The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface.
• Early Law and Custom.
• Chapter I.: The Sacred Laws of the Hindus.
• Chapter II.: Religion and Law.
• Notes and Illustrations.
• Note A.: Wheel-pictures.
• Chapter III.: Ancestor-worship.
• Chapter IV.: Ancestor-worship and Inheritance.
• Notes and Illustrations.
• Note A.: Hindu Patria Potestas.
• Note B.: Polyandry.
• Chapter V.: Royal Succession and the Salic Law.
• Chapter VI.: The King, In His Relation to Early Civil Justice.
• Chapter VII.: Theories of Primitive Society.
• Notes and Illustrations.
• Note A.: the Andaman Islanders.
• Chapter VIII.: East European House Communities.
• Notes and Illustrations.
• Note A.: the Gens.
• Chapter IX.: The Decay of Feudal Property In France and England.
• Notes and Illustrations.
• Note A.: Village-communities and Manors.
• Chapter X.: Classifications of Property.
• Chapter XI.: Classifications of Legal Rules.

Note A.

HINDU PATRIA POTESTAS.

It is possible that the ancient sacerdotal writers, besides being led by the dependent position of their order into denying the multiplication of religious observances through the dissolution of tribal and joint family groups, were also desirous that the period at which each household broke up into several families should not be delayed till the death of its head. Their expectation is that the faithful Hindu, the man twice born through the study of the Scriptures, will retire in advanced years from active life and become an ascetic or a hermit. There are a few texts which have been thought to imply that the sons of an aged father could compel his retirement. Gautama (xv. 19), while condemning such a practice, perhaps admits its existence. But, whatever be the meaning of these texts, I cannot allow that they lend any countenance to an opinion that sons could compel a partition of the family property at any time against the will of their father. I regard them as exclusively applying to the case of a father who has reached an age at which it has become a religious duty for him to abandon secular life. The fulness of the ancient Hindu Patria Potestas may be safely inferred from the veneration which even a living father must have inspired under a system of ancestor-worship. At a much later date the law-book of Manu declares that ‘Three persons—a wife, a son, and a slave—are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong’ (Manu, viii. 416). A still more recent, but still ancient, authority—Narada (v. 39)—says that a son is ‘of age and independent in case his parents be dead; during their lifetime he is dependent, even though he be grown old.’ And nowadays Mr. Nelson, speaking of the South of India, over which the crust of sacerdotal Hinduism is thin, describes the Patria Potestas, which he knows by observation, as the one great standing institution of the Hindu. ‘It is the undoubted fact that among the so-called Hindus of the Madras province the father is looked upon by all at the present day as the Rajah or absolute sovereign of the family that depends upon him. He is entitled to reverence during life as he is to worship after his death. His word is law, to be obeyed without question or demur. He is really the ‘master of the family,—of his wife, of his sons, of his slaves, and of his wealth’ (‘View of the Hindu Law,’ p. 56). And, at p. 38, ‘Resistance to the will of the father appears monstrous.’