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CHAPTER I.: THE SACRED LAWS OF THE HINDUS. - Sir Henry Sumner Maine, Dissertations on Early Law and Custom 
Dissertations on Early Law and Custom, chiefly selected from Lectures delivered at Oxford (London: John Murray, 1883).
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THE SACRED LAWS OF THE HINDUS.
The study of the sacred languages of India, which has given to the world the modern science of Philology and the modern theory of Race, began virtually in the study of sacred Indian law. Sir William Jones, who, though he was not absolutely the earliest of Anglo-Indian Sanscritists, was the first to teach the West that there was in the East such a language as Sanscrit, and a literature preserved in it, does not appear during his Oriental studies in England to have suspected the existence of the treasure he was destined to disinter. He seems rather to have sought the key to Eastern knowledge in two spoken and highly-cultivated languages—Arabic and Persian. But he accepted a Judgeship in a Court of Justice newly established in Bengal, under an Act of Parliament which reserved to native litigants the application of their own laws and usages in all questions of inheritance and contract; and, from a much earlier period, it had been the practice of all the Indian Courts to attach to themselves Moolvies and Pundits—that is, native professors of Mahommedan and Hindu law—for the purpose of advising them on the legal rules, of which these experts represented themselves to be the depositaries. The correspondence of Sir William Jones repeatedly expresses his suspicions (perhaps not always quite just) of the fidelity and honesty of the native advisers of the tribunals. ‘I can no longer bear,’ he writes in September 1785, ‘to be at the mercy of our Pundits, who deal out Hindu law as they please, and make it at reasonable rates when they cannot find it ready-made.’ He therefore formed a determination to acquaint himself personally with the sources of the law from which they pretended to draw their opinions. With Arabic he was already familiar, and he therefore required no assistance in his studies of Mahommedan law; but for the purpose of mastering the virtually unknown language in which the Hindu law was contained, he found it necessary to visit during his vacations several of the decaying and decayed seats of learning in which knowledge of it was still professed, and he organised a staff of Hindu scholars to aid him in his Sanscrit studies, and to record their results. The plan for improving the administration of Anglo-Indian justice which finally commended itself to him was one for the preparation of a Digest in English of Hindu and Mahommedan law, which should need no Pundits or Moolvies for its interpretation. Much to their honour, the Indian Government of the day, formed of Lord Cornwallis and his Council, accepted his offer to preside over the undertaking, and his staff of native experts, considerably increased, was taken into the Government service. On his monument by Flaxman, in the chapel of University College at Oxford, he sits surrounded by his company of native literates, amid conventional Indian foliage, bareheaded, in the open air.
It was in fact from these native Hindu teachers that Sir William Jones learned, and the learned and curious all over the West were gradually informed, that in a part of the world just coming under the British sceptre there existed an ancient language, the elder sister of the classical languages so honoured in the West, a series of poems which might not unjustly be compared to the Homeric epics and the Attic drama, and laws twice as old as the legislation of Solon and the Twelve Tables of Rome. It is impossible now—now that India has become more commonplace as she has got nearer; now that, here at all events, she is associated with frontier wars, budgets, opium, and grey shirtings—to reproduce the keen throb of intellectual interest which the literary portion of these discoveries sent through Europe. But Sir William Jones was even more of a jurist than a scholar, and nothing seems to have surprised and interested him more than the assurance of his teachers that, in the ancient language he was learning, there survived legal writings asserted to be of sacred origin, of vast antiquity, and of universal obligation among Hindus. The oldest of them was said to have been dictated by Manu, a divine being who had been mysteriously associated with the creation of all things; and it was described as the acknowledged basis of all Hindu law and Hindu institutions, the fountain of all civil obligation to more than a hundred millions of men. The book was actually extant, and the translation of it which he gave to the world, with the title ‘Institutes of Hindu Law, or the Ordinances of Menu, according to the Gloss of Cullúca,’ was the first-fruits of his labours on the Digest which he had planned. He seems, in fact, to have regarded it as standing to this projected Digest much in the same relation as the Roman Institutes to the celebrated Digest of the Emperor Justinian.
