The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface.
• Glossary
• Erratum.
• History of British India.
• Book I.: 1527–1707.
• Chap. I.
• Chap. II.
• Chap. III.
• Chap. IV.
• Chap. V.
• Book II.: Of the Hindus.
• Chap. I.
• Chap. II.
• Chap. III.
• Chap. IV.
• Chap. V.
• Chap. VI.
• Chap. VII.
• Notes
• Note A. P. 286.
• Note B. P. 289.
• Note C. P. 341. Daily Ceremomies of the Brahmens.

CHAP. III.

After the division of the people into ranks and book ii.Chap. 3. occupations, the great circumstance by which their condition, character, and operations are determined, is the political establishment; the system of actions by which the social order is preserved. Among the Hindus, according to the Asiatic model, the government was monarchical, and, with the usual exception of religion and its ministers, absolute. No idea of any system of rule, different from the will of a single person, appears to have entered the minds of them, or their legislators. “If the world had no king,” says the Hindu law,1 “it would quake on all sides through fear; the ruler of this universe, therefore, created a king, for the maintenance of this system.” Of the high and uncontrolable authority of the monarch a judgment may be formed, from the lofty terms in which the sacred books describe his dignity and attributes. “A king,” says the law of Menu,2 “is formed of particles from the chief guardian deities, and consequently surpasses all mortals in glory. Like the sun, he burns eyes and hearts; nor can any human creature on earth even gaze on him. He, fire and air; He, the god of criminal justice; He, the genius of wealth; He, the regent of waters; He, the lord of the firmament. A king, even though a child, must book ii.Chap. 3. not be treated lightly, from an idea that he is a mere mortal: No; he is a powerful divinity, who appears in human shape. In his anger, death. He who shows hatred of the king, through delusion of mind, will certainly perish; for speedily will the king apply his heart to that man's destruction.” The pride of imperial greatness could not devise, hardly could it even desire, more extraordinary distinctions, or the sanction of a more unlimited authority.

The plan, according to which the power of the sovereign was exercised in the government of the country, resembled that which has almost universally prevailed in the monarchies of Asia, and was a contrivance extremely simple and rude. In the more skilful governments of Europe, officers are appointed for the discharge of particular duties in the different provinces of the empire; some for the decision of causes, some for the control of violence, some for collecting the contingents of the subjects, for the expense of the state; while the powers of all center immediately in the head of the government, and all together act as connected and subordinate wheels in one complicated and artful machine. Among the less instructed and less civilized inhabitants of Asia, no other plan has ever occurred to the monarch, for the administration of his dominions, than simply to divide his own authority and power into pieces or fragments, as numerous as the provinces into which it was deemed convenient to distribute the empire. To each of the provinces a vicegerent was dispatched, who carried with him the undivided authority and jurisdiction of his master. Whatever powers the sovereign exercised over the whole kingdom, the vicegerent exercised in the province allotted to him; and the same plan which the sovereign adopted for the government of the whole, was exactly followed by the vicegerent in the government of a part.1 If book ii.Chap. 3. the province committed to his sway was too extensive for his personal inspection and control, he subdivided it into parts, and assigned a governor to each, whom he intrusted with the same absolute powers in his district, as he himself possessed in the administration of the greater department. Even this inferior deputy often divided his authority, in the same manner, among the governors, whom he appointed, of the townships or villages under his control. Every one of those rulers, whether the sphere of his command was narrow or extensive, was absolute within it, and possessed the whole power of the sovereign, to levy taxes, to raise and command troops, and to decide upon the lives and property of the subjects. The gradations of command among the Hindus were thus regulated: The lowest of all was the lord of one town and its district; The next was the lord of ten towns; The third was the lord of twenty towns; The fourth was the lord of 100 towns; And the highest vicegerent was lord of 1000 towns. Every lord was amenable to the one immediately above him, and exercised unlimited authority over those below.2 The book ii.Chap. 3. following law appears to provide for their personal expenses: “Such food, drink, wood, and other articles, as by law should be given each day to the king, by the inhabitants of the township, let the lord of one town receive; let the lord of ten towns enjoy the produce of two plough-lands; the lord of twenty, that of five plough-lands; the lord of 100, that of a village or small town; the lord of 1000, that of a large town.”1 The expense of the government of each vicegerent was defrayed out of the taxes which he levied, and the surplus was transmitted to the superior lord, to whom he was immediately responsible. From him it was again conveyed to the governor above him, till it reached, at last, the royal treasury.

