Front Page Titles (by Subject) CHAP. IV. - The History of British India, vol. 1
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CHAP. IV. - James Mill, The History of British India, vol. 1 
The History of British India in 6 vols. (3rd edition) (London: Baldwin, Cradock, and Joy, 1826). Vol. 1.
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book ii.Chap. 4.Next to the form of government, in determining the political condition of the people, is the body of law, or the mode in which the rights of individuals are expressed and secured. For elucidating this important point, in the history of the Hindus, materials are abundant. The detail, however, or even the analysis, of the Hindu code, would far exceed the bounds, to which, in a work like the present, this topic must be confined. An accurate conception of the character and spirit of the Hindu laws, and of their place in the scale of excellence or defect, is all I can attempt to convey.
Amid the imperfections adhering to the state of law among a rude and ignorant people, one is, that they preserve not their maxims of justice, and their rules of judicial procedure, distinct from other subjects. In the law books of the Hindus, the details of jurisprudence and judicature occupy comparatively a very moderate space.1 The doctrines and ceremonies of religion; the rules and practice of education; the institutions, duties, and customs of domestic life; the maxims of private morality, and even of domestic economy; the rules of government, of war, and of negotiation; all form essential parts book ii.Chap. 4. of the Hindu codes of law, and are treated in the same style, and laid down with the same authority, as the rules for the distribution of justice. The tendency of this rude conjunction of dissimilar subjects is, amid other inconveniences, to confound the important distinction between those obligations which it is the duty of the magistrate to enforce, and those which ought to be left to the suggestions of self-interest, and the sanctions of morality; it is to extend coercion, and the authority of the magistrate, over the greater part of human life, and to leave men no liberty even in their private and ordinary transactions; while it lessens greatly the force of the legal sanction in those cases in which its greatest efficiency is required.
Another topic, which it will be convenient to detach and premise, is, the division and arrangement which the Hindus have given to the matter of law. In marking a stage of civilization, this is a very characteristic circumstance. As the human mind, in a rude state, has not the power to make a good distribution of a complicated subject, so it is little aware of its importance; little aware that this is the groundwork of all accurate thought. In the Institutes of Menu, the most celebrated perhaps of all the original compends of Hindu law, the titles, as they are there denominated, or divisions, of law, are eighteen, laid down in the following order:—1. Debt, on loans for consumption; 2. Deposits and loans for use; 3. Sale without ownership; 4. Concerns among partners; 5. Subtraction of what has been given; 6. Nonpayment of wages or hire; 7. Nonperformance of agreements; 8. Rescission of sale and purchase; 9. Disputes between master and servant; 10. Contests on boundaries; book ii.Chap. 4. 11 and 12. Assault, and slander; 13. Larceny; 14. Robbery and other violence; 15. Adultery; 16. Altercation between man and wife and their several duties; 17. The law of inheritance; 18. Gaming with dice and with living creatures.1 It is not easy to conceive a more rude and defective attempt at the classification of laws, than what is here presented. The most essential and obvious distinctions are neglected and confounded. Though no arrangement would appear more natural, and more likely to strike even an uncultivated mind, than the division of laws into civil and penal, we find them mixed and blended together in the code of the Hindus. The first nine of the heads or titles, as above, refer to civil law; the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, to criminal law; the sixteenth and seventeenth return to civil, and the eighteenth to criminal; while the tenth relates partly to the one and partly to the other.
Another ground of division, well calculated, as being exceedingly obvious, to strike an uncultivated mind, is the distinction of persons, and things. This was book ii.Chap. 4. the ground-work of the arrangement bestowed upon the Roman laws. It is that of the arrangement which continues to prevail in the English; rude as it is, at once the effect, and the cause, of confusion.1 It will be seen, however, that even this imperfect attempt at a rational division was far above the Hindus.
In the order in which the titles follow one another, no principle of arrangement can be traced. The first eight of the heads may be regarded as allotted to the subject of contracts; but a more rude and imperfect division of contracts cannot easily be conceived. Not to dwell upon the circumstance of beginning with loans, one of the most remote and refined contracts, instead of the more obvious and simple, we may observe that the subject of purchase and sale is divided into two parts; but, instead of being treated in conjunction with one another, one occupies the third place in the list of titles, the other the eighth; and a number of heterogeneous subjects intervene. “Concerns among Partners” is a title which occupies the middle place between that of “Sale without Ownership,” and “Subtraction of what has been given;” with neither of which it has any relation. “Nonpayment of wages or hire” stands immediately before “Nonperformance book ii.Chap. 4. of Agreements,” though the latter is a general title in which the former is included. The latter indeed is remarkable; for it is so general that it includes the whole subject of contracts, though it is here placed as only one, and the last, save one, among nine different titles or divisions of that subject. Several of the titles are nothing but particular articles, belonging to some of the other divisions; and are with great impropriety made to stand as separate and primary heads. The contracts, for example, between master and servant, are part of the great subject Location, or letting and taking to hire, including services as well as things; yet are these contracts here treated of under two distinct titles; the one, “Nonpayment of wages or hire,” the other, “Disputes between master and servant,” and even these are separated from one another by two intervening subjects. “Concerns among partners,” is an article, little, surely, entitled to stand as a separate head among the primary divisions of law, since the rights of individuals in a joint property fall under the same distinctions and rules which determine their rights in other property.1 Where one branch of one great topic, as transfer of ownership, is taken up, and concluded, book ii.Chap. 4. it would appear a very necessary arrangement to pass on to another: when transfer by contract, for example, is finished, to begin with transfer by descent. Such obvious rules appear to have had no influence in the framing of the Hindu systems of law: when the subject of contracts is ended, the principal branches of criminal law are introduced; and, after these and some other topics are finished, then follows the great subject of inheritance.1
In order to convey, in as narrow a compass as possible, an idea of the maxims and spirit of Hindu jurisprudence, it will be convenient not to follow the mangled division of the Hindus themselves. Omitting the laws, which regulate the political order, which determine who are to govern, who are to obey, and define the terms of command and obedience; laws are conveniently distributed under the three usual heads; I. Civil laws, though Civil is a very objectionable term; II. Penal laws; and III. The laws of judicature, or those which fix the mode in which the book ii.Chap. 4. judicial services are rendered. Under each of these heads, such particulars have been carefully selected from the multitude of Hindu laws, as appeared the best calculated to convey an idea of the leading qualities of the Hindu code, and of the stage of civilization at which it may appear to have been formed.
I. Under the first of these heads, Property is the great subject of law. To this we may confine our illustrations.
It is needless to remark, that the sources of acquisition, by occupancy, by labour, by contract, by donation, by descent; which are recognized in almost all states of society, are recognized in Hindustan. It is in the accuracy with which the intended effects of these incidents are defined, and in the efficiency of the means taken to secure the benefits they convey, that the excellence of one system above another is more particularly observed.