It does not seem to me possible to doubt that the account which Sir William Jones gave of the Book of Manu in his Preface to his translation was a rationalised version of the statements made to him by his native teachers, who seem all to have belonged to one particular school of Hindu learning, accustomed to hold Manu in especial honour. Sir William Jones considered this personage, who, in the treatise called after him, sits ‘reclining on his arm, with his attention fixed on one object, the supreme God,’ as a real individual human being, and the personal author of the legislation attributed to him. Sir William Jones compares him to the Cretan Minos and the Egyptian Men, partly on account of the consonance of names. As I have just stated, he sees an analogy in this law-book to the Institutes of the Roman Justinian, but he assigns to it the prodigious date of 1,280 years before Christ. In the light of newer knowledge, which nevertheless might not have existed but for Jones, we can see that these statements of his require correction. There is no doubt that, if Manu is to be compared to a book known to Englishmen, it should have been to a book a good deal more familiar to them than the Roman Institutes, the book of Leviticus. For Manu, though it contains a good deal of law, is essentially a book of ritual, of priestly duty and religious observance; and to this combination of law with religion the whole family of Hindu writings, to which the book of Manu belongs, owe some remarkable characteristics on which I am desirous of dwelling. It is not at the same time to be supposed that the combination is peculiar to the Hindus. There is no system of recorded law, literally from China to Peru, which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance. The law of the Romans has been thought to be that in which the civil and Pontifical jurisprudence were earliest and most completely disentangled. Yet the meagre extant fragments of the Twelve Tables of Rome contain rules which are plainly religious or ritualistic:—
We are told by Cicero (‘De Legibus,’ 2, 25, 64) that several of these rules contained in the Tenth of the Roman Tables were taken from Greek originals. He attributes the Greek rules to Solon, and explains that they limited the costliness of the ancient ritual of funerals.
The opinions of Sir William Jones produced great effects both in the East and in the West. One result which followed from them I must pass by with notice very unequal to its practical importance. The Anglo-Indian Courts accepted from the school of Sanscritists which he founded the assertion of his Brahmanical advisers, that the sacred laws beginning in the extant book of Manu were acknowledged by all Hindus to be binding on them. The impression in the mind of the English judicial officers—an impression shared, I infer from its language, by the English Parliament—manifestly was that the sacerdotal Hindu law corresponded nearly to the English Common Law, and was at least the substructure of all the rules of life followed by Hindus. It is only just beginning to be perceived that this opinion had a very slender foundation, for it is probable that at the end of the last century large masses of the Hindu population had not so much as heard of Manu,1 and knew little or nothing of the legal rules supposed to rest ultimately on his authority. The original range of operation which it is possible to allow to the sacerdotal laws has been much narrowed by very recent investigation. Some years ago, on my return from India, I stated in a book on ‘Village Communities in the East and West’ (pp. 52, 53) the opinion which I had formed after personal inquiry among Indian judicial officers. ‘The conclusion,’ I said, ‘arrived at by the persons who seem to me of highest authority is, first, that the codified law—Manu and his glossators—embraced originally a much smaller body of usage than had been imagined; and next, that the customary rules, reduced to writing, have been very greatly altered by Brahmanical expositors, constantly in spirit, sometimes in tenor. Indian law may in fact be affirmed to consist of a very great number of local bodies of usage, and of one set of customs, reduced to writing, pretending to a diviner authority than the rest, exercising consequently a great influence over them, and tending, if not checked, to absorb them.’ Since then, my conclusion has been greatly fortified by more systematic examination of the phenomena. There is in India a province, the Punjab, the country of the Five Rivers, which was the earliest seat of the Aryan Hindus on their descent from their original home into the Indian plains. The laws and institutions of this province have quite lately been the subject of an exhaustive official inquiry (‘Punjab Customary Law,’ edited by C. L. Tupper, Calcutta, 1881). Among several results of great interest which seem to me to have been reached, one is that we have in the Punjab the Hindu institutions very much in the state in which they were before the Brahmanical expositors took them in hand. The traces of the religious ideas which profoundly influenced the development of what is known as the Hindu law are here extremely slight; and few things can be more instructive to the legal archæologist than the comparison of the Punjab rules with those worked out in Brahmanical schools far to the south-east. This Punjab Hindu law exhibits in fact some singularly close resemblances to the most ancient Roman law. There is also evidence that the stream of Hinduism which at some time or another flowed over the southern peninsula of India was extremely superficial.2 The southern Hindu has always been regarded as a lax Hindu; but the truth seems to be, not that he negligently violates the Hindu sacerdotal law, but that neither he nor his forefathers ever knew it in anything like its integrity.
