make tlieir husbands favourable to them, even though they may have thousands of other wives besides them- selves.' And a wife separated from her liusband can 136 INDIAN USAGE support herself, even in a foreign country, by skill in these arts. In a word, every one is the better for possessing accomplishments. Chapter iv describes the life of an Indian, which appears to have been anything but monotonous and dull. Having acquu^ed learning, the young man should set up housekeeping with the wealth that he may have gained by gift (if a Brahman), by conquest (if aKsatriya), or by purchase or deposit (if a Yaiqya), or by inheritance from his ancestors. The house should be spacious, convenient, and well furnished with various articles, e.g. a ' toy-cart.' The day should be spent in enjoying, in the compan}?- of dependent friends, parasites and buffoons,^ various amusements, such as cock-fighting, ram-fighting, and the like ; and (occasionally) in holding musical festivals in honour of different Deities, in social gatherings of both sexes, in drinking-parties, in picnics, and in other social diversions. After various observations we have the following : — 'A citizen discoursing not entirely in the Sanscrit language, nor wholly in the dialects of the country, on various topics in society, obtains great respect. The wise should not resort to a society dis- ^ I have thus roughly translated the three terms used here, pitamardha, vita, and vidusaka. These are well-known characters in the drama. Wilson states that the first of them is the friend and confidant of the hero, and sometimes the hero of a secondary action interwoven with the principal. The vita is generally represented as being on familiar and easy, and yet dependent, terms with some prince or courtesan, and seems to differ from the parasite in that he is never rendered contemptible. He is always accomplished in the sixty-four sciences oikcima. The vidusaka is the humble companion, not the servant, of a man of rank, and though a buffoon like Sancho Panza, curiously enough is always a Brahman. Thus Maitreya (see above, p. 67) is the vidilsalxa in the Mricchakatikd. THE KAMA-SUTRA OF VATSYAYAXA 137 liked by the public, governed by no rules, and intent on the destruction of others. But a learned man, living in a society which acts according to the wishes of the people, and which has pleasure for its only object, is highly respected in this world.' The fifth chapter teaches what kinds of women may be enjoyed without sin by men of the four classes. In the first instance, hlma should be practised according to the (^astras {i.e. in marriage) with a virgin of one's own caste, for the purpose of acquiring progeny and good fame. Commerce with a woman of a higher caste, or with one of one's own caste who has been enjoyed by another, is prohibited. But to take pleasure with (1) women of the lower castes, (2) with outcasted women, (3) with public women, and (4) with twice-married women, is neither enjoined nor prohibited. Properly speaking, Nayilds,^ or women to be enjoyed without sin, are (1) maids, i.e. in marriage, (2) women twice-married (see below, p. 143), and (3) public women. But, in addition to these classes, who are enjoyed for pleasure's sake, Gonikaputra thmks, and our author agrees, that a fourth class may be resorted to, even though married, ' on some special occasion.' The special occasions set forth are thirteen in number. Tor these and similar other reasons the wives of 1 In the drama (see Wilson's T/icafre of the Hindus) the ^Y^}|ika is the heroine ; and where the phiy is one of pure ficlion, usually is a princess or a courtesan, as in the Mricchakatihd. And women are distin- guished, as in the Kama-sutra, as heiug Svakhja (the man's own wife), or Paraktya (the wife of another), or Sdmamja (indepondoiit). The Parakhja is never to be made the object of a dramatic intrigue. 138 INDIAN USAGE other men may be resorted to, but it must be dis- tinctly understood that it is only allowed for special reasons, and not for mere carnal desire.' Other writers add more Ndyikds, but Vatsyayana dis- approves. Certain women are not to be enjoyed, as lepers, lunatics, outcasted women, and others, and the wife of a relation, of a friend, of a learned Brahman, and of the King. Various opinions about adultery are then given, including that of Charayana, that ' citizens form friendships with washermen, barbers, cowherds, florists, druggists, betel-leaf sellers, tavern-keepers, beggars, Fitamardhas, Vitas, and Vidusakas, as also with the wives of all these people.' (Compare Manu YIII. 362, 363.) Part II., on sexual union, consists wholly of minute technical details, upon which comment of any kind is impossible. Parts III. and IV. show how a wife is to be wooed and won, and how a wife should behave. First, as to the choosing of a wife, it is remarkable that the parents of the young man are not represented as being necessarily concerned in this matter, but he should ' fix his affections upon a girl who is of good family, whose parents are alive, and who is three years or more younger than himself. She should be born of a higlily respectable family, possessed of wealth, well connected, and with many relations and friends. She should also be beautiful, of a good dis- position, with lucky marks on her body, with good hair, nails, teeth, ears, eyes, and breasts, neither more THE KAMA-StJTRA OF VATSYAYANA 139 nor loss than tliey ought to be, and no one of them entu'ely wanting, and not troubled with a sickly body.' Above all she should be a virgin : to marry one who is not such would be blameworthy. And the girl should be the man's equal in rank ; neither higher nor lower. Elaborate directions about wooing follow. And it is distinctly declared that a young fellow will do well, although under the control of his father, mother, or brothers, m endeavouring ' to gain over a girl from her childhood to love and esteem him.' Thus, a boy separated from his parents, and living with his uncle, ' should try to gain over his uncle's daughter, or some other girl, even though she be previously be- trothed to another.' And by his doing so dharma will be accomplished, as well as by any other way of marriage. A girl, too, should choose for herself, and marry the man that she likes, as a marriage for love is more likely to ensure happiness than one of convenience arranged by parents. If possible, the girl (betrothed to another) should be got to consent to a runaway or secret marriage, to be performed in due course by a Brahman Fleet- parson. If this cannot be done, the young man must marry the object of his affections in any one of six described ways, of which 'the one that precedes is better than the one that follows it, on account of its being more in accordance with the commands of religion, and therefore it is only when it is impossible to carry the former into practice that the latter should be resorted to.' The first three of tliese modes are modes of deceit, and (comparatively) unobjectionable; 140 INDIAN USAGE the fourtli is by intoxicating and ravishing ; the fifth by abduction during sleep and ravishing ; the sixth by overpowering guards and forcibly abducting. These six forms may profitably be compared with the disapproved forms in Manu III., on which they throw very considerable light, inasmuch as it is quite clear that in each of them the one object is marriage, which cannot otherwise be accomplished ; and the girl is supposed to have been fairly wooed and won, though she may be unwilling to incur the risk of offending her family by throwing over the man to whom she is betrothed. The secret marriage seems to correspond to the Gdndharva marriage of Mami, whilst in the fourth and sixth we have obviously the Paicdka and Bdksasa forms respectively, of which the former is held by Manu to be ' the most sinful of unions.' As I understand Vatsyayana, however, all the six forms, together with the mere secret marriage, are con- sidered by him to be Gdndharva^ with regard to which he quotes laudatory verses : ' As the fruit of all good marriages is love, the Gdndharva form of marriage is respected, even though it is formed under unfavour- able circumstances, because it fulfils the object sought for. Another cause of the respect accorded to the Gdndharva form of marriage is, that it brings forth happiness, causes less trouble in its performance than the other forms of marriage, and is above all the result of previous love.' ^ • It is amusing to compare tlie opinion of Vatsyayana with Mr. Mayne's seutimeiits thus expressed in § 7t) of Lis Iliuda Law: 'The THE KAMA- SUTRA OF VATSYAYANA 141 The chapter on the manner of living of a virtuous woman, and her behaviour daring the absence of her husband, is quite admirable for the sound common sense and knowledge of mankind that mark every part of it. I should like to quote it as it stands, but must content myself with giving a rough idea of it. First, the young wife is to take upon herself the whole care of the household and family, and particularly of the household gods ; treating 'the parents, relations, friends, sisters, and servants of her husband as they deserve.' As regards meals, she should consider always what her husband likes and dislikes, and what is good for him, what bad. The kitchen should be inaccessible to strangers, and kept scrupulously clean ; as also should be the vessels in which wine is purchased and kept. The husband's faults should not be visited with excessive blame ; nothing causes dislike so much as a habit in a wife of scold mg. Expenditure should be regulated by the income. Stores should be laid in when things are cheap. Old clothes should be given to deserving servants. Every detail of management should be carefully looked after ; and the wife ' should surpass all the women of her own rank in life in her cleverness, her appearance, her knowledge of cookery, her pride, and her manner of serving her husband.' She should not gad about, validity of a Gandharvn icarriage between Ksliatriyas appears to have been declared by the Bengal Sudder Court in 1817. It seems to me, bowever, that this form belongs to a time when the notion of marriage involved no idea of permanence or exclusiveness. Its definition implies nothing more than fornication. It is difnciilt to see how such a con- nection could be treated at present as constituting a marriage with the incidents and results of such a union.' 142 INDIAN USAGE but stay at home, except when she goes out with her husband. To please him she should put on all her ornaments and bravery. In his absence she should live secluded, and wear her plainest dress. She should in all things respect her husband's father and mother, and be dependent on their will. Above all, whether a woman of noble family, or a virgin widow remarried, or a concubine, the wife should lead a chaste life, devoted to her husband, keeping his secrets, and doing everything for his welfore. Thus she will acquire dharma, artha, and Idma, and preserve her husband's love unimpaired. Chapter ii. of Part IV. contains miscellaneous rules of conduct for wives and others, of no special importance; but, incidentally, it shows that husbands used to marry second wives, or practise polygamy, for many reasons besides that of having begotten no son — e.g. on account of a feeling of dislike towards the first wife or wives. And, similarly, a wife would leave her husband because she disliked him, and live with another man. Therefore a virgin widow who contemplates marrying again is recommended to be careful to choose a man whom she likes, and who will suit her, since otherwise she may repent her choice, and have to leave her husband for another man. At the time of her marriage the widow ' should obtain from her husband the money to pay the cost of drinking-parties and picnics with her relations,' and other thmgs. If she leaves her husband after marriage of her own accord, she should return to him what he may have given to her, except mutual pre- THE KAMA' SUTRA OF VATSYAYANA 143 sents. In his house she should live like one of the chief members of the family, but treating all with clue kindness and respect. Apparently her position was likely to be one of some httle difficulty. It is notice- able that in several passages the widow remarried is spoken of in terms implyiug that she was less highly considered than other wives. Thus, the King is recommended to converse, when he visits the harem, first with his ordinary wives, then with the widows remarried, and lastly with his concubines and dancing girls. Where there are many wives, a young woman who is good-tempered, and who behaves herself according to the qastras, will win her lord's love and overcome her rivals. Part Y. contains several chapters on ' other men's wives,' and gives a detailed and highly interesting account of Hindu society, from the point of view of the fashionable adulterer. It strongly discounte- nances the sin of adulter}^, and warns readers against using Yatsyayana's teachings except for the purposes of self-protection. If they do, they will court disaster, and destroy dharma and artha. Part YI. gives an exhaustive and an exceedingly clever account of the Iletcera, who appears to have occupied a very prominent and distinguished position in Hindu society at the time when our author wrote. It contains ample warnings against her rapacity and heartlessness, but in no degree disapproves of men resorting to her company. On the contrary, our author evidently regards her proceedings with com- placency and sympathy. Part A^ll. contains some 144 INDIAN USAGE foolish recipes and miscellaneous observations, and remarks in conclusion. Such, in brief, is the Kama-sutra of Yatsyayana, which has been explained by commentaries, and in other ways treated like a dharma-Cj'astra. To those who would wish to understand the Hindu ' law ' as a whole — that is to say, as an aggregate of written and unwritten rules of conduct by which the Hindu com- munity has habitually and more or less unconsciously governed itself — a knowledge of the contents of this standard work of reference would seem to be as necessary as a knowledge of the contents of Manu, indeed to be indispensable. The circumstance that some parts of it are what an English journalist would consider to be wholly unfit for publication, should in no degree tend to lessen the value of the treatise, viewed as an exponent of actual Hindu usages, manners, and customs. On the contrary, it appears to me to be in itself of great importance, as going to show that the Brahman and Ksatriya public, for which Yatsyayana wrote one thousand years or so ago, far from being a gloomy and puritanic society, intent only on outward religion, must have been a gay and dissipated society, fond of getting and spending money, and essentially worldly, though by no means unmindful of religion and duty as then understood. It appears from Dr. Pope's edition of the Kurral, that this celebrated Tamil religious and moral poem is divided into three books, treating of dharma, artha, and kdma respectively. And the Namud, a standard Tamil grammar of much later date, has the rule : THE KAMA-SUTRA OF VATSYAYANA 145 ' The benefit derived from a treatise must be the attaining to Virtue, Wealth, Enjoyment, Deliverance; ' just as the Hitopadeca {4. 26) gives the enumeration, dharma-artha-Mma- mokshandm. Dr. Pope seems to liave been afraid for many years to look into the hlma section of the kurral : and when he did at last make up his mind to study it, to have been agreeably surprised by what he found. It contains, indeed, little or nothing that is objection- able ; whilst it gives a not unpleasing description of Tamil love aifairs. A hasty glance at it has sufficed to convince me that its author must have been ac- quainted with the Kdma-sutra, or at all events with works closely connected therewith. It is little more than a romance in some 250 couplets, about the Gdndharva marriage, and the quarrels, hopes, fears, griefs, and reunion of fortunate lovers, upon the lines laid down by Yatsyayana. The section in the Kurral on artlia consists of about seven hundred couplets on ' royalty,' ' ministers of state,' and ' essentials of a state,' with an ' appen- dix,' on various subjects, as nobility, honour, great- ness, &c. The Tamil for artha is pond, which Besclii renders by ' rerum proprietates,' Grant by ' bona,' and Ariel by ' la fortune.' The section on it is longer than the other two sections put together, and probably deals with the subject exhaustively. Burnell has pointed out in his ' Introduction' to Manu, that this work is remarkable for the inter- polation in it of Chapter VIL, ' which treats of matters relating solely to polity and the life of kings,' and L 146 INDIAN USAGE which are entirely foreign to the original sutras, ' and confirms decisively the conclusion that the text was intended for Rajas.' May it not also be held to indicate that writers belonffino- to Brahman caranas were beginning to recognise the necessity of teaching to human beings artha as well as dharma, the way of building up and maintaining a State, as well as the way of performing sacrifices and maintaining order amongst the classes? T observe that Vishnu, too, contains a tolerably lengthy chapter on artha, namely No. Ill, ; and Apastamba briefly describes the duty of a king in II. 10, 25-26. The ' Gentoo Code,' as we have seen, has a long chapter on a}'tha prefixed to the body of the work ; founded apparently upon a work of Pacheshputtee Misr on the duties of a king. The curious passage with which Apastamba is brought to a conclusion, shows clearly that a know- ledge of the Vedas, however extensive, will not suffice for all purposes, and therefore must be supplemented with knowledge to be derived from other sources. II. 11, 29, 11, tells us : ' The knowledge which Qudras and women possess is the completion (of all study).' By this (according to Biihler) is meant ' dancing, music, and other branches of the Artha Qastra.' But, surely, dancing, music, &c., are of the sixty-four sciences of Kama. Apastamba goes on to say, ' It is difficult to learn the sacred law from the Yedas, but by following the indications it is easily accomplished,' and then gives the ' indications,' as thus : ' He shall regulate his THE KAMA-SUTRA OF VATSYAYANA 147 coarse of action according to the conduct which is unanimously recognised in all countries by men of the three twice-born castes, who have been properly obedient, who are aged, of subdued senses, neither given to avarice, nor hypocrites. Acting thus, he will gain both worlds.' This appears to be a quotation of a proverbial saying. The actual endmg of the work is this : ' Some declare that the remaining duties must be learnt from women and men of all castes.' Have we here (as I suppose) a recognition of the necessity of learning artha and kdma from any who teach them, e.g. from the Heta^ra ? I have shown at p. 31, above, where Qudras and women are to get information as to their duty, namely, from the epics and similar compositions. But, what- ever else they may find here, certainly they will not find law. An interesting passage in the Mahfibharata (Yana Parva, 312) shows that the author of it, like the author of Apastamba, Narada, and others, greatly distrusted the Holy Law, and preferred that usage which Manu declares to be ' highest dharma.' In it Yudhistira, after solving with preternatural sagacity a string of enigmas propounded by Yama, tells him what is • the path,' as thus : ' Argument leads to no certain conclusion : the crutis are different from one another ; there is not even one Rishi whose opinion can be accepted as infallible : the truth about religion and duty is hid in caves; therefore, that alone is the path along which the great have trod.' If not even one Rishi exists whose opinion can be accepted as infallible, may I not be pardoned for 148 INDIAN USAGE declining to believe in guesses at the meaning of Vijfianeqvara's speculations upon the meaning of the Yajnavalkya ' recollection ' of a Rishi's teachings ? This passage may usefully be compared with the above-mentioned passage from Apastamba. as also with the passages reuiarked on above, at pp. 32, 47, and 82. 149 CHAPTER VIII. THE JOINT FAMILY. Perhaps the commonest phrase in the reports of the IMadras High Court, of cases involving questions of Hindu haw, is ' the joint family ' or ^ fam'ly.^ Thus we find it stated in Norton's Leading Cases, at p. 173, 1., that : ' Joint undivided family is the ordinary status of the Hindoo. Sometimes this has been termed joint-tenancy, sometimes coparcenary, sometimes co^ parcenary with a benefit of survivorship.' And at 11. 461, of the same: 'The ordinary status of a Hindu family is that of coparcenary ; insomuch so, that this is always presumed until the contrary is shown.' In order, therefore, to understand the principles upon which the Madras High Court administers its law to Indian litigants, in affairs of inheritance, succession, and the like, it is essentially necessary to comprehend the views that the Madras High Court from time to time takes of the composition and nature of the Indian ^ family^ But to do this is by no means an easy task. Not only are the views of the Court constantly changing ; even the views of individual members of it appear to undergo frequent modification and amend- ment, and it is not too much to say that at Madras the whole subject of the structure of Indian society is 150 INDIAN USAGE wrapt in as much of uncertainty and obscurity at the present moment as it was in the days of the elder Strange and Ellis. This statement will be justified by the third part of this work. If we would attempt scientifically to reconstruct the Hindu law for Madras, or rather to construct for the first time a code of Indian usages for Madras, the first pre-requisite of success would be a thorough examination of the families of various forms at present existing in Madras, including, e.g., the old-fashioned Brahman family of secluded villages, the polyandrous family of the Western Coast, the ordinary agricultural family of the interior, and the modern trading family of the coast. In this chapter I purpose indicating, quite roughly and briefly, the character of the ex- amination which I would suggest in this behalf. In the first place it is proper to observe that the ambiguous word ^family ' is (or may be) extremely misleading. It may be taken (according to its con- text) to mean the whole collection of slaves or servants in one house ; or, all the individuals forming one household, under one head ; the descendants of a common ancestor ; a race of men, and many other things. It may even mean one small baby : or the whole population of this world. The word (legally) is not a term of art ; indeed it is not known to the English law, though '■ familia ' was used in technical senses in Latin legal writings. And, as I have pointed out in my Prospectus (p. 187, n.), the concept appears to be foreign to the Sanskrit language. At all events, I have never succeeded in learning a San- THE JOINT FAMILY 151 skrit equivalent for it, and certainly there is notliing like it in tlie Drilvida dialects. We must not hastily assume, therefore, that any collection of human beings precisely and in all points corresponding to an English family, as we understand the phrase in or- dinary talk, actually exists at the present moment in the Madras Province. In like manner I have failed so far to dig-cover Sanskrit words corresponding to ^ joinf and 'un- divided,^ though of course ' avihhaha ' stands for one still un separated from his brethren. And I venture to regard it as being quite withm the bounds of possibility, that the whole of what is denoted and connoted by the words ^ joint undivided family ' may turn out to be foreign to, and unwarranted by, the Sanskrit law-treatises. The institutions of the Aryan race have been dealt with at length by Doctor Hearn in his Aryan House- hold, and I cannot do better than quote here some of his introductory observations on the character of the archaic clan, and its constituent families, since tliis writer appears to represent with sufficient fidelity the latest school of investigators in the new field of pre- historic and very early sociology. He says at p. 4 : ' In all its leading characteristics — political, legal, re- ligious, economic — archaic society presents a complete contrast to that in which we live. There was in it no central government, and consequently there were no political organs. There was no law to make, and there was none to be executed. There were neither par- liaments, nor courts of justice, nor executive officers, 152 INDIAN USAGE There was no national church. The great bulk of property, not only as to its tenure, but as to its en- joyment, was in the hands not of individuals, but of corporate households. There were few contracts, and no wills. Men lived according to their customs. They received their property from their fathers, and transmitted it to their heirs. They were protected or, if need were, avenged by the help of their kinsmen. There was, in short, neither individual nor State. The clan, or some association founded upon the model of the clan, and its subdivisions, filled the whole of our forefathers' social life. Within its limits was their world. Beyond it they could find no resting-place. For the origin of this clan-relation we must ascend a loDg way in the history of the human mind. It is due neither to force nor to fraud, nor to any calcula- tion of personal advantage. It has its source in the sentiment of religion. In archaic society, the one un- failing centripetal force was community of worship. As many as were forms of worship, so many were the associations of men. Where men were associated, there a special worship is found. The symbol of the common worship was a meal shared in honour of the Deity. Of these various worships, probably the old- est, and certainly the most persistent, was the worship of the Lares, or house-spirits, or, in other words, deceased ancestors. These spirits, together with their living descendants, whether natural or adoptive, in their several ranks formed collectively that corpo- rate body which, though it is known by a variety of names, I have called the Houseliold. Over the THE JOIKT FAMILY 153 lioiiseliold the House Father presided, with powers limited only by the custom of his race. He was generally the eldest male of the line. He represented the household in all external dealings. He was charged with the management of its property, and with the celebration of its worship. Sooner or later, when the household became inconveniently large, it spontaneously divided into several households, all related to each other, but each having a separate ex- istence, each holding distinct corporate property, and each maintaining its special worship. The continued increase of these related households gave rise to the clan, the form in which, historically, our ancestors first became apparent to us. This wider association, which naturally resembled, in many respects, the household of which it was the expansion, marked the boundary line of human sympathy in the archaic world. Within the clan there was the truest loyalty and devotion. Beyond the clan there was at best ab- solute indifference, and usually active hostility. The clan was settled upon land of which it, in its corporate character, had the exclusive ownership, and which it shared amouo; its members accordinpjto certain custom- ary rules. It possessed an organisation sufficient for its ordinary wants, and was essentially autonomous.' Whilst we may very properly claim the right to reserve our judgments on several of the propositions here put forward, we may, I think, accept without hesitation the general picture given of archaic Aryan institutions. Then, with regard to the archaic ' Household,' Doctor Ilearn observes (at p. 6A) that 154 INDIAN USAGE it differed in every respect from the modern English family, inasmuch as it was ' an organised permanent body, distinct from its individual members, owning property, and having other rights and duties of its own. In it all its members, whatever might be their position, had interests according to their rank. Over it the House Father presided with absolute power, not as owner in his own right, but as the officer and representative of the corporation.' The members of the Household were bound together not by blood, or by contract, but by the tie of community of domestic worship, the joint perpetuation of the sacra peculiar and