If this plan of government was unskilful and rude, so was the contrivance employed for checking the abuses to which it was liable. “The affairs of these townships,” says the law, “either jointly or separately transacted, let another minister of the king inspect, who should be well affected, and by no means remiss. In every larger town or city, let him appoint one superintendant of all affairs, elevated in rank, formidable in power, distinguished as a planet among stars: Let that governor, from time to time, survey all the rest in person, and, by the book ii.Chap. 3. means of his emissaries, let him perfectly know their conduct in their several districts.”1 Of the practical state of the government abundant proof is afforded. In the passage which immediately follows, “Since the servants of the king,” it is said, “whom he has appointed guardians of districts, are generally knaves, who seize what belongs to other men, from such knaves let him defend his people; of such evil-minded servants, as wring wealth from subjects attending them on business, let the King confiscate all the possessions, and banish them from his realm.”2

At the head of this government stands the king, on whom the great lords of the empire immediately depend. He is directed by the law to choose a Council, consisting “of seven or eight ministers, men whose ancestors were servants of kings, who are versed in the holy books, who are personally brave; who are skilled in the use of weapons, and whose lineage is noble.”3 With them he is commanded perpetually to consult on the affairs of his government; but a singular mode of deliberation is prescribed to him; not to assemble his Council, and, laying before them, as in the cabinets of European princes, the subject on which the suggestions of their wisdom are required, to receive the benefit arising from the mutual communication of their knowledge and views; a plan, apparently more artful and cunning, more nearly allied to the suspicious temper and narrow views, of a rude period, is recommended; to consult them apart, and hear the opinion of each book ii.Chap. 3. separately; after which, having consulted them in common, when each man is swayed by the opinion he had formerly given in private, and has a motive of interest and vanity to resist the light which might be thrown upon the subject by others, the king himself is to decide.1 A Brahmen ought always to be his prime minister. “To one learned Brahmen, distinguished among the rest, let the king impart his momentous counsel.”2

To provide for the defence of the country was one great branch of the duties of the sovereign, and to preside over the military force was his great prerogative and distinction. As, in the original division of the people, a fourth part of them were appropriated to the profession of arms, and destined from that alone to obtain their subsistence, the great difficulty of government must have consisted, not in obtaining troops, but in finding for them maintenance and employment. When so great a proportion of the population were set apart for the business of war, with nothing to do, from year to year, and from generation to generation, but to improve its principles, and acquire the utmost dexterity in its exercises, it appears extraordinary that the nation was not of a formidable and warlike character. Yet has India given way to every invader; “and the rudeness,” says Mr. Orme,3 “of the military art in Indostan can scarce be imagined but by those who have seen book ii.Chap. 3. it.” The precepts in the ancient and sacred books of the Hindus, which lay the foundation of their military system, are few in number, simple, and rude. For the security of the royal residence, the king is directed to take up his abode1 “in a capital, having, by way of fortress, a desert rather more than twenty miles round it, or a fortress of earth, a fortress of water or of trees, a fortress of armed men, or a fortress of mountains.” Their great unskilfulness in the science of attack and defence led them to place great dependence on fortification, as appears by a variety of their precepts. “One bowman,” says Menu,2 “placed on a wall is a match in war for 100 enemies, and 100 for 10,000; therefore is a fort recommended.” Yet their knowledge of fortification was elementary, and mostly consisted in surrounding the place with a mud wall and a ditch, or availing themselves of the natural advantages which insulated rocks, which water, or impervious thickets, could afford. The duty and advantage of maintaining at all times a powerful army are enforced in the most cogent terms. “By a king,” says Menu, “whose forces are always ready for action, the whole world may be kept in awe; let him then, by a force always ready, make all creatures living his own.”3 In recommending a perpetual standing army, the preceptive part of the military doctrine of the Hindus seems in a great measure to have been summed up; for the marshalling, the discipline, the conduct of an army, in any of its branches, no instruction is conveyed. General exhortations to firmness and valour are all the additional advice of which the utility appears to have been recognized. The Hindu prince is, by book ii.Chap. 3. divine authority, informed, that those rulers of the earth, who, “desirous of defeating each other, exert their utmost strength in battle, without ever averting their faces, ascend after death directly to heaven.”1 “Never to recede from combat,” says Menu, “to protect the people, and to honour the priests, is the highest duty of kings, and ensures their felicity.”2 Of a great part of the duty which devolved upon the king, as head of the armed force, he appears to have been relieved by a deputy.3 In times of peace, the military people seem to have been distributed over the country, under the command of the governors of provinces and of districts, for local defence, for the preservation of local tranquillity, and for the convenience of subsistence. When a general war demanded the whole force of the nation, the king commanded the governors of provinces to assemble the soldiers under their command, and repair to his standard.4 From this circumstance it has been rashly concluded, that feudal conditions of military service, in fact a feudal government, nearly resembling that which existed in Europe, had place in Hindustan.