Some other views, which are not now accepted by the most learned Sanscritists, had their origin in the theories first propounded in Sir William Jones’s preface. The probable antiquity of Manu’s law-book was much exaggerated. Its true date is unknown: in Indian literary history there are almost no trustworthy dates: but it is now believed to be relatively modern—almost the most modern of a large family of Sanscrit writings more or less treating of law. This opinion is the result of a test first applied by Professor Max Müller, and now universally accepted by Sanscritists as conclusive. The law-book of Manu is in verse, and Verse is one of the expedients for lessening the burden which the memory has to bear when writing is unknown or very little used. But there is another expedient which serves the same object. This is Aphorism or Proverb. Even now, in our own country, much of popular wisdom is preserved either in old rhymes or in old proverbs; and it is well ascertained that during the Middle Ages much of law and not a little of medicine was preserved among professions, not necessarily clerkly, by these two agencies. A great deal of old German law compressed into maxims has been preserved, and it is probable that the Latin legal maxims well known to English lawyers, and sometimes spoken of as the quintessence of wisdom, were really aids to recollection. As to Verse, the ordinary medical practitioner once carried his professional knowledge with him in the versified Latin rules of the school of Salerno—that curious body of medical precepts which begins with the grim warning, ‘contra vim mortis non est medicamen in hortis.’ In Sir William Jones’s day, an abridgment of Lord Coke’s ‘Reports’ in verse was in existence; and he gravely remarks that, if the verse had been smoother and the law more accurate, every student might have been advised to use it. Now, the Sanscrit law-books are sometimes in aphoristic prose, sometimes in verse, sometimes in a mixture of both; and the canon established by Max Müller is that, in India at all events, books of aphorisms are older than books of verse; and the clue being once found, many more proofs disclose themselves that Manu, which is wholly in verse, is much more recent than the Hindu law-books (such as Apastamba and Gautama,3 which are wholly in aphoristic prose), and even more modern than books (like Vishnu and Vasishtha4 ) which are partly in prose and partly in verse. ‘In the whole of Vedic (that is Hindu scriptural) literature,’ says Max Müller, ‘there is no work written, like Manu, in the regular epic sloka, and the continuous employment of this metre is a characteristic mark of post-Vedic writings.’ Manu, therefore, in spite of its great modern reputation, belongs to the Hindu Apocrypha. Nor is it believed that we have the book in its original form. Dr. Jolly (preface to Vishnu) speaks of the ‘abundant evidence’ for its having undergone modifications and entire transformations in successive periods.
The result of all this literary investigation and discussion is, that no book has had so many dates attributed to it as the book of Manu. Sir W. Jones placed its age at 1280 bc, Schlegel at 1000 bc, Elphinstone at 900 bc, Monier Williams at about the fifth century bc, Max Müller at not earlier than 200 bc But the high authority of the late Dr. Burnell is now cited for so late an age of the original book as 400 ad, and it has even been attributed in its present form either to the eleventh or the fourteenth century of our era. (See Nelson, ‘Scientific Study of Hindu Law,’ p. 37.) It is as though it were thought doubtful whether a particular work were composed at the fabulous date of the Taking of Troy, or at the historical date of the Battle of Bannockburn. The book itself, however, purports to be coeval with the creation of the world, and I suppose that a Hindu holding the opinions now considered orthodox would be bound to claim for it an indefinitely high antiquity. At the same time, its audacious pretension to be of divine origin is outdone in some of the writings now shown to be older, for the so-called Code of Vishnu professes to have been dictated by one of the Persons of the Hindu Trinity to the Goddess of the Earth.