Though property, in the first stage of its existence, was probably measured by occupancy, and the one ceased with the other,1 the privilege was early conferred of alienating for a valuable consideration, or of transferring by purchase and sale. As this is a very simple compact, it appears to admit of little variety in the various stages of human improvement. In an age, however, in which the means of detecting fraudulent acquisitions, and of proving the good faith of contracts and bargains, are imperfectly known, purchases and sales, made in public, are alone considered valid. The laws of our Saxon ancestors prohibited book ii.Chap. 4. the sale of every thing above the value of twenty-pence, except in open market;1 and it is with a pleasing kind of surprise we find, that similar circumstances have suggested a similar expedient to the people of Hindustan. “He,” says the law of Menu, “who has received a chattel by purchase in open market, before a number of men, justly acquires the absolute property, by having paid the price of it.” The right, however, conveyed by a bonâ fide purchase, is not, among the Hindus, carried to that extent, which is found requisite in a commercial and highly civilized society. If the goods were not the property of the person by whom they were sold, the right of the purchaser becomes absolute only if he can produce the vendor. “If,” says the law of Menu,3 “the vendor be not producible, and the vendee prove the public sale, the latter must be dismissed by the king without punishment; and the former owner, who lost the chattel, may take it back, on paying the vendee half its value.” This is quite sufficient to throw so much uncertainty into the great class of transactions by purchase and sale, as would prove, in a civilized state of society, a ruinous obstruction of business. A manufacturer purchases a quantity of the raw material, and works it up; he would lose, in a mischievous proportion, if the owner of that material could demand the identical substance, on tendering the half of its price. In many cases, the identical substance is exported; in many it is consumed; and cannot possibly book ii.Chap. 4. be restored.1 Among children, and among rude people, little accustomed to take their decisions upon full and mature consideration, nothing is more common than to repent of their bargains, and wish to revoke them: Among the Hindus this has been found an affair of sufficient importance to constitute an entire head in the classification of their laws. A variety of cases are enumerated, in which, if dissatisfied with his bargain, a man may insist upon having it annulled; and in general any sale and purchase of things, not perishable, may be rescinded within ten days, at the will of either of the parties:2 another law, altogether incompatible with an age in which the divisions and refinements of industry have multiplied the number of exchanges. The regulation, which fixes the price of things, instead of leaving it to the natural and beneficent laws of competition, conveys not a high idea of the knowledge of the Hindus. “Let the king,” says the ordinance of Menu, “establish rules for the sale and purchase of all marketable things. Once in every five nights, or at the close of every half month, let him make a regulation for market prices.”3 It is a circumstance full of meaning, that, under this book ii.Chap. 4. head of bargain and sale, is arranged the obligation of the marriage contract.1
There are many occasions, on which it is useful to the owner of property, to place it in the keeping of another person, without transfer of the ownership. It may be placed, for safe-custody merely; for the sake of an operation, as with the dyer, for the benefit of his art; with the carrier, either by sea or land, for the sake of transportation; or it may be placed, as in the case of a valuable animal, for the sake of maintenance. These, and a variety of other transactions of a similar sort, are included in English law under the title of bailments. In a well-regulated society, where the house of one man is nearly as secure from violence as that of another, mere deposits, unless in the case of warehousing, the object of which is convenience or economy, rather than security, form a class of transactions of little comparative magnitude. In a rude society, in which there is little or no security, and in which the means of concealing valuables is one of the great studies of life, deposits become an object of the greatest importance. In the Hindu code, other cases of bailment occupy a narrow space: the article of deposits swells, alone, to a great size, and forms a subject of considerable intricacy and detail.2 The modes of proof constitute the chief peculiarities in the provisions, and will be considered, when we speak of the third branch of jurisprudence. book ii.Chap. 4. One rule, however, expressive of great simplicity, not to say rudeness, belongs exclusively to this article: “On failure of witnesses, to prove a deposit, let the judge actually deposit gold or precious things with the defendant, by the artful contrivance of spies. Should he restore that deposit, he is to be held innocent; if he deny it, he is to be apprehended and compelled to pay the value of both.”1
Hiring; that is, transferring to another, for a valuable consideration, and to a definite extent, the use of any thing valuable; is a right which holds a sort of middle place between sale and bailment: and may extend to personal services as well as to commodities.2 As this contract falls very naturally under the laws of purchase and sale,3 it occupies a narrow space in the volumes of Hindu law, and as far as commodities are concerned, offers nothing particular for observation.4 In the hire of personal services, three principal classes are distinguished; first, the students of the Veda, who discharge every menial office to their masters, and receive instruction in return: book ii.Chap. 4. secondly, handicrafts, who receive either stipulated wages, or, if no agreement has been made, one tenth of the profits on their labour; thirdly, agricultural servants, who are always paid in kind; for tending cows, one tenth of the milk; for the culture of corn, one tenth of the crop.1
The peculiar species of transfer which is known by the name of loan is an object of great importance in the jurisprudence of all nations. Among the Hindus it stands as the first article in the classification of legal subjects, and in the Digest of Mr. Colebrooke occupies entirely one of the four books into which the compilers of that work have divided the laws of contract. From the peculiarities in the ideas and in the circumstances of the Hindus, it forms among them a subject of more than usual complexity. In an improved state of society, where the efficiency of laws, the diffusion of wealth, and the accommodations of business, have created a mutual confidence, loans are generally contracted on the security of law, without the actual custody or deposit of the property on which they may be secured. It is only in that extremely confined and degraded species of lending, abandoned to pawnbrokers, that pledges form a regular book ii.Chap. 4. and component part. In the more early and imperfect states of the social union, circumstances are very different. Law is both feeble and inaccurate, poverty reigns, violence prevails; and the man who is able to discharge his debts to-day may be stript of all his possessions to-morrow. In these circumstances, the security of law upon the person or property of the debtor is seldom sufficient; and the deposit of some equivalent property, as a pledge, is the obvious, and, in point of fact, the common resource. The doctrine of pledges forms one of the most considerable branches of this part of the Hindu code. The laws relating to them are laid down with great minuteness and solemnity; a variety of cases are distinguished; and the receipt of pledges appears to have formed a component part of a comparatively numerous and important class of transactions.1 The responsibility of a second person, who becomes surety for the borrower, is another foundation on which Hindu loans are contracted, and the different species of it are not inaccurately distinguished.2 Interest, or a consideration for property lent, appears to have been known at a very early stage of civilization.3 As it is only interest on debts of money which is familiar to the members of a highly-civilized society, European visitors appear to have been forcibly struck with the Hindu law, which imposes an interest to be paid in kind on loans in goods, as grain, fruit, wool or hair, beasts of burden and the like.4 Mr. Halhed says, “The different rate of interest to be paid for different articles is perhaps an institute peculiar to book ii.Chap. 4. Hindustan; but it reflects a strong light upon the simplicity of ancient manners, before money was universally current as the medium of barter for all commodities, and is at the same time a weighty proof of the great antiquity of these laws, which seem calculated for the crude conceptions of an almost illiterate people upon their first civilization.”1 When Mr. Halhed, however, informs us that this law “reflects a strong light upon the simplicity of ancient manners,” it is necessary to add that whatever light it reflects upon ancient, it reflects the same upon present manners, as this is not a law anciently in force, but long ago repealed; it is a law now in operation, and as suitable as ever to the purely Hindu state of society. Mr. Halhed too is mistaken when he supposes that this is an institution peculiar to the Hindus. It was familiarly known to the Jews in the time of Moses, and was probably a common practice in the nations around Judea, as well as in Egypt, from which the Jews had recently departed.2
To vary the rates of interest upon the different castes is a peculiarity more naturally arising from the unfair and odious distinctions among men, created by the Hindus. The rule established in the Institutes of Menu is, to take, when there is a pledge, one and a quarter per cent. per month; when there is no pledge, two per cent. per month; that is, from a Brahmen: but from a man of the military caste, three per cent.; four per cent. from one of the mercantile caste; and from a man of the servile caste book ii.Chap. 4. no less than five per cent. per month.1 This exorbitant rate of interest affords a satisfactory criterion to judge of the opinions, which are not unfrequently advanced, of the great riches which, at some imaginary period, formerly distinguished Hindustan. The excessive accumulation, however, of interest was forbidden. Upon a loan in money, interest, beyond the amount of the principal, was not a debt;2 upon loans in goods, for some reason which it is not easy to divine, it was permitted to five times the amount of the principal. Compound interest too was prohibited. These were rules which would give effectual motives to the Hindu creditor to exact the regular payment of his interest, with rigid severity.3 In the laws relating to loans, however, the most remarkable particular is the mode of enforcing payment. The creditor is commanded, first, to speak to the friends and relations of the debtor; next, to go in person and importune him, staying some time in his house, but without eating or drinking. If these methods fail, he may then carry the debtor home with him, and having seated him, as the law expresses it, before men of character and reputation, may there detain him. Should he still hold out, the creditor is next directed, to endeavour by feigned pretences to get possession of some of his goods; or, if any pledge was deposited with him, to carry it before the magistrate, who will cause it to be sold to book ii.Chap. 4. make payment. If neither of these expedients can be used, he shall seize and confine the debtor's wife, children, cattle, buffaloes, horses, &c.; also his pots, clothes, mats, and furniture, and, seating himself at his door, there receive his money. Should even this proceeding fail, he is commanded to seize and bind the debtor's person, and procure by forcible means a discharge of the debt.1 What is meant by forcible means is sufficiently explained in the following extra-ordinary definition. “When, having tied the