essential thereto. Not only was its termination not expected, every effort was made to maintain its existence. Ordinarily, it extended to collateral as well as lineal relatives. It included servants and dependents, and children by adoption, all in fact who came under the hand or power of the Father ; whose business it was ' not only to administer the temporal affairs of his family, but to perform the ceremonies of its religion and to maintain the purity of its ritual.' Doctor Hearn specially insists on the (supposed) fact that the Household was a corporate body, though he admits that it is not easy to prove it. He quotes various writers, from Ortolan to Mr. Justice Markby, to show that amongst the Romans, the Germans, the Irish, and other peoples, the family had a corporate character ; and this may have been the case, but I do not see that the original proposition has been quite established. The first step in the formation of the Household THE JOINT FAMILY 155 was marmge, which was sought ' not as in itself a good, but as a means to an end,' to j^rocure the birth of a son. It was the Lawfully begotten son alone who could continue the Household. But the newly-born son was not a member of the Household till duly admitted by the House Father. And even for tlie slave some mode of initiation appears to have been necessary. Assuming the corporate character of the House- hold, Doctor Hearn goes on (at p. 74) to deduce from it the rules of property proper to the household, as thus : ' Over all movables, over the family and the stock, over the produce of the land, and the labour of his subjects, the power of the House Father was absolute. Although, in the cultivation of his land, he was bound by the customary rules of his com- munity, he could determine to what use he would apply the produce. But he could not sell or charge the land itself. The land belonged to the Household; and the continuance of rhe Household depended upon the maintenance of the hearth and of the tomb, and of the offerings at them, which formed the first charge upon the common property. Of this primitive in- alienability of land there is little doubt.' As the Father could not sell, so also he could not mortgage, the lands of the Household, except for his own life. Nor could he, of his own mere motion, devise his property to strangers, or even alter its devolution among his children. ' He was the officer of the corporation, the steward or manager of the property, with all the powers needed for the efficient 156 INDIAN USAGE discharge of his duties, but in no sense its absolute owner ' (p. 77). ' Between the property of the Household,' says Dr. Hearn, at p. 79, ' and the performance of its sacra there was an indissoluble connection. The two things always went together. The one supplied the means for the accomplishment of the other. The person who was charged with the performance of the sacra was the heir. The heir was the person who was bound to perform the sacraj I must say I cannot see how this proposition consists with the (supposed) corporate character of the Household. Such character would appear to exclude altogether the notion of an ' heir.'' If the Father was no more than the steward or manager of the corporate property, how could any person be said to be ' heir ' to the Father upon his death ? Looking to the carefulness with which Doctor Hearn usually abstains from the use of apt equivalents and words of art, 1 am sur- prised at his using the word ' heir ' in this connection. The proper person to perform the sacra, and con- sequently to hold the property, was the eldest son, because (Manu IX. 106) ' by him, at the moment of his birth, the Father, having begotten a son, dis- charges his debt to his own jjrogenitors ' (p. 79). But, the reason of the rule is said to have ceased (I do not understand how), and consequently the rule itself was disused, ' when the original Household separated into several related but independent House- holds.' When there were several sons, and each became in due course a House Father, and as such THE JOINT FAMILY 157 was required to maintain the separate saci^a of a separate house, the division of the corporate property became necessary. Even then, however, the eldest son usually retained some advantage in the distribu- tion ; for example, he kept the holy hearth, or had a double share. In some cases not the eldest, but the youngest, son succeeded to the authority and ad- ministration of the Father, for reasons which need not be discussed here. But, whoever thus succeeded, it must be remembered that he succeeded only to the management of the common property. ' He succeeded to an office, and not to an estate. The Household with its property, upon the demise of its chief, remained as it was before. A new chief succeeded to the position of his father, and that was all ' (p. 83). Daughters could not succeed, because they could not perform the sacra. And for the same reason women, whether married or unmarried, ever remained dependent. The wife of the son, like the unmarried daughter of the House, came under the unrestricted potestan of the House Father, whilst the widowed mother passed from the hand of her husband to the 2)otestas of her own son. During the life of the House Father, the sons, like the daughters, remained entirely at his disposal. He could sell, or even kill, them, just as he could his own slaves, within the precincts of the House ; and none could call him to account from without. He was responsible to the House Spirits alone. But in ruling over his House- hold he was expected to act judicially, and according to custom, in all things. And in many histances he 158 INDIAN USAGE found it expedient to act in a semi-public manner, with the advice of a family council. Specially it was his duty to maintain the Household. And to this end he was called on to divorce a barren wife ; or, where this resource failed, to resort to niyoga (levirat), or adopt ; or to appoint a daughter to present him with a son. The Father, the Mother, the sons (with their wives and children), the unmarried daughters, the servants, slaves, and other dependents, together made up the Household, and the Father ruled over all with a practically unrestricted sway. A larger or smaller collection of Households, knit together by oneness of lineage, formed the more extensive organism called the ' dan,^ which is thus described by Doctor Hearn, at p. 113: 'In every Aryan country, and in every age, we find men living together in communities of considerable size. These communities are generally known as tribes, clans, peoples, or by some similar expression. They were distinct from that other association which is familiar to us as the State. Their members always assumed the fact of their consanguinity. They did not assert exclusive jurisdiction over any considerable territory, or over all persons with such territory as they pos- sessed. They were simply the owners of, it might be, a few square miles on which dwelt men of a common hneage with their dependents and followers. Generally, but not necessarily, they were surrounded by neighbours whose blood was more or less kindred with their own, and with whom they recognised some slender community of worship. But as re- THE JOINT FAMILY 159 garded their neighbours the several clans were strictly independent ; no common authority controlled their actions. They might be friends, or they might be enemies ; but their choice of these alternatives rested with their own free will. Between members of the same clan, indeed, very intimate relations existed. The clan had a common worship and a common tomb ; it had common property ; its members had mutual reversionary rights in their separate property ; they took charge of the person and the property of any clansman that was under any incapacity ; they exercised full powers of self-government, and main- tained for the purpose a suitable organisation ; they acted together in avenging wrong done to any of their members ; they rendered, in case of need, mutual help and support. Further, although upon these points I shall have occasion subsequently to treat, they obeyed and honoured a common head, the representative of their founder, and the nearest to him in blood ; and in the course of time they branched out into numerous sub-clans, each of which was in its turn subdivided, and tended to become a separate and independent community.' The ' clan ' bad its own sacra, and scrupulously maintained them. And, as the sacra and inheritance went together, members of the clan succeeded to one another's goods in default of heirs within the House- hold. The clan was duly organised, for purposes of self-help and protection, admitted strangers, and afforded redress of grievances, and prevented blood- feuds. But no more need be said about it here. IGO INDIAN USAGE After writing much about the ' Patriarchal ' or * Natural Family,' by which is meant the archaic * Household ' above described, Doctor Hearn sud- denly pauses ' to describe another institution . . the continuation of the archaic Household which is known to Indian lawyers of our day as the Joint Undivided Family.' He aduiits that the notices of it in ancient writings are few and obscure, but affirms that ' modern instances of it are not uncommon,' in France, Russia, and elsewhere. After reading what he has to say about this (supposed) form of family, I am bound to confess that I am quite unable to distinguish it from the Household ; whilst apparently Doctor Hearn himself feels difficulty in fixing the precise point at which the archaic family ends and the Joint Undivided Family begins, or by what special marks the melting of the former into the latter is to be known. It will have been noticed that Doctor Hearn (at p. 83) tells us that 'the Household with its property, upon the demise of its chief, remained as it was before. A new chief suc- ceeded to the position of his father, and that was all.' And (at p. 182) he also tells us that he differs from those who think the Patriarchal or Natural Family, the Joint Family, and the Village Community, mark separate stages of social development, since these social forms appear to him, ' at least among the Aryans, to be not successive, but simultaneous ; ' and then goes on to show that where a new family is formed outside the community, and in due course expands and bursts into several similar families, THE JOl^'T FAMILY 161 some larger, some smaller, tlie larger of them, ' wliicli are on the way to become sub-clans,' arc called Joint Families. I have been equally puzzled by what Mr. Mayne says about this matter in his Hindoo Law and Usage. One would suppose from his words that at some un- known pomt of time, prior to the publication of the Mitaksara, the archaic family began to put on new characteristics, and by-and-by assumed a new appear- ance, which entitled it to a new name, that of ' Joint Undivided.' But what were the new characteristics, or how they are supposed to have been put on, I have not as yet been able to discover. Doctor Hearn's theory (at p. 190) of the pro- prietary relations of the Joint Family is well worth study. Supposing that the settlement of Europe was made by clans, that each clan occupied a certain territory, and allotted it by metes and bounds to its several branches, he goes on to say : ' Each branch thus set up, as it were, for itself, and dealt with its own members as if it were an independent community. It distributed to each Household, accordmg to the number of adult males therein, an allotment of arable land. To this allotment certain grazing and other rights on the other parts of the property of the branch clan were appurtenant. The Household cul- tivated this land in common, and for their common advantage. If an adult member died, the allotment was reduced by his share. If an adult male member were added, either by adoption or by a boy being admitted as of full age to the clan, he, or the House- M 162 INDIAN USAGE hold for him, became entitled to a further propor- tionate share from the public estate. When a division of the property of the Household took place, each member received an equal share, but the shares were calculated per stirpes and not per capita. That is, each person m respect of whom a portion of land had been received was, for the purpose of distribution, reckoned a member. But the young man who had not been admitted into the clan and still remained in his father's hand — the hiecht, or knabe, or sven, for by these among other names he Avas called — suc- ceeded to his father's share, or if he was one of several such sons, to a share of that share. His elder brothers, however, for whom provision had already been made, and who had left their father's hearth, had no portion of the inheritance. While the Household held together, the property was, in effect, vested in the House Father, in trust for the joint benefit of himself and his companions. Each person, as he married, received a separate house and lararium ; but the land was cultivated by their common labour, and its proceeds went into the common purse. The general management rested with the House Father. He, according to the cus- toms of the family, could assign the separate sever- alties, if any, and from time to time alter their distribution. He was bound to provide maintenance for each member, if he needed it, from the common fund. When the limits of the Ma^g were reached, the retiring members of the famil}^, if I may so call them, were entitled to receive for their separate use a THE JOINT FAMILY 1G8 final share of the Household estate, and to commence each for hmiself the foundation of a separate family. If such a man died childless, his lot reverted to the Household from which he had received it. If a Household became extinct, that is, if a man died without either children or near kin, its territory went back to the clan.' It is quite possible that the settlement of a great part of Europe may have been effected very much in this fashion, and that a similar state of things may have existed in the Panjab after the first Aryan immigration into it, and even in the Arydvarta, at a later date. But, during the very long interval of time that separates the earlier Aryan movements into Europe and Xorth-West India, and the writing of the Manava-dharma-gastra for the instruction of King Pulakeci about 500 a.d., great changes must have been brought about in the constitution and usage of Aryan society. Thus, for example, the Brahman and Ksatriya classes must somehow have detached them- selves from the general community (the Vicas), and the occupations of grazing and tilling must have ceased to be the sole occupations proper for the entire free population. Hence, we should naturally look in Mann for a very different picture of society from that con- structed by Doctor Hearn, even if we did not know ^vhat Burnell has told us about the probable genesis of the work, in a mleccha (barbarous) country. And, in fact, a very different picture of society is to ho found there. In the first place, in Manu tlie land 164 INDIAN USAGE no longer figures as the basis to which every social institution is to be referred. It is, indeed, but seldom mentioned or referred to, and but one class, the A^ai(;ya, has anj^thing to do with grazing or agriculture. The Brahman is to make a living by offering sacrifice, teaching, and receiving presents ; the Ksatriya by his sword and spear. If he cannot live by following his proper occupations, the Brahman must anyhow avoid agriculture. In X. 116, agriculture is named as a means of supporting life after ' science, art, working for hire, servile attendance, cattle-tending, and trade,' and before ' determination, begging and usury.' In the next place, there is nothing in JManu (so far as I can discover) to show any intimate necessary connection between the Household and the clan ; though associations, as of traders, smiths, and actors, and village communities, are spoken of. The Father no longer is priest of the household, charged ' to perform the ceremonies of its religion, and to maintain the purity of its ritual.' The Brahman is now the priest, and II. 116 tells us that ' of the natural father and the giver of the Veda, the more venerable (is) the father who gives the Veda ; the birth of a twice-born man through the Veda is eternal here and after death.' But, if he is not priest, the Father is still (to some extent) king in the Household. Thus Manu VIII. 416, contains the proverbial saying : ' Wife, son, and slave, these three are said to be without property ; whatever property they acquire is his to whom they (belong).' And prohibitory texts show (by impli- THE JOINT FAJIILY 165 cation) that the sale of a daughter, and even of a wife, must have been of ordinary occurrence. On the other hand, the Mother is seen to have had, besides infinite honour in the Household, a separate estate of her own (IX. 194). And she was so far interested in the Father's estate, that upon his death the sons could not divide it, they must wait till she died also (IX. 104). Her daughters, too, were entitled to small shares of the patrimony (IX. 118), and to equal shares of her wealth, with their brothers (IX. 192). And, if the sons could not actually earn money for themselves, there must have been modes (or a mode) by which they could acquire separate wealth for themselves during the lifetime of the Father, seeing that IX. 185 makes the Father take the inheritance of his son who dies without a son. Upon the death of both parents, the sons ' should come together ' (being presumably scattered?) for the purpose of dividing the inheritance ; unless the eldest son takes it all, as being the only duty-born son, and supports the Household as the Father was used to. But ' religious duty will be extended ' by their living apart. And if they resolve to do this, an equal partition must be made, something extra being given to the eldest son. Instead of the (practical) monogamy of the Aryan community, we see in Manu the practice of polygamy,^ ' Is it possible that the author of Manu can have borrowed from Mahomet his rule of polygamy for Brahmans, permitting- each of them to have four wives? It is possible, but hardly probable, that the two arrived at one and the same conclusion about this matter, independently 166 INDIAN USAGE supplemented by niyoga (levirat) of kinds, and con- cubinage. Instead of one form of marriage we have eiolit forms, some of them very objectionable. In- stead of three kinds of sons, there are twelve. And, generally, it may be said that in every direction Manu points to the existence of a state of society far more complex and artificial than that evolved by Doctor Hearn. And when Manu was written, there can be no doubt that the ancient Aryan ' Joint Undivided Family,' settled on an allotment of land, and intimately connected with an agricultural ' clan,' was unknown within the Calukya dominions, or, at all events, was unknown to its author. The ideas of a state, a king, a separate priesthood, general law and order, and a mixed society, if not highly developed, at all events had become familiar. In Narada, as we have seen above, these ideas assume a greater prominence, particularly that of a mixed society, made up of many labouring and trading families, associations, and communities, governing themselves for the most part each by its own rules and usages, but subject one and all to regulation and punishment at the hands of the King. But the Father still continues to be the most important unit of society. of one another, from certain considerations of physical and moral propriety. Narada, as we have seen, developed the idea in a new and startling manner. It is observable that in the Kama-sutra nothing is said about a Brahman marrying a w^oman of each of the classes, though polygamy is constantly spoken of, and marriages with widows, and concubinage. In the Mricchakatikd the hero, a Brahman of high position, takes a public woman, presumably of the C^udra class, as his second wife; and another Brahman receives her servant as his bride. THE JOINT FAMILY 1G7 Thus we find here the saying (see above, p. 86) : ' Three persons are independent in this world, a teacher, a king, and, in every class throughout the whole system of classes, he who is the head of his family.' At the same time, the position of women evidently is improving, and we observe the daughters dividing the Mother's estate upon her death ; whilst the Mother is pronounced to be competent, like the Father, to bestow gifts, and to be entitled to a share equal to a son's share, when division of the Father's estate takes place. Speaking generally, I should imagine that in the time of Xarada property ordinarily was in the hands of individuals, for themselves, and, where it was held by managers of families of brethren, had little or nothing about it of a corporate character. The shadow does not go back upon the dial, and it would be strange indeed if it had happened that property, after being corporate among the Aryans, and separate in the time of Manu and Narada, had again become generally corporate when the Gentoo Code was compiled. So far is this from being the case, that expre&s provision is made in tlie Gentoo Code for the payment of a man's (lawfid) debts by his sons or grandsons, who are to contribute for the purpose : not by the Family, or a managing member, out of assets. And in certain castes the Father, son, and Mother are declared to be reciprocally liable for one another's debts, whilst the general rule is that the Father shall not pay the debts of the son, or of the Mother. As I have already shown, the dominion of IGS INDIAN USAGE the Father over the whole estate in his hands, both what he has taken from his father and what he has acquired for himself, is practically unlimited : he can sell it, or give it away, as he pleases. On the other hand, the Mother has her separate estate, which is safe from the cupidity of her husband, insomuch that if he uses it he must pay interest for the loan. And if, in default of sons, she takes her husband's share, she may give it away to Brahmans, or sell or mortgage it for necessaries. When the sons divide mth her permission, she may claim for herself an equal share. The sons have no voice in the management or disposal of the Father's estate. If they go out to work, half their earnings must be given to the Father in any case. When they continue to live together after the death of the Father, without ascer- taining and allotting their respective shares, the estate remains joint, and cannot be aliened by any one of them without the consent of the others. But, if they are living apart, in such wise that, although partition has not been effected among them, any one of them can point to a part of the estate as forming part of his own share, he may sell it as such. And, so strong is the tendency in property to become separ- ate, that, where during the lifetime of the Father the sons have built separate houses for themselves on parcels of the Father's estate, such parcels become impartible. The daughters, too, have clearly ascertained rights. In default of direct male descendants, and the Mother, the unuiarried daughters take the Father's estate. THE JOINT FAMILY 1G9 And it is the daugliters who in the first instance share the Mother's separate estate. If a woman has property, she may be fined by the Magistrate for an offence : if she has none, she may be chastised. She may borrow money, and must repay it. With regard to land, towards the end of a chapter prescribing rules about cultivation and shares of crop, we have the very significant ordinance : ' If a man gives to any person, for cultivating, waste land or not waste, he may not take it back from that person, without some fault found in him.' Thus, in every direction we may see indications of property having become separate rather than cor- porate, and nothing can be more foreign to the system portrayed in the Gentoo Code than the idea of society consisting primarily and mainly of an aggre- gate of Joint Undivided Families. But, it must not be forgotten that this work, like Manu, Narada, and the Sanskrit ' law treatises ' generally, was written for the classes rather than the masses, and in order to teach the clharma of a few rather than the special usages of the many, and in tlie interests of the people of a single country, Bengal, rather than in the interests of all India. Whilst (probably) none of the eleven Pandits who wrote the Gentoo Code had any personal knowledge of the Madras Province, it is quite conceivable that as a body the}^ regarded it as a mleccha (barbarous) country, of which the peculiar usages and customs needed not the very slightest elucidation or con- 170 INDIAN USAGE sideration. Although, therefore, the Gentoo Code is altogether silent as to the existence of any family sncli as the Joint Undivided, we may not deduce from its teaching the proposition that no such family existed in the Madras Province at the time of its compilation. But, if we turn to the Dayadacjaqlokl, which probably was written in South India about the same time (practically) as the Gentoo Code (see my View, pp. 46-47), we shall find in it no indication that the Hindu law of South India differs in essentials from that declared by the Gentoo Code. And, if I am not mistaken, it is from ambiguous texts in the Mitaksara alone that modern English lawyers have evolved their reactionary theory of the ' Joint Undivided Family.' In listening to pleadings in suits between Indians, involving questions of succession and the like, I have remarked ao^ain and aofain the circumstance that the Dravida languages appear to have no words whereby to express the ideas denoted and connoted by the English 2^hrases ' Joint Undivided Family,'' ' copar- cenary,'' ' co-heirs,^ ' division,^ and the like. And I have been tempted to wonder whether the more or less inept Sanskrit equivalents for such phrases, necessarily used by native draftsuien and pleaders, some of them obviously of recent coinage, have not been constructed in order to meet the requirements of reported decisions of the High Court, rather than to express the actual incidents of South Indian social life. THE JOINT FAMILY 171 Of course I do not dci^ire to be understood to deny the existence or currency of such Drdvida terms of art^ as Pangu (share) and '"Firi^ (divide). But, from my experience of the use of these and connected expressions, I gather that they denote and connote the joint holding and subsequent partition not of the lands of a Household, but of the lands of a village. Thus, at the present day, many of the villages in the Chingleput district of Madras are divided (as regards the arable lands) into a number o^QC^i^Apangas (shares or allotments), which once may have been held and enjoyed by as many proprietors and their families ; whilst now one proprietor owns two or more jK^jigus^ another perhaps ten or more, and a ^ A troublesome composite word, of constant occurrence in Tamil deeds, is UlUttdr. I have never been able to satisfy my mind as to what it really denotes and connotes. The first part of it means ' within,' and the second 'those who placed ' (or ' are placed '). Wilson's Glossary says the word sometimes means the direct descendants of a common ancestor ; and one is naturally tempted to think it may indicate a body of agnates living together in the hand of a Father of a Family. But it would be rash to do so. At present, 1 should prefer to connect the word with the land and the village community. ' Ul-kudi^ seQvas to be one holding land 'within the village.' ' U(-7nanei' is an abode 'within the village.' Confer ' Ullavan,' ' TJlpatti,^ &c. Possibly the phrase may mean all con- nected with a man by claims to a particular share in a village, actually held by him as dominus, or something like this. Ordinarily, according to "Wilson, it means partners in a business ; coparceners : sometimes it is used for heirs generally. Another unsatisfactory word, used habitually (I believe) by Dravidas everywhere, is ' Vd?-asuddr,' which comes, according to Wilson, from the Arabic Wdris, and is equivalent to one who has a claim to a share in an ancestral estate. Strange that men supposed to govern themselves un- consciously by the Sanskrit rules of the Mitaksara, should have recourse to Arabic for a word equivalent to co-sharers or joint successors. Can it be that we are all mistaken — that the Dravidas never heard of the Mitak- sara and its theoretic developments, and, having no convenient general term of their own, borrowed f'drasuddr from their Muhammadan con- querors ? 