When this sacred legal literature of the Hindus is surveyed in its entirety, it is impossible not to recognise the plausibility of the modern theories of its origin. No one treatise, and still less the aggregate of treatises, is the production of an individual man or of an individual mind. The literature is the gradual growth of schools of learned Brahmans, which are still found in India. They are companies or corporations of men devoted to sacred learning. Perhaps the nearest analogy to their work is to be found in the labours of the Benedictines. But the comparison must not be pushed too far. The conception of a celibate order appears to have been unknown to the early Hindus. Each school was either in its beginning an actual family, or, if originally it was a mere collection of voluntary pupils sitting at the feet of a teacher, it tended to shape itself upon the model of the family, as the only known form of permanent association. The distinction between one school and another probably consisted in the particular set of authorities (as it would now be, the particular standard books) which it followed; and, as it went on from generation to generation, it was recruited partly by voluntary adherence and partly by hereditary descent. The double process is clearly reflected in the text of one of our oldest authorities, Apastamba. The student desirous of being initiated into sacred learning is to go to a man ‘in whose family it is hereditary, who himself possesses it, and who is devout in following the law’ (Apastamba, i. i. 1. 11). On the other hand, the pupil is directed to consider the teachers of his teacher as his ancestors (Apastamba, i. i. 7. 12). This view of the relation of teacher and pupil has by no means died out in India. The Hindus still regard ‘a school consisting of a succession of teachers and pupils as a spiritual family’ (Dr. Bühler, loc. cit.) And according to the letter of the law recognised by the Indian Courts, though not perhaps according to the actual practice, teacher and pupil still inherit from one another, just as they did in the remote days of Apastamba, who lays down that, on failure of the nearer kinsmen, ‘the spiritual teacher inherits, and in failure of the spiritual teacher a pupil shall take the deceased’s wealth, and use it for religious works for the deceased’s benefit, or he may himself enjoy it’ (ii. vi. 14. 3).
There are analogies to this sacredness and strictness of literary relations in the literary history of two societies with little or no intellectual likeness to the Hindus. Mr. Grote’s theory of the Homeric poetry, taken in a mass (ii. 176-178), is that it was the aggregate production, not of one man, but of a gens or clan of Homeridæ, of whom Homer was the name-giving ancestor, real or supposed, the ‘divine or semi-divine eponymus or progenitor, in whose name and glory the individuality of every member of the gens was merged.’ ‘Homer is no individual, but the divine or heroic father of the Homerids, the ideas of worship and ancestry, coalescing, as they constantly did, in the Grecian mind.’ A still nearer analogy is one which, like many others, occurs in the ancient legal literature of the Irish. ‘Literary foster-age,’ I wrote in a former work (‘Early History of Institutions,’ p. 242), ‘was an institution nearly connected with the existence of the Brehon law schools, and it consisted of the various relations established between the Brehon teacher and the pupils he received into his house for instruction in the Brehon lore. However it may surprise us that the connection between Schoolmaster and Pupil was regarded as peculiarly sacred by the ancient Irish and as closely resembling natural fatherhood, the Brehon tracts leave no room for doubt on the point. It is expressly laid down5 that it created the same Patria Potestas as actual paternity; and the literary foster-father, though he teaches gratuitously, has a claim through life upon portions of the property of the literary foster-son. Thus the Brehon with his pupils constituted, not a school in our sense, but a true family. While the ordinary foster-father was bound by the law to give education of some kind to his foster-children—to the sons of Chiefs instruction in riding, shooting with the bow, swimming, and chess-playing, and instruction to their daughters in sewing, cutting out, and embroidery—the Brehon trained his foster-sons in learning of the highest dignity, the lore of the chief literary profession. He took payment, but it was the law which settled it for him. It was part of his status, and not the result of a bargain.’