debtor, the creditor carries him to his own house, and by beating or other means compels him to pay, this is called violent compulsion. By beating,” adds the law, “or by coercion, a creditor may enforce payment from his debtor.”2 When the debtor is of a caste not superior to the creditor, the latter may seize and compel him to labour for the discharge of the debt. If a man owes debts to several creditors, he is commanded to discharge first one debt and then another, in the order in which they were contracted; a regulation by which one or two of his creditors may receive in full their demands, while the rest, whether few or numerous, are entirely defrauded. The equitable arrangement of an equal dividend, which we find established among nations of very limited progress in the knowledge of law, obvious and useful as it is, had not suggested itself to the rude legislators of Hindustan. When a creditor procures payment of a debt by application to the magistrate, he pays him for his interposition a twentieth book ii.Chap. 4. part of the sum recovered.1 By a very extraordinary regulation a punishment seems to be inflicted on the defendant in all actions for debt wherein he is cast. “A debt being admitted by the defendant, he must pay five in the hundred as a fine to the king; but if it be denied and proved, twice as much.”2 The sacred character of the Brahmen, whose life it is the most dreadful of crimes either directly or indirectly to shorten, suggested to him a process for the recovery of debts, the most singular and extravagant that ever was found among men. He proceeds to the door of the person whom he means to coerce, or wherever else he can most conveniently intercept him, with poison or a poignard in his hand. If the person should attempt to pass, or make his escape, the Brahmen is prepared instantly to destroy himself. The prisoner is therefore bound in the strongest chains; for the blood of the self-murdered Brahmen would be charged upon his head, and no punishment could expiate his crime. The Brahmen setting himself down, (the action is called sitting in dherna) fasts; and the victim of his arrest, for whom it would be impious to eat, while a member of the sacred class is fasting at his door, must follow his example. It is now, however, not a mere contest between the resolution or strength of the parties; for if the obstinacy of the prisoner should exhaust the Brahmen, and occasion his death, he is answerable for that most atrocious of crimes—the murder of a priest; he becomes execrable to his countrymen; the horrors of remorse never fail to pursue him; he is shut out from the benefits of society, and life itself is a calamity. As the Brahmen who avails himself of book ii.Chap. 4. this expedient is bound for his honour to persevere, he seldom fails to succeed, because the danger of pushing the experiment too far is, to his antagonist, tremendous. Nor is it in his own concerns alone that the Brahmen may turn to account the sacredness of his person: he may hire himself to enforce in the same manner the claims of any other man; and not claims of debt merely; he may employ this barbarous expedient in any suit. What is still more extraordinary, even after legal process, even when the magistrate has pronounced a decision against him, and in favour of the person upon whom his claim is made, he may still sit in dherna, and by this dreadful mode of appeal make good his demand.1
We have now reviewed the great peculiarities of the Hindu law, in regard to those transfers of property which partake of the nature of exchange, and in which some sort of an equivalent is given and received; it remains for us to consider those, in which the property passes from one owner to another without any return.
book ii.Chap. 4. The most extensive class of this species of transactions are those occasioned by the death of the owner. Men had considerably strengthened the chain by which they were connected with property, before they ceased to consider death as the cause of a perfect separation, and as leaving their possessions free to the earliest occupier. A right of succession in the children suggests itself, however, at a very early period in the progress of civilization. It is recommended by so many motives, it so happily accords with some of the strongest impulses of human nature, and is so easily engrafted upon the previous order of things, that it could not fail to be an early institution. The children, being naturally the nearest to their parent at the moment of his death, were generally able to avail themselves of the right of occupancy, and to exclude other successors by prior possession. It was the usual arrangement in early stages of society, that the different members of a family should live together; and possess the property in common.1 The father was rather the head of a number of partners, than the sole proprietor. When he died, it was not so much a transfer of property, as a continued possession; and the copartnership was only deprived of one of its members. The laws of inheritance among the Hindus are almost entirely founded upon this patriarchal arrangement.2 When the father dies, if the sons shall choose to live together, the book ii.Chap. 4. eldest, says the law, shall take the station of the head of the family, and the property is held jointly in his name.1 “For brothers a common abode is ordained so long as both their parents live. On failure of both their parents, partition among brothers is ordained.”2 Even during the life-time of the father, a separation of the family might take place, when a division of the property, according to the strict notion of a joint interest, was made, in the proportion of two shares to the father, and one share equally to each of the sons.3 When the division, however, of the common estate is delayed till the death of the father, the elder brother, as the new head of the family, is distinguished in the partition. He first receives one twentieth of the inheritance, after which it is divided equally among all the brothers.4 With a few immaterial exceptions, the principle of equal division guided succession among the Hindus. “Let the sons, after the death of the parents, equally share the assets. If all sons be equal book ii.Chap. 4. in good qualities, they must share alike; but he who is distinguished by science and good conduct shall take a greater share than the rest.”1 The last of these clauses affords an example of that vagueness and ambiguity, the source of endless dispute, which distinguishes the laws of all ignorant people, and which forms a most remarkable feature in those of Hindustan. What is the criterion to ascertain that superiority in science and virtue, which determines the share of brothers in the division of the paternal estate? Or who is to be the judge? Equally unskilful, and pregnant with evil, is the vague and indeterminate law which declares “that all those brothers who are addicted to any vice shall lose their title to the inheritance.”2 As the interpretation of the phrase, “addicted to any vice,” may receive any latitude, according to the inclinations and views of the expounder, a gate is here thrown open to unlimited injustice. Inconsistency, and even direct contradiction, is a characteristic of the Hindu laws, which it does not appear to have been thought even requisite to avoid; as it is expressly enacted, that when two laws command opposite things, both are to be held valid.3 This attribute is fully exemplified in the laws of inheritance. It is declared that, “on the failure of natural heirs, the lawful heirs are such Brahmens as have read the three Vedas, as are pure in body and mind, as have subdued their passions; and they must constantly offer the cake; thus the rites of obsequies cannot fail.”1 Yet it is added, in the book ii.Chap. 4. very next clause or sentence, “The property of a Brahmen shall never be taken as an escheat by the king; this is a fixed law; but the wealth of the other classes, on failure of all heirs, the king may take.”2 Not unfrequently in rude nations, as if one misfortune ought to be aggravated by another, those who labour under certain maladies, or bodily defects, are excluded from inheritance. This principle is fully adopted by the Hindus, and carried to an unusual, and monstrous extent. All those persons who are lame, all those persons who are blind, all those who are deaf, all those who are dumb, impotent, or affected with an incurable disease, as leprosy, marasmus, gonorrhœa, dysentery, are denied a share in the partition of their father's effects, and are only entitled to a maintenance from the family.3 When a man has sons by wives of different castes, they inherit in the proportion of the mother's rank, and the son by a concubine is entitled only to one half of the share of him who is born of a wife.4 The laws which define proximity of kin, and fix the order of collateral succession, are numerous, minute, and in nothing remarkable.5 It is particularly to be noted book ii.Chap. 4. that daughters are debarred from a share in the inheritance of their fathers.1 The woman, indeed, among the Hindus, is so restricted in the means of acquiring property, that she is almost excluded from its rights.2 The exceptions consist, in certain presents; what was given in the bridal procession; what was given in token of love; what was received from a brother, a mother, or a father: and this property is inherited by her daughters in equal portions with her sons. If she die without issue, her property falls to her husband or to her parents, and is subject to nearly the same rules of collateral succession as are established in regard to the property of males.3
The idea of a joint interest in the property of the family, while it early established the right of succession in the children, served to exclude the right of devising by will. As the property belonged to the parent in common only with his offspring, it could not be regarded as just, that he should have the power of giving it away from them after his death. It is only in stages of society, considerably advanced, that the book ii.Chap. 4. rights of property are so far enlarged as to include the power of nominating, at the discretion of the owner, the person who is to enjoy it after his death. It was first introduced among the Athenians by a law of Solon, and among the Romans, probably, by the twelve tables.1 The Hindus have, through all ages, remained in a state of society too near the simplicity and rudeness of the most ancient times, to have stretched their ideas of property so far. The power of disposing of a man's possessions, by testament, is altogether unknown to their laws.2
The same notion of a joint-title, in all the members of a family, to the property of the whole, had originally an effect even upon the power of donation. Individuals were not at liberty to alienate by gift any part of the common stock. This, however, is a right which is recommended by motives more powerful and frequent than that of disposal after death, and was therefore much sooner introduced. The first instances were probably sanctioned by religious pretexts. By the laws of the Visigoths it was permitted to make donations to the church; and by those of the Burgundians a free man was allowed, after dividing his means with his sons, to make an ecclesiastical donation out of his own portion.3 Among the Hindus book ii.Chap. 4. the conferring of gifts upon the Brahmens, which is taught as one of the most important of religious duties, must have early familiarized the mind to gratuitous alienations; yet, notwithstanding this important circumstance, a man's power of transferring his property by gift appears subject still to extraordinary restrictions. Except in certain minor cases, the consent of his heirs is required. It is only over that part of his property which is more than sufficient to feed and clothe all his dependants, that he has an unlimited power of disposal.1
II. The second class of laws, those which relate to offences and their punishment, form a subject less complicated, and of less subtle and difficult disquisition, than those which relate to the distribution of rights; it is, however, a portion of law, which, from the violent interference of human passions, is not less slow in gaining improvement.
