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INDIAN USAGE.

PART I.

CHAPTER I.

INTRODUCTORY.

In 1882, about a year after the publication of my Prospectus of the Scientific Study of the Hindū 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 inviting earnest attention to my published writings on the matter of Hindū 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:

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· Mr. Nelson's assumptions are in many respects illfounded, 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 portion 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 determined ; and thus to unsettle titles and depreciate the value of property.

‘I would not be supposed to assume that the Government of Madras would be induced to give effect to the proposals of Mr. Nelson, but unless some exposition of the unsoundness of his views be put forward, there is reason to fear that a continually 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.”

1 Prospectus of the Scientific Study of Hindú Law, p. 182.

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'Fair criticism upon the administration of the law by the Court would of course be allowed to pass unnoticed, and even in 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 Mr. Nelson's published opinions is likely to occasion, I think an answer should be given them.'

I lost no time in 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 misrepresentation of my views and opinions in which Mr. Innes had permitted himself to indulge. Principally 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 principal things I had had to say about Hindū law. 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 advisable to undertake the task of defending myself against Mr. Innes' attack generally, unless (which 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

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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 Hindū 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 inheritance, 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 unquestionably he was one of the most learned and accomplished, of Mofussil judges, penned, when he knew himself to be almost at death's door, the following 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

part of its value. So far 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 acquaintance 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 importance ?

I have already shown in my Prospectus what practical lawyers as well as Orientalists have said about Hindū law in Madras. For myself, after spending upwards of twenty years on the bench in such districts as Madura, Tanjore, and Chingleput, I have no hesitation in affirming that at the present moment, in consequence 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 what to the uninstructed lay mind would seemn to be the simplest possible questions of Hindū 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

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