On the whole, few literary theories of modern mintage have more to recommend them than that which Professor Max Müller first gave of the large extant body of Hindu sacerdotal legal writings. They were gradually evolved by Brahmanic families, real or artificial. ‘The great number of these writings,’ he says in his letter, first printed in Morley’s Digest,6 ‘is to be accounted for by the fact that there was not one body of Kalpa-Sutras binding on all Brahmanic families, but that different old families had their own Kalpa-Sutras. These works are still very frequent in our libraries, yet there is no doubt that many of them have been lost. Sutras are quoted which do not exist in Europe, and the loss of some is acknowledged by the Brahmans themselves.’ As regards the Manava Dharma Shastra, the Manu translated by Sir William Jones and asserted by his native teachers to be the basis of all sacred Hindu law, it is a late redaction of the legal doctrine of the Manavas, a gens or clan called after a Manu frequently mentioned in Sanscrit literature, but mentioned by the writer of the extant book as somebody different from himself. If the old Manu ever composed a law-book (which is doubtful), it would certainly not have been composed in the metre of the extant code.
The theory upon which these schools of learned men worked, from the ancient, perhaps very ancient, Apastamba and Gautama to the late Manu and the still later Narada, is perhaps still held by some persons of earnest religious convictions, but in time now buried it affected every walk of thought. The fundamental assumption is, that a sacred or inspired literature being once believed to exist, all knowledge is contained in it. The Hindu way of putting it was, and is, not simply that the Scripture is true, but that everything which is true is contained in the Scripture. From very early times, the Hindu doctors appear to have been conscious of difficulties in the interpretation or application of their theory. Sometimes books of authority contradicted one another. Sometimes they failed to supply a basis for received doctrines or for immemorial religious practice. One of the earliest of expedients was to suppose the loss of passages in the most ancient portion of the Scriptures. ‘If you ask,’ says Apastamba, ‘why the decision of the Aryas presupposes the existence of a Vedic passage, then I answer, All precepts were originally taught in the Brahmanas, but these texts have been lost. Their former existence may, however, be inferred from usage. It is not, however, permissible to infer the former existence of a Vedic passage where pleasure is obtained by following the custom; he who follows such usage becomes fit for Hell’ (i iv. 12. 10). With the aid of such expedients, of which several are still in use among learned Hindus, the theory has survived; and it is to be observed that such a theory, firmly held during the infancy of systematic thought, tends to work itself into fact. As the human mind advances, accumulating observation and accumulating reflection, nascent philosophy and dawning science are read into the sacred literature, while they are at the same time limited by the ruling ideas of its priestly authors. But as the mass of this literature grows through the additions made to it by successive expositors, it gradually specialises itself, and subjects, at first mixed together under vague general conceptions, become separated from one another and isolated. In the history of Law the most important early specialisation is that which separates what a man ought to do from what he ought to know. A great part of the religious literature, including the Creation of the Universe, the structure of Heaven, Hell, and the World or Worlds and the nature of the Gods, falls under the last head, what a man ought to know. Law-books first appear as a subdivision of the first branch, what a man should do. Thus the most ancient books of this class are short manuals of conduct for an Aryan Hindu who would lead a perfect life. They contain much more ritual than law, a great deal more about the impurity caused by touching impure things than about crime, a great deal more about penances than about punishments. They are intended to guide the faithful Hindu of the three higher castes from birth to death, and give him full directions for living first as a student of holy books, next as a householder (or, as we should say, a citizen), and finally—for that is assumed to be the proper lot of every man in old age—as a religious ascetic or a hermit.7
This remarkable distribution of life runs through the whole series of sacred legal writings, and only disappears when they become mere law-books. The Brahman alone teaches, but the entire youth of the three higher castes, Brahmans, Kshatriyas, and Vaisyas, come and sit at his feet to be instructed in sacred learning; it is not even certain from some passages whether the lowest and most despised of castes, the Sudras, are always excluded. This is the period of Studentship. When it comes to an end, the instructed Hindu returns to his family and to civil affairs. He is then the Householder. But, when old age is beginning, it is assumed in these books (whatever may have been the actual practice) that he withdraws from active life and closes his days as a Hermit or Ascetic, following a code of self-denial which is prescribed for him in full detail. It is of course to the second of these periods, that of life as a Householder, that we must look for whatever light the sacred laws of the Hindus may