After the care of protecting the nation from foreign aggression or from internal tumult, the next duty of the king was the distribution of justice. In the first stage of society, the leader in war is also the judge in peace; and the regal and judicial functions are united in the same person. Various circumstances tend to produce this arrangement. In the first place, there are hardly any laws: and he alone is entitled to judge, who is entitled to legislate, since he must make a law for every occasion. In book ii.Chap. 3. the next place, a rude people, unused to obedience, would hardly respect inferior authority. In the third place, the business of judicature is so badly performed as to interrupt but little the business or pleasures of the king; and a decision is rather an exercise of arbitrary will and power, than the result of an accurate investigation. In the fourth place, the people are so much accustomed to terminate their own disputes, by their own cunning, or force, that the number of applications for judicature is comparatively small. As society advances, a set of circumstances, opposite to these, are gradually introduced: laws are made which the judge has nothing to do but apply: the people learn the advantage of submitting to inferior authority: a more accurate administration of justice is demanded, and cannot be performed without a great application both of attention and of time: the people learn that it is for the good of the community, that they should not terminate, and that they should not be allowed to terminate, either by force or fraud, their own disputes: the administration of justice is then too laborious to be either agreeable to the king, or consistent with the other services which he is expected to render: and the exercise of judicature becomes a separate employment, the exclusive function of a particular order of men.

The administration of justice by the king in person, and in the provinces of course by his deputies, as in the subordinate districts by theirs, stands in the sacred books as a leading principle of the jurisprudence of the Hindus; and the revolution of ages has introduced a change in favour rather of the prince who abandons the duty, than of the people, for whom hardly any other instrument of judicature is provided.

book ii.Chap. 3. In the infancy of improvement, the business of the judge is much more to award punishment, than to settle disputes. The Hindu law, accordingly, represents the king, as “created for the guardianship of all, a divinity in human form, to inflict punishment according to the Shaster.”1 In conformity with those rude ideas, the most extravagant praises are bestowed upon this engine of royalty. “For the use of the king, Bramah formed, in the beginning of time, the genius of punishment with a body of pure light, his own son, the Protector of all created things. Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise consider punishment as the perfection of justice. If the king were not, without indolence, to punish the guilty, the stronger would roast the weaker, like fish, on a spit. The whole race of man is kept in order by punishment; for a guiltless man is hard to be found.”2

For the more perfect discharge of this important duty the king is directed to associate with himself Brahmens, and counsellors capable of giving him advice.3 Any Brahmen, or even a person of the two middle classes, may interpret the law to him; but a Sudra in no case whatever.4 On those occasions on which it was impossible for the king to give judgment in person, he was empowered to appoint a book ii.Chap. 3. Brahmen, who, with three assessors, might try causes in his stead.1

So much with regard to the constitution of the tribunals. The solemnities of jurisdiction were thus ordered to proceed: “Let the king, or his judge, having seated himself on the bench, his body properly clothed, and his mind attentively fixed, begin with doing reverence to the deities who govern the world, and then let him enter on the trial of causes.”2 The form of process was simple, and good; as it always is among a rude people. The parties were heard, generally in person; though lawyers by profession, unless in the case of certain high crimes, might appear in lieu of the principals. The application of the plaintiff might be either oral or written; but the answer was required to be in the same form; oral, if the application was oral; and in writing, if it was otherwise.3 The judge examines the witnesses; inspects, if any, the writings; and without any intricate or expensive forms proceeds directly to a decision. Punishment immediately follows conviction.4

