as subject, as of right, to an arbitrary despotism.' Anquetil Duperron had been most anxious during his stay in the East Indies to find some Indian laws, of whatever kind; but the sole fruit of his labours had been the (supposed) discovery that Vijñâneśvarudu was the name of a Telugu king, 'who had collected the laws of which is composed the book of right."1 The Telugu language, he explains, calls the science of right Vijñâna. Have we a hint here as to the origin of the Mitâxarâ? I shall remark on these observations by and by, in discussing the question of the authority of that work. In the meantime I must pass on to the consideration of the second topic of inquiry, though I should prefer first to say a few words about a few questions such as whether the Apastamba Sûtra had its genesis in South India, what was the authority of Gautama, and the like.

sponding to our courts of justice.' But (he goes on to say) civil disputes are disposed of by the elders of village communities, and criminal matters by soldiers.

1

At Leg. Orient.,
p. 92.

46

CHAPTER III.

Differences between the Smritis-Practices in the North and in the South -Drinking spirits—Âpastamba's puritan, Baudháyana's tolerant, doctrines-Marriage, primogeniture, unequal shares, &c.-StridhanaConflict of authorities-The roots of the law-How the King should decide disputes-Gautama-Adherence to a Charana—The quasi-laws of the Charanas-Have they ceased to operate?—Dharná-Traces of it in Marco Polo-The origin of the Charanas-Surviving Dharmasútras— Difference between Kulas and Charanas―The Šákhas-The 'black' and 'white' Yajur-Vedas-The Codes of Menu and Yajnavalkya-Following the rules of another Śákhá—Gautama—The Âpastambiyas—The Mánavadharma Sûtra lost—Yájñavalkya's Code propounded in Mithilá -The rashness of Colebrooke's assertions about the Mitáxará―The Abbé Dubois The White Yajur-Veda-The Saiva Agamas The Lingayets.

THE second topic is the following, namely:

(2) Upon what points, and to what extent, do the existing Dharmasastras differ from one another? The writers of the modern so-called digests failed in their endeavours to bring everything into harmony. Would it be possible for others by any method to reconcile the differences in the Smritis? Or do the ancient works represent different laws administered to different clans?

Burnell tells us in the Introduction to his Dâyavibhâga, p. xiii., that 'A great difference between the original Smritis is apparent, and this in accordance with the differences between the Brahmanical sâkhâs

in other respects.' Clearly, therefore, it behoves the

student of Hindû law carefully to note, compare, and classify the differences between the existing Smritis, and particularly to ascertain, if possible, what doctrines were originally received by the Arya families resident in that part of India to which his experience is principally confined. Thus, for example, Baudhâyana declares1 that disputes exist with regard to certain practices both in the North and in the South; that it is lawful in the North to deal in wool, drink spirits, sell animals that have teeth in the upper and in the lower jaw, and to follow the trade of arms, and to go to sea; that he who follows any of these practices in a country where the rule is not to follow them commits sin, but for each of them the rule of the country should be considered the authority; but that Gautama declares that that is false. And if we turn to Gautama (XI., 20) we shall find that 'the laws of countries, castes, and families, which are not opposed to the (sacred) records, have also authority,' from which it may be inferred that customs which are opposed to such records are bad. With regard to the custom of drinking spirits, we have already seen that in Hiouen Thsang's time all classes habitually drank fermented liquors in Central India, though 'Menu's Code' declares that even to smell spirits is a crime,2 whilst to taste them is a sin on a par with that of slaying a Brahman or stealing gold

1 Dh. I. i. 17-24.

2 Earlier works (e.g. the Sámavidhánabráhmaṇa, i. 5, 15) declare the drinking of ardent spirits to be one of the greatest of sins. But Manu is inconsistent upon this point, as upon so many points.

from a priest, and cannot be expiated. And the other bad practices enumerated above doubtless were followed at that time in the same part of India. Gautama, therefore, can hardly have been a great authority in Central India when Hiouen Thsang wrote. Was he at any time? From Bühler's Introduction to Gautama1 we may gather that in all probability the Gautama Dharma-Sâstra was originally studied by the Chândogas alone, and was the text-book of the Gautama Charana. Brihaspati differs from Gautama in enumerating without disapproval various customs peculiar to the North or South, e.g., the drinking of spirits, eating fish, and the like. Far from disapproving of them he remarks philosophically: Those Dharmas of countries, castes, and tribes which are practised by them, they are thus to be preserved; otherwise people are agitated.' See my View of the Hindoo Law, p. 115 et seq.

It appears from Bühler's Introduction to Apastamba,2 that that author in several cases holds puritan doctrines which are opposed to the older and more tolerant doctrines of teachers like Baudhâyana. He denies, for example, the legality of affiliating substituted sons and of appointing widows. According to his view the legitimate son alone may inherit his father's estate, and follow the occupation of his caste; and, whilst silent about the 'twelve kinds of sons,' he explicitly forbids the sale and gift of children. Further, he restricts the number of lawful marriages,

1 Sacred Laws of the Aryas, vol. ii.

2 Ibid.

APASTAMBA AND OTHERS.

49

and altogether omits from his list the wedding by fraud, Paisâcha-Vivâha.1

With respect to the distribution of the family wealth, Apastamba gives it as his own opinion that the father should divide his effects equally amongst the sons, after having gladdened the eldest son by some (choice portion) of his wealth,' that is to say, after making him a good present by way of distinction. At the same time he notices the opinions of 'others,' and particularly the opinion of those who allow the eldest son alone to inherit. This practice, he says, is opposed to the Vedas, inasmuch as Manu divided his wealth among his sons,' and no difference in the treatment of the eldest son is prescribed; at the same time he admits the existence of the text they distinguish the eldest son by (a large portion of) the heritage,' but contends that it is merely a statement of fact, not an injunction. Baudhâyana, on the other hand, allows three several methods of distribution, and takes the text last quoted to be an injunction. Gautama again speaks of additional shares being given to the eldest, middlemost, and youngest sons, and the revenue being equally divided amongst all. Then he goes on to say, 'Or let the eldest have two shares, and the rest one each.' Next he permits a strange mode of selection by seniority. Lastly he sanctions the adjustment of special shares in each class of sons according to their mothers.

1

Mayne (§ 76) says of this simple form of marriage that it is more like the sudden lust of the ourang-outang than anything human.' But confer the ravishment of Dinah, Gen. xxxiv.

E