throw upon the ancient history of law. The first of them, Studentship, is remarkable, as disclosing the true secret of the hold of the sacred literature on large portions of the Hindu race, and of the respect paid by it to the teachers of the race, the Brahmans. For the education of the young Hindu is not merely an education in the holy texts and doctrines; it is a training in reverence, almost amounting to abject servility, bestowed on the literature and its professors in about equal proportions and inculcated by a system of rules adapted with extreme skill to immature minds. The third period, however, that of Asceticism, is the one which on the whole seems most unintelligible to the modern reader of these books, and it merits some special attention before this chapter is closed. The duty of adopting the ascetic life, and the rules for following it, referred to in all the law tracts, are discussed at much length by Manu in the sixth chapter. ‘Having thus remained,’ it is written, ‘in the order of Householders, let the twice-born man (“twice-born,” that is, through the study of the Vedas), who has before completed his studentship, dwell in a forest, his faith being firm and his organs wholly subdued. When the father of a family perceives his muscles become flaccid and his hair grey, and sees the child of his child, let him then take refuge in a forest. Abandoning all food eaten in towns, and all his household utensils, let him repair to the lonely wood, committing the care of his wife to his sons, or accompanied by her, if she choose to attend him . . . Let him be constantly engaged in reading the Vedas, patient of all extremities . . . Let him bear a reproachful speech with patience; let him not, on account of this frail and feverish body, engage in hostility with any one living. With an angry man let him not in his turn be angry; abused, let him speak mildly; nor let him utter a word referring to vain illusory things . . . Delighted with meditating on the Supreme Spirit, sitting fixed in such meditation, without needing anything earthly, without any companion but his own soul, let him live in this world, seeking the bliss of the next . . . A gourd, a wooden bowl, an earthen dish, or a basket made of reeds, has Manu, son of the Self-existent, declared fit vessels to receive the food of men devoted to God.’
It is still a comparatively common practice in India for the aged Hindu to retire into ‘religion,’ and the law, as administered by the British tribunals, makes provision in many places for the case of a Hindu who has embraced a religious life, and ceased to participate in any kind of secular business. There is nothing by itself surprising in the custom, considering the tremendous series of experiences which the devout believer in Hinduism is led to expect as awaiting him at the moment of his death. Nevertheless, there is reason for thinking that the withdrawal of the aged from activity is more ancient than the Hindu theological system, and has existed independently of it, as a secular practice, in many early societies. The Patria Potestas, which is witnessed to by the ancient law or custom of so many communities, was founded on power quite as much as on parentage; and when the power fails, there are many signs that the patriarchal authority departs. In the Hindu law of Succession, death is not by any means necessarily the occasion of inheritance; the contingency quite as commonly contemplated is withdrawal from secular life; the householder quitting his family and dividing his substance among his children—nay, being even liable (though this is a violently disputed point) to be forced into retirement by his sons. There is some evidence, moreover, that, when the larger associations of Hindu kindred, the Joint Families, were in a more ancient state than that in which we see them, they recognised three classes of persons as entirely helpless and therefore dependent on the group at large; the children, the unmarried daughters and widows, and the old men. The ‘seniors’ not infrequently mentioned in the Irish Brehon law, and stated to be persons for whom the sept must make provision, are no doubt aged men.
There is reason, in fact, to believe that at some period of human history a revolution took place in the status of aged men, not perhaps unlike that which is still proceeding in the case of women. There is abundant testimony that tribes, long pressed hard by enemies or generally in straits for subsistence, systematically put their members to death when too old for labour or arms. The place from which a wild Slavonic race compelled their old men to leap into the sea is still shown. And the fiercer savage has often in many parts of the world made food of them. Nevertheless, the ancient records of many communities, especially those of Aryan speech, show us old age invested with the highest authority and dignity. Mr. Freeman (in his ‘Comparative Politics,’ pp. 72, 73) has given a long list of honorific names belonging to classes or institutions, which indicate the value once set by advancing societies on the judgment of the old. Among them are, Senate, γερουσία (the Spartan Senate), δημογέροντες (its Homeric equivalent), πρέσβεις (Ambassadors), Ealdorman, Elder, Presbyter, Monseigneur, Seigneur, Sire, Sir, and Sheikh; and Mr. Freeman closes with the Old Man of the Mountain. So great a number of titles, civil and ecclesiastical, are evidence of a very strong sentiment, and suggest that this exaltation of old age was a definite stage in the ascent to civilisation.