172 ■ INDIAN USAGE third only a half or a small fraction of a single pmjgu. These allotments, with various appurtenant rights, as of pasturage over the common land, have been freely alienable and partible under British domina- tion ; and so it has come about that on the one hand many of them have been bought by prospering families and added on to their existing holdings, on the other hand man}'- of them have been split up by partition. In Wilson's Glossary the following terms of art connected with the sharing of a village may be found, namely : — Pangu = A share in a coparcenary village. Pangdji = One who holds such share ; a co- parcener. Pangupiri7ithavargal = Those who have divided such share amongst them. Pangumdlei = A list or roll of such shares, show- ing the amount of land cultivated by each member of the community, the changes of property, the original divisions, the quality of the lands, and whether cultivated by the proprietors or by migratory culti- vators. Panguvikrayam = Sale of such share. Panguvcdi = A village held in common by a certain number of coparceners, amongst whom the lands are distributed at various times, according to the votes of the majority of the sharers, and are held in severalty for a given time under such dis- tribution. The more general word pangu is represented in THE JOINT FAMILY 173 some parts of South India by the word l^arei} Thus, I have shown m my Madura Country that from a report of the Collector, of January 10, 1815, it ap- peared that, at that time, the privileged landholders of the greater part of the Madura and Dindigul districts, who paid their land-tax in the form of a share of the crop, were known as holders of ' kareis ' or shares of villages. When they did not themselves cultivate the land, they received ten per centum of 1 In the Fapers on Mirasi Right (Madras, 1862),. will be found a con- siderable amount of information about the Karei system. According to Ellis, the term pasinig-karei ' used to denote that particular joint tenure of the cultivated lands, which was anciently universal throughout the Tamil country, and still prevails in many villages in every part of it, but especially in that known to the natives by the name Tondei Mandalam. Under this system, the meerassy right to any particular spot of cidtivated land in the village is not vested in any individual.' But there is a periodic redistribution of lands among the shareholders. The other mo.st prevalent system was the aritdt-karei, under which each holder enjoyed a right OA-er his own particular fields. It is to be regretted that Ellis was prevented from doing for Madras ■what Mr. Seebohm has done for England in his admirable English Village Community. Many of ' the distinctive marks of the open or common field system once prevalent in England ' will be at once recognised by the observer as existent in South India. For example, we have here the open fields divided up into little narrow strips ; the Kdni or Tamil acre, measured off with a pole of varying length, but not difteriug greatly from the Enghsh pole of 16^ feet ; the turf balks ; the scattered and inter- mixed holdings ; the periodic redistribution of holdings, superseded gene- rally by fixed holdings ; co-operation in ploughing ; the right to graze cattle over the whole of the arable land, when not under crop ; the com- mon lands; the system of boundaries ; the services; the difl'erent classes, corresponding roughly to the landlord, the tenants in villeuage, the cottiers, and the prtudial slaves ; the township situated in the midst of the fields ; the rights to cut fuel, take fish, &c. It would be highly inter- esting to learn by inquiry that the Dravidas, who, according to Manu, are degraded Ksatriyas, had worked out for themselves a thousand years ago a system of agricultural life very similar to the system once preva- lent in England. In any case scientific inquiry into the nature of the Dravida system could not fail greatly to facilitate the study of Indian usage. 174 INDIAN USAGE the crop raised by outsiders who did cultivate it. Their right was not lost by neglect to cultivate for one year. If a ^am-holder wished to part with his karei — a thing almost unknown — he must offer it first to his relations, next to the other ^'argf-holders, lastly to strangers. And his right, if sold, probably would be worth on the average twenty years' pur- chase. From information elsewhere obtained I was enabled to add that in a karei village the kareis, or allotments of arable land, were theoretically equal in extent and value ; but in order to avoid all cause for dissatisfaction, they were originally made only for a term of years, at the end of which a new allotment took place, and the proprietors all exchanged holdings with one another. The allotment did not extend to the pasturage, which remained always common. Looking to what we know of the history of the Madura and Dmdigul districts, it is imjDOssible to doubt that many (if not all, or most) of these karei villages must have been established by clans that came down from the North one after another, in con- sequence of the pressure of over-population, war, or other disturbing cause ; most of them, probably, under the guidance of a Poligar or other military chief. And if each karei was originally allotted to a single family, we have here a certain resemblance to the state of things described by Doctor Hearn in the Aryan Household, and it becomes possible that the ordinary family of these villages of the present day may in many essentials resemble the Aryan ' Joint Undivided Family.' THE JOINT FAMILY . 175 But, however closely any existing agricultural family in ^ladura or Dindigul may be found to resemble this particular form of family, it must not be forgotten that the farmers of Madura and Dindigul are not Aryan by descent, but Dravida. So that their progenitors have not borne any part in, or been in any way connected with, the particular states of society contemplated and provided for by the authors of Manu, Narada, and other smrtis. And, any development they may have effected in their internal social organism cannot (so far as appears) have been affected in any, the slightest degree by Sanskrit writings. The real character of their Family is quite unknown, and remains to be ascertained by observa- tion. To the east of Madura, and on the Ramnad coast, occurs a family of a very different character, that of the Maravans, who former!}^ were the soldiers and dependents of the Sethupati, or Chief who guarded the Isthmus of Rameqvara. From the Marava-jati-varna of Taylor it appears (see my Madura Country) that this tribe is still divided into seven clans, of which the Semhu-ndttu is the principal : and its usages are peculiar, and specially noteworthy. Properly speaking, every Maravan should be a warrior, and hold lands on a strictly military tenure, on condition of his being ready at a moment's notice to follow his lord, wherever led, equipped for battle. Not so very long ago an ordinary foot-soldier, carry- ing a sword and a spear, was granted for his support a piece of land capable of yielding him, per annum, 176 INDIAN USAGE five (Ramnad) kalams of rice, or about two pounds per diem ; whilst a captain of a hundred men got land yielding fifty such kalams, and others had grants proportionate to their services. Amongst these clans, and the many Kalla and other clans more or less closely connected with them, I should not expect to discover anything of the nature of the ' Joint Un- divided Family.' Another family, very diff'erent from the ordinary agricultural family of Madura, and of which the characteristics are as yet quite unknown, is that of the Kalla clans, that practise polyandry, circumcision, and various things altogether inconsistent with modern Hindfiism. See my Madura Country. The Coorg family, as described by Cole, appears to be of an archaic type. The whole community is divided into Houses, each of which constitutes a separate corporation, presided over by the Yajamdn (master), who is the Father, or upon his death the eldest son, as trustee and manager. There is no division of the landed property of the House, and no alienation of it except with the consent of all. In- heritance does not in any degree depend upon ability to perform rites, but upon propinquity by blood. The sons by different mothers take equal shares pe?^ capita. Marriage must be with a woman of another House, who leaves her own, and enters her husband's House. Where there are no sons or direct male descendants in the House, the daughter is retained in it in order to represent the House-name, and a hus- band is found for her, who comes to the House and THE JOINT FAMILY 177 marries her by the 3I(dkaparje form of marriage, in order to beget children for the House. Such husband may also take a wife to keep up his own House. Though the fear of ^Fut ' is unknown, adoption is practised for the sake of the House, but never to the prejudice of male relations. The only essential in adoption is the adopter giving a piece of money to the adopted, in a bag, and saying : ' I give unto him the right to the whole inheritance of this family.' Daughters are not adopted. Similarly, the Namhadri Brahmans of Malabar (see Ramachandra Aiyar's Manual) are said to be divided 'n\to 2i immhex oi Manas ov Illoms (Houses), each of which is managed by its senior male member. And any one who demands partition forfeits his caste. The Nairs of the same country are divided into Taraicads, which correspond with the Namhudri illoms, and, like them, are managed by the senior male members ; but, curiously enough, property descends among them in the female line only. The Namhadris, too, have their marriage for the House, called the sarvaswadhanom. On the West Coast ' agnation,' or relationship through the male line only, would appear to be almost unknown. And we find instead institutions such as those of the Nairs, amongst whom descent goes in the female line alone, and literally (it is said) no man knows his own father. Yet, curiously enougli, the people of the Western Coast live in com- munistic families, presided over and managed, eacli by the most capable member, who (I understand) is N 178 INDIAN USAGE invariably a. male, and strongly resembling in ex- ternals the ordinary Indian Family. I have never yet had an opportunity of gaining an insight into the constitution of the Family of the peculiar tribe known as the Nattukottei Settis. Inas- much as they live entirely by financial operations, and always decline to cultivate the numerous mort- gaged estates that fall into their hands, it would seem to be highly improbable that their Family can in any degree resemble the typical ' Joint Undivided Family.' It would be easy to go on giving instances of families that certainly must differ from this form of family, but I have given enough. I have, I trust, made it plain that, whilst on the one hand it is so highly improbable as to be almost impossible that the Brahman Family can have gone back to the cor- porate form of Aryan times, after giving up all con- nection with the land before the time of Manu ; on the other hand the great majority of the non-Brahman tribes follow occupations, and govern themselves by usages, apparently inconsistent with the existence amongst them of the ' Joint Undivided Famil3\' But, next to nothing is known about the constitution of the Family in South India ; and, until proper inquiry is made about it, no real progress in amending the so-called Hindu law can be achieved. PART II. OLD JUDGE-MADE LAW. CHAPTER I. SCHOOLS OF HINDU LAW. Some writers on the so-called Hindu law appear to have been made unnecessarily angry by my calling attention to the erroneous use of the phrase, ' Schools of Hindu Lair^ and to certain mischievous doctrines connected therewith ; and I think it advisable to attempt to remove some obvious misunderstandings with reference to what I have said, and not said, upon this subject m my View. Before doing so, it will be necessary to give the ipsissima verba of my first False Principle, which runs as follows, namely : ' That there exist, or formerly existed, in India, certain " Schools of Hindu Laiv^^ -, and that such schools have authority in certain imaginary parts of India, such as the Karnataka kingdom, the And hra country, the Dravida country, &c., &c.' By these words I have denied generally the exist- ence of schools of law in India ; and particularly (and specially) the authority of certain schools of law in imaginary parts of India, fancifully and erroneously called the Karnataka kingdom, the Andhra comitry, N 2 180 OLD JUDGE-MADE LAW the Dravida country, &c., &c. 1 have not also denied by these words, or by other words, the exist- ence in ancient times of caranas, or schools, in which a number of young Aryans used to gather round an Aciirya, or professor, and learn from him the sacred texts of his ^akha, or recension of the Yeda, and his sutra works ; or the existence in modern times of schools such as those seen at Benares by Bernier, and the University of Madura, in which 'law' may possibly have been taught, together with numerous other subjects. Nor have I denied the obvious fact that in India, from the very earliest times, differences of opinion about matters of dharma have led to com- panies of teachers and students identifying themselves more or less closely with special teachings, often to such an extert as to involve their being regarded in the light of schismatic or heretical schools. I can have no objection to offer to the use of such expressions as ' writers of the Mitaksara school,' ' Jimiita Yahana and his school,' and the like. What alone I have objected to in this connection is the (to me) preposterous notion, that there have existed at any time in India schools of positive law, in which positive law, pure and simple, was taught as such to students by professors or experts, who recognised special systems as having currency and validity only within certain known territorial limits. Whilst ready to admit, for argument's sake, that possibly something remotely akin to ^^ositive law may have been taught sometimes in Indian schools, I must strenuously deny (until convinced by proof which SCHOOLS OF HIXDL' LAW 181 hitherto certainly has not been produced) that any- special system of law, e.g., that attributed by English- men to the author of the Mitaksarii, has at any time been taught at a particuLar place, as bemg the law of a particular part of India, or of a particular com- munity. It is, of course, true that Yijnanecvara and Jimuta Yahana differ more or less materially in their views upon certain points, and that many speculative writers have followed the former as their leader, whilst many have so followed the latter. But, that either of them has written what has been anywhere taught as the law of a particular country, there is, I am persuaded, not an atom of evidence to show. Similarly, it is true that the Brahmans of Mithila, very possibly from before the day on which the author of Yajuavalkya may be supposed to have taught them dharma, have entertained their own peculiar views about inheritance and other matters. But, where is the proof that these views were taught in a school or elsewhere, as embodying the particular law of the land of the students ? Professor Jolly deems it to be quite unnecessary for him to enter upon a discussion of this matter, because ray arguments have been, he thinks, so fully and ably refuted by Messrs. Banerjee and It. Sarva- dhikari in their Tagore Lectures. But I must be pardoned for my blindness if I confess my inability to discover anything in the nature of refutation in what these gentlemen have written upon the poiut. Neither of them appears to have comprehended the 182 OLD JUDGE-MADE LAW real nature of the question raised by me, which (pro- perly speaking) affects the Madras Province alone, and practically amounts to this : Is it reasonable or convenient to talk of a Dravida school of law, or of an Andhra school of law, when it is not only doubtful whether positive law (or anything remotely resem- bling positive law) was ever taught in any part of South India, but also quite certain that no man living can point to a given area of country as having con- stituted at a particular time a country called Dravida, or a country called Andhra ? Mr. Sarvadhikari, who seems to be particularly angry with me, points sarcastically to the fact that I do not know Sanskrit, and appears to imagine that I therefore cannot know anything about Mleccha countries, in which Sanskrit has never been spoken, except perhaps by a few Brahman foreigners. He could not get rid of Burnell on the same easy terms, but has treated Burnell's statements about schools of Hindu law in a fashion equally novel and ingenious, by suggesting that he could not have read the authorities on the subject! Mr. Banerjee, after assuming that Srikrishna, Tar- kalankar, and Mitramisra recognise the existence of dif- ferent schools of law, when they talk of the doctrines of Mithila lawyers, of Eastern lawyers, and of Southern lawyers, is compelled to admit that (as observed by Morley) there will always be the difficulty about geo- graphical limits in applying the doctrine of schools of law to particular cases. And he goes on to remark that the question whether any particular locality falls SCHOOLS OF HINDU LAW 183 ■VN'itliiii the limits of a particular school will, in every case, have to be determined by evidence showing what authorities are mainly followed in that locality. Now, to admit the existence of this difficulty is almost tantamount to admitting (with reference to the Madras Province) the existence of the difficulty and hardship to which I have called attention, in connection with this matter, in my View and Pro- fpectiis. For, in determining what authorities are mainly followed in a particular part of the ^Madras Province, it will be necessary always, in accordance with the schools -of-law doctrine, to determine also whether such locality belongs to the Dravida, to the Andhra, to the Karnataka, or to some other purely imaginary and as yet undiscovered country. Hitherto the Madras High Court has refrained from demar- cating the boundaries of these territories, as also from enumerating the authorities mainly followed in each of them ; and in any case in which the question what school is to be followed may arise, the delay, expense, and uncertainty to be encountered by the parties in attempting to solve it will be quite beyond calculation. Practically, litigants abstain, for ob- vious reasons, from raising this question. But there must often be the danger of a hard-pressed suitor indirectly raising it on appeal. I observe that Mr. Sarvadhikari admits that, when pressed by anxious inquirers as to what may be the Sanskrit equivalent for ' school of law,' he has felt at a loss for a satisfactory answer. He can only suggest ^ samj>r(i(Iai/n^' which means, lie states. 181 OLD JUDGE'MADE LAW a received doctrine, and is not of frequent occurrence in law-books. I hope it may not make this courteous writer still more angry with me if I venture to ask him whether a ' received doctrine,' i.e. (presum- ably) the opinion of a Pandit, published in a Sans- krit speculative treatise, and applauded by other Pandits, is quite the same thing, for all practical pur- poses, as a school of positive law, in which positive law is taught, as being the recognised law for the inhabitants of a particular geographical area. Professor Jolly appears to be of opinion that probably there exist many more schools of law than those at present recognised by English lawyers. And this I consider a very hopeful sign. If, instead of distributing the so-called Hindu law over some five immensel}^ large territories, and seeking to govern each of these territories by the doctrines of a supposed school of law, he will only bring himself to admit that probably every one of the ' fifty-six countries ' of India has had its own institutes,' and every com- munity, tribe, and family still has its own special usage, I shall be in entire accord with him upon this point. There cannot be schools of law where there is no law to teach. And that there has been no law in India, is rendered abundantly clear by many Sanskrit texts, some of which have been discussed above at the end of the chapter on the Karaa-Siitra. Of course, it will be urged by opponents, and the fact is indisputable, that usage, which certain sanc- tions render obligatory on all, in effect is positive SCHOOLS OF HINDU LAW 185 law. But, such usage is not the same thing- as, nor does it even approximately resemble, the highly arti- ficial and fanciful system contained in the Sanskrit treatises. If, therefore, it is conceded that usage, not written law, has been the guide of conduct through- out India from time immemorial, it must follow as of course that 'law' has not been taught (as such) in 'schools' in India. That the Brahman, or rather Sanskrit, system may have been taught somewhere is not altogether improbable, though I venture to doubt it for reasons previously given ; but the question is, was it taught for practical use in the forum ? or for any purpose other than that of intellectual exercise ? If we turn to the Gentoo Code for information upon this matter, we shall find that the eleven vener- able Pandits who compiled it knew nothing of the existence of schools of law, or of particular authorities prevailing in particular countries, though they were well aware of the existence of different and conflicting opmions and of various usages. Thus, for example, in the section on sons dividing, an ' ordination ' is said to be of Sewarteh Behtacharige and Sirree Kishen Terkalungkar and Jeimoot Bahun, and to be approved. In the section on dividing joint stock, an ordination of Jeimoot Bahun and Sewarteh Behtacharige is approved, and an opposite ordina- tion of the Mithilii Pandits mentioned. In the 16th section, Chapter II., ordinations of Sirree Kerracharige and six others, not including Jeimoot Bahun, are approved ; as also is one of Pachesh- puttee Misr, in preference to one of Helayoodeh. In / K 186 OLD JUDGE-MADE LAW Chapter V. ordinations of Chandeesur are approved, as also are those of Phakooree and several others. In Chapter XI. an ordination of Beeba-dur Tunnagurkar is approved, and in other places the ordinations of others. Without having gone into the matter very care- fully, I imagine that the compilers of the Gentoo Code adopted and approved the opinions that they consi- dered the best, from whatever sources derived, and were in no degree conscious of being obliged by the views of any ' school ' or company of writers. They do not appear to me to give any special prominence to the views of Jirauta Yahana ; whilst, on the other hand, they did not even know the name of the (so- called) famous author of the Mitaksara, which, in their ignorance, they supposed to have been written by one ' Mirtekhera Kar.' The name that I have noticed most frequently in the Gentoo Code is that of ' Piiches- puttee Misr.' Readers who wish to learn more about the ques- tion, I would refer to Mr. Mandlik's work, which deals with it most satisfactorily. This writer also protests emphatically against the English notion of ' schools of law,' and knows of nothing, from a native point of view, beyond a pronounced divergence of usage in the East and in the South, consequent on the territorial distribution of the Gauda and Dravida families of Brahmans. Since I wrote my View I have heard no more of the Karnataka and other ' schools,' and I venture to hope that this Fahe Principk will never more be SCHOOLS OF HINDU LAW 187 upheld by the High Court. Probably it will be content foj the future to continue to speak of the ' Madras school,' which expression, in so far as the Madras High Court adheres to views that differ widely from the views in vogue in the rest of India and in the Privy Council, represents a solid fact, and in itself is not open to objection. 188 OLD JUDGE-MADE LAW CHAPTEE II. THE LAW FOR XON-BRAHMANS. My second False Principle is that : ' The so-called Hindu law is applicable to all persons vulgarly styled Hindus, and to their descendants, however remote and whether pure or impure.' In dealing with this I have called special attention to the circumstance that Mr. Justice Holloway, at the end of an elaborate judgment delivered in a suit between Maravans (see above, p. 175), was constrained to observe that he was conscious of the ' grotesque absurdity of applying to these Maravans the doc- trines of Hindu law. It would be just as reasonable to give them the benefit of the Feudal law of real property.' He added, unfortunately : ' At this late day it is, however, impossible to act upon one's con- sciousness of the absurdity.' It is not possible to say what was in the mind of this illustrious jurist when he penned these memorable words. But, it is not unreasonable for one who knew him to guess that, when he looked at his judgment, and then thought of the notoriously rude and bar- barous character of the tribe to which the parties belonged, the humorous side of his mind was excited, and he could not resist indulging in a little joke THE LAW FOR NON-BRAHMANS 189 at his own expense, but immediately qualified it by adding the excuse that the ' grotesque absurdity ' of the whole business could not be avoided ' at this late day.' Anyhow, I prefer this guess to Mr. Innes' serious explanation of his former colleague's words. He says, ' Why ? ' (why is it too late to act ?). ' Simply because the Hindu law has been administered to these persons for generations, and this because they have always resorted to the Courts as Hindus.' I have touched upon this matter in my introductory chapter. I do not believe that Mr. Hollo way would accept for a moment Mr. Innes' explanation of his words. I rejoice to see that Mr. Mayne says (at § 11), with reference to the alleged impossibility of acting on our consciousness of this grotesque absurdity : ' I must own I cannot see the impossibility.' In these, as in many other words of Mr. Mayne's (see particularly his first chapter), I observe plain indications of the existence in him of feelings very similar to my own in respect to the great case of Usage v. Laiv -, and I cannot help regretting that he should appear to regard me as a stranger belonging to quite another school, because I differ from or go beyond him on certain minor points, such as the extent of the authority of Manu and the MitTiksarfi. I am quite prepared to admit, for argument's sake, that Manu and Yajnavalkya and other Smrtis may have indirectly influenced the several usages of the Vellalans, and goldsmiths, and fishermen, and Pariahs of Madras ; though {pace Mr. Innes) there never was an Aryan invasion of South India, and no King or 190 OLD JUDGE-MADE LAW other political chief ever commanded Dravida folk to obey the rules originally prescribed by seers for the Brahmans and Ksatriyas of the Panjab. I only insist on the twofold proposition, that every tribe in the Madras Province, whether Brahman or non-Brahman, has at the present day a separate usage of its own ; and that, since the usages of all India are expressly guaranteed by the Queen's Proclamation, it is the plain duty of the Madras Government to find out what are the usages of Madras, and guard them agamst suppression by the High Court. If this duty is much longer ignored, I fear lest the ' grotesque absurdity ' of the present system may lead to very inconvenient results. Whilst Mr. Innes hopefully awaits the coming of the day when the High Court shall have succeeded in destroying the last special usage of the ' lower castes,' it is interesting to observe that the Ceylon Govern- ment has carefully preserved in writing the customary laws both of the Kandyans and of the Tamils. The former are expressly protected in the enjoyment of the polyandrous institutions appropriate to their present stage of social evolution ; and the latter are permitted to concede to their women a large amount of independence. It will be observed, of course, that this False Principle is indissolubly mixed up with, indeed forms part of, the next following one, and with it must be held to stand or fall. 191 CHAPTER III. CUSTOMS NOT JUDICIALLY RECOGXISED. My third False Principle is that : ' A custom which has not been judicially recognised cannot be permitted to prevail against distinct authority.' I have shown in my first chapter that j\Ir. Innes has admitted that the High Court may have ' failed to carry out the Hindu law in its true spirit, and im- posed much inconvenience on families who have governed themselves by customs recognised in their community as legal.' It becomes unnecessary, therefore, for me to give further proof of the indis- putable fact, that the Madras High Court has set its face most unwarrantably against 'recognised customs' that appear to be opposed to some so-called Sanskrit authority, of the existence of which the Driivida population of the Madras Province, probably, has never been made aware. Instead of so doing, I purpose calling attention here to some recent deci- sions that mark, it may be hoped, a new departure in dealing with recognised customs, and give good pro- mise for the future. The first case cited by me in illustration of my third False Principle was one (reported at 1 ]\[. H. C. P., .')