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things that the King should learn the state of affairs from those who (in each class) have authority, and decide accordingly. And Nārada (II. 17, cl. 1-4) speaks of separate laws for heretics, traders, companies, 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 Brahmans, should (wherever necessary) take his views of any special usage or dharma applicable to the particular case, from lay persons, such as merchants, cultivators, headmen, and others capable of informing his mind. See below, pp. 88–91, and 119.
However this may have been, it is quite certain that Medhātithi, 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 Kullūka (of the fifteenth century ?) said the same. Whilst the Smộticandrikā (of the thirteenth century ?) is supposed by Professor Jolly (at p. 34) to show as distinctly as possible that the Smrti is to be placed above custom (Acāra).
As regards the commentators, it is to be observed in the first place that their assumption is distinctly opposed to the in troductory statement of Manu (1. 118), that ‘Manu has declared in this treatise the
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 necessarily 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 heretics, and Mecchas, and outcastes generally. And, as a fact, he has not taught the dharmas of guilds and families ; but as certainly he has recognised and proclaimed their existence.
Then, take the very important text, VIII. 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, families, (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. Medhātithi would appear to have been struck by this, since he contradicts another commentator who tries to explain away the obvious meaning of this highly important text; whilst Kullūka would refer it to settling a lawsuit.
It is possible that the (apparently) unwarrantable opinions of Medhātithi and Kullūka, and the author of the Smộticandrikā and others, upon usage may be accounted for upon the following hypothesis. If, as would seem to be by no means improbable, they should be taken to have been thinking, not of the general dharmas of whole countries and classes, but of the case of a special ācāra (or custom) of twiceborn men, as the thing opposed to the Smộtis ; and as being opposed, not to general teaching of the Smộtis, 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 Smrticandrikā upon which Professor Jolly relies, as refuting the argument in my liew (at pp. 115–17) upon the question of usage versus 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 construed as practically stultifying the author, who immediately afterwards gives the world a whole chapter of decadharma (country dharma), obviously as a specimen of the exceptional dharmas intended by Manu and other Smř. is to be upheld.
The argument subsequently put forward by Professor Jolly appears to me to be quite unsustainable. It is to the effect that we are to be obliged by the following 'climax,' established in a preceding chapter of the Smộticandrikā. The Veda, where opposed to the Smrti, must prevail. And both of them must overrule custom (Ācāra), 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 Veda ; 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 necessarily 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' (Acāra) is, I take it, to be distinguished, and broadly, from the dharmas 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 Smộti give information as to right usage, and a few learned men have adopted a course different from the recommended course, one seeking to do right should preferably follow the Smrti ; and that the rational and beneficent declarations of Manu, touching the dharmas 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 conquered 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
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 proclaination (referred to above in the introductory chapter) of November 1, 1858. And, similarly, the Yājñavalkya 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 Cālukya dynasty, for whose special instruction (according to Burnell) the Mānava-d.-ç. was composed ; and both as being a conquered country, and as being a mleccha (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 Smộtis into the South, and, though they succeeded 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 hurma,