A PROSPECTUS OF THE SCIENTIFIC STUDY OF THE HINDU LAW. CHAPTER I. Recent Madras Works upon Hindû Law—Unsatisfactory Administration thereof Value of Mayne's Book-Cunningham's Codelet-Blunders in it-Servile Śûdras-Three Classes of Opinions in respect to Hindû Law -Going back to Manu, etc.-The Common-sense Englishman's View -Hindú Law for the Brahmans—A supposed silent Revolt against Usage -The Fifteen false Principles-The Apotheosis of Menu-Harm done by Sir William Jones-Halhed's Gentoo Code-The Digest-Proposed Topics of Inquiry. DURING the last few years Madras has shown a quite extraordinary interest in what is called Hindû law. We have had in rapid succession Norton's Leading Cases, various treatises done into English by Burnell, Nelson's View of the Hindoo Law, Mayne's Hindoo Law and Usage, Cunningham's Digest, and other contributions to the literature of the subject. At no previous time has so great an activity been displayed in South India in attempting to throw light upon this obscure and (to most minds) somewhat unattractive department of learning; and surely some thanks may be claimed for these writers, even if they have actually accomplished but little and the 2 UNSATISFACTORY ADMINISTRATION. domain of Hindû law still remains for the most part a trackless desert. For, at all events they have done this much they have made known to the general public the fact that the administration of the Hindû law by the tribunals of the Madras Province, if not by those of India generally, is in a thoroughly unsatisfactory state; that when elementary principles of that law are dealt with by the courts, all is uncertainty and confusion; that in consequence of illconsidered, conflicting decisions, many wealthy and influential Indians are in doubt as to whether they are legally and validly married, adopted and 'separated'; and that in some districts the value of land has fallen considerably because money-lenders are afraid to advance sums upon what has become questionable security. To have learnt this is a great And there can be but little doubt but that within a few years time the Legislature will feel compelled to turn its attention to Hindû law, and endeavour to remedy to some extent the truly serious evils pointed out by the writers above-mentioned. matter. Mayne's Hindoo Law and Usage may be regarded as peculiarly valuable and important, not only because it is the work of a real lawyer and scholar, and good in itself, but because it shows that, after 1 As to this, see Goldstücker's paper of 1871 on the deficiencies in the present administration of Hindû law, and V. N. Mandlik's Hindû Law; also Boulnois and Rattigan's Notes on Customary Law. I see no reason to suppose that Madras is more wanting than other provinces of India in knowledge of Hindû law. Everywhere the mistake appears to have been made of supposing that a particular treatise (e.g. the Mitáxará) is a final authority, whereas (as pointed out by V. N. Mandlik) 'there is no binding vyavahara work followed by the people, who go according to their customs.' fifteen years acquaintance with the litigation of every part of the Madras Presidency,' the writer is well aware how little is known as yet about the Hindû law and its applicability, and freely admits that 'a really satisfactory treatise on Hindû law would require its author to be equally learned as a lawyer and an orientalist.' Perhaps nothing could show more clearly than does the preface to Cunningham's Digest how wide and deep is our ignorance of Hindû law, how great the embarrassment that is felt by the courts in dealing with matters apparently most simple when questions of that law arise, how terrible the uncertainty that surrounds the rights of almost every member of an Indian house, and how disastrous are the results of judge-made law, applied to cases of inheritance, succession, and the like arising between Indians. But when it comes to the question, how can we remove this ignorance, how cure the evils that flow from it? the writer of this Digest can see no difficulty about the matter, no reason why everything should not be set straight within a year or two, nothing to prevent universal satisfaction being obtained at the cost of a moderate amount of labour and a few thousand rupees. Let us have a little code,' says this amiable and sanguine reformer, and all will be well. Anybody can put one together. I have put one together myself; here it is in my Digest; with a few alterations I have no doubt it will do perfectly well.' Now I have no desire to undertake the unpleasant task of criticising this very remarkable production, this little code that has been put together 6 with a light heart, but I am constrained to pause for a moment to point out one or two blunders in the work which show at once how much needs to be learnt before any man, however gifted, can hope to write a respectable treatise on Hindû law. The very first proposition in the Digest is that, 'the Hindû law applies to all Hindoos.' 1 But no attempt is made in any part of the work to explain what is meant by the term 'Hindoos,' and it seems to be quite certain that the learned author has no conception of the existence in the minds of capable persons of doubt as to whether there are at the present moment any Hindoos other than Brahmans in the Madras Province. Then, a little farther on, this Digest gravely tells us that there are four classes of Hindoos, namely, Brahmans, Khatris (sic), Vaisyas, and Soodras; and that the Khatri class 'still exists as one of the regenerate classes, and is recognised as such throughout India;' whereas orientalists like Burnell 1 V. N. Mandlik begins by stating that 'The Hindû law is the law of the Âryan community in India,' and goes on to show how difficult it is to define that body. In the Madras province the population seems to be almost entirely non-Aryan. 2 The word Śúdra means literally 'sweater' (root svid); and, according to Manu, the sole duty of a Sûdra was to serve others, principally Brahmans, and exhibit meekness. Servitude was his natural state, and he could not be emancipated. And he might not acquire wealth, for fear of causing pain even to Brahmans (ix. 324; x. 129). But Weber says (Hist. Ind. Lit., p. 77) that in the Srauta Sutras the position of the Śûdras and of the Nishadas (Indian aborigines) was 'not one of such oppression and wretchedness as it afterwards became.' But when did these great divisions of the people become so 'oppressed and wretched'? I see nothing in Megasthenes, Fa Hian, or Hiouen Thsang, to show that either found them such. In the Atharva Veda (ix. 62, 1) the Śûdras are opposed to the Aryas; in other texts they are opposed to the three varnas (classes). |