!) in wliich the plaintiff affirmed, and the 192 OLD JUDGE-MADE LAAV defendant in his answer admitted, the existence in the parties' caste, that of the Reddis, of a practice (called Illata) of bringhig a man into the House (Illam), to marry the daughter and be a son to the House-Father ; but the High Court nevertheless de- clined to recognise the custom, for reasons which are thus explained by Mr. Innes, at p. 102 of his Letter : ' The custom, which was undoubtedly in derogation of the general law, had been condemned by the late Sudder Court only three years before. The High Court followed that decision. The defend- ant had admitted the practice on which the plaintiff relied, but the High Court had to consider the legal effect of that practice, and could not, therefore, de- cide in favour of the plaintiff on the mere admission of the defendant of the existence of it. There was no other evidence of the custom.' I must confess my inability to understand upon what prmciple of the law of procedure the High Court felt itself unable to allow the defendant to admit in the plaintiff's favour the truth of a material allegation ; or why, when no issue of law had arisen upon the pleadings, the High Court went out of its way to frame one, and decided it in deference to the opinion arrived at by another Court in a different case, inter partes. However, so it did. 1 have collected in my Prospectus a mass of evi- dence, going to show that the custom in question probably prevails over India generally, and in all sorts of tribes, including the Brahman. Since then I have discovered that amongst the Kand3'ans, who CUSTOMS NOT JUDICIALLY RECOGNISED 193 occupy the interior of the southern part of Ceylon , and, according to Phear (see his Aryan Famili/), have institutions closely allied to those observable in Bengal, there is a form of marriage closely resem- blino' if not identical with, the Illata. It is called the Bcena (? Bijma, for which see above, p. 94), and is generally resorted to when the daughter of the House is the heiress, or of a wealthy Family having but few sons. In such case the husband is received and fixed in the bride's House, but does not thereby acquire any privileges in that House, even if he happens to be a foster child or protege of the bride's father. Xor does he lose his rights in his own House ; though a daughter born ' in Beena,' on marrying by the ordinary form, the ' Beega^ and going out to a new House, forfeits all her rights in her own House. For all which see Armour's Grammar by Perera. It is observable that the Kandyans practise polyandry and polygamy without restriction, care nothing for ceremonies at weddings and adoptions, and permit divorce at any time. Husband and wife have separate estates, and the adopted son takes nothing where there are natural sons. I have already (see p. 177) spoken of the corre- sponding ' Mahkaparje ' and ' Sarvasicadhanom ' mar- riages on the West Coast. In several recent decisions the High Court has thouglit proper to recognise the Illata custom, e.g. in the cases reported at I. L. K., iii. Madras, 215 ; iv. 272 ; and vi. 267, respectively. The late Chief Justice, Sir Charles Turner, was o 194 OLD JUDGE-MADE LAW SO kind as to call my attention, privately, to his judg- ment m Ilaniimantamma v. Rami Reddi (I. L. R., iv. Madras, 272), with the observation that ' I should be fflad to hear that lUatam was allowed.' The case o • was dealt with by the High Court with great care- fulness, with the result that the custom of Illatam was allowed to prevail amongst the Motati Kapu or Reddi tribe in Bellary and Kurnool, and a son-in-law taken in Illatam is held to stand in the place of a son. Then, in the case at I. L. R., vi. Madras, 267, Tnnes and Kindersley, JJ., assumed the validity of the Illatam custom amongst the Redclis of Nellore, and decided upon the evidence that, under it, the son-in-law does not lose his rights of succession in his natural Family. In Kesliava v. Rudran (I. L. R., v. Madras, 259), Turner, C.J., after stating in his judgment the fact that the owner of a Nambiidri Illam (House), having no sons, had given his daughter in marriage to one whom he accepted as a Sarvasvadhanam son-in-law, observed : ' The ordinary incidents of this custom have not as yet been ascertained after any complete inquiry. ... It is agreed that the effect of the custom is to introduce the son into the Illam, to confer on him the status of a son in respect of the jDroperty of the Illam, coupled with the obligation of manao-ino;, or assisting; in the manaajement of, the estate and of supporting the family.' In the case of Keshavan v. Vasudavan (I. L. R., vii. Madras, 297), the question was whether amongst CUSTOMS NOT JUDICIALLY RECOGNISED 195 the Nambudris a person may be introduced into a House to perpetuate its existence. The native judge of the Lower Court decided in favour of the practice of Nambudris and Nairs of Malabar adopting adult persons into their Families as members. And Turner, C.J., and Kindersley, J., affirmed the decision. The former, in delivering a short judgment, cited an old judgment of the Sudder Court, as ' an authority for holding that a person may be introduced into an Illarn to perpetuate its existence, and that he thereby becomes a member of the Illam ' ; and went on to observe, 'if this be so, such person would, prima facie, be entitled to hold the property held by the Illam as trustee, as well as to enjoy the property held by the Illam as its own.' Accordingly, the adoption of an adult male by a widow was in this instance allowed. With these decisions before mc I permit myself to indulge the hope that the cause of the Illata custom has practically been won, and that in the course of a few more years its existence may be recognised as generally and as completely as is that of the ' beena ' marriage in Ceylon. The custom is in every respect natural and proper, and no doubt springs from tlie very same causes and circumstances that gave rise in ancient times to the appointment of the daughter to keep up the Father's line. Indeed, it is not impossible, but on the contrary extremely probable, that in many cases the iilisband of the appoiuted daughter assented to the formula of the INitrikn (see Manu IX, 127), in considerntioji of liis 196 OLD JUDGE -MADE LAW baing married into the House, and enjoying certain privileges there during his life. It is unlikely, of course, that he would have assented thereto without getting some very substantial advantage for himself in return. Thus, in the case reported at I. L. R., iii. Madras, 215, it was found that two Nambiidri women actually divested themselves by deed, in favour of the nephew of one of them, of their entire property in their Illam (House), in consideration of his marrying and raising up heirs to the Illam, and maintaining the women till their death. As regards the adoption by a Brahman of a sister's son, in the case reported at 7 M. H. C. R., 250, ' Not only Holloway, J., and myself (says Mr. Innes, at p. 103), 'by whom the final judgment was delivered, but all the judges of the Court were of opinion that the custom, though made out conclusively as a custom, ivas not made out as a valid custom. It was in derogation of the general law governing the parties, who were Brahmins, and opposed to the law as expounded in the treatise of Vaidyanada Dikshadar, a treatise of authority written in the Tamil country, to which these parties belong.' I would wish the words that I have italicised to be compared with the following express declaration of the Privy Council in the Bamnad case (Moore, I. A., vol. ix.) : ' Under the Hindu system of law, clear proof of usage will outweigh the written text of the law.' Of usage, not of ' valid ' usage. And confer Mr. Mandlik's observations cited below, in my last chapter. CUSTOMS NOT JUDICIALLY KECOGNISED 197 What may have been ]\Ir. Innes' authority for stating that the writer on whom he reUed is an authority for Brahmans in the Tamil country, I do not know. But I have shown in my Prostjy edits, p. 1-13, n., that Burnell's Index to Tanjore MSS. gives excellent authority for the proposition that in South India a Brahman may, if occasion require it, adopt a daughter's or a sister's son, and the adoption will be legal. Both the Duaitaninvtyd and the Dattaniniaya teach this. And see Jolly, p. 1G2. And now we have the opposite decision in the important case reported at I. L. R., vii. Madras, 3, which is peculiarly instructive, as showing with what extreme reluctance the High Court brings itself to recognise a custom that is supposed to be contrary to the ' theoretical developments ' of the law treatises, even when made out conclusively by a mass of the most unexceptionable evidence. Here the Divisional Bench (Turner, C.J., and Kindersley, J.), after observmg that the rulmg in Gopdldi/yan v. Rwihupati Ayyan (my typical case) ' as to what constitutes sufficient proof of custom has been perhaps somewhat too strongly expressed,' and whittling away by added words of their own the axiom of the Privy Council that, ' under the Hindu system, clear proof of usage will outweigh the written text of the law,' sent down an issue to the Lower Court, as to whether the adoption of a sister's son by Nambudris is sanctioned by customary law. Thereupon, the Lower Court ex- amined eleven Nambudris ' of note,' all of whom, with the exception of one, who seemed not to know his 198 OLD JUDGE -MADE LAW own mind, pronounced unequivocally in favour of such adoption. Accordingly, the finding that the adoption was sanctioned was submitted. The Divi- sional Bench then referred the case for the opinion of the Full Bench. And Turner, C. J., in delivering its judgment, after briefly remarking on the evidence, observed that it was not ii^probable that ' in the matter of adoption also the Malabar Brahmans have departed from the rule deduced from the treatises of commentators prohibiting the adoption of the sons of daughters and sisters, if that rule be elsewhere regarded as valid.' And so the finding was accepted. Now, it is true that the Nambudris indulge in peculiar views of Hindu law, and appear to reject with a light heart rules attributed to Manu, but they are nevertheless a very strict and pious, not to say puritanic, tribe, and if they are to be allowed to follow their own usage in preference to the text of the law-books, surely other and ruder tribes must soon be granted a like preference. Anyhow, Gopd- Idyyan v. Raghupati Aipjan would seem to be practi- cally overruled. And, at all events, rich men who can afford to prove their usage will now have a reasonable chance of establishing the validity of the adoption of a sister's son. For, the custom of adopt- ing such a one has at last been 'judicially recog- nised.' An equally important and instructive case is that of Vayidindda v. Ap)pu (I, L. R., ix. Madras, 44), in which the Full Bench held, in an elaborate judgment delivered by Turner, C.J., that in South India the CUSTOMS NOT JUDICIALLY RECOGNISED 199 High Court ' ought judicially to recognise tlie usage' of Brahmans adopting daughters' sons and sisters' sons, in accordance with the customary law of the land. The victor in this case, however, did not obtain justice without enormous delay, expense, and incon- venience of all kinds, or without prosecuting his right before a District Munsif, a Subordinate Judge, a Divisional Bench of the High Court, and the Full Bench, successively. He was compelled amongst other things to call and examine twenty-two witnesses belonging to his own District, Tanjore, sixteen belongmg to Jkladura, and one to Trichinopoly, and to examine eleven more witnesses upon commission in the Tinnevelly District. Even this array barely satisfied the Court ; and there can be but little doubt that the plaintiff ultimately won his case by great good lack, as well as by the exercise of great persistency, ingenuity, and courage. It is observable that in its first judgment in this case the Court took occasion, in limine, with reference no doubt to observations contained in my Vieu\ ' to correct the inference that has been erroneously drawn from the decision of this Court in Gopdld'/i/an v. Bdgliupati Ayyan that this Court is not prepared to recognise the existence of a cuiitomary law in the case of Brahmans, of which no trace appears in any written authority of the place to which they belong. All tliat the Court intended by the observations from which this inference is drawn was that strong proof must be produced to establish a customary law at variance 200 OLD JUDGE-MADE LAW with the law declared in written treatises of which the authority is still recognised in the place in which the custom is alleged to exist. To the proposition thus stated no reasonable objection can be urged.' As to the degree of proof required to warrant the Court in establishing such custom, the Court will adhere to its ruling in the case at 3 M. H. C. R., 77. I am not aware that the Chief Justice, and those who sat with him on this occasion, had any special means of knowing what the learned Judges who decided Goiwldyijmi! s case meant by the words they used, and which (as shown in my View) run as follows : — ' In the case of Brahmans it is impossible in any case to believe in the existence of a customary law of which no trace appears in any written authority of the place to which they belong.' The ' corrected inference ' would seem to be irresistible. And, there- fore, it is very gratifying to me to have Sir Charles Turner's word for it, that the High Court in 1885 had no intention of adhering to the rule erroneously supposed to have been laid down m Gopdldyyan^s case. 1 cannot, however, admit that 'no reasonable objection to the new proposition can be urged.' To me it seems to be most inequitable and illogical to raise obstacles in the path of those who would practise forms of adoption that j)rimd facie are unobjectionable and proper ; and by throwing the onus prohandi heavily on their shoulders, instead of on the shoulders of opponents who may allege their acts to be illegal, to deter poor or timid persons from following their own CUSTOMS NOT JUDICIALLY EECOGNISED 201 inclination and judgment in performing necessary civil acts. I would refer readers who desire further informa- tion upon this matter to Mr. Mandlik's valuable work on Hindu law. He has discussed it at con- siderable length, and would seem to be entirely at one with me upon the question of the propriety of subordinating so-called law to usage in respect to adoption. In Virasanyappa v. Budrappa (I. L. R., viii. Madras, 440), the second marriage of a Lingayit woman of S. Canara, entered into during the life- time of her first husband, who had deserted her, was held to be valid. In delivering judgment Turner, C.J., observed : ' The learned note of Mr. V. N. Mandlik, in his work on Vyavahfira Mayukha, lays down the only rule which could be safely adopted in Southern India to determine what are valid mar- riages and what are the incidents of marriages, viz., that we must look to existing usage which, even in the case of the higher castes, has more or less modified the Brahmanical law.' This is admirable, and just as it should be. But, the observation naturally occurs, why go to Bombay for instruction about Madras that has been yielded in abundance by the writings of Madras men like Ellis, Munro, the Stranges, and Burnell ? In Vlraragava v. Edmalinga, I. L. R., ix. Madras, 148, it was decided by the Full Bench, overruling the case at 3 M. II. C. R., 28, that amongst Brahmans in South India usage permits the adoption of a boy of 202 OLD JUDGE -MADE LAW the same gotra, after the Ufanayana ceremony has been performed. In this case the original suit was instituted in 1877, and it was not until 1885, and after many hear- ings in four several courts, and the examination of a small army of witnesses, that the adoption was finally upheld as good and valid. In delivering the elaborate judgment of the Court, Turner, C.J., was ' compelled to admit,' with regard to usage, that certain considerations had been allowed 'somewhat too much weight,' and that 'it is possible that in view of fuller information it may be necessary to modify in some few instances the conclusions at which the Courts have arrived.' And then comes this highly ambiguous explanation : ' I say in some few instances because I do not think much difference will be found between the established usage and the written law on the points on which the circumstances accepted in the locality have pronounced themselves explicitly.' It is very gratifying to find the late Chief Justice confessing with Mr. Innes (see above, p. 6) that the conclusions of the High Court may be to some extent erroneous, and open to correction, especialty when, as I shall presently show, the greater part of the prin- ciples denounced by me in 1877 had been overruled or abandoned when this judgment was pronounced. But, lest we should be tempted to rejoice over- much, there is the case of Vytkilinga v.Vijayathammal, at I. L. R., vi. Madras, 43, in which Turner, C.J., and Muttusami Ayyar, J., decided that a Muppanar, CUSTOMS NOT JUDICIALLY RECOGNISED 203 of one of the robber tribes, had not sufficiently proved the custom of his people of adopting a married man, in derogation of a rule for Qudras in the Dattaka- Candrika, &c. Now, Miippanars are not (Jfidras, and can have no concern in Sanskrit books. And in the same case the Court declined to recognise a marriage with a brother's daughter. On the whole, however, it would seem to be safe to conclude that the third False Principle is dead and buried, and that in future, at all events, no man need be deterred by considerations other than that of expense from attempting to establish by proof before the Madras High Court the existence of a Family usage of which there is no trace in the Mitaksarfi law. 204 OLD JUDGE-MADE LAW CHAPTER IV. UNION IN THE HINDU FAMILY. My fourth False Prhiciple is that : ' A state of union is the normal and proper state of the Hindu family ; and, therefore, non-division shall in all cases be presumed until the contrary is proved.' I argued in my View to the effect that, as pointed out by Bnrnell,the Sanskrit law expressly advocates division ; that presumptions are wholly foreign to the Sanskrit law ; that division is constantly taking place in South India at the present time ; and that, ordinarily, no presumption in favour or disfavour of union is warranted, but each case should be dealt with upon its merits. It is worthy of remark that all Mr. Innes has to say upon this point is that, ' the Sanskrit law cannot be any guide as to what is a question of evidence ' ; and, since division takes place comparatively seldom, although the Sanskrit law advocates it, the presump- tion in favour of union clearly is right. The whole pith of my observations was that in every case we should look to the evidence therein forthcominir, and not to a presumption prescribed by the High Court. And ]\Ir. Innes first says that the question is one of UNION IN THE HINDU FAMILY 205 evidence, and then, begging the question, says that the presumption clearly is right. Since writing the View I have had occasion to consider the nature and constitution of the ' Hindu Family ' as it occurs in South India, and I would wish to add something to my former argument. As I have shown in my chapter on the ' Joint Undivided Family ^^ whilst we have no real knowledge of the internal structure of society in the Madras Province, there is good reason to suppose that at the present moment Families of several, if not many, forms may be observed to co-exist within this Province, and each of them must involve the existence of separate institutions and usages. Thus, the polyandrous Family of the Nairs must necessarily differ from the ordinary Brahman Family ; and the institutions and usages of these two forms must be different. And the ordinary agricultural Family (in all probability) must differ widely from a trading Family such as, say, that of the Nattukottei Chettis. This being so, I would wish to contend that a presumption in favour of union, even if good for some, cannot necessarily be good for all, Families in Madras. The agnates of a purely trading Family in Madras may, for anght I know to the contrary, have a common purse, and live together in a state of perfect union ; but it seems to me to be exceedingly unlikely that this should be the case. And I cannot conceive the probability of a gay Maravan, who lives by his sword and spear, habitually sharing his earnings with brothers and cousins. How tlic presumption in question would wo]'k in the case 206 OLD JUDGE-MADE LAW of a Reddi married in 'lUata' (see above, p. 192) cannot be imagined. Until we shall have ascertained by due inquiry what forms of Families exist in Madras, and what are their several institutions and usages, it will be ad- visable, I believe, to decide each question of division or non-division upon the evidence, and not in accord- ance with a preconceived idea that every Indian Family is of the form generally known as the ' Joint Undivided.' Mr. Mandlik observes, at p. ii. of his Introduction : ' A Hindu or Aryan householder, directly he enters the married state, is commanded to have his own sacrificial fires. He has his own sphere of duties, marked out for him up to the point of final emanci- pation. Even in worldly matters he is advised to live separate, to have his own daily fire- sacrifices, and to live as the head of his own family. Hindu society has more or less conformed to these principles. In provinces where the mercantile elements preponderate, and questions of the collection and distribution of wealth chiefly arise, segregation of interests is the rule and congregation the exception.' These noteworthy observations confirm materially what I have said about the Family. At p. 94, above, will be found Narada's sensible rule for ascertaining the fact of partition in doubtful cases. 207 CHAPTER y. ON THE SON C0:MPELLING THE FATHER TO DIVIDE. My fifth False Principle is that : ' As to ancestral property, a son, and therefore a grandson, may com- pel a division against the will of his father or grand- father.' If this meant only that, when a Brahman Father deliberately chooses to separate his sons from him, he must divide all the ancestral estate amongst them (and others) in equal shares, the principle would be in accord with the old rules of the Smrtis and the authorities generally, and from no point of view objectionable. Unfortunately, it means very much more in Madras. It means here that, in all Families, at any moment, and in any circumstances, a foolish or prodigal son (or grandson) may force the Father to allot to him a specific share of the ancestral estate of the Family. In some cases, where the sons are minors, the Mother is allowed to come to court in their behalf, and ruin the Father, out of spite. In other cases the Father incites the Mother to brinjr a fraudulent and collusive suit, in order (if possible) to bafile innocent creditors. That this Madras rule on the face of it is un- natural and unjust, will clearly appear from a consider- 208 OLD JUDGE-MADE LAW ation of the following circumstances. As observed by Professor Jolly (at p. 84), owing to the custom of early marriages, an Indian patriarch ' may find himself a grandfather shortly after thirty, and a great- grandfather before fifty.' And he may have a single son by his first wife, and after an interval of many j^ears a large number of sons by another wife, or by two or three other wives, and very many grand- children and great-grandchildren. Suppose this happens in Madras, and the first-born son, on coming, of age at sixteen, or as an infant suing by his mother, enforces partition through the Court, and gets his m'oiety of the ancestral estate allotted to him. The consequence will be that, in the course of time, per- haps half a dozen or more of the Father's sons, each with a family to support, will get shares, not of the original estate, to which shares naturally and properly they would be entitled, but of the moiety left to the Father, greatly reduced and shrunk in all probability by necessary outlay on the maintenance of a large family, as also by the cost and injury occasioned by the partition with the eldest son. On the other hand, the eldest son, instead of being dependent on the Father (as he ought to be) until the Father's death, and then getting, perhaps, a one-tenth share, will be independent from the date of the partition, and the sole owner of a moiety of the whole estate, free of all charges on account of the marriages of sisters, ini- tiation fees, maintenance of widows, and the like. Surely no Indian legislator could have contemplated the infliction of injustice like this. ox THE SOX co:mpellixg the fatiiek to divide 209 No one, I should imnginc, wlio has had experience of litigation in Madras, can doubt that the principle in question must have worked a considerable amount of mischief from time to time. But I need not en- large here upon the lamentable consequences that unavoidably flow from its adoption. My object is to demonstrate as clearly as may be the great improba- bility that exists, that such a principle can form part of the usage of the Brahman and non- Brahman Families of the Madras Province. I have already shown (in Chapter YIII. Part I ) that what little we know of the constitution of societ}'- in South India warrants the supposition that Families of several, if not of many, different forms co-exist in this part of the world, having each its own peculiar institutions and usages. And, if so, it would seem to be improbable in a high degree that they should all of them have developed independently of each other so strange and preposterous a principle as that every male child may, as soon as born, compel his Father to render an account of expenditure, and, should he fail to render a satisfactory account, forthwith to ]:)reak up, and possibly ruin, his Family. It seems incre- dil)le that the Nattukottei Chettis, for example, should evolve such a rule for themselves, seeing that tliey live entirely by financial operations of a more or less delicate character, and for them to allow sons at any moment to withdraw from the Family firms — supposing always that these traders habitually live together in Joint Undivided Families, which I V 210 OLD JUDGE-MADE LAW venture to think can hardly be the case — would be to paralyse speculation and invite ruin at every step. Then, with regard to agricultural Families, it is difficult to understand how the rule in question can have commended itself to these. Some of them — for example, the Coorgs — do not permit partition in any circumstances (see above, p. 176). And this fact seems to me to make it doubtful whether the or- dinary agricultural Family can have advanced so far from primitive concepts as to permit partition of a village pangu or karei at the bidding of an infant son (see above, p. 173). The case of the Brahman tribes is different, inas- much as we know something of their institutions from the (so-called) law-books. And what we know is decidedly opposed to the idea that a son can at any time break up his Family. I have given in my View a number of ancient texts going to show that in no case can a son do anything of the kind; and I believe that many more could be cited in support of my contention, whilst none go directly or neces- sarily against it. Thus Vishnu XVII. 1, 2, runs as follows, namely : — ' If a father makes a partition with his sons, he may dispose of his self-acquired property as he thinks best. But in regard to wealth inherited of the paternal grandfather, the ownership of father and son is equal.' And XVIII. 