An offence is an act by which a right is violated. The object of punishment is to prevent such acts. It is employed, under the empire of reason, only as a last resource. If offences could be prevented without punishment, punishment ought never to exist. It follows, as a necessary consequence, that as little of it as possible ought to exist.
It is equally manifest, that it would be vain to establish rights, if the necessary means were not to be used for securing them. It is therefore good to make use of punishment, as far as necessary for the securing of rights; with this precaution only, that the suffering or evil, produced by the punishment, is less, upon the whole, than that which would arise from the violation of the right.
By these maxims, as criterions, we shall endeavour to ascertain the attributes of the criminal code of the book ii.Chap. 4. Hindus.
The misery and disorder which overspread human life, wherever self-defence rests wholly upon the individual, are the cause to which government owes its origin. To escape from those evils, men transfer to the magistrate powers sufficient for the defence of all; and agree to expect from him alone that protection, which they obtained so imperfectly from their own exertions. In the rude and violent times when this revolution takes place, it is not from a just and cool discernment of the limits of defence, prevention, and reparation, that penalties are exacted. It is from the impulse of a keen resentment, that the sufferer pursues, and from a strong sympathy with that resentment, that the magistrate commonly judges and condemns. It is not so much security that is coveted, as revenge. A great injury committed can only be expiated by a great injury received. Two principles therefore universally characterize the penal code of a barbarous people; severity; and retaliation. The early laws of the Greeks and the Romans were cruel; the laws of the twelve tables, says Mr. Gibbon, like the statutes of Draco, were written in characters of blood.1 By the laws of Moses, blasphemy, idolatry, profaning the sabbath, homicide, adultery, incest, rapes, crimes against nature, witchcraft, smiting or cursing father or mother, were punished with death, and with burning and stoning, the most cruel kinds of death.2 Of the sanguinary character imprinted on the laws of the Egyptians, the following instance may be adduced: They thrust little pieces of reeds, about a finger's length, into all parts of the bodies of parricides; book ii.Chap. 4. and then, surrounding them with thorns, set them on fire.1 The barbarous punishments which prevail among the Chinese are too familiarly known to require illustration. Perhaps of all the rude nations of whom we have any account, our own Saxon and German ancestors were the most distinguished for the mildness of their punishments; a singularity, however, to be accounted for, by the use of a very barbarous expedient, a compensation in money for almost every species of crime. Yet in various instances, particularly that of theft, their laws were not only severe, but inhuman.2
Notwithstanding the mildness which has generally been attributed to the Hindu character, hardly any nation is distinguished for more sanguinary laws. “The cruel mutilations,” says Sir William Jones,3 “practised by the native powers, are shocking to humanity.”
Retaliation is another peculiarity which remarkably book ii.Chap. 4. distinguishes the laws of that barbarous period, when the punishment of crimes is chiefly measured by the resentment of the sufferer.1 Whatever the injury book ii.Chap. 4. which the innocent man has sustained, a similar injury, by way of punishment, is imposed upon the guilty. Whatever the member, or part of his body, with which the offender committed the crime, upon that part is the chastisement inflicted. The Hebrew law of an eye for an eye, and a tooth for a tooth, is a familiar example of what occurred among other nations. The forfeit of limb for limb, and member for member, was, among the Romans, exacted by the law of the twelve tables, unless where the offender could expiate his crime by a fine of 300 pounds of copper. The earliest legislators of Greece were so rude as to leave the punishment of crimes, undefined, to the discretion of the judge; but Zaleucus, legislator of the Locrians, who first prescribed rules on this subject, enforced so literally the maxim of an eye for an eye, that it was deemed an important reform on his laws, when it was decreed that he who struck out the eye of a person with one eye should lose both his own.1 The Egyptians extended the principle of punishing criminals in that part of the body which was chiefly instrumental in the guilt, to an extraordinary number of instances. He who discovered the secrets of the state had his tongue cut out; he who violated a free woman was made an eunuch; of those who counterfeited coin and seals either public or private, of those who made use of false weights and measures, and of public notaries who forged or mutilated deeds, the two hands were cut off; and calumniators were subjected to the same punishment which would have been due to those whom they falsely accused.2 To how extraordinary a degree the spirit of retaliation moulds the penal legislation of the Hindus, a few specimens will evince. The law concerning assault book ii.Chap. 4. and battery, in the Institutes of Menu, thus commences: “With whatever member a low-born man shall assault or hurt a superior, even that member of his must be slit or cut, more or less in proportion to the injury: this is an ordinance of Menu.”1 “If a man strikes a Bramin with his hand, the magistrate shall cut off that man's hand; if he strikes him with his foot, the magistrate shall cut off the foot; in the same manner, with whatever limb he strikes a Bramin, that limb shall be cut off; but if a Sooder strikes either of the three casts, Bramin, Chehteree, or Bice, with his hand or foot, the magistrate shall cut off such hand or foot.”2 “If a man has put out both the eyes of any person, the magistrate shall deprive that man of both his eyes, and condemn him to perpetual imprisonment, and fine him.”3 The punishment of murder is founded entirely upon the same principle. “If a man,” says the Gentoo code, “deprives another of life, the magistrate shall deprive that person of life.”4 “A once-born man, who insults the twice-born with gross invectives, ought to have his tongue slit. If he mention their names and classes with contumely, as if he say, ‘Oh thou refuse of Brahmens,’ an iron style, ten fingers long, shall be thrust red-hot into his mouth. Should he through pride give instruction to priests concerning their duty, let the king order some hot oil to be dropped into his mouth and his ear.”5 “If a blow, attended with much pain, be given either to human creatures or cattle, the king shall inflict on the striker a punishment as heavy as the presumed book ii.Chap. 4. suffering.”1 “With whatever limb a thief commits the offence, by any means in this world, as if he break a wall with his hand or his foot, even that limb shall the king amputate, for the prevention of a similar crime.”2 “A mechanic or servile man, having an adulterous connexion with a woman of a twice-born class, if she was unguarded, shall lose the part offending, and his whole substance.”3 “The breaker of a dam to secure a pool, let the king punish by a long immersion under water.”4 The portion of suffering, sufficient to constitute a motive for abstaining from the crime, is all the punishment which reason authorizes; but we see nations far advanced in civilization so tardy in recognizing this principle, that the excess of suffering, produced by the law of retaliation, would not, it is probable, suggest to nations, at a very early stage of civilization, the utility of repealing it. Yet no maxim more naturally recommends itself to the human mind, even before it is strong, than that all who commit the same crime should meet with equal punishment; and it requires a very slight degree of reflection to see, that when the hand or the foot is cut off from one man, the punishment may be a very moderate one; when the same limb is cut off from another man, to whose subsistence it is essential, the penalty may far exceed a sentence of death.