One of the highest of our authorities affords a picture of the practical state of judicature in India, which, there is every reason to believe, may, with immaterial variations, be applied to Hindu society from the period at which it first attained its existing form. “No man is refused access to the Durbar, or seat of judgment; which is exposed to a large area, book ii.Chap. 3. capable of containing the multitude.1 The plaintiff discovers himself by crying aloud, Justice! Justice! until attention is given to his importunate clamours. He is then ordered to be silent, and to advance before his judge; to whom, after having prostrated himself, and made his offering of a piece of money, he tells his story in the plainest manner, with great humility of voice and gesture, and without any of those oratorial embellishments which compose an art in freer nations.—The wealth, the consequence, the interest, or the address of the party, become now the only considerations. He visits his judge in private, and gives the jar of oil: his adversary bestows the hog which breaks it. The friends who can influence intercede; and, excepting where the case is so manifestly proved as to brand the failure of redress with glaring infamy (a restraint which human nature is born to reverence) the value of the bribe ascertains the justice of the cause.—This is so avowed a practice, that if a stranger should inquire how much it would cost him to recover a just debt from a creditor who evaded payment, he would every where receive the same answer; the government will keep onefourth, and give you the rest.—Still the forms of justice subsist; witnesses are heard, but brow-beaten and removed: proofs of writing produced, but deemed forgeries and rejected, until the way is cleared for a decision, which becomes totally or partially favourable, in proportion to the methods which have been used to render it such; but still with some attention to the consequences of a judgment, which would be book ii.Chap. 3. of too flagrant iniquity not to produce universal detestation and resentment.—Providence has, at particular seasons, blessed the miseries of these people with the presence of a righteous judge. The vast reverence and reputation which such have acquired are but too melancholy a proof of the infrequency of such a character. The history of their judgments and decisions is transmitted down to posterity, and is quoted with a visible complacency on every occasion. Stories of this nature supply the place of proverbs in the conversations of all the people of Indostan, and are applied by them with great propriety.”1

Such are the principal branches of the duty of the sovereign, and in these various institutions may be contemplated an image of the Hindu government. It is worthy of a short analysis. The powers of government consist of three great branches, the legislative, the judicial, and the administrative; and we have to inquire, in what hands these several powers are deposited, and by what circumstances their exercise is controlled. As the Hindu believes, that a complete and perfect system of instruction, which admits of no addition or change, was conveyed to him from the beginning by the Divine Being, for the regulation of his public as well as his private affairs, he acknowledges no laws but those which are contained in the sacred books. From this it is evident, book ii.Chap. 3. that the only scope which remains for legislation is confined within the limits of the interpretations which may be given to the holy text. The Brahmens enjoy the undisputed prerogative of interpreting the divine oracles; for though it is allowed to the two classes next in degree to give advice to the king in the administration of justice, they must in no case presume to depart from the sense of the law which it has pleased the Brahmens to impose. The power of legislation, therefore, exclusively belongs to the priesthood. The exclusive right of interpreting the laws necessarily confers upon them, in the same unlimited manner, the judicial powers of government. The king, though ostensibly supreme judge, is commanded always to employ Brahmens as counsellors and assistants in the administration of justice; and whatever construction they put upon the law, to that his sentence must conform. Whenever the king in person discharges not the office of judge, it is a Brahmen, if possible, who must occupy his place. The king, therefore, is so far from possessing the judicial power, that he is rather he executive officer by whom the decisions of the Brahmens are carried into effect.