43 says : 'And if a man recovers (a debt or other property) which could not before be recovered by his father, he shall not, unless ON THE SON COMPELLING THE FATHER TO DIVIDE 211 hy Lis own free will, divide it with his sons ; for it is an acquisition made by himself.' Then, Gautama tells us (at XXVIII. 1-4) : 'After the father's death let the sons divide his estate. 2. Or, during his lifetime, when the mother is past child-bearing, if he desires it. 3. Or, the whole (estate may go) to the first-born ; (and) he shall support (the rest) as a father. 4. But in partition there is an increase of spiritual merit.' These rules receive additional significance from XV. 19, which forbids inviting to a qrdddha (amongst others) sons ' Avho have enforced a division of the family estate against the wish of their father.' Apastamba says merely, of the Father (at II. 6, 11, 1) : ' He should, durmg his lifetime, divide his wealth equally among his sons, excepting the eunuch, the madman, and the outcast.' It adds that some say the firstborn should take all : but says nothing of the sons enforcing division. Baudhayana (at II. 2, 3, 8) says : ' AVhile the father lives the division takes place (only) with the permission of the father ; ' having previously autho- rised the Father to divide his property equally among his sons, as Manu did. Vasistha (XVII. 40-45) provides for division by the sons (presumably after the death of the Father) to be delayed till pregnant widows (presumably of the Father) bear sons. AVhcn we come down to modern times we find no change of rule in this respect. The Ddijcula- qaclo/d, for example, says nothing in favour of the P 2 212 OLD JUDGE-MADE LAW son compelling division when his Father does not desire it. And the Gentoo Code is plainly against it, as I shall presently show. Whence, then, does the Madras doctrine in this behalf come ? I have traced its origin, to the best of my ability, in my View. And, judging from what Mr. Mayne has written of its history, 1 see no reason to doubt the general correctness • of my account of it, which is not challenged by Mr. Innes. It seems that this doctrine was first promulged in the case reported at 1 M. H. C. R., 77, Nagalinga Mudali v. Submmaniya, by two English lawyers, Scotland, C.J., and Bittleston, J., apparently after a most slight and superficial consideration of the merits of the very important question before them, and has ever since continued to be one of the leading prin- ciples of Hindu law at Madras. They were aware of the circumstance that Sir Thomas Strange was opposed to their view : but nevertheless deduced their novel doctrine from a single text of the Mitaksara, relying for authority on the mere o])inion of the younger Strange.^ In doing so, however, they were ^ Though, he believed that the son can by law enforce partition against the will of the Father, Mr. Strange evidently thought that we do not act rightly in applyiug the law indiscriminately whenever the claim to partition is i)ut forward, and ' without consideration of the interests of the family at large.' (See his Preface of 1863.) He observes : ' This noxious practice is now daily pursued, and the consequence is social disunion, litigation, and pauperism. In one province of Madras — namely, Malabar — the law is happily otherwise. There division must be effected by mutual consent, and cannot be enforced at law. And there are to be found, as the ordinary rnle, ancient family fellowships and extensive consolidated possessions.' He goes on to point out an easy remedy for ' the bad tendency of the law, when thus misused,' namely, to refuse ON THE SON COMPELLING THE FATHER TO DIVIDE 213 constrained to express doubt as to the propriety of Yijilane^vara's supposed ordination. Altogether, considering the supreme importance of the questions involved, this judgment cannot but be pronounced to be inconclusive and eminently unsatisfactory. The text in question (I. 5, 8) runs as follows in Colebrooke's translation : ' Thus, whilst the mother is capable of bearing more sons, and the father retains his worldly affections and does not desire partition, a distribution of the grandfather's estate does nevertheless take place by the will of the son.' Assuming this translation to be substantially correct, I suggested in my View that the text should not be taken necessarily to import that the son may enforce the distribution when he pleases ; but might very reasonably be taken to declare merely that equality of partition is at the will of the son, supposing the Father resolves to separate his sons from him, but desires to give them no part of the wealth left by his father. When I made this suggestion, which is sufficiently obvious,^ I had not studied the rules laid down in the Gcnfoo Code on the sul)ject of partition. These rules, as I have already shown, are (for Sanskrit rules) singularly clear and precise ; and they appear to me to throw much light on the question under partition 'but upon proof that the interests of the party seeking the division required protection from waste or fraud on the part of tlie managing head of the family.' And he expresses strong disapproval of the judge-made law of the Supreme Court and the Privy Council. ' I was not aware when I made this suggestion tliat Jimu a Viihana (at D. B., IL 21) had explained the text of Vishnu and Manu, about possessions recovered by the Father, in precisely the same maiine». 214 OLD JUDGE-MADE LAW discussion. They were drawn up by the eleven Pandits (presumably) after a comparison of the opinions of all the writers esteemed by them ; and it is remarkable that, whereas these Pandits mention in many places, generally with approval, the opinions of other Pandits, in the two Sections on the Father dividing his estate among his sons they quote no such opinions, but state the results of their deliberations in terms implying that no doubts anywhere existed as to the mode in which division should be effected during the lifetime of the Father. The Gentoo Code contains two separate Sections (II., 10 and 11) relating to division by the Father. The first deals with the division of ' the property earned by himself : ' the second with that of ' the property left by his father and grandfather.' The first begins with the unconditioned words, ' If a Father divides amono; his sons.' The second begins with the words, ' If a Father desires to divide,' and goes on to say : ' Whenever he altogether despairs of having a son by any one of his wives, he may divide and give it to them at his own choice ; if he has hope of a son from any one wife, he has not authority to divide it,' i.e., the property of his father and grandfather. Then, the sixth paragraph of the 11th Section provides for the case of the Father choosing to divide amongst the sons the property of his father and grandfather other than, and exclusive of, ' the glebe, the rents, the slave girls, and the slaves.' Thus, three several divisions are authorised, viz., (1) That of the property earned by the Father, ON THE SON COMPELLING THE FATHER TO DIVIDE 215 (2) that of the whole property of his father and grand- father, and (o) that of part of the same property. And, apparently, the Pandits contemplated the possibility of the Father, if so advised, making these three divisions, one after the other, on three different occasions. He may divide first his own property, then part of the property of his father and grandfather, and lastly the glebe, &c., left by them. "Whatever the division, it must be ' accordino- to the Father's own choice.' This is expressly stated at the beginning of each of the two Sections. The first says : ' If it is not the father's choice, his sons shall not have authority to force him to such a division.' The second says : ' If it be not the father's choice, the sons have no authority to take from him by force their respective shares of their ancestors' property ; even if there is no expectation that their father shall ever have another son, still they have not authority to take it.' Thus the sons cannot compel the Father to make a division of any of the three kinds. And the Father's discretion in respect to the propriety of making a division is wholly unfettered, save by the circumstance of his not ' despairing of having a son by any one of his wives,' when he thinks of dividing- the whole, or part, of the property of his father and grandfather. When the Father divides the property earned (or recovered) by himself, he may keep as much as he pleases for himself, and divide but a fractional pnrt thereof. And, what he chooses to divide, he may 216 OLD JUDGE-MADE LAW subsequently take back, in the shape of food and clothes, if he expends all his own reserve. In dividing, as a general rule, the Fatlier should give equal shares to all. But, if any one of the sons has been particularly dutiful to him, or has a very large family, or is incapable of getting his own living, ' upon these three accounts, if he gives a larger share to such sons than to the rest, he has authority for so doing.' But, an unequal partition instigated by resentment, or by a particular fondness for one of several wives, or owing to a fit of sickness, is not approved. And if the division takes place in consequence of all the sons going in a body to the Father and jointly request- mg their several shares, in such case he has no authority to give more to one than to another ; the division must be equal. If the Father, by his own choice, divides among his sons the whole property of his father and grand- father, he takes a double share for himself, and gives equal shares to all the sons, unless he chooses to give an extra one-twentieth to the eldest. If he divides the glebe, &c., he may not give to some more, to some less ; he must divide equally, and he must bring the whole of the property of this kind into partition. He may not sell or give away part of it without the consent of his sons. But, unless and until division takes place, the Father may sell or give away at his pleasure, provided always that he must in any case reserve enough to allow of him feeding and clothing all '^vho may depend upon him. If he divides the ancestral property other than. ON THE SON COiMl'ELLING THE FATHER TO DIVIDE 217 and exclusive of, the glebe, &c., lie may deal Avitli it precisely as if it were property earned (or recovered) by himself, and subject to the same provisoes. So much for the rules for the Father dividing. The next Section (12) gives the rules for a division by sons. First, ' If a man, having a wife, and sons born from that wife, dies, or renounces the world, or gives up all his effects, or is expelled from his tribe and relations, so long as that wife lives it is not a right and decent custom that those sons should share and receive among themselves the property left by that person ; if the wife aforesaid gives them instructions accordingly, then the sons have autho- rity to divide it. At the time of division, if the wife is desirous to receive a share, she shall take one share, at the rate of the share of one son ; if she does not wish to have a share, she shall receive victuals and clothes.' Or, if she has a separate estate, she shall have half a share. A sonless wife, too, shall have a share. And then follow rules about the eldest, or the most capable, son managing as a Father, pay- ing the Father's debts, &c. But one of these remaining rules is relevant to my purpose, that, namely, which directs the keeping the shares of absentees and minors ' in some safe place, that they may not be lost or diminished.' Tliis seems to imply that land, as a subject of divi- sion, did not count for much in the opinion of tlie Pandits ; as also does the circumstance that in the general clause in Section 11, limiting the Father's power of aliening, the (miscellaneous) 'effects' arc 218 OLD JUDGE-MADE LAW mentioned before the ' glebe.' It would seem to be very possible that the Pandits may have regarded the gold, jewels, clothes, and other valuables of an ordinary Brahman Family as far more important than the fields tilled by the slaves. It is also very pos- sible that fields, as formiDg part of a village com- prising ' shares,' were never divided within a Family when the Gentoo Code was compiled. They are interesting questions, but I cannot go farther into them at present. See above, p. 172. The (probable) conclusions to be drawn from these rules (as a whole) are that, according to the Pandits who compiled the Gentoo Code, the Father, so lonof as he chooses himself to manao^e his effects and glebe (whether earned, recovered, or received from his father), shall not in any circumstances be compelled to divide them with his sons. His dis- cretion in respect to management, alienation, and directing partition, is, and remains, wholly unfettered. And, it is only when he does direct partition, that any check is imposed upon his power and authority, or that the consent of his sons becomes for any purpose necessary. Whether the sons can interfere legally if the Father sells or gives away the whole of the estate, or divides it unequally, is not stated. Pre- sumably, they cannot. AVith these plain and reasonable rules before me, I find it most difficult to believe that, when Vijnan- eqvara penned his ordination, he intended by it all that is now attributed to him in Madras. Professor Jolly (at p. 125) tells us that ' the ON THE SOX COMPELLING THE FATHER TO DIVIDE 219 same doctrine is positively stated by Apanirka.' After having laid down that in the case of ancestral pro- perty the sons possess an equal right with the Father to institute a partition, and may compel him to dis- tribute it when he does not wish for a division, Apararka goes on to say that, ' even in the case of property acquired by tlie father, partition may, in certain cases, be instituted by the sons.' Unfortu- nately, Professor Jolly does not give Apararka' s words, and I am unable, therefore, to see for myself how far they may be held to go. But, inasmuch as he adds, ' It is true that Apararka, much like Jimuta Vahana, ordains that a partition by the sons shall be delayed till after the death of the mother, in case she is capable of undertaking the management of the estate,' I think there must be excellent reason for doubting whether Apararka, in fact, has laid down a rule substantially different from the rule in the Gentoo Code. For, if he makes the sons stay their hands till the death of a capable Mother, how can he consistently allow them to take away the management, when they please, from a capable Father ? The thing to me seems impossible, and merely absurd. That he should, as Professor Jolly states, allow sons to iuterfere when the Father ' is influenced by wrath or engrossed by a beloved object (voluptuous),' is quite consistent with his forbidding them to take their shares by force ; and is in accord, as we have seen, with the proviso stated in the Gentoo Code^ as also in Narada and elsewhere. And his permitting the sons to oust a physically incapable 220 OLD JUDGE-MADE LAW Father from the management of his own acquired pro- perty in no degree strengthens the hypothesis that Apararka intended also to permit them to oust a capable Father from the management of his father's ' effects and glebe.' It is unnecessary to discuss here the (supposed) opinions of the writers who may be said to constitute Vijnaneqvara's tail, e.g.^ the author of the Sarasvati- vilasa and others. If I rightly understand Professor Jolly's observations on this matter, these writers generally contend that the sons may, in certain cir- cumstances, demand partition even during the life of the Father. But, such contention does not necessarily conflict with the rule of the Gentoo Code, which merely denies to the sons the j^ower of taking their shares from the Father by force, when it is not his choice to divide ; and which presupposes the exist- ence in the Father of a choice, and (necessarily) of a choosing power. In other words, there may (indeed must) be circumstances in which the general rule laid down in the Gentoo Code would not apply, and exceptional rules must be followed. For example, the Father may become physically incapable of manag- ing affairs by reason of disease, loss of memory, insanity, or a similar cause. Or, by excessive indulg- ence in sensual pleasures he may incapacitate him- self for the conduct of business. Or, without actually renouncing the world and retiring to the forest as a devotee, he may give himself up entirely to religious meditation, and neglect his temporal duties. Or, the Father may be outcasted. In these and many con- ON THE SON COMPELLING THE FATHER TO DIVIDE 221 ceivable cases it iniglit be necessary for the sons to compel the Father to abdicate in favour of one of their number, or even to proceed against his will to a partition of the estate. Whatever may be the true meaning of the teaching of the Mitaksara and its followers upon the subject of the modes and times of partition, I would, with Professor Jolly, reject it, as being ' too much opposed to the old text-law and to modern usage to be looked upon as more than a theoretical development.' But, if in spite of everything the Mitaksara is still to be retained in its mischievous position of ' Para- mount Authority ' for Madras, at all events let us not extend in every direction its ' theoretical develop- ments.' Let us, on the contrary, in favour of the unfortunate beings to whom we administer its provi- sions, construe its language strictly, as if it were some penal statute. And thus, in construing the isolated text under notice, we might hold that it in no degree limits or restricts the meaning of previous texts governing the management and partition of an estate, but merely illustrates the theory of equal ownership, and indicates the power of the son to oust the Father, in certain exceptional circumstances that are not set out, as, for instance, in the case of the Father separating his sons from him, and giving them shares of his self-acquired property, but declining to bring into partition the estate left by his father. I ol)serve that Professor Jolly (at p. 12.')) declares my analysis of Mitaksara, I. 5, 1-7, whicli is based solely on Colcbrookc's ambiguous reading, to be in- 222 OLD JUDGE-MADE LAW correct when tested by the original Sanskrit, parti- cuLarly that part of it which relates to § 3 ; and gives the correct rendermg of this paragraph, which goes to show that it is erroneous to suppose that ( 1 ) ' the estate inherited from the grandfather shall not be divided at all by the Father with the grandson,' and (2) a partition of the kind ' shall be instituted by the choice of the Father alone.' Assuming the absolute accuracy of the learned professor's rendering of the passage, I am inclined to think that it need not necessarily mean anything opposed to my original suggestion as to the meaning of § 8. ' At all ' pro- bably is equivalent to ' in any circumstances.' And ' by the choice of the Father alone ' may doubtless be intended to mean only where a capable and qualified Father chooses to institute it. And, if so, my original suggestion surely may stand good, as also may the suggestion (made above) that Vijilanegvara may have had in view the case of a Father somehow disqualified from management, as well as the case of a Father re- fusing to divide his father's estate when he dismisses his sons. It would be tedious to argue out the case more fully. I have shown, I hope, good grounds for re- viewing an unsatisfactory judgment on a matter of supreme importance. At all events, I must have made it plain that we are not justified in obliging indiscriminately all the lower castes of Madras by Vijnaneqvara's ' theoretical development ' of the special law for the Brahmans of the Panjab. But, in conclusion, I must invite attention to the import- ON THE SON COMPELLING THE FATHER TO DIVIDE 223 ance in this connection of the new Madras doctrine, by which the son is held to be under the necessity of paying all debts (not being illegal or immoral) con- tracted by the Father. If we add to the power of the Father by permitting him to mortgage the Family estate to its full value, we must at the same time take away something from the son. And that something should be held (it seems to me) to include the right of enforcing, when he pleases, partition of his grand- father's estate. Otherwise, we shall see, by-and-by, any number of sons suing for partition solely in order to prevent their Fathers from exercising their (recently recognised) lawful powers of alienation. One of the most popular Sanskrit jDroverbs, quoted by the Gentoo Code^ by Ellis, and by P. Sami Iyer in his Introduction to True Hindu Laic (Madras, 1877), is to the effect that ' the Father in debt is an enemy to his son ' ; and perhaps no single jorinciple of the old Sanskrit law is more firmly or generally established than that the son must pay the Father's (legal) debts, whatever their amount. It is only after the Father's creditors have been paid, or satisfied with promises, that the son can take the estate. On the other hand, as I shall show in my next chapter, the Father cannot be compelled to pay his son's debts. I must not omit to add that, if, as Professor Jolly affirms, I err in attributing to the Mitaksara the idea that the time of dividing the ancestral estate is (except in special circumstances) at the will of the Fatlier alone, I err in excellent company, namely, with Colebrooke, Ellis, and Sutherland. 224 OLD JUDCxE-MADE LAW In tlie appendix to Strange's ninth Chapter will be found several concordant opinions of these jurists, to the effect that, ordinarily, the power of the Father over the Family estate is absolute during his life, and under the law of the Mitaksara sons have a right only in particular cases to exact a partition during the Father's life. And from their language I infer that they were not aware of the existence of any doubt upon the point, or of the possibility of any such doubt arising in the future. 225 CHAPTER YT. ON A COrARCENER ALTEXTNG JOINT PROPERTY. My sixth False Principle is that : 'A member of an undivided family can aUene joint ancestral property to the extent of his own share.' After tracin;^ its history in my View, I asked, ' "What is there in all the Sanskrit law-books together that can be held to favour the (to a Hindu mind) most astounding proposition, that a court of law may forcibly break up a united family, and scatter its joint possessions to the four winds of heaven, in order to prevent injury and injustice being done to a stranger by the unauthorised and therefore void act of one of its members, or even to make amends to a stranger for an injury done to him by a single member of the fan^ily, without the knowledge of the rest ? ' To this rpiestion Mr. Innes has given (at \)\\. 65-69) a most characteristic and remarkable answer. After admitting that the High Courts of Calcutta and Bombay insist upon the inability of a coparcener voluntarily to alienate his interest, and that ' it is perfectly true that the strict rule of the Mitiiksara law is that no sharer before partition can, without the assent of all the co-sliarers, determine the joint :^2i) OLD JUDGE-MADE LAW character of the property by conveying liis share, ]ic goes on to say that the arrangement between the coparcener and the ahcnee is of the nature of a con- tract, and the courts are not bound to administer the law of contracts in accordance with Hindu law, so ' the Madras High Court gave the Mitaksara the go- by,' whilst ' the Calcutta and Bombay Courts have evaded it.' So, then, it comes to this : When the High Court thinks fit, it will break up a Family in accordance with the (supposed) views of the author of the Mitaksara. Where this writer forbids the thing to be done, the High Court will nevertheless break up a Family in accordance with the (supposed) views of equity. And it may well happen that an Apas- tambiya Brahman, with two extravagant sons, may be treated in something like the following fashion. He may come on appeal to the High Court, and say: ' My Lords, I pray justice. My firstborn son, a very l)ad boy, has sued me in the District Court for his share of my father's estate. I told the Court that, according to the rules of my ralha, and according to Manu and all the authorities known to my people, the claim must be dismissed as bad in law. But the Court said something about the " Mitiiksara," a work I never heard of, and gave judgment for the plaintiff, Avith all costs. My Lords, unless you set this right we shall all be ruined. My wife is young ; I have a son and four daughters to marry, and many debts to pay ; and for two years we have had no crops to t?peak of: 1 pray yon, be merciful.' And thereupon ON A COPAHCENKU ALIENING JOINT I'liOl'KliTY 227 the Higli Court may say : • AVe are iQtleed sorry to learn that you never heard of A^ijnaneqvara's work. He was a truly great writer. He improved upon Apastamba and Manu and all the ancients, and one of his theoretical developments is that a son may ruin his Family by enforcing partition whenever he pleases. So the judgment must bo affirmed. This is the law.' And two or three years afterwards the same Brahman may come before the Court again, and say : ' ^My Lords, my younger son, as good a boy as ever lived, and one who would never willingly injure his poor old father, has been so foolish as to borrow Rs. 2,000 from a Pariah monej^-lender, and the fellow has sued me in the District Court, and got judgment for Ks. 3,000, to be paid out of the pro- ceeds of the sale of my son's one-third share of the Family estate ; and I am told he actually talks about buying it himself, and living in my house, he, a Pariah! But, my Lords, I am all right this time. That scoundrel Vijnanec^vara nearly ruined me before: but now he is on my side, with Apastamba and all of them. The}^ tell me he has made a rule tliat a son cannot, Avithout his fother's assent, " deterinino the joint character of the property by conveying his share." ' And thereupon the Court may say : ' Good man, you don't at all understand the hidden beauties of the English system. When your elder son brought yon here, and Vijnaneqvara was against you, that was a case in which law had to be administered, and we gave you law. Now it is a case, not of law, but of ecpiity : and Vijiianecvara and Apastamba ha\ e Q 2 228 OLD JUDGE-MADE LAW nothing to do with equity. We are very sorry, but we must affirm the judgment of the Lower Court, with all costs. That is equity.' ]\Ir. Innes has confined his remarks upon the question to an attack on the Calcutta and Bombay High Courts, which, he thinks, have come to a con- clusion identically the same as the Madras doctrine, but on wrong grounds. ' The Madras High Court said broadly that a coparcener might lawfully alien- ate his interest,' whereas the other two High Courts have strenuously denied this, though they allow an equity to a partition to a creditor who has advanced money ' on what he must be supposed to have known was by law an invalid security,' such as, e.g., a son's unascertained right to a share. It is no part of my business to examine the views of courts other than the Madras High Court upon this important question, and Mr. Innes does not say for what reasons, or by virtue of what special autho- rity, the Madras High Court has thought proper to ' say broadly ' the very opposite of what the Sanskrit writers, including Yijnaneqvara, have said. But I think it will be not unprofitable to make some further remarks on the subject. In the first place, I would wish to observe that if, as Mr. Innes freely admits, ' the strict rule of the Mitaksara is that no sharer before partition can, without the assent of all the co-sharers, determine the joint character of the property by conveying his share,' it is impossible to make the Mitaksara consist with the new Madras doctrine, that the Father has ON A COPARCENER ALIENING JOINT PROPERTY 229 no f'Teater interest than a son in tlic ancestral pro- perty of his Family, but nevertheless may mortgage it to its full value. If he may not determine the character of the property, how may he determine the property itself ? That the Father and the son are not ' coparce- ners ' in any sense, and that rules possibly applicable to the case of brothers dwelling together are not in any degree applicable to the case of the Father manag- ing his Family, is made manifest, it seems to me, by the circnmstance that, whereas the son must pay the (legitimate) debts of the Father, however enormous, and independently of assets, the Father cannot be compelled to pay the debts of the son. Thus,Yishnn, in Chapter YL, on the law of debt, after stating who is to pay the debt of another, says : 'A woman (shall) not (be compelled to pay) the debt of her husband or son ; nor the husband or son (to pay) the debt of a woman (who is his wife or mother) ; nor a father to pay the debt of his son.' Narada III. 11, says : ' The fiither shall not pay his son's debts, but the son those of the father.' The Gentoo Code con- tains similar provisions. Another excellent reason for denying the equality of the Father and the son is afforded by the circum- stance that, according to the Gentoo Code II., 8, a son who ' witliout any advance of property raises any profit,' must give half of it to the Fatlier, and keep the other half for himself; and if he earns money ' upon employing his father's or grandfather's property,' he must give the half of all his gaiiis to 230 OLD JUDGE-MADE LAW the Father, and smgle shares to his brothers. But the Father need not e'ive a sino;le anna of his earn- ings to the sons. Again, writers of the middle period of Indian law (see, e.g., Narada III., 32) say that the Father, or he who is the Head of his Family, alone is indepen- dent. And, if a son has made a transaction without his Father's consent, it is likewise declared to be invalid ; a slave and a son are both alike. Similarly, the Pandits who compiled the Gentoo Code begin the body of the work by declaring that men are per- mitted to lend money, but not to women, children, or servants. Where, therefore, the Father manages a united Family, he may borrow as much as he pleases, and the son must pay the debts. The son cannot legally borrow, and the Father shall not pay his debts. This, so far as appears, is the law. And the Madras High Court would seem to have abrogated the latter part of it for no better reason than that the author of the Mitaksara has indulged in speculation about the equality of the ownership of the son. But, we find that even when Vishnu was written, the idea existed that the ownership of the Father and the ownership of the son over ancestral property were (in one sense) equal, and yet its existence in no degree interfered with the doctrine that the Father alone was inde- pendent in resjDect to wealth. Almost the same idea is to be found in Gaius II., §§ 156-57, coupled with the precise statement that the son's right over his grandfather's estate does not ON A COPARCENER ALIENING JOINT I'KOPEUTY 231 commence until liis father dies. The passage first gives the two legal pre-requisites that must be satisfied before the son's sons and granddaughters can become ' suihceredes,^ or heirs of himself (the House Father), namely, (1) that they should be in the power of the grandfather at the time of his death, and (2) that before that time their father should have ceased to be a suus hceres, either by dying, or because other- wise freed from the ■pafria potestas. The next section gives the popular idea of the position of direct lineal descendants generally : ' But, however, they are called '• heirs of himself" for this reason, namely, because they are heirs of the House, and even during the lifetime of their own father are regarded as being in a certain fashion owners.' Dominus^ probably, is connected with domus, and hceres with hems (Master), and, naturally enough, the children of the House would be called heirs of the House Father ; and, because 'heirs,' be regarded, therefore, as 'domini,' in a sense. I observe that in Mr. Justice IMuttusami Ayyar's elaborate judgment in ' Second Appeals,' 703-5 of 1878, the wdiole force of tliis passage appears to have been misapprehended, no doubt in consequence of an erroneous translation having been used. The learned iud<>-e founds his ariiument on the following proposition : ' Justinian says, sui hai-e- des are called so l)ecause they are family heirs, and even in the lifetime of their father owners of the inheritance in a certain degree.' The passage, in fact, shows that the law was the very opposite of this. 232 OLD JUDGE-MADE LAW Just as the Indian Father used to be mdependent, the equal ownership of the son notwithstanding, so the eldest son must have been independent when he managed like a Father ; and even a younger brother, when appointed (or permitted) to be the Head of the Family, and so long as he continued to be such. In the historic case named after Seshachella, if the elder brother, who mortgaged the whole Family estate, had boldly taken his stand on his rights as an indepen- dent manager of a Family, very possibly he might have won the day. See the opinions of the Pandit, Colebrooke, and Ellis on the point raised at II. Strange, 335. They agree in substance that who- ever is Manager binds the rest. But, it appears from Sir T. Strange's notes that the elder brother was advised to confess judgment, and, as between the others, it was contended by the younger brother, and allowed, that ' the effect of a mortgage of undivided property by one of the family, without the consent, not for the benefit, and contrary to the interests of the rest, was that the shares of the other parceners in the thing mortgaged continue to subsist in full force.' It was not contended that the elder brother had not power to aliene his own share, for this he had not pretended to do. The sole question for the Court to decide was whether, in the circum- stances, the mortgage left the minor's share intact. And it decided this question in the affirmative, after paying particular attention to Colebrooke's remarks in Prannath Das v. Colishunker Ghosal^ which are to the effect that Jagannatha, and those quoted by ON A COPARCENER ALIENING JOINT PROPERTY 233 bim, held a decided opinion that an alienation by one is valid for his own share, not for the shares of his co-heirs ; bat Jimuta Vahana is less explicit, and it does not appear that he goes further than to main- tain the validity of a sale (or alienation) by a Father for the whole patrimony, without the consent of his sons, or by a co-heir for his own share without the consent of the others. Whilst no question of importance was raised or decided in Seshachella's case, and (properly speaking) it is in no sense a leading case, it is observable that the decision in it was greatly influenced by (sup- posed) Bengal law, not at all by the Mitaksara law, which, according to Mr. Innes, forbids the alienation by a co-heir of his own share without the consent of the others. And, besides, it is observable that Jimuta Yahana, as a foct, does not appear to speak (at D. B., II. 27) of a co-heir aliening 'his own share.' What he appears to authorise is the aliena- tion of the whole or part of an estate by one, on the principle of factum valet. His commentator, Sri- krishna, says Jimuta A^ahana denies a common pro- perty vested in all ; and I understand the latter to imply that each partner has power over the whole. The Gentoo Code (II. 14) throws some light on this question. It states that, whereas the Pandits of Mithila approve the alienation, by a partner, of a part of the joint property ' on computation of his own share,' the approved ordination is that of Jimuta Yahana and two others, to the effect that this may ])c done only provided that loi^s and vexation shall 234 OLD JUDGE-MADE LAW not iiccriie to the partners by reason of the aUenee beino' a man of fraudulent principles. This proviso would seem to aim directly at the mischief likely to be occasioned by rashly selling to a stranger an un- ascertained and uncertain sliare, and to be in accord with the rule of Narada given above at p. 94, to the eifect that partners performing their religious duties and carrying on their transactions separately, and practically separated, may aliene their shares as they please. The Gentoo Code (11. 9) refers to a practice that doubtless would warrant separate alienations of joint property, that, namely, of all the sons, during the lifetime of the Father, either by his order, or with his tacit assent, making for themselves houses and gardens upon his land. In such case, ' if the land so taken be in greater or lesser quantities, it is not liable to be shared,' and presumably each holding may be aliened by its occupant without the consent of the rest. Byerley Thomson's work on Ceylon law (ii. 571) speaks of the necessity, in the case of several sons separately cultivating portions of the ancestral estate, and one of them devotmg an extraordmary amount of labour and capital to his own holding, of securing him in the possession of what he has rendered valu- able, at the time of partition. Looking to these several authorities, and reading between the lines, we may, I think, conclude that the alienation by one of several sons of a part of their joint estate may be justified in certain circumstances, e.ench for decision in consequence of a ditterence of opinion on the questions involved. Jt appears that the Father of a Family mortgaged his moiety of a dwelling house for an advance made for jiurposes neither immoral nor illegal, and died leaving the debt unpaid, and two sons. The elder son, whilst managing the property during the minority of the younger, executed a fresh mortgage in renewal of the original. This was enforced by suit, and the mort- gagee bought the property in execution of his decree, and tlien sold it to a stranger. The younger brother sued this strano-er for a half-share of what was sold lo 324 CHAOS him, worth apparently ahout Rs. 77, and ultimately the case came up in appeal before the Full Court. Turner, C. J., held that, in accordance with the Privy Council decision in Hanoowanpersaud Panday V. Massumat Babooee Munraj Koonweree^ 6 M.I. A., 421, and other decisions recently discussed, ancestral estate may be charged by a Manager to satisfy a Father's debt, and the charge binds the son. There- fore, in the present case the infant's interest as well as that of his brother was bound by the mortgage. But, the decree and sale operated only on the interest of the elder brother ; and the younger was entitled to recover his share, subject to the liability of paying his share of the debt before partition. On the other hand, the purchaser must give him his moiety of mesne profits. In every part of this judgment Kernan, J., con- curred. The minority dissented, being of opinion that Kantoo LaVs case did not apply here. All that was to be dealt with was the question of the effect of the sale, in execution of a decree, against the elder brother alone. The Manager ' had only a qualified power of dealing with the property except for family purposes. For his own purposes, he could only alien ate or charge it to the extent of his own interest.' He was sued personally, and the decree was made against him alone. The sale was of his interest alone. All that was bought was an equity to a partition and allotment of the elder brother's share. The purchaser from the mortgagee could not be protected by his bona fides. EETliOGEESSION IN 1882 325 There was no deceit or gross negligence on the part of his vendor. Kindersley, J., was of opinion that, though the elder brother ' may probably have had power to mortgage the younger brother's interest on account of the father's debt,' the omission of the creditor to join the younger brother as a defendant precluded the latter's mterest from being affected by the decree. So, on this occasion the ' minority ' became the ' majority.' It would be difficult, I imagine, to reconcile the Chief Justice's view here of the operation of the decree, with his 'corollary' given above at p. 307. And I cannot understand upon what unexplained principle the minority gave in this case the very relief that they ultimately (and presumably after lengthy consideration) refused in the last case. In either case there was a debt duly contracted by the Father, an obligation on the sons to pay it, a hypothecation by the Manager, a decree against one coparcener alone, an impeached sale of the joint property, and a suit by another coparcener for the recovery of his share from the purchasers after partition and allotment. Then, it is hard to understand why the law, if (as is admitted by Kindersley, J., probably to be the case) it gives to the elder brother power to alienate the joint estate, should not be held also to give power to the courts to enforce his alienation, without calling on the younger brother to appear and show cause airainst the enforcement of it. Lastly, since the courts in India are courts of 326 CHAOS equity and good conscience, not of English and Roman law, it is hard to understand why they should give the son partition, against any person, without compelling him first to pay his share of the Father's debts, charged upon the corpus. The next case is Chockalmga v. Subbarai/a, 1. L. R. 5 Mad., 133, in which a creditor sued for a de- claration that a hypothecation of lands by one of two brothers was enforceable, under the terms of the decree held by him against the hypothecator alone, also against his sons and the other brother. It was found that the debt was incurred for Family purposes, and binding at all events on the minor sons. But Kindersley, J., who was of the majority in Fo?i7iap2M Pillei's case, agreed with Muttusami Ayyar, J., in thinking that the claim must be dismissed, because, * in order to bind the coparceners by a decree upon the hyi^othecation, it was necessary to make them parties to the suit, so as to give them an opportunity of redeeming the ancestral estate [see the observation of the Chief Justice in Ponnappa Pillei's case, decided by the Full Bench]. But neither the first defendant nor the minor sons were made parties to the original suit. It follows that their interest in the property cannot be affected by the decree in that suit.' But, if ray account of the Chief Justice's judg- ment is turned to, it will be found not at all to support this argument. The ' corollary,' given at p. 307, above, shows that the Father can make an alienation of ancestral property so as to bind the son's interest, and where he makes it, the son's interest as RETROGRESSION IN 1882 327 well as the Father's mterest in ancestral estate may be attached and sold in execution of a decree for the debt, ao-ainst the Father alone. And farther on in the judgment (see p. 310, above) it is explained that such decree is not conclusive against the son, who may- bring a suit to protect his interest on any grounds open to him. In the present case, the creditor, having been denied his rights in execution, brought a suit, and in so doing afforded the sons ' an opportunity of pro- tecting their mterests on any grounds open to them.' They did what they could: and failed. Nevertheless the unhappy creditor lost his money. This decision was overruled. See below, p. 347. The next case is Chinnaya Nayadu v. Gurunatham Chetti, I. L. R., 5 Mad., 169, decided by the Full Bench. Here the plaintiif and the first defendant, who was the Managing Member of a Family of brothers, having carried on trade in partnership for seven years, closed the business, and settled their accounts, and the first defendant duly signed the deed of settlement. The debt so acknowledged to be due was the con- sideration for a bond executed some years later by the Managing Member, as such. And, shortly before this new debt would have become barred by the lapse of time, part of it was paid, and the fact duly en- dorsed on the bond by the first defendant. The creditor sued all the brothers on his bond, nnd got judgment. On appeal, before the Sub. Judge, the second defendant set up the bar by lapse of time. And the Sub. Judge, on the strength of the decision 328 CHAOS commented on above at pp. 275-6, held that the first defendant was not authorised to acknowledge the debt, so as to prevent it fi'om becoming barred. On second appeal. Turner, C.J., and Muttusami Ayyar, J., considered the propriety of the above- mentioned decision, which had been questioned in a subsequent case, and resolved to refer the case to the Full Bench. Counsel argued that, ' if a brother can have his credit pledged by, and enjoy the benefit of the trade of, his manager, why should he not be bound by his acknowledgment? ' He might have added, amongst other things, why should not the Family have its credit and honour upheld by its representative? And why should not commercial credit be strengthened by a court of equity and good conscience operating in accordance with the genius and usage of the people? And why should not the rule in Narada (iii. 15) be followed : ' Any parcener may be compelled to pay another's sJiare of a debt contracted by joint- tenants, while they were all alive ' ? The Court, consisting of the 'majority' and the * minority ' together, delivered a judgment of nine lines, to the effect that the bond was not expressed as binding on the Family — though this would nob have affected those who did not sign it — and the Managing Member has no power to revive a claim barred by limitation, unless he is expressly authorised to do so ; though ' he has authority to make pay- ments for the family, and has the same authority to RETROGRESSION IN 1882 329 acknowledge as he has to create debts.' Therefore the chniiii was incapable of enforcement, as against the Family. I will not attempt to comment on this decision, as 1 feel it to be altogether beyond my comprehension. It seems to me to mean that by law the Managing Member, as such, has authority to bind the Family by his acknowledgment that a debt is due by the Family: but, when it comes to acting on such authority, some- thing in the law of limitation unintentionally nullifies it. In other words : Ordinarily, and for all ordinary purposes, the Family may speak through its Managing- Member. But, when it would save its credit and honour, it must speak by the mouths of all its members, including infants, and even unborn direct descendants of the Father or brethren, or its collec- tive voice cannot be heard. How a barred debt is to be revived so as to save the credit and honour of infants, does not appear. But, see the case at p. 342, below. The next case, Ddsaradhi Bavulo and another v. Joddumoni Havido and others^ I. L. R., 5 Mad., 193, is specially instructive, as showing that the Chief fJustice had changed his mind for a time, owing doubtless to pressure put upon him by his colleagues, and was now prepared to deal with decrees against single members of Families upon the very straitest principles of English processual law. Here there was a debt incurred by the jSIanaging Member for the benefit of the Family, and two Dis- trict Judges in succession held that, such being the 330 CHAOS case, the Family was bound by a decree establishing the debt and mortgage in a suit brought against the Managing Member alone, and by a sale of the mort- gaged lands in execution thereof. Before the second District Judge no attempt was made to dispute the findings of the Munsif upon the question of the cha- racter and circumstances of the debt, but it was contended that no evidence thereanent ouo-ht to have o been received ; and the District Judge held that the remand-order, made for the purpose of getting such findings before the Court, was conclusive on the autho- rity of a number of Calcutta and Bombay decisions. On second appeal. Turner, C.J., and Innes, J., reversed the decisions of the Lower Courts in a judg- ment of seven lines, on the folio win «• single around: ' The appellants cannot be bound by a sale made in virtue of a decree on a mortgage passed in a suit to which they were not parties. They cannot be fore- closed of their right to redeem, assuming that they were liable for the mortscao-e debt.' This declaration of the law is directly opposed to the ' corollary ' and decision in the Chief Justice's most elaborate judgment in Ponnappa Pillei's case, given above at pp. 307 et seq., which at all events es- tablishes the doctrine that the interest of one ' co- parcener ' may be attached and sold m execution of a decree made in a suit brought against another ' coparcener ' solely. And no reasons are assigned for the Chief Justice declining to act in this case upon the principles so carefully enunciated by him in the o'reat case. RETROGRESSION IN 1882 331 Accordijig to these principles, the Court should have considered in the first place the propriety, in the circumstances, of settmg aside the sale, and then, if the sale was set aside, the resisting brothers should have been told that ' they cannot claim to be placed in a better position than they would have occupied had the sales not taken place. Their interests were bound by the mortgage, and if the sales are set aside, they will hold their interests subject to proportionate parts of the mortgage debt.' AVe come now to two Full Bench decisions, pub- lished almost simultaneously, in cases in which the reference was necessitated by doubts as to the pro- priety of the decision in the Sivagiri case (see above, p. 279), namely, Karnataka Hanumantlia v. Andu- knri Hanumayya^ and Karpakambdl v. Ganapathi Suhbayan, I. L. R., 5 Mad., 232 and 234. In the first of these two cases there was a decree against the Father for the payment of a debt, and upon his death execution of it was applied for against his minor sons, as representatives, and the Family property. Turner, C.J., delivered the judgment of the Court in the briefest possible terms, to the effect that under the Code of Civil Procedure the sons were liable as representatives only to the extent of the property of the deceased which may come to their hands, &c. The interest of the Father, not having been attached in his lifetime and brought under the control of the Court for the satisfaction of the decree, passed, on his death, to his sons by survivorship and ceased to be 332 CHAOS his property. There is no difference in this respect between the right of the Father and of any other coparcener. The son's obligation to pay the Father's debts attached to the property in his hands not in his representative character. To enforce it, the decree- holder must have recourse to separate suit. In the second case also there was a decree against the Father for the payment of money, as maintenance to a widow, and an application for execution against the sons, as representatives, and the Family property. Turner, C.J., after observing, ' It may be the father was sued because he was the manager of the family property ; but this is not apparent on the face of the decree,' held that the decree could be executed against the sons for arrears that had accrued since the Father's death (as well as before it), only as representatives of the Father and until his assets were exhausted, ' it being of course understood that, on the father's death, the interest he had in his life- time in joint ancestral estate lapsed, and would not be available as assets.' The order of the District Judge, accordingly, was set aside, and he was directed to ' reconsider the application with reference to the above observations.' It would be interesting to learn what the creditors in these two cases did, and how they fared, in subse- quent proceedings. Probably the unfortunate widow, who was recommended to try the ' exhausting ' pro- cess, found it exhausting to herself rather than to the Family on whose inheritance her maintenance was by law a first charge. And, if the other creditor was RETROGRESSION IN 1882 606 tempted to bring a suit against tlie Family, no doabt it was dismissed with costs, in accordance with the decision commented on above at p. 317, on the short ground that his remedy (not in his case the assets) had been ' exhausted,' because forsooth ' the cause of action on the obligation is one and indivisible, and a second suit cannot be entertained upon the same cause of action.' Yerily, the Madras creditor has reason to curse the English processual law, and to cry out in his anguish, 'Give us back the simple laws of our country. They may be unscientific, even barbarous, but we can understand them : they suit us, and we love them ! ' As regards the ' False Principle ' of survivorship, I have shown in my View that, in the opinion of Sanskritists like Goldstiicker and Burnell, this prin- ciple ' does not exist at all,' and is ' entirely foreign to Plindu law, and alone sufficient to render the adminis- tration of this law nearly impossible, for it confounds coparcenership with the state of division.' The case of Srmivdsa Nayudu v. Yclaya Nayudu, I. L. R., 5 Mad., 251, is important in that it shows that the ' minority ' felt themselves compelled here to upliold the decision in Po}i7ia2?pa P'dleis case, and to decide against sons, who in a suit for partition against the Father sought to set aside a sale of Family pro- perty by the Court, in execution of a decree against tlie Father alone, and another sale of such property by the Father. In doing this, however, the 'minority' carefully 334 CHAOS excepted from its affirmation ' the dicta to be found in pp. 69 and 70 of the Report.' We come next to the truly bewildering case of Gurusdnd v. Ganapathia Pillai, I. L. R., 5 Mad., 337, in which, upon disagreement on appeal between Innes, J., and a new Judge, Forbes, the question was referred to the Full Bench, and Turner, C.J., and Kindersley and Muttusami Ayyar, JJ., decided it against a pur- chaser from the Father, and in favour of the infant son, who was not a party to the suit, on principles that (to me) seem to be completely opposed to the principles elaborately and carefully enunciated by the Chief Justice in Ponnappa Pillei's case. The question, stripped of irrelevant concomitant circumstances, and as shaped by the Court, was whether the Court should provisionally enforce, pos- sibly (but not necessarily) to the detriment of an infant son, a sale of ancestral lands promised by tlie Father, without necessity and for doubtful purposes not binding on the infant son. Looking to the circumstances of the case, the Court held that it could not grant specific perfor- mance of the contract to sell, ' made by a trustee in excess of his power or involving a breach of trust.' It pointed out as a principle upon which to act, that : — ' When a Hindu family is undivided in estate, it is a presumption of law that the property held by any member of it belongs to all the members : this presumption may be somewhat less strong in the case of a father and sons than in the case of undivided brethren, and in each case the strength of the pre- llETKOGRESSrON IN 18>^2 66,) sumption must vary with the particular circumstances.' After this, the Court went on to observe : ' If the property be ancestral, the Court has notice that the power of the seller, if he be a Hindu with an undi- vided son, can be exercised without a breach of trust only where there exists a necessity sufficient in law to justify the sale, and that there is a person who is entitled to interdict it.' Finally, having remanded the case for the decision of issues as to the necessity of tlie sale, &c., and having declined to accept the decision obtained, the Court refused to enforce the sale, in so far as it affected the infant son's unascertained share, not feeling itself ' entitled to uphold an act in itself a violation of the law.' Here, therefore, the Chief Justice had been brought round to the opinion that the Father is a mere unpaid trustee for his sons : whereas in Ponnappa Pillefs case, as we have seen, the Chief Justice had given him a practically unlimited power of alienation, pro- vided always he abstained from immoral and illegal acts of expenditure. It is a not insigniticant circumstance that the decision in this case contains no reference to tlie decision in the great case; and, although it deals with the Father raising money to pay debts, and cliarging the ' heritage ' as a whole, is silent as to the son's twofold obligation, &c. Summary. — During the year 1882 the minds of the Judges would seem to have been distracted by the difficulty (rather, it should be said, tlie impossi- 336 CHAOS bility) of upholding the decision of the majority in Ponnappa Pllleis case, and at the same time main- taining in their integrity comparatively recent doc- trines of the ' Madras school ' as opposed to other ' schools.' The Chief Justice evidently had not the courage of his opinions, as expressed in the great case; and betrayed at last an inclination to undo everythmg, and make the Father once more a mere unpaid trustee for the Family. Fortunately for Madras, the Privy Council decision in the Sivagiri case was soon to make itself felt. 337 CHAPTER V. THE TRIVY COUNCIL ON THE SIVAGIRI CASE. In the first half of 1882 the Sivagiri case decided by the Madras High Court, as shown above at p. 288, was disposed of on appeal b}'- the Privy Council. Sir Barnes Peacock, in delivering the judgment of the Court, quoted largely, but did not think it at all worth while to reply to, the recondite and multi- form arguments of the Lower Court. He hastened to declare that the creditor was entitled to succeed upon his second ground of appeal, ' that the whole Zamindari, or at least the interest whicli the defendant took therein by heritage, was liable as assets by descent in the hands of the defendant, as the heir of his father, for the payment of his fathf.r's debts.' As to this ground — the judgment proceeds — ' the case is governed by the case of G'wdharcc Lall v. Kfintoo Lall. The doctrine there laid down was not new, but was supported by the previous cases therein cited. The principle of that case was adopted by this Board in the case of Suraj Bitnsi Koer, and has been very properly acted upon in Bengal, in Bombay, and in the North-West Provinces, and although it was not acted upon by the High Court of Madras, as z 338 CHAOS it ought to have been in the case now under appeal, it has since been acted upon in a Full Bench decision by all the Judges of that Court, except two who dissented, of whom Mr. Justica Muttusami Ayyar was one, in Ponnappa Pillei v. Pappuvayyangdr! Then comes the unpalatable remark: ' The reasons given in the judgment of the High Court in the present case constitute no ground for the opinion that the case of Kantoo Loll does not apply to the Madras Presidency.' For, (1) the assertion, that in that case there were remarks which show that the Father and son probably were acting in collusion with one another against the purchaser, 'certainly was not justified,' and ' was clearly a mistake.' And (2) assuming, without admitting, that a difference exists in Bengal and in Madras as to the power of the Father to alienate to the extent of his own share, ' it is impossi- ble to see how the father's power to alienate his own share could constitute a valid reason for supposing that, where that law existed, the son's share, taken by heritage from the father, was thereby exempted from liability for the ^^ayment of his father's debts.' It is then declared, simply, that ' the fact of the Zamindari being impartible could not affect its lia- bility for the payment of the father's debts when it came into the hands of the son by descent from the father.' And then come directions, and the conclu- sion: ' The defendant is liable for the debts due from his father, to the extent of the assets which descended to him from his father, nnd all the right, title, and interest of the defendant in the Zamindari, which THE PRIVY COUNCIL ON THE SIVAGIRI CASE 339 descended to him from his fiither, became assets in his hands, and that right and interest, if not duly administered in payment of his father's debts, is liable, as ao^ainst the defendant, to be attached and sold in execution of the amount that may be decreed against him.' Their Lordships therefore advise to reverse the decrees of the Lower Courts ; and to direct payment of the debt by the defendant, ' as the son and heir and legal representative,' out of the property that was of his Father, and came to him by heritage ; and to declare the whole estate, both the hypothecated parts and the rest, to be liable to attachment and sale in execution. What, ultimately, will be the effects in Madras of this uncompromising decision, it would be indeed rash to predict. At the first blush it would seem to suffice in itself to explode the greater part of the peculiar views that obtain in Madras, with reference to the Father's powers and the son's obligations and rights. But, no doubt, we shall soon find a disposition evinced by some at least of the Madras Judges to treat this decision as the decision in Kanioo Lirf< case has been treated ; and anyhow to ward off, to the utmost of their ability, the invasion of Bengal ideas and principles. z 2 340 CHAOS CHAPTER VI. MOVING FORWARD AGAIN ? The case of Puna Kuruppana Pillai v. Virabadra Fillai, I. L. R., 6 Mad., 277, is of importance, as illustrating the state of uncertainty and helplessness to which the subordinate tribunals must have been reduced by decisions such as those commented on in my previous chapters. Here the debt, one of a few rupees, was incurred by the Father of a Family for the purpose of getting his son married, and the creditor, evidently a cautious man, sued both the Father and the son for payment. His doing so puzzled the Munsif, who referred to the High Court whether, as a Small Cause Court Judge with a restricted jurisdiction, he could dispose of a suit like the one before him, seeing that, with refer- ence to Ponnappa PilleVs case, the question of the son's obligation to pay the debt of the Father was one not of contract but of inheritance. Knowing ' the views of the Courts and the bar to be divergent,' the Munsif thought it proper to lay the matter before the Judges of the High Court, ' lest his view may be erroneous.' The decision of Innes and Kernan, JJ., was to MOVING rORWAKD AGAIN ? 341 tlie effect that the debt, being one properly contracted for a proper and necessary Family purpose, was not, properly speaking, the debt of the Father, but the debt of the Father and son, the Father having acted as manager and agent of the Family, in borrowing the money. The next case is that of Timmappaya v. LaksJi- mindrdyana and others^ I. L. R., 6 Mad., 284. Here an undivided nephew sued the Father and Mother of a Family and their three sons, whether infants or not does not appear, for a declaration that the ' shares ' of the three sons Avere liable to be sold in execution of the plaintiff's decree, gotten against the Father alone, for his one- sixth share of the whole Family property. Two brothers of the plaintiff had similarly brought several suits for partition against the Father solely. The brmging of this suit was necessitated by the circumstance that execution of the plaintift^s decree had been denied to him, upon the intervention of the Father's three sons. Both the lower Courts dismissed the claim. On appeal, it was held by Innes and Kindersley, JJ., that the suit did not lie against the sons, ' to enforce ao-ainst them a decree for partition obtained against their father to which they were no parties,' (1) because of the Oaths Act, and (2) because no deci-ee could be properly arrived at in a suit for partition without joining all the coparceners. Kantoo Ldl's case did not apply. The judgment is very brief, and begs the whole question, one very comi)lcx and diflicult. 342 CHAOS If the Madras High Court is right in holding that the son has power to compel the Father by suit to separate him and give him his share of wealth, it is difficult to see how other sons can have any right of ' mterdiction ' or intervention in a suit brought for this purpose, or why (ordinarily) they should be included in it. The question would seem to be one between the Father and the plaintiff alone. Again, where (as in the present case) the Father resists and the Court, upon consideration, actually decides against him, and by decree imposes upon him an obligation to yield up certain movables and things to the plaintiff, it is difficult to see what rational distinction can be drawn between such obligation and a debt of the Father that a son must anyhow pay, or a promise of the Father that a son must anyhow fulfil. The Court having laid hold of the property of the Family, and made it a fund out of which to satisfy the claim of the son, one would suppose that the conditions existing in Ponnappa FiUei's case existed here also, and the conclusions arrived at in that case would here have a proper apphcation. It does not appear that fraud, or collusion, or mistake, on the part of the Father was alleged to exist. If it was, the suit gave the three sons and the Mother an oppor- tunity of establishing the truth of the allegation. The next case is that of Ncirdyanasdmi Chetti v, Sdmidas Miidali, I. L. R., 6 Mad., 293, in which Innes and Kindersley, JJ., set aside in revision the decision of the Munsif, that the son is not bound by MOVING FORWARD AGAIN ? 343 the deliberate promise of the Father, given by bond, to pay a barred debt, decLared in a judgment to be such. They observed : ' The ftict that the debt was barred by the Act of Limitation did not affect the existence of the debt, and there was nothing illegal or immoral in the action of the father in promising to pay it. The new note operated as a renewal of the obligation.' Tt is difficult to reconcile these observations, and the decision in this case, with the judgments in the two cases commented on above, at pp. 275 and 327, in which it was declared that the Father, unless expressly authorised for the purpose, has no power, as Managing Member, to revive a barred claim. As the decisions now stand, it would seem that the Father cannot save the credit and honour of the Family by endorsing on his bond the circumstance that he makes a payment on account : but he can effect this desirable and necessary object by the roundabout method of executing a new note, to ' operate as a renewal of the obligation.' We come now to the most bewildering case of all, that of Yenamandra Sitardmasdmi v. Midatana Sanyfisi and another, I. L. R., 6 Mad., 400. Here a man sued his two brothers for partition, and certain mortgagees in possession nnder a deed executed by the Father intervened and were made })arti(!S. The ^lunsif doubted the bona fides of the alienation, and declined to uphold it as against the 344 CHAOS plaintiff. The Sub. Judge ' found that the mortgage was a bona fide transaction, and that there was no proof that the debt was either immoral or illegal, and dismissed the plaintiff's claim against these defen- dants.' The plaintiff was advised to appeal, the decisions in Kantu LdVs case, Ponnappa Pilleis case, and the Sivagiri case, and other decisions, notwithstanding: and the result showed that he was well advised. Turner, C.J., and Muttusami Ayyar, J., reversed the decree of the lower appellate Court by a very brief judgment to the following effect. In order to sustain a mortgage by a Hindu Father it must be shown that the moneys were required for necessary purposes, e.g. payment of a debt which it would be a pious duty in the son to discharge. The mort- gagees had not proved this much, or that they had in good faith believed the debt was such as to justify the mortgage. And, therefore, the mortgage could only affect the Father's share. The son, however, is bound to dii;charge a debt of the Father that he cannot show to have been contracted for an improper purpose, to the extent of ancestral proj^erty which may come to his hands. And, in a suit brought against him to enforce that liability, the burden of proof as to the nature of the debt would lie upon him. The decree must be reversed, and the claim of the plaintiff allowed. This decision would seem to sponge out all (or most) of the results achieved in a series of slowly pro- gressive judgments ; and indeed to place the creditor MOVING FOKWAKI) AGAIN ? 345 in a worse position than lie filled in tlie days of Scotland, C.J. That Muttusfiini Ayyar, J., should have penned it, is sufficiently intelligible. That Turner, C. J., should have brought himself to sign it, after Ponnappa PilleVs case, surely is beyond a plain man's comprehension. It will be observed that (amongst other things) the decision discards the current expressions, ' im- moral ' and ' illegal ' debts, and substitutes for them the perfectl}^ general term ' improper purposes ' ; introduces the new condition of ' necessary purposes ' ; shifts the burden of proof; restores the idea of a ' pious ' duty ; and practically throws every possib^.e obstacle in the way of the bona fide mortgagee, Avhom it turns out of possession unpaid, though the Sub. Judge found upon the evidence that the plaintiflP had failed to prove that the debt was either immoral or illegal. It should be added that the mortgagees were excused from paying the costs of the phiintiff, ' as he has not ofi'ered to discharge the father's debt.' Surely he should not have been granted partition and allot- ment unless and until he paid it in full. The next case is that of Arundchala Chctii v. Murdsdmi MiidaU, I. L. R., 7 Mad., 39, in which the creditor advanced money to the Father upon a hypothecation of the property of the Family ; sued him solely ; got a decree ; was denied execution upon the intervention of the sons ; and then sued for a declaration that their interest also was liable. The Munsif dismissed the ^uit, on the ground 346 CHAOS that the decision in Suraj Bunsi Koer's case did not apply, because the Father was still alive, and the ' religious obligation was absent,' and the creditor had failed to prove benefit to the Fauiily. And the District Judge agreed. On second appeal, Muttusami Ayyar, J., and Hutchins, J., a new Judge, affirmed the decree, holding that the lower Courts had done right in throwing the burden of proof on the plaintiff, in the absence of an antecedent debt. ' If the plaintiff had joined the sons in his suit against the father, he would have had to establish the liability of their shares, and his position cannot be improved by obtaining a decree against the father alone.' In this very brief judgment no reference is made to any decisions, and judging from its wording one might suppose that Ponnappa Pillei's case and the cases on which it depends had been definitively aban- doned as authorities upon which to act. We now come to the important case of Bdmd- krishna v. Namasivaya and two others, I. L. R., 7 Mad., 295, which shows that the muid of the Chief Justice had been moved round again to its old posi- tion, and the whole Court was now with him. In this case the Father and one of his sons jointly executed a hypothecation-bond, and the creditor sued on it and got a decree against the obligors, and attached the property, whereupon sons and grandsons intervened and got their interests released, and hence the usual suit for a declaration. The Munsif found that the debt was not con- MOVING FORWARD AGAIN ? 347 tracted for immoral purposes, and declared the inte- rests til at had been released to be liable to be sold in execution. On appeal, the Sub. Judge reversed the decree, on the authority of Chockalinga v. Subbaraya, for which see above, p. 326. On second appeal, Kernan and Kindersley, JJ., referred the case to a Full Bench, ' in consequence of the ruling ' in tlie last-mentioned case. Turner, C.J., delivered the judgment of the Full Bench, one of some twenty lines, to the effect that the suit was maintainable, not being on the same cause of action as the prior suit, in which the right of the obligors alone was dealt with. If the inter- vening sons and grandsons had failed to get their interests released from attachment, it would have been open to them to bring a regular suit : and, similarly, the decree-holder must be allowed to bring a suit to contest the order made in his disfavour. Smce it had been found that the Father's debt was not contracted for immoral purposes, the interests of the sons, as well as of the Father, were liable to sale in execution of the decree, unless the sors redeemed the property remaining unsold. The (apparent) importance of this judgment can hardly be over-estimated. How many decisions of the Madras High Court are virtually overruled by, though none is mentioned in, it, I am unable to state. But, amongst others may be reckoned those in Chock- alinrja w.Subaraya (see above, p. 32G), and Gurusami CJtettis case, in which Innes and Muttusami Ayyar. 348 CHAOS JJ., overruled Kernan, J., with the ' exhausted remedy' judgment (see above, p. 317), and the last two cases commented on. It will be observed that on this occasion all the Judges were content with the debt being one not contracted ' for immoral purposes,' and agreed in ordering the sons to pay such debt, or suffer their interests still unsold to be sold in execution. After this come two more Sivagiri cases ^ I. L. R., 7 Mad., 328 and 339, in which the Court simply followed the decision of the Privy Council, com- mented on above. And then we have the remarkable case of Baha v. Timma, I. L. R., 7 Mad., 357, in which Turner, C.J., and Innes, Kindersley, and Muttusami Ayyar, JJ., replied to a division bench that : ' A Hindu father, if unseparated, has not power, except for purposes warranted by special texts, to make a gift to a stranger of ancestral estate, movable or immov- able.' When, therefore, the Father, being very wealthy, but having acquired or earned nothing for himself, desires to make a present of a few rupees to (say) a dancing-girl, he must, if he happens to have a male baby living, refrain from making the ' alienation to a stranger to the prej udice of his son ' ? It is difficult to believe that the Madras High Court can have intended thus to degrade the Father, and to strip him not only of all real power but of nearly all enjoyment in life, but the terms of the above reply are luiqualified save by the words ' for MOVING FORWAKT) AGAIN ? 340 purposes warranted by special texts,' and I presume that no such text exists warranting the making of a present to a dancing-girl. Until the date of the delivery of this judgment it was always understood at Madras that the Father, as being a coparcener, at the least could aliene joint ancestral property to the extent of his own share. And hence my sixth Fahe Principle. Now he can aliene nothing ancestral, not even one anna. It appears from the judgment that the doubts expressed by the Privy Council in Lakslunan Dada Naik V. Rdmachandra Dada Naik, L. Jl., 7 I. A., 194, as to the right of a coparcener in Madras to make an alienation of his share, suggested that the Court should reconsider the question when oppor- tunity occurred. And the Chief Justice had nothing to add to the observations he made upon it in Po7i- nappa Pilleis ca^e, for which see above, p. 305. Respecting the question, now before the Court, of the competency of the Father to make a gift of ances- tral estate to a stranger to the prejudice of his son, it appeared to the Chief Justice that: ' We have on the one side the unanimous consensus of the commentators accepted in Southern India, and the opinions of the most eminent English writers on Hindu Law. On the other, we have a decision of this Court which rests on no sufficient authority: the principle on Avhich alienation was permitted to satisfy a j udgment-debt, or to give effect to a contract made with a purchaser for value, implies that, ordinarily, the power to alienate is absent, and it appears to me we cannot 350 CHAOS recognise, as a rule, what was intended as the justifi- cation for an exception to the rule.' I can have no objection to the High Court thus meekly surrendering, in deference to the views of its chief, one of the most maleficent as well as the most firmly established of the False Principles. But, I must protest against the assumption here acted upon that the ' consensus of the commentators accepted in Southern India,' i.e. of Yijfianeqvara and his tail, constitutes in itself the Hindu law of Madras. Moreover, a glance at the body of the judgment sufiices to inform the inquirer, that this consensus is got only by reconciling in the Chief Justice's own way 'apparently conflicting' passages in the Mitak- sara ; and that the supposed necessary consent of the son, or on the other hand his interdiction, must have been contemplated as operative and effectual only in the case of the son being of full age. It can hardly be seriously contended that Vijilanegvara desired the Father to wait and see whether his baby son would grow up and consent, before deciding on the propriety of making a trifling present. When we turn to the books that can more properly (or less improperly) be said to contain law, we shall find, I believe, a ' unanimous consensus ' of opinion in favour of making presents. Thus> Manu IX. 6 and 9, enjoins one to ' bestow upon the Brahmans wealth according to his ability,' for ' after death (the giver) reaches heaven.' But, ' a man of means giving gifts to strangers while his own family lives in wretchedness tastes poison (while) seeking honey ; MOVING FOHWAKD AGAIN ? 351 he makes a counterfeit of right.' In the present case the gift was made to a Brahman, and to one of the donor's family. And it was not alleged to be a gift beyond the ability of the donor, or one calculated to impoverish his family. The author of Narada, upon whom the Chief Justice has relied as an authority for Madras, when it has served his purpose to do so, as for example in Ponnappa Fillers case, allows the Father to give away the bulk, if not the whole, of his estate, as I have shown above, at p. 298. And the Gentoo Code is even more explicit upon the point. See the same passage. The next case is that of VlratYigavammi v. Samudrala, I. L. R., 8 Mad., 208. Here there was a debt due by the Father of a Family, evidenced by a bond ; a bond in renewal of the debt, executed after the death of the Father by the ' eldest son and vcwasu ' (see above, p. 171), udio had become the Managing Member ; a suit and decree against this individual solely ; an attachment of property of the Family ; and then a suit brought by another son, upon his coming of age, for a release of the property from attachment and a declaration exonerating him from liability, &c. The District Judge had no doubt that the decree in the original suit ' was intended to be passed against the eldest son in his capacity of managing member of the family,' and that the equity of the case required tbat the case should be disposed of in favour of the defendants. But he felt himself bound to follow 352 CHAOS Suhramanyan v. Suhram.anyan (see above, p. 323), and accordingly allowed the claim. On appeal, Turner, C.J., and Muttusami Ayyar, J., affirmed the decree of the Lower Court, holding that, since ' unfortunately the elder brother was not sued as manager and the decree was not drawn up as a decree to be executed against him in that character, or to be satisfied out of the family property,' and it ' would be consistent with the decree that the then defendant had been impleaded because he, and he alone, had taken assets,' there was nothing to distin- guish the case from those cases in which the Privy Council has held that ' a mere money decree obtained against one member of a coparcenary family will not justify execution against the interests of all the members of the family.' Accordingly, the creditor lost everything, but was excused paying his opponent's costs. The observation occurs that, in aduiinisterinsc justice between men belonging to rude tribes, it might be well to go into the merits of each case from the point of view of the litigants, and to uphold the right in accordance with the Usage of the country, rather than to do rank injustice in order to maintain in their integrity the narrowest possible views of English processual law. In this case there was absolutely nothiug to excuse or palliate the conduct of the younger bn^ther, in refusing to pay his share of a trading debt deliberately incurred by the Father for the benefit of the Family. And it is as certain as anything can be that, but for the views held by the MOVING FORWARD AGAIN ? 353 Hioh Court about the powers and jural relations of the Managing Member, he would never have been advised to act as he acted. We come next to the case of Mmdkshi v. Virappa, I. L. R., 8 Mad., 89, in which it was decided by Turner, C.J., and Muttusarai Ayyar, J., that the Father cannot defeat by his will the right of his child in the womb, over ancestral property. It will be remembered that in Baba v. Timma (see above, p. 348) it was decided that the Father, if unseparated, cannot bestow a gift of ancestral property upon a stranger. And it was decided in Muthia Chetti V. Zamincldr of Rdinnad, 2 Ind. Jur., 205, that the Father ' cannot make a gift of ancestral property so as to defeat the rights of a son begotten, but as yet unborn.' It is now declared that he cannot provide for his widow, as against his son. And yet he can incur debts, and charge them on the heritage, practically ad libitum. The next case is that of Vmamahesimra v. Singaperumal, I. L. R., 8 Mad., 376, which was de- cided by Hutchins and Brandt, JJ., on principles that, so far as they are intelligible, are decidedly reactionary. Here there was an advance to the Father of a Family in 1868 for (presumably) Family purposes ; a decree against him in 1871 ; a bond executed by him in 1875, hypothecating lands, for the amount of this judgment-debt ; a suit brought against the Father and his eldest son, upon this bond ; a decree against the Father solely, in executing which tlie A A 354 CHAOS lands of the Family were attached, and three minor sons successfully intervened ; and hence a suit for the usual declaration, &c. The Munsif dismissed the suit, following Choka- I'lnga v. Suhharaya (see above, p. 326). And, on appeal. Judge Irvine pointed out that this case had been overruled by BdmdJcrishna v. Namasivaya (see above, p. 346), but nevertheless affirmed the decree. On second appeal, the Court disagreed with the District Judge, but affirmed his decree, on the ground (as I understand it) that the decree made against the Father, although as a fact ' the judgment-debt was charged on the property,' was ' a mere money- decree ' against the Father, and being such, ' could not be * extended so as to bind the sons' interests.' And ' this point was not considered in Bdmdkrishna v. Namasivaya.^ The judgment then proceeds to distinguish the ' settled law,' that a decree against the Father and the Family property in his hands binds the whole property, subject to a certain right of intervention on the part of the sons, from the (unsettled?) law governing the case of a decree being a simple money- decree, wherein ' all that can be sold is the father's interest, and the right to have such interest ascer- tained and partitioned off.' Having repeatedly read this judgment, and com- pared it with the judgment in the last-mentioned case, I can only say that I can discover neither its meaning nor its justification. To me it is and must remain a complete mystery. MOVING FORWARD AGAIN ? 