In another class of punishments, where the principle of equality may be still more easily applied, the grossness of the violation excites considerable surprise. As among our Saxon ancestors, so among the Hindus, fines bear a very large proportion to other punishments. When reparation to the party injured should be made by the author of the wrong, the pecuniary ability of the party on whom the obligation falls can no more be regarded, than where he owes a debt. book ii.Chap. 4. But in so far as it is the object of the law to create a motive against the occurrence of a like offence; or even to take vengeance, to inflict pain purely because pain has been occasioned; in so far it is one of the plainest dictates of reason, that where the offence is equal, the suffering or hardship imposed should be equal. Though a pecuniary mulct imposes all degrees of hardship, according to the pecuniary abilities of the man who pays, the Hindu law makes no distinction between the rich and the poor.1 It makes, indeed, a serious distinction between the man of one class, and another: and they of the lowest are, with a very few exceptions, always the most severely fined. But if the class is the same, the same forfeit is exacted for the same offence; though one man should be too opulent to feel from it any sensible inconvenience; another should suffer all the pains and horrors of want.
From the classification of the people, and the privileges of the castes, we are prepared to expect, among the Hindus, inequalities created by distinctions of rank. They relate either to the crimes committed against persons of the different ranks, or the crimes committed by them. Inequalities of the first sort, it is found difficult to avoid even in high stages of civilization. At present, in the best governed countries of Europe, an injury done to a nobleman is treated as a crime of a deeper die, than a similar injury to a person of the lowest rank.2 If the laws book ii.Chap. 4. should make no distinction in principle, the power of the nobleman to bring the offender to trial, and to command the partiality of the judge, would long make a very essential difference in practice. When the Hindu law, therefore, makes a gradation in the criminality of the same action, according as it is committed against the Brahmen, the Cshatriya, the Vaisya, and the Sudra, it is only the excess in the difference of punishment, which is calculated to excite our surprise. With regard to offences committed by individuals of the different ranks, it is rare, even among the rudest people, to find the principle of unequal punishments, expressly avowed; and comparative impunity granted by law to the crimes of the great. Perjury, fraud, defamation, forgery, incest, murder, are not among us reckoned crimes more venial in the lord than in his servant. Among the Hindus, whatever be the crime committed, if it is by a Brahmen, the punishment is in general comparatively slight; if by a man of the military class, it is more severe; if by a man of the mercantile and agricultural class, it is still increased; if by a Sudra, it is violent and cruel. For defamation of a Brahmen, a man of the same class must be fined 12 panas; a man of the military class, 100; a merchant, 150 or 200; but a mechanic or servile man is whipped.1 The general principle on which the penalties for this crime seem to be regulated is, that whatever fine is exacted from a man of the same class by whom you have been accused, one only half as large should be imposed book ii.Chap. 4. upon the man of a superior class, but one double in magnitude, should the cast of the slanderer be inferior to your own. For all the more serious accusations against any of the superior orders the punishment of the Sudra is far more dreadful.1 That the scale of punishment for crimes of assault is graduated by the same rule, the following instance, out of many, will evince. “If a man of superior cast and of superior abilities to another should strike him with a weapon, the magistrate shall fine him 500 puns of cowries. If a man of an equal cast and of equal abilities with another should strike him with a weapon, the magistrate shall fine him 1000 puns of cowries. If a man of an inferior cast and of inferior abilities to another should strike him with a weapon, the magistrate shall fine him 3000 puns of cowries.”2 For perjury, it is only in favor of the Brahmen, that any distinction seems to be admitted. “Let a just prince,” says the ordinance of Menu, “banish men of the three lower classes, if they give false evidence, having first levied the fine; but a Brahmen let him only banish.”3 The punishment of adultery, which on the Brahmens is light, descends with intolerable weight on the lowest classes. In regard to the inferior cases of theft, for which a fine only is the punishment, we meet with a curious exception, the degree of punishment ascending with the class. “The fine of a Sudra for theft, shall be eight fold; that of a Vaisya, sixteen fold; that of a Cshatriya, two and thirty fold; that of a Brahmen, four and sixty fold, or a hundred fold complete, or even twice four and sixty fold.”4 No corporal punishment, much less book ii.Chap. 4. death, can be inflicted on the Brahmen for any crime. “Menu, son of the Self-existent, has named ten places of punishment, which are appropriated to the three lower classes; the part of generation, the belly, the tongue, the two hands; and fifthly, the two feet, the eye, the nose, both ears, the property; and in a capital case, the whole body; but a Brahmen must depart from the realm unhurt in any one of them.”1
Punishment should be proportioned, not to the greatness of the crime, that is, the quantity of suffering it produces, but solely to the difficulty of creating an adequate motive to abstain from it: if a fine of one shilling created a sufficient motive to abstain from the crime of murder, the fine of a shilling would be all the punishment which ought to exist. It must be owned, however, that the principle of punishing crimes, according to their magnitude, very naturally suggests itself; and bears a strong appearance of according with the principles of reason. Even to this early and imperfect principle, the Hindus have never ascended. While perjury, one of the most mischievous of crimes, and one against which an adequate motive is very difficult to create, is punished only with fine, and in its most aggravated cases, with banishment, the crime of obtaining goods on false pretences is punished with mutilation, and even with death. “If a person steals a man of an inferior cast, the magistrate shall fine him 1000 puns of cowries: If he steals an elephant or a horse excellent in all respects, the magistrate shall cut off his hand, and foot, and buttock, and deprive him of life.”2 The following places of the body are enumerated; the ear, the nose, the hand, the foot, the lip, the eye, the book ii.Chap. 4. tongue, and some others; upon any one of which a stroke, such as to separate or cut them off from the body, is punished equally;1 yet surely there is no comparison between the injury of depriving a man of his ear, for example, and of his tongue, or his hand. An amour with a woman of the Brahmenical caste is more dreadfully punished than parricide. Various cases of theft and robbery are accounted worthy of more shocking penalties than murder. Even Sir William Jones is constrained to say that the punishments of the Hindus “are partial and fanciful, for some crimes dreadfully cruel, for others reprehensibly slight.”2
The principal acts erected into punishable offences by the Hindu law are, false witness, defamation, assault, theft, outrage, adultery. The species and degrees of perjury are thus distinguished: “If a witness speak falsely through covetousness, he shall be fined 1000 panas; if through distraction of mind, 250; if through terror, 1000; if through friendship, the same; if through lust, 2,500; if through wrath, 1,500; if through ignorance, 200 complete; if through inattention, 100 only.”3 The laws against reproachful expressions are numerous, and the penalties remarkably severe; a pretty satisfactory proof that the Hindus have always been abusive; as we find they continue to the present day.4 By the term Assault, are indicated the smaller instances of personal book ii.Chap. 4. offence and injury; on which the laws of the Hindus descend to the most minute distinctions and details. In this they present a remarkable agreement with the laws of our Gothic ancestors. Lord Kaimes, observing upon the ancient European mode of satisfying for injuries by money, remarks that “the laws of the Burgundians, of the Salians, of the Almanni, of the Bavarians, of the Ripuarii, of the Saxons, of the Angli and Thuringi, of the Frisians, of the Langobards, and of the Anglo-saxons, are full of these compositions, extending from the most trifling injury to the most atrocious crimes. In perusing the tables of these compositions, which enter into a minute detail of the most trivial offences, a question naturally occurs, why all this scrupulous nicety of adjusting sums to delinquencies? Such a thing is not heard of in later times. But the following answer will give satisfaction:—That resentment, allowed scope among Barbarians, was apt to take flame by the slightest spark; therefore to provide for its gratification, it became necessary to enact compositions for every trifling wrong, such as at present would be the subject of mirth rather than of serious punishment: for example, where the clothes of a woman, bathing in a river, are taken away to expose her nakedness, and where dirty water is thrown upon a woman in the way of contumely.”1 The following orders of crime, in the Hindu code, present a similar, and a very remarkable picture; 1. Throwing upon the body of another, dust, or sand, or clay, or cow-dung, or any thing else of the same kind, or striking with the hand or foot; 2. Throwing upon the body tears, or phlegm, or the paring of one's nails, or the gum of the eyes, or the wax of the ears, or the refuse of victuals, or spittle; 3. Throwing upon another from the navel downwards book ii.Chap. 4. to his foot, spue, or urine, or ordure, or semen; 4. Throwing upon another, from the navel upwards to beneath the neck, any of the substances mentioned in the last article; 5. Throwing upon another