They who possess the power of making and interpreting the laws by which another person is bound to act, are by necessary consequence the masters of his actions. Possessing the legislative and judicative powers, the Brahmens were, also, masters of the executive power, to any extent, whatsoever, to which they wished to enjoy it. With influence over it they were not contented. They secured to themselves a direct, and no contemptible share of its immediate functions. On all occasions, the king was bound to employ Brahmens, as his counsellors and ministers; and, of course, to be governed by their judgment. “Let the king, having risen early,” says the law, “respectfully attend to Brahmens learned book ii.Chap. 3. in the three Vedas, and by their decision let him abide.”1 It thus appears that, according to the original laws of the Hindus, the king was little more than an instrument in the hands of the Brahmens. He performed the laborious part of government, and sustained the responsibility, while they chiefly possessed the power.2

The uncontrolable sway of superstition, in rude and ignorant times, confers upon its ministers such extraordinary privileges, that the king and the priest are generally the same person; and it appears somewhat remarkable that the Brahmens, who usurped among their countrymen so much distinction and authority, did not invest themselves with the splendour of royalty. It very often happens that some accidental circumstances, of which little account was taken at the time, and which after a lapse of ages it is impossible to trace, gave occasion to certain peculiarities which we remark in the affairs and characters of nations. It is by no means unnatural to suppose, that to a people, over whom the love of repose exerts the greatest sway, and in whose character aversion to danger forms a principal ingredient, the toils and perils of the sword appeared to surpass the advantages with which it was attended; and that the Brahmens transferred to the hands of others, what book ii.Chap. 3. was thus a source of too much labour, as well as danger, to be retained in their own.

So many, however, and important were the powers which this class reserved to themselves, that the kingly dignity would appear to have been reduced to that of a dependant and secondary office. But with this inference the fact does not correspond. The monuments of the Hindus, imperfect as they are, convince us, that their monarchs enjoyed no small share both of authority, and of that kind of splendour which corresponded with their own state of society. They had two engines entrusted to them, the power of which their history serves remarkably to display; They were masters of the army; And they were masters of the public revenue. These two circumstances, it appears, were sufficient to counterbalance the legislative, and the judicative, and even a great part of the executive power, reinforced by all the authority of an overbearing superstition, lodged in the hands of the Brahmens. These threw around the sovereign an external lustre, with which the eyes of uncultivated men are easily dazzled. In dangerous and disorderly times, when every thing which the nation values depends upon the sword, the military commander exercises unlimited authority by universal consent; and so frequently is this the situation of a rude and uncivilized people, surrounded on all sides by rapacious and turbulent neighbours, that it becomes, in a great measure, the habitual order of things. The Hindu king, by commanding both the force, and the revenue of the state, had in his hands the distribution of gifts and favours; the potent instrument, in short, of patronage; and the jealousy and rivalship of the different sets of competitors would of their own accord give him a great influence over the Brahmens themselves. The distribution of gifts and favours is an engine of so much book ii.Chap. 3. power, that the man who enjoys it to a certain extent is absolute, with whatever checks he may appear to be surrounded.1

[1.]Laws of Menu, ch. vii. 3.

[2.]Ib. ch. vii.

[1.]Kœmpfer, in his History of Japan, book i. chap. v. says, “The whole empire is governed in general by the Emperor, with an absolute and monarchical power, and so is every province in particular by the prince, who, under the Emperor, enjoys the government thereof.”—For the similarity of the institution in the Ottoman government, see Volney's Travels in Syria and Egypt, ii. 376.

[2.]Laws of Menu, ch. vii. 113–117. There is a very remarkable similarity between this mode of subdividing authority among the Hindus, and that adopted by the Incas of Peru. “The Incas,” (says Garcilasso de la Vega, part i. book ii. ch. v.) “had one method and rule in their government, as the best means to prevent all mischiefs and disorders; which was this. That of all the people in every place, whether more or less, a register should be kept, and a division made of ten and ten, over which one of the ten, whom they called the Decurion, was made superior over the other nine; then every five divisions of this nature had a lord over them, to whom was committed the charge and care of fifty; then over two divisions of fifty, another lord, who supervised 100; so five divisions of 100 had a magistrate who commanded 500; the divisions of 100 had a leader over 1000,” &c. The highest officer under the Inca was the governor of a province. Each inferior officer accounted for his conduct to the superior next above him. See, further, Acosta, Nat. and Mor. Hist. of the Indies, book vi. ch. xiii.; Carli, Lettres sur l'Amerique, let. xiii. The analogy of the Anglosaxon institution of tythings, or ten families; of hundreds, or ten tythings; and counties, will suggest itself to every imagination.

[1.]Laws of Menu, ch. vii. 118, 119. The first of these provisions, that for the lord of one town, is not accurately ascertained; the two or five plough-lands are sufficiently distinct; but the produce of a village or large town must have been extremely uncertain and ambiguous.

[1.]Laws of Menu, ch. vii. 120–122. A similar officer formed a similar part of the Peruvian establishment. He was denominated Cucuy Kwc, which is to say, “Eye of all.” Carli, Lettres sur l'Amerique, let. xiii.

[2.]Menu, ut supra, 123, 124.

[3.]Ibid. 54.

[1.]Laws of Menu, ch. vii. 56. Another precept to the king, respecting the mode of consulting with his ministers, is very expressive of the simplicity of the times; “Ascending up the back of a mountain, or going privately to a terrace, a bower, a forest, or a lonely place, without listeners, let him consult with them unobserved.” Ib. 147.

[2.]Ib. 58.

[3.]Orme on the Government and People of Indostan, p. 417. The same accurate and intelligent observer immediately adds; “The infantry consists in a multitude of people assembled together without regard to rank and file,” &c.

[1.]Laws of Menu, ch. vii. 70.

[2.]Ib. 74.

[3.]Ib. 103.

[1.]Laws of Menu, ch. vii. 89.

[2.]Ib. 88.

[3.]“The forces of the realm must be immediately regulated by the commander in chief.” Ib. 65.

[4.]Ib. 113–120.

[1.]Halhed's Gentoo Code, preface.

[2.]Laws of Menu, ch. vii. 14–22.

[3.]Ib ch. viii. 1.

[4.]Ib. ch. viii. 20. To learned and righteous Brahmens the magistrate shall give money, and every token of respect and consideration in the judgment seat, to have them near him; but he shall not retain fewer than ten of such Brahmen. Gentoo Code, ch. iii. sect. 1. The more sacred books of law the men by denomination holy were alone permitted to read. Thus the law of Menu (ch. ii. 16.) “He whose life is regulated by holy texts, from his conception even to his funeral pile, has a decided right to study this code, but no other person whatsoever.” The more profane commentaries, however, were less confined, and the man versed in these might suffice for the common business of administering justice.

[1.]Laws of Menu, ch. viii. 9. 10. The Gentoo Code, translated by Mr. Halhed, directs, that when the king in person cannot examine a cause, he substitute a learned Brahmen; if a Brahmen cannot be found, a Cshatriya, &c. but in no case a Sudra. Gentoo Code, ch. iii. sect. 1.

[2.]Laws of Menu, ch. viii. 9, 10.

[3.]Gentoo Code, ch. iii. sect. 5.

[4.]Orme on the Government, &c. of Indostan, p. 451.

[1.]This publicity of judicial proceedings is common to rude nations. In the country and days of Job, the judge sat at the gate of the city, ch. ix. ver. 7. Moses alludes to the same practice, Gen. xxiii. 18; and Homer tells us it was the practice in the heroic ages of Greece, Il. lib. xviii. ver. 497.

[1.]Orme on the Government and People of Indostan, p. 444–446. Another of our most instructive travellers, Mr. Foster, in the Dedication prefixed to his Journey from Bengal to England, p. vii., calls Hindustan, “A land whose every principle of government is actuated by a rapacious avarice, whose people never approach the gate of authority without an offering.”—This is a subject to which he often adverts; he says again, (i. 7,) “In Asia, the principles of justice, honour, or patriotism, as they confer no substantial benefit, nor tend to elevate the character, are seldom seen to actuate the mind of the subject.”

[1.]Laws of Menu, ch. vii. 37.

[2.]Even under a system, where the power of the altar was from the beginning rendered subservient to the power of the sword, the right of interpreting a code of sacred laws is found to confer an important authority. Hear the opinion of a recent, and penetrating observer:—“L’expression vague des preceptes du Koran, seule loi ecrite dans les pays Musulmans, laisse aux docteurs une grande latitude pour les interpretations, et bien des moyens d'augmenter leur autorité. Quoique cette religion ait peu de dogmes, le fanatisme qu’elle inspire est un instrument que les prêtres savent employer avec succés.” De l’Egypte, par le Gen. Reynier, p. 62.

[1.]See what is observed by three great authors, Hume, Blackstone, and Paley, on the influence of the crown in England. See also what is observed by Lord Bolingbroke on the same subject, in his Dissertatior on Parties.