355 The next case is that of Krishnama v. Perumdl and others, I. L. R., 8 Mad., 388. Here there was a mortgage of a ' self-acquired ' house by the Father and his eldest son ; a suit brought against this son, who upon the death of the Father became the ]\Ianaging Member, to enforce the mortgage ; a decree against him, followed by the attachment and sale of the house ; and then a suit for possession, brought in the High Court against all the members of the Family, by the purchaser. Hutchins, J., one of the two who decided the last case, dismissed the suit on the ground that, although he was inclined to think that the mortgage was bind- ing on the Family, the plaintiff ' having purchased the right, title, and interest of the eldest son only, is obviously not entitled to eject. He is entitled to the share of the eldest son upon a partition, bat this is not a suit for partition.' On appeal, Turner, C.J., and Brandt, J., the other of the two who decided the last case, agreed in reversing this decree, and giving possession to the plaintiff, ' having no doubt the Court intended to sell the whole property as a mortgaged property,' and because ' the manager of the family had been im- pleaded as the representative of his father by whom the property had been acquired.' The observation occurs that it would seem to be immaterial what the Court intended to sell, inasmuch as the Court could not legally pass by sale more than it was legally warranted in selling. The next, and last, case is that of the Siviuniuyti A A % 856 CHAOS Zamindar v. Lakshmana, I. L. R., 9 Mad., 188. Here there was an advance of money to the Father, for purposes neither immoral nor illegal ; a suit against him solely ; and a decree, followed by the attachment and sale of part of the estate. * After the death of the Father, his son the new Zamindar sued for recovery of possession of what was sold, and his suit was dismissed. On appeal, Kernan, Officiating C.J., and Muttu- sami Ayyar, J., reversed the decree of the Lower Court with costs, holding that the purchaser acquired no more than the life-interest of the judgment- debtor in the property sold. The Judges admit, in their several judgments, that the debt was contracted by the Father for pur- poses neither illegal nor immoral, and that ' no doubt the Zamindari may be in the hands of his son liable to pay the debts of the late Zamindar.' But, the Father was not the absolute owner of his estate, even though ' he might have alienated the whole or part of it for purposes properly binding on his son ' ; and, as a fact, ' nothing more could be sold, or was purported to be sold, than the property of the defen- dant in the buildings.' And '' no equity in favour of the purchaser had arisen.' In a word, the debt of the Father being one for which the son and the ' heritage ' were alike properly liable, a British Court of equity and good conscience could not see its way, through conflicting decisions, to protect an innocent purchaser against that son. 357 CHAPTER VII. A SUMMARY. COXCLUSION. It has been shown in this Third Part of the book that the fundamental divergence of opinion among the Madras Judges which began to be noticeable durino- the last days of Morgan, C. J., became serious soon after the arrival in Madras of Turner, C.J., and led to a crisis in Ponnappa Pllleis case^ when three of the five Judges were arrayed against two in open and admitted opposition ; that, on this occasion, whilst the conservative mmority resolutely adhered to what it conceived to be genuine ' Madras doctrine,' as opposed to the veiy different doctrine of other parts of India, and of the Privy Council, Turner, C.J., was determined to accept without reserve the principles laid down conspicuously in Kantu LdVs case, and by his own efforts evolved a new set of principles in- tended to supersede those of the minority, notably my sixth False Principle, ' that a member of an undivided family can aliene joint ancestral property to the extent of his own share,' and to empower the Father to contract debts, and aliene tlie estate of the Family, practically at his pleasure ; that towards the end of his judgment, however, the Chief Justice exhibited 358 CHAOS signs of hesitation and want of courage, and failed to give their full effect to his initial deductions ; that the two Judges who followed him did so but half- heartedly and with ominous reserve, in very brief and guarded judgments, whilst evidently differing in opinion the one from the other ; and that it would be extremely difficult to state the actual results achieved by the joint parturition of all the five Judges in this most remarkable and momentous case. It has further been shown that almost immediately after Ponnajypa Pilled s case the minority set to work to destroy the effect of it, and overruled Kernan, J. ; that the minority, in a certain very simple case, first decided in direct opposition to the decision of the majority in the great case, and then, on review, for no apparent reason, effaced by a few words its own obstructive judgment ; that the mind of the Chief Justice was swayed to and fro by conflicting theories, and betrayed great uneasiness, and a disposition to abandon the greater part of what he had before vehe- mently insisted upon ; and at last, after various con- flicting and irreconcilable decisions, the Chief Justice was brought right round to the opinion (of course only to be inferred) that the Father is impotent, being a mere unpaid trustee for his sons, or rather an unpaid Receiver and Manager of the Family property, who may not come to the Court for instructions, but must act always on his own responsibility and at his own peril. Next, it has been shown that in the Sivagiri case the Privy Council made short work of the (supposed) A SUMMARY. CONCLUSION 359 ' Madras doctrine,' and unmistakably manifested its displeasure at the refusal of the ]\Iadras High Court, for reasons that were no reasons at all, to accept for Madras the established general principles repeatedly- acted upon in Kantu LaTs case and other cases ; and declared in precise terms that the Sivagiri Zamindrir was liable for the debts due from his Father, to the extent of the assets whicli descended to him from his Father ; that all the right, title, and interest m the Zamindari, which descended to him from his Father, became assets in his hands, liable to attachment and sale in execution ; and that the son must pay the debts of his Father, as the ' son and heir and legal representative,' out of the property that was of his Father, and came to him by heritage ; and declared the whole Zamindari, both the parts that had been hypothecated and the parts that had not been hypo- thecated, to be liable to attachment and sale in execu- tion. After this, it has been shown that the subordinate Courts had been so bewildered that it was doubted (and for a very logical reason) whether a Small Cause Court had power to hear the simplest suit, brought against the Father and the son jointly, in which the son's liability to pay a debt of the Father was alleged to exist ; that in another case the Court, including the Chief Justice, went back upon its words ; that subse- quently the Chief Justice took a great step forward, carrying the whole Court with him, and in a very brief judgment overruled a number of cases; that afterwards the full Court agreed in setting aside the old-cstal)lishcd 360 CHAOS sixth False Principle^ and held that the Father, if un- separated, ordinarily has no power to make a gift to a stranger of ancestral property ; that soon afterwards the Chief Justice decided another case in opposition to one of his principles previously established ; that again the Chief Justice held that the Father cannot by will defeat the son's interest in order to provide for the Mother ; that two new Judges decided a case on quite reactionary principles in disfavour of the mnocent creditor ; that soon afterwards one of these two turned round and joined the Chief Justice in overruling the other in a similar case ; and that the Court, in the last case commented on, arrived at a decision adverse to the innocent purchaser that seems to be quite irreconcilable in principle with the Privy Council decision in the Sivagiri case above set out. I am not aware that I have omitted to notice any important Madras decision reported during the last ten years or so : but, if by accident I have done so, the omission is immaterial. The analysis I have given must amply suffice, it seems to me, to prove the allegation that so far the Judges of the Madras High Court are not in agreement, and are very far from agreeing, upon such fundamental matters as the powers and jural relations of the Indian Father, the dependence and rights of the son, the position and authority of the Managing Member, the status of the Head of a Family owning an ancient Zamindari or other large estate, and the subordinate nature of the processual law, and in regard to many questions of constant cccurrence in every court in the country. A SUMxMARY. CONCLUSION 361 In my second Part I have shown that, since I published my View, in 1877, more than the half of the Fifteen False Principles denounced by me have been abandoned, expressly or by implication ; and others have been seriously shaken, if not actually dis- established. AltoD'ether, therefore, the result of a decade of law-making by the Judges is that the Madras High Court has got itself into a quite hopeless state of disagreement in respect to the most elementary propositions of Hindu law ; and, in domg this, has gradually and reluctantly abandoned the greater, and by far the more important, part of the Established Rules and Fixed Principles to which in 1877 I in- vited the attention of the public. The ' vantage-ground ' on which Mr. Tnnes makes so determined a stand (see above, p. 7) has in fact been ' abdicated ' : and whether my suggestions are adopted or rejected, the High Court stands ' com- mitted to chaos in the matter of the Hindu law,' which, in the opinion of qualified observers like Bur- nell (see above, p. 4), is ' in a chaotic state.' It would be sheer waste of time, and more than useless, for me to enter here upon an inquiry into the camce causantes and causa proxima of the exist- ence of this state of chaos. I shall content myself with observing that, however greatly principal causes of it, as for example the arbitrary selection of a few works of no general authority or importance as repre- senting the whole immense existing Sanskrit law literature, the employment of faulty translations, the 362 CHAOS attachment of undue weight to isolated and ambiguous texts, 'the pitch-forking of English doctrine into Sanskrit texts,' the abolition of Pandits, the dissocia- tion of law from Orientalism, and numerous other things, may have severally contributed to the bring- ing about of a lamentable result, the one main source of error and of mischief has been unwillingness on the part of those responsible to recognise ' Indian Usage ' as the sole exponent of Indian Law. Whatever may have been the case in England, there can be no reasonable doubt that in India ' Usage ' has been everything, and ' Law ' nothing, except in so far as it has enshrined, explained, and preserved Usage. Also, there can be no reasonable doubt that in India Usage has been, and is, infinitely multiform ; the whole population having been from time imme- morial, not homogeneous and aggregated, but segre- gated in numberless castes, sub-castes, clans, and Families. I have shown what the author of the now current recension of Manu wrote about Usage, and compared with his views the views of many others, including the joint presentment of the eleven Pandits who com- piled the Gentoo Code. I will now give in addition a few excerpts from the very valuable Introduction to the Honourable V. N. Mandlik's work on Hindu law, a work marked by great common sense, a large ex- perience of the working of judge-made law in Western India, and commendable moderation in expressing strong views. A SUMMARY. CONXLUSION 363 He observes, at p. xliii., with regard to Usage: 'I am inclined to hold that this has always been the main source of the Aryan law from the earliest times; and that our Smritis and Puranas, so far as they relate to the Dharmasastra, have been merely the records of customs that existed in those days.' After gi\'ing a string of texts showing the importance of Usage, he says, at p. xlv., of a text of Brhaspati : 'It will appear from this text that our indigenous law ] does not support the English law in respect to custom, that it must be of a certain kind before it can be up- held. I must take occasion here to remark that it is wrong, in my opinion, to apply English rules of cus- tom to the determination of our native usages.' Next he remarks : ' An cichara (usage) accepted by a com- munity becomes dharma (law). Yajnavalkya says (Chap. i. 156) that even dharma itself, if opposed to the usages and wishes of the people, is not to be practised.' The same writer protests strongly, — and, being a learned native who thoroughly understands his sub- ject, he deserves to be heard with attention, — against the mode in which the English Courts misuse Indian law treatises. Of the so-called Mitaksara he says, at p. xlix.: 'The pubhcation of the Sanskrit work in 1813, and a translation of the Dayabliaga section under the auspices of Government, stamped it at once with importance, being an official publication,' though it is but a commentary on 36 verses out of 1,009 of Yajnavalkya, which is but one of hundreds of Smrtis, and of which the authority, outside the author's own 364 CHAOS 9akha, * is of no peculiar importance.' Again, at, p. Ixx., after im]:)lying regret for the abolition of the Pandits, and for the passing away of old times when the courts used ' to consult all current works and usages,' he observes : ' To say that the Mitaksara or any other similar treatise is decisive of Hindu law, is, in my opinion, completely to ignore the history and growth of the Hindu law itself.' Then, after showing that ' dharma in the case of the Hindus pre-eminently means usage or custom,' and that the people go for their law to the Bhattas of Benares, who belonged to them and wrote for them, rather than to works sup- posed to be of great repute, he says, at p. Ixxi.: ' Yij nane^vara was a very learned writer ; and he wrote an excellent commentary on the Yajiiavalkya Smriti. But apart from that there was nothing very special about it. And as a matter of fact, it is less consulted than the works of Hemadri, Madhava, and the Bhattas.' It is quite delightful to me to find an Indian who knows all about it speaking thus of the absurdly overrated Mitaksara, that most mischievous of all clever law- treatises. Had the eleven Pandits who compiled the Getitoo Code had the slightest reason to suspect that English Judges would be betrayed into accepting this work as being the Paramount Authority, indeed the law itself, I make no doubt that they would have spoken their minds about it with considerable freedom : as it was, since apparently they did not even know the name of its author, they practically ignored its 'theoretic developments,' of A SUMMARY. CON'CLUSION 3 65 which writers like Goldstiicker, Jolly, and Barnell have so poor an opinion. Being very anxious to know what Professor Max Miiller thinks of the Mitaksara as an authority for Madras, I wrote and asked him, and he was so kind as to send me the following reply, dated December 7, 1886 : ' The Mitakshara in the South of India is what the Code Napoleon would be in England, sup- posing England was conquered by the French. It may be a very good Code, but it would be a foreign Code. It is strange that a saving clause forming part of Mann and the other Brahmanic Law books should have been so little acted on — namely, that the custom of the country (desadharma) should be re- spected, except where it is in direct opposition to the sacred law.' This important opinion, it will be observed, cor- roborates most directly two of the principal views exhibited in this book. With regard to Madhava, whom Mr. Mandlik pronounces to be an authority superior to Yijfiane(^- vara, I have shown in my Prospectus that in 1812 Ellis held him to be the principal authority in South India, having been ' the lawgiver of the last Southern Hindu dynasty,' whereas the Mitaksara was 'gene- rally supposed to have been composed in Northern India ' ; and that Ellis's native adviser named the Madliavlyam and Sarasvati-Vilasa as the two autho- rities for the Carnatic, and declined to accept the Mitaksara as the Paramount Authority for South India. 366 CHAOS Of another work to which, I regret to see, the Madras High Court is beginning to ascribe undue prominence, namely the Smrti-Candrika, Mr. Mandlik has something very important to tell. In the first place he declares (at p. Ixxiii.) that this work is not by the same author as the Dattaka-Candrika. And, second, he tells us that it is ' as it professes to be, the work of Bhatta Kubera, a Bengal author. Kubera's name is not even known on this side of India ; and Mr. Borradaile expressly says that the original work did not exist in Western India in his time. Steele's list does not mention such a work at all.' Third, he leaves it as one of the ' speculative and comparatively unknown works,' and chooses for publication one of the ' well-known modern nibandhas.' It is devoutly to be hoped that in the course of time Government will become conscious of the Paramount Absurdity of upholding the Mitaksara as the Paramount Authority for South India, alike for the privileged classes, for whose edification (in North India) it was composed, and for the dumb masses , whose interests Vij iianeq vara never dreamt of inj uring ; and of subordmating to a mere sectarian farrago of ' theoretic developments ' the whole enormous mass of works from which, some day, Orientalists may succeed in evolving for all India a scientifically valuable system of Sanskrit or Brahmanic law. In the meantime, something must be done by Govern- ment in its legislative capacity, and that quickly, or the present scandalous state of things undoubtedly will lead to most serious results, including the ruin A SUMMARY. CONCLUSION 367 of mnumerable Families, and the paralysis or destruc- tion of commercial credit. It is unnecessary for me to urge again, what I have strenuously insisted upon in my View and Prospectus, the necessity of ascertaining by systematic inquiry the usages and customs of the various tribes I and families, Brahman and non-Brahman, that con- ; stitate the ' Hindu ' population of the Madras Pro- I vince, and of gradually building up on the basis of 1 knowledge thus acquired a structure out of which, ultimately, a Code might be constructed. And at present I have nothing to add to the suggestions already made by me as to the mode in which such inquiry should be conducted and utilised. It will suffice for me to repeat here my conviction that, at the present moment, at all events in Madras, Englishmen I are absolutely destitute of knowledge, easily obtain- / able, of the facts from which alone Hindu law can be \ deduced ; and that, unless and until such knowledge is obtained, the administration of satisfactory law to Indians is nearly impossible. But, I gather from expressions made use of by some of my critics, that it is not generally understood '\ why I object so strongly to the Mitaksara, and for Avhat special reasons I hold that we do very ill in j selecting it as a guide ; and, therefore, I shall now attempt to explain, briefly and compendiously, the grounds of my particular hostility to this clever and interesting treatise, and with what I would wish to replace it in general estimation. In the first place, it is (I believe) now universally 368 CHAOS allowed that the ' Mitaksara,' as done into English by Colebrooke, is no more than a speculative essay of an unknown writer, who flourished in an unknown place in North India, in an unknown time, upon the mean- ing of thirty- six verses of a Smrti known by the name of Yajilavalkya ; and that this Smrti belongs to, or ' is more or less intimately connected with, a school ! attached to the new, or ' bright,' or ' White Yajur I Veda,' adherents of which, if they ever existed in, /are no longer to be found in. South India. This single circumstance, in my humble opinion, is fatal to the hypothesis that the ' Mitaksara ' has been, and is, accepted by the Brahmans of South India generally, as a Paramount Authority. I On the other hand, adherents of the old, or ' Black Yajur Veda,' particularly Apastambiyas, are to be found in great numbers in South India ; and they still possess sutras and smrtis, e.g. Apastamba, Baudhayana, Manu and Narada, and valuable com- mentaries on some of them. It is highly improbable, therefore, that any of the most numerous Brahman families in the Madras Province should have resolved to adopt the Mitaksara as their guide, and thereby ' degrade a sacred Rishi.' And still more improbable is it that Ruk-Vedis should have done this. In the next place, it is a fact that, whilst all the Rishis differ from one another more or less, Yajnavalkya is a name specially connected with differences of opinion and with schism, and the commentator Vijiianecjvara on several important points stands aloof from the commentators in general, A SUMMARY. CONCLUSION 369 in more or less of isolation. Anything he may have to say necessarily is suspicious, unless and until it is found to be corroborated by extrinsic evidence. Then, a great part of what he has to say consists of ' theoretic developments,' educed from abstract ideas. And some of these ideas, notably the idea that property is by birth, are palpable absurdities. Property or ownership is a concrete fact occasioned by the law or custom of the country, and the circum- stances and accidents of the man's life : and does not come by birth any more than does starvation, or the measles. So far as it is known and understood, the j\Iitaksara does not commend itself to a discriminating mind as being an improvement on the law-treatises generally, e.g. on Xarada. But, there is good reason to doubt whether this work is tolerably well known and understood. Mr. Mandlik evidently regards wdth suspicion both the text at present received, and Colebrooke's translation of it. And Professor Jolly has shown that a very important passage in the Mitrd^sara has been entirely misconceived by Colebrooke. Very possibly research may show that other important passages in the work have been mistranslated and misunderstood. Por these and other reasons, though quite ready to recognise the general cleverness of the work, and its possible practical usefulness within due limits, I must always object most strongly to the Mitaksara, being forced upon the people as the Paramount Authority, in derogation, rather (I should say) in supersession, of tlic aggregate authoi-ity of all other B B 370 CHAOS existing works on dliarma and vyavahdra, or ' law.' Still more strongly must I object to the mode in which the so-called law of the Mitaksara is applied day by day to the whole Indian population of the Madras Province, and particularly to the ' theoretic developments ' evolved by the High Court, sometimes with the aid of fanciful analogies borrowed from English, Roman, and German writers on jnrispru- dence, from the supposed 'theoretic developments' of A^ijnaneqvara. For example, take my fifth False Principle, that ' as to ancestral property a son, and therefore a grand- son, may compel a division against the will of his father or grandfather.' I have shown (above, at pp. 207-24) that this principle, as at present worked, enables a baby in arms, suing by his mother, to break up the Family, and (as the case may be) ruin the Father, or cheat innocent creditors or purchasers. If this principle were part of the law of the land, I would wish Government at once to consult the people as to the necessity or advisability of abrogating or modify- ing it, as being an essentially bad Jaw. But most certainly this is not of the law of the land : and never has been. It is nothing more than an arbitrary, and a violent, extension of the assumed principle of Vijnaneqvara, that the son may at his pleasure com- pel the Father by suit to give him his share of his grandfather's estate ; which principle is supposed to be educed from Vijnaneqvara's absurd notions about property being by birth, and the ownership A SUM^rARY. CONCLUSION 371 of the Father and the ownership of tlie son being equal. The all-important assumed principle of Yijnrine(}- vara, as I have shown (above, at pp. 210-13, and in my View), was discovered by two English lawyers, who did not know a word of any Eastern language, after pondering for an hour or so the meaning of an isolated text of the Mitaksara, and comparing it with admittedly inconsistent rules laid down in the same work ; and knowing full well that ' it is not easy to follow the reasoning of the Mitaksara on the subject,' as also that Sir Thomas Strange was againsE them. For myself, I cannot bring myself to believe that Yijfianeqvara so much as dreamt of recommending Brahmans to render the sacred position of the Father unsafe, undignified, and ridiculous. And assuredly he has not recommended them so to do in plam terms, or in a manner calculated to arouse attention to his teaching. Probably, before the case of Ndga- linga Mudall v. Suhranianya Mudali no Brahman had ever wasted a minute's thought on the meaning of the isolated text above referred to. And, so far as I am aware, it is not pretended that any speculative writer ])efore or after Vijflancrvara has recommended that the son should be allowed to break up the Family at his pleasure, and against the will of the Father. If we look at the accepted recension of Xilrada, which must have been written not very long before the ^litaksara, and which is thought by Professor Jolly to occu})y perhaps the very higliest position in B It 2 372 CHAOS tlie development of the Hindu law, we shall find in it not the slightest sign anywhere of a tendency to break down the power of the Father. And, if we turn to the Gentoo Code, written only a hundred years ago, we shall find that the eleven Pandits who compiled it, havmg all the authorities before them, declared without a moment's hesitation that the Father cannot be forced to divide against his will. It appears to me, after seeking for information in every direction for many years, that there is no ques- tion in the Sanskrit 'law-treatises,' both old and new, as to the Father, wdio (as ordinarily happens) is the 'independent' Head of the Family, being also the sole judge of the propriety or expediency of separating his sons from him, according to the ccistra ; and that the only difficulty indicated lies in determining the special circumstances that may (by aff"ecting his power of will) take away the Father's independence, and admit of the sons in eff'ect ousting him from his Headship, and themselves arranging a partition of goods, or otherwise providing for the management of the aff'airs of the Family. The very circumstance that this difficulty is indicated, and that there exists in the Sanskrit authorities an apparently hopeless conflict of opinion as to the times at, or occasions upon, which division may be eff'ected, would seem to prove that the rio-ht, which is nowhere mentioned, of the son to force separation from the 'independent' and unwilling Father, in fact has never existed, or been desired. Whether I am right or wrong in this my opinion about the matter is, however, immaterial. What A SUMMARY. CONCLUSION 378 alone is of importance is that Government should carefully consider the propriety of continuing to permit the High Court to make new laws for the whole ' Hindu ' population of the Madras Province, in accordance with the doubtful views of a single speculative writer, and in disregard of the not doubt- ful views of (perhaps) hundreds of other writers. Is ' Madras doctrine ' to be forced on the people for ever by the Judges, in the absence of all knowledge as to what the people's Usage really is? Should Government be advised, for any reason, to approve the course adopted by the Iligh Court, in makins: new laws in accordance with the views of Yijiirineqvara, and in constituting the Mittlksara the actual law of the land, it will be impossible for it also to approve the contrary course occasionally adopted by the High Court, in deliberately setting aside plain rules in the Mitaksara, and substituting for them principles taken from English equity or elsewhere. The High Court admittedly did this in establishing my sixth False Principle, that ' a member of an un- divided Family can aliene joint ancestral })ro[)erty to the extent of his own share.' See above, pp. 225-35. Jt is true that the High Court has at length aban- doned tliis principle as erroneous. But, unless Government intervenes, there is nothing to prevent the Court from legislating again in a similar manner. If, as I hope and expect, Government should see cause to interfere for the protection of the people from the mischievous use of the Mitaksara, the question will arise, with what should this work be rephu-ed? 374 CHAOS And the answer to this question should be sufficiently obvious to one who has taken the trouble to read through this book, or even the First Part of it. Usage being ' highest dharma,' reasonable and business-like efforts must be made to ascertain what the Usage of South India may chance to be. And, once ascertained, Usage must be our sole guide in administering Hindu law, both to the Brahman and to the non- Brahman tribes and castes and families of the Madras Province. But, necessarily, in order to ascertain Usage, we must supplement the knowledge to be gotten by inquiry amongst all classes of men, with knowledge to be derived, by intelligent research and comparison, from all existing works in which usages and customs are to be found enshrined. Manu, Apastamba, and Narada must be assiduously studied ; Medhatithi and other commentators, including the author of the Mitaksara, must be consulted ; the Gentoo Code and Colebrooke's Digest must be perused — in a word, every w^ork calculated to throw light on the subject must be turned to use, with prudence and discrimina- tion, and nothing that is of promise be neglected. To do all this will take time ; as does any great and important work. But it will not cost much. And the most important part of it, the inquiry by commission into the actual usages and customs of South India, once begun need not take more than one year, or at the most two years, to finish. 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