any of the same substances from the neck upwards; 6. Assaulting with a stone, or with a piece of iron or wood; 7. Hauling by the foot, or by the hair, or by the hand, or by the clothes; 8. Seizing and binding another in a cloth, and setting one's foot upon him; 9. Raising up an offensive weapon to assault; 10. Striking with a weapon. In all these cases a further distinction is made, as the offence is committed by a superior, an inferior, or an equal, and committed against a man or a woman. The gradations too of wounds are curiously specified; 1. When no blood is shed; 2. When a little blood is shed; 3. When much blood is shed; 4. When a very great quantity; 5. When a bone is broke as well as blood is shed; 6. When a member or organ is struck off or separated.1 Under the title theft, the Hindus include the various species of frauds. In all nations which have made but the first step in civilization; when the means of protecting property are very imperfectly known, and covetousness is a furious passion; the depredations of thieves are always punished with extreme severity. In the Gothic nations of Europe, when the murder even of the King inferred but a pecuniary composition, theft was punished by mutilation and death.2 In the same manner among the Hindus, while murder is punished by the mere loss of life, some of the most atrocious instances of the cruelty of the Hindu laws book ii.Chap. 4. were drawn as above from the punishments awarded to theft.1 The minor cases of theft are punished by fines, and by various degrees of mutilation; but the higher species, by impaling, by burning alive, and by crucifixion. By Outrage; which is sometimes denominated violence, sometimes robbery; are designated, all attacks, accompanied with violence, upon either property or person, including even murder. While the inferior species are punished by fine and by mutilation, the higher are punished by death; and some of the more heinous kinds of spoliation are avenged with all the sanguinary fury which, among the Hindus, has dictated the higher penalties of theft.2 Adultery is a very complicated subject. In the Hindu language it includes every unlawful species of sexual indulgence, from the least, to the most injurious, or offensive. If the laws are any proof of the manners of a people, this article affords indication of one of the most depraved states of the sexual appetite. Almost all the abuses, and all the crimes which it is possible to conceive, are there depicted with curious exactness; and penalties are devised and assigned for every minute diversity and refinement, as for acts the most frequent and familiar. There are even titles of sections in the code which cannot be transcribed with decency, and which depict crimes unknown to European laws.3 In accordance with the general spirit of Eastern nations, among whom an book ii.Chap. 4. extraordinary value is set on the chastity of the women, its more aggravated violations are punished by the most shocking death which human cruelty has probably devised, that of burning on a heated plate of iron. The ramifications of criminality are also pursued to the most minute and trivial acts, and such as, even in the most jealous nations of Europe, would be held perfectly innocent: “He, who talks with the wife of another man at a place of pilgrimage, in a forest or a grove, or at the confluence of rivers, incurs the guilt of an adulterous inclination: to send her flowers or perfumes, to sport and jest with her, to touch her apparel and ornaments, to sit with her on the same couch, are all held adulterous acts book ii.Chap. 4. on his part.”1 Of all crimes, indeed, adultery appears, in the eyes of Hindu lawgivers, to be the greatest; and worthy of the most severe and terrible chastisement. The offences committed with the women of the higher classes by men of the lower are the acts which are looked upon as of greatest atrocity, and which rise in criminality, as the classes recede from one another, till they arrive at last at the adultery of a man of the servile with a woman of the priestly caste; a point beyond which, it is supposed, that human guilt and depravity cannot proceed.2
III. Conformity to the laws of the two preceding orders; denominated, for want of better terms, the Civil and the Penal; is the End: The laws of Judicature are to be regarded in the light of Means to that End. The subject, in its full extent, includes an account of 1. the instruments made use of for producing the fulfilment of the laws of the two former kinds, and 2. the modes of using them.
The instruments made use of among the Hindus, have been already described, in giving an account of the functions of the king; who, with his Brahmen assessors, is the principal instrument. The mode of using the instruments of judicature, or the steps according to which judicature is performed, were there also briefly described. Of the matters which remain, the laws or rules respecting evidence form the only part which it is still useful to describe.
Prior to the general use of writing, the chief species of evidence, applicable to judicial cases, is the speech of witnesses. It is this species which makes the principal figure in the laws of Hindustan to the present age. It is even more than doubtful whether written evidence is at all referred to by the author of the ordinances book ii.Chap. 4. of Menu, though from himself we learn that writing had been applied to laws.1 “On the denial,” says the law, “of a debt which the defendant has in court been required to pay, the plaintiff must call a witness who was present at the place of the loan, or produce other evidence;”2 the gloss of Culluca adds, “a note and the like:”3 but for the use of evidence by writing not a single rule is afterwards adduced, though numerous rules are prescribed for the use of that which is delivered orally; not even a word of allusion to this novel species of evidence appears; and where the various circumstances are enumerated on which the attention of the judge ought to be fixed, while the evidence of speaking witnesses occupies a conspicuous place, the evidence of writings is entirely omitted.4 In the compilations, however, of recent times, as in that made by order of Mr. Hastings and translated by Halhed, the use of written evidence appears; but even there it is treated with a negligence and slightness due to a matter of subordinate importance.
Among the rules for evidence at the lips of witnesses, some are reasonable and good; others are not only the reverse, but indicate a state of ignorance and barbarism. The evidence of three witnesses is required for the decision of any question: “When a man has been brought into court by a suitor for property, the cause shall be decided by the Brahmen who represents the king, having heard three witnesses at book ii.Chap. 4. least.”1 Yet it is declared in another place that “one man, untainted with covetousness, may (in some cases, says the gloss of Culluca) be the sole witness.”2 This apparent contradiction may perhaps be explained by a passage in the Code of Gentoo Laws, where the decision of a cause by the testimony of a single witness is made to depend upon the consent of the litigants.3 Even from this rule the following cases are excepted: “Supposing,” says the law, “a person to lend another money secretly, or secretly to entrust his money to the care of another, in such affairs one single person is a sufficient witness.”4 The different degrees of trustworthiness in different witnesses leads to mischievous rules. “Married housekeepers, men with male issue, inhabitants of the same district, either of the military, the commercial, or the servile class, are competent, when called by the party, to give their evidence.”5 The most fanciful distinction surely that ever was made by an uncultivated mind, is that between the father of male and the father of female offspring, as a source of evidence. The persons held incompetent to bear witness are a very numerous class. “Those must not be admitted who have a pecuniary interest; nor familiar friends; nor menial servants; nor enemies; nor men formerly perjured; nor persons grievously diseased; nor those, who have committed heinous offences. The king cannot be made a witness, nor cooks and the like mean artificers; nor public dancers and singers; nor a priest of deep learning in Scripture; nor a student of the book ii.Chap. 4. Vedas; nor an anchoret secluded from all worldly connexions; nor one wholly dependant; nor one of bad fame; nor one who follows a cruel occupation; nor one who acts openly against the law; nor a decrepit old man; nor a child; nor a wretch of the lowest mixed class; nor one who has lost the organs of sense; nor one extremely grieved; nor one intoxicated; nor a madman; nor one tormented with hunger or thirst; nor one oppressed by fatigue; nor one excited by lust; nor one inflamed by wrath; nor one who has been convicted of theft.”1 Among the persons excluded from the rank of witnesses are the female sex entirely; unless in the case of evidence for others of the same sex. Servants, too, mechanics, and those of the lowest class, are allowed to give evidence for individuals of the same description.2 Brahmens and the king are exempted from the obligation of giving evidence, by way of privilege, though the Brahmens are admitted when they please.3
This enumeration of persons, whose testimony was altogether unfit to be believed, affords a proof of the great difficulty of obtaining true testimony in the age in which it was made; and holds up a dreadful picture of the state of morality to which it could be supposed to be adapted. It indicates, also, by the strange diversity of the cases which it includes, a singular want of discrimination, in the minds by which it was framed. And further; rules for the exclusion of testimony, from any person, not deprived of the ordinary exercise of the human faculties, could, however the vicious effects of custom may preserve them, be introduced, only in an age of great ignorance and barbarity, when the human mind judges in the gross, book ii.Chap. 4. is incapable of nice discriminations, cannot assign the different value which ought to be attached to the testimony of different men, and estimates the weight of a body of evidence by the number, not the trustworthiness, of the people who deliver it.