There is a story of a New Zealand chief who, questioned as to the fortunes of a fellow-tribesman long ago well known to the enquirer, answered, ‘He gave us so much good advice that we put him mercifully to death.’ The reply, if it was ever given, combines the two views which barbarous men appear to have taken at different times of the aged. At first they are useless, burdensome, and importunate, and they fare accordingly. But at a later period a new sense of the value of wisdom and counsel raises them to the highest honour. Their long life comes to be recognised as one way of preserving experience. The faculty of speech, which separates man from the brute, and the art of writing, by which the society capable of civilisation is distinguished from the society condemned to permanent barbarism, are simply methods by which experience is enlarged, compared, and transmitted, and by which mankind is enabled to have more of it than is contained in single separate lives. Yet the individual life is always the original source of experience, and at some time or other it must have been perceived that the more the individual life was prolonged, the larger was its contribution to the general stock. This seems the best explanation of the vast authority which, in the infancy of civilisation, was assigned to assemblies of aged men, independently of their physical power or military prowess. It probably sprang up among communities which had no writings to learn from, and who were conscious that the importance of the arts which were necessary for their very existence was out of all proportion to the average shortness of life. Almost everywhere in the advancing portions of the ancient world we find that the old, generally organised in assemblies, had a large share of the public powers, and there is a survival of these ideas in the minimum limit of age which has been made the condition of a seat in the artificial Second Chambers which have been constructed over most of the civilised West as supposed counterparts of the English House of Lords. But these modern Second Chambers reverse to a great extent the functions of the ancient assemblies, known, from their names and otherwise, to have originally consisted of old men. The Second Chamber is nowadays assumed to have a veto in the legislation of the Chamber which has the initiative; but the ancient Senates, in their primitive condition at all events, decided beforehand what measures should be submitted to the Popular Assembly, and if they legislated themselves, their enactments had reference to special departments of State, such as religion and finance. On the whole, they were rather administrative than legislative bodies. The nearest analogy to the very important control over the law-making power which they once possessed, must be sought in the indefinite but most real and effective authority which an English Cabinet enjoys through its virtual monopoly of the initiative in legislation.
[1 ]A high authority informs me that there are few, if any, references to Manu in the Sanscrit literature other than the legal treatises. These last quote a ‘Manu,’ but the writings quoted under that name are not those now extant.
[2 ]Much attention is deserved by the two works of Mr. J. H. Nelson, A View of the Hindu Law as administered by the HighCourt of Madras, and The Scientific Study of the Hindu Law, particularly the first. There may be a question whether the practical evils pointed out in these books are now remediable, or, if they are remediable, by what methods they should be removed: but of their existence I do not think there can be any reasonable doubt.
[3 ]Apastamba and Gautama are translated in vol. ii. of Max Muller’s Sacred Books of the East, Vasishtha in vol. ix., Baudhâyana in the same volume, and his most important chapters in West and Bühler’s Digest of Hindu Law. This writer is regarded by learned Hindus as an extremely old authority, but the extant text is in a very untrustworthy condition, as may be seen from Dr. Bühler’s Introduction. Vishnu is translated by Jolly in vol. v. of the Sacred Books.
[5 ]The literary foster-father has the power of pronouncing judgment and proof and witness upon the foster-pupil, as has the father upon the son, and the Church upon her tenant of ecclesiastical lands (Ancient Laws of Ireland, ii. 349).
[6 ]Now to be read at p. 1 of the Introduction to Apastamba, in vol. ii. of the Sacred Books.
[7 ]The Student, who had completed his novitiate, might at any time become an Ascetic, but the regular course of life is that indicated in the text.