The introduction of rules for the exclusion of evidence marks the age of false refinement, which is that of semibarbarism, intermediate between the age of true wisdom, and that of primeval ignorance. When the first judges, or arbiters, the heads of families, had to clear up any dispute, they called before them every individual of the little community or family, who appeared to know any thing of the matter, and questioned them all; allowing to the statements, extracted from each, the influence, much or little, or none at all, to which they seemed entitled; and this is the course, which true wisdom would recommend. In an age, however, of false refinement, which aims at excessive accuracy, but, failing in comprehensiveness, applies its rules to part only of a subject when they should include the whole, the makers of laws, perceiving that certain classes of witnesses were apt to give false testimony, and considering that false testimony misleads, resolved immediately that the testimony of such witnesses ought never to be received. Now, if the testimony of the best sort of witness had been a thing which the judges always had at command, in sufficient quantity, this might have been a rational procedure. But as this was very far from being the case; as it very often happens that the testimony of the best sort of witnesses cannot be had, or that they contradict one another; that not only some light, but full and satisfactory light, may often be obtained from the worst sort of witnesses; to determine that certain classes of persons, and among them the persons whose knowledge of the facts is naturally the most complete, shall not be used as witnesses, book ii.Chap. 4. is merely to determine that judicature shall be performed, so far, without evidence; that the judge shall decide without knowledge; and the question of right and wrong, instead of being determined upon all the evidence that can be had, shall be determined upon a part of it only, sometimes a most insignificant part, sometimes hardly any at all.1
One of the strongest characteristics of a rude age, or of a corrupt government, is, to make laws which cannot, or ought not, to be executed; and then to give dispensations for them. “In all cases of violence, of theft and adultery, of defamation and assault,” says the Hindu law, “the judge must not examine too strictly the competence of witnesses.”2
A presumption, of the very weakest kind, is admitted as a full proof, in the following passages: “If a man brings a suit against another, saying, I have book ii.Chap. 4. lent you several articles, and the person answers, I never received one of the articles you mention; in that case, if the plaintiff proves any one of all the articles claimed, to be in the defendant's possession, the magistrate shall cause the whole so claimed to be restored.”1 In cases of infinitely greater importance the same deceitful rule is applied. “If a man hath accused another of the murder of a man, or of a robbery, or of adultery, and should say, You have in several places been guilty of these crimes, and the defendant denies the accusation; in such a case, if the accuser can prove upon the other the commission of any one of these crimes, it shall be a proof of the whole complaint.”
Of all the perverse proceedings of a superstitious mind, which the history of rude nations presents to us, few will be found more at variance with reason, than the establishment of the following law: “The witness, who has given evidence, and to whom within seven days after, a misfortune happens from disease, fire, or the death of a kinsman, shall be condemned to pay the debt and a fine.”2
Though there is no ground on which the infirmities of the human mind are more glaring, and more tenacious of existence, than that of law, it is probable that the annals of legislative absurdity can present nothing which will match a law for the direct encouragement of perjury. “Whenever,” says the ordinance of Menu, “the death of a man, who had been a grievous offender, either of the servile, the commercial, the military, or the sacerdotal class, would be occasioned by true evidence, from the known rigour of the king, even though the fault arose from inadvertence or error, falsehood may be spoken: it is book ii.Chap. 4. even preferable to truth.”1 What a state of justice it is, in which the king may condemn a man to death, for inadvertence or error, and no better remedy is found than the perjury of witnesses? “Whenever a true evidence would deprive a man of his life, in that case, if a false testimony would be the preservation of his life, it is allowable to give such false testimony. If a marriage for any person may be obtained by false witness, such falsehood may be told. If a man by the impulse of lust tells lies to a woman, or if his own life would otherwise be lost, or all the goods of his house spoiled, or if it is for the benefit of a Brahmen, in such affairs falsehood is allowable.”2
The laws respecting written evidence are few, and applied to a very limited number of cases. One distinction is recognized. “A writing,” says the law, “is of two sorts; first, that which a man writes with his own hand; second, that which he procures to be written by another: of these two sorts, that which is written by a man's own hand, even without witnesses, is approved; and that written by another, if void of witnesses, is not approved.”3 The remaining rules apply, almost entirely, to the modes of supplying, by means of the oral, what is at any time defective in the quantity or quality of the matter drawn from the scriptural source.4
Notwithstanding the diversities of appearance book ii.Chap. 4. which, in different ages and countries, human nature puts on, the attentive observer may trace in it an astonishing uniformity with respect to the leading particulars which characterize the different stages of society; and often a surprising coincidence in particular thoughts and observances. The trials by ordeal, in the dark ages of modern Europe; when the decision of the most important questions was abandoned to chance or to fraud; when carrying in the hand a piece of red hot iron, or plunging the arm in boiling water, was deemed a test of innocence; and a painful or fraudulent experiment, supplanting a righteous award, might consign to punishment the most innocent, or save from it the most criminal of men; have been deemed a shocking singularity in the institutions of our barbarous ancestors. This species of evidence holds a high rank in the institutes of the Hindus. There are nine different modes of the trial by ordeal; 1. by the balance; 2. by fire; 3. by water; 4. by poison; 5. by water in which an idol has been washed; 6. by rice; 7. by boiling oil; 8. by red hot iron; 9. by images. The first of these, by the balance, is thus performed. The party accused is placed in the scale, and carefully weighed; after which, he is taken down, the pundits write the substance of the accusation on a piece of paper, and bind it on his forehead. At the end of six minutes he is weighed again, when, if lighter than before, he is pronounced innocent; if heavier, guilty. In the second ordeal, an excavation in the ground, nine hands long, two spans broad, and one span deep, is filled with a fire of pippal wood, into which the party must walk barefooted; proving his guilt, if he is burned; his innocence, if he escapes unhurt. The third species is rather more complicated: the person accused is made to stand in water up to his navel, with a Brahmen by his side; a soldier then shoots three arrows from a book ii.Chap. 4. bow of cane, and a man is dispatched to bring back that which was shot the farthest; as soon as he has taken it up, another man is directed to run from the brink of the water, and at the same instant the party under trial must plunge into it, grasping the foot or the staff of the Brahmen who stands by him: if he remains under the water till the two men with the arrows return, he is innocent; if he comes up, he is guilty. The fourth kind, by poison, is performed two ways: either the party swallows a certain quantity of a poisonous root, and is deemed innocent if no injury ensues; or a particular species of hooded snake is thrown into a deep earthen pot, and along with it a ring, a seal, or a coin. If the man, putting down his naked hand, cannot take this out unbitten by the serpent, he is accounted guilty. The accused, in the fifth species, is made to drink three draughts of the water in which the images of the sun and other deities have been washed; and if within fourteen days he has any indisposition, his crime is considered as proved. When several persons are suspected of theft, they chew, each, a quantity of dried rice, and throw it upon some leaves or bark of a tree; they from whose mouth it comes dry, or stained with blood, are deemed guilty: This is the sixth species of ordeal. In the seventh, a man thrusts his hand into hot oil; and in the eighth he carries an iron ball, or the head of a lance, red hot in his hand; receiving his sentence of innocence or guilt according as he does or does not come off with safety. The ninth species is literally a casting of lots; two images of the gods, one of silver, and one of iron, are thrown into a large earthen jar; or two pictures of a deity, one on white, and the other on black cloth, are rolled up in cow-dung, and thrown into a jar: if the man. book ii.Chap. 4. on putting in his hand, draws out the silver image, or the white picture, he is deemed innocent; if the contrary, guilty. The religious ceremonies with which these trials are performed it would be tedious and unprofitable to relate.1
The qualities desirable in a Body of Law may all be summed up under two comprehensive titles; I. Completeness; II. Exactness.
Completeness has a reference to the matter: Exactness to the form.
I. A body of laws may be said to be Complete, when it includes every thing which it ought to include; that is, when all those rights, the existence of which is calculated to improve the state of society, are created; and all those acts, the hurtfulness of which to the society is so great as to outweigh the cost, in all its senses, necessary for preventing them, are constituted offences.
II. A body of laws may be said to be Exact; 1. when it constitutes nothing a right, and nothing an offence, except those things precisely which are necessary to render it Complete; 2. when it contains no extraneous matter whatsoever; 3. when the aggregate of the powers and privileges which ought to be constituted rights, the aggregate of the acts which book ii.Chap. 4. ought to be constituted offences, are divided and sub-divided into those very parcels or classes, which beyond all others best adapt themselves to the means of securing the one, and preventing the other; 4. when it defines those classes, that is, rights and offences, with the greatest possible clearness and certainty; 5. when it represses crimes with the smallest possible expense of punishment; and 6. when it prescribes the best possible form of a judicatory, and lays down the best possible rules for the judicial functions.
To show in what degree the Hindu law approaches, or recedes from, the standard of Completeness, would require a more extensive survey of the field of law, than consists with the plan of the present work.
That it departs widely from Exactness, in every one of the particulars wherein exactness consists, enough has already been seen to make abundantly apparent. 1. It creates a great many rights which ought to have no existence; and acts, which ought not to be erected into offences, it does so erect in great numbers. 2. It abounds in extraneous matter. 3. The division and arrangement of the matters of law are highly imperfect. 4. The definitions are so far from excluding darkness and doubt that they leave almost every thing indefinite and uncertain. 5. Punishments are not repressed, but abound; while there is the most enormous excess in the quantity of punishment. 6. The form of the judicatory is bad, as are a certain proportion of the rules for the mode of performing the judicial services.
In respect to definitions, the Hindu law is in a state which requires a few words of elucidation. Prior to the art of writing, laws can have little accuracy of definition; because when words are not written, they book ii.Chap. 4. are seldom exactly remembered; and a definition whose words are constantly varying is not, for the purposes of law, a definition at all. Notwithstanding the necessity of writing to produce fixed and accurate definitions in law, the nations of modern Europe have allowed a great proportion of their laws to continue in the unwritten; that is, the traditionary state; the state in which they lay before the art of writing was known. Of these nations, none have kept in that barbarous condition so great a proportion of their law as the English. From the opinion of the Hindus that the Divine Being dictated all their laws, they acknowledge nothing as law but what is found in some one or other of their sacred books. In one sense, therefore, all their laws are written. But as the passages which can be collected from these books leave many parts of the field of law untouched, in these parts the defect must be supplied either by custom, or the momentary will of the judge. Again, as the passages which are collected from these books, even where they touch upon parts of the field of law, do so in expressions to the highest degree vague and indeterminate, they commonly admit of any one of several meanings, and very frequently are contradicted and opposed by one another. When the words in which laws are couched are to a certain degree imperfect, it makes but little difference whether they are written or not: Adhering to the same words is without advantage, when these words secure no sameness in the things which they are made to signify. Further, in modern Europe, the uncertainty adhering to all unwritten laws, that is, laws the words of which have no certainty, is to some degree, though still a very imperfect one, circumscribed and limited, by the writing down of decisions. When, on any particular part of the field, a number of judges have all, with public approbation, book ii.Chap. 4. decided in one way; and when these decisions are recorded and made known, the judge who comes after them has strong motives, both of fear and of hope, not to depart from their example. The degree of certainty, arising from the regard for uniformity, which may thus be produced, is, from its very nature, infinitely inferior to that which is the necessary result of good definitions rendered unalterable by writing. But such as it is, the Hindus are entirely deprived of it. Among them the strength of the human mind has never been sufficient to recommend effectually the preservation, by writing, of the memory of judicial decisions. It has never been sufficient to create such a public regard for uniformity, as to constitute a material motive to a judge. And as kings, and their great deputies, exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What judicature would pronounce was, therefore, almost always uncertain; almost always arbitrary.
In a Judicatory, the qualities desirable are; 1. intelligence; 2. good design: and that is the best judicatory in which the best securities are taken for them. In the judicatories of the Hindus, composed of the king and his Brahmens, or the Brahmens alone, there is no security for either the one or the other; and accordingly neither the one nor the other almost ever appears.
The qualities desirable in the forms of judicial procedure, are, 1. efficiency; 2. freedom from delay; 3. freedom from trouble and expense. In these several respects the system of the Hindus displayed a degree of excellence not only far beyond itself in the other branches of law, but far beyond what is exemplified in more enlightened countries. 1. The book ii.Chap. 4. efficiency of the Hindu system of judicial procedure is chiefly impaired by those rules of evidence the badness of which has already been pointed out: 2. For preventing delay, it enjoys every requisite, in its method of immediate, direct, and simple investigation: 3. In the same method is included all that is requisite for obtaining the judicial services with the smallest portion of trouble and expense.1
[1.]Examine that important specimen of an original Hindu book of law, the Institutes of Menu. See too the confession of Mr. Colebrooke in the preface to his translation of the Digest of Hindu Law on Contracts and Successions; a work compiled a few years ago, under authority of the English government, by some of the most learned and respectable of the Brahmens.
[1.]Laws of Menu, ch. viii. The division and arrangement of the same subject, in the compilation translated by Mr. Halhed, are very similar, as will appear by the following titles of the chapters:—1. Of lending and borrowing; 2. Division of inheritable property; 3. Of justice; 4. Trust or deposit; 5. Selling a stranger's property; 6. Of shares; 7. Ahenation by gift; 8. Of servitude; 9. Of wages; 10. Of rent or hire; 11. Purchase or sale; 12. Boundaries or limits; 13. Shares in the cultivation of land; 14. Of cities, towns, and of the fines for damaging a crop; 15. Scandalous and bitter expressions; 16. Of assaults; 17. Theft; 18. Violence; 19. Adultery; 20. Of what concerns women; 21. Of sundry articles. In the elaborate Digest on the subject of Contracts and Inheritances, which has been translated by Mr. Colebrooke, the titles of the books, as far as they extend, coincide exactly with the titles in the Institutes of Menu; thus, Book 1. On loans, and their payment; Book 2. On deposits; Book 3. On the nonperformance of agreements; Book 4. On the duties of man and wife. The part of the work which relates to inheritance is included in one book, and is the same with the 17th title enumerated in the Institutes of Menu.
[1.]The Romans, by the ambiguity of their word jura, which signified either rights or laws, were enabled to use, without manifest impropriety, such expressions as, jura of persons, and jura of things: for though it was absurd to talk of the rights of things, things having a right to nothing, yet it was not absurd to talk of the laws of things. In their expressions jura personarum and jura rerum, there was, therefore, only confusion of ideas, and ambiguity. The English lawyers, from two of their characteristic properties, blind imitation, and the incapacity of clearing confused ideas, have adopted the same division; though in their set of phrases, rights of persons, and rights of things, there is not only confusion and ambiguity, but gross absurdity.
[1.]A very odd attempt at a further generalization upon the first nine titles appears in Mr. Colebrooke's Digest. His first book, On Loans, corresponds exactly with the first title in the Institutes of Menu. His second book, On Deposits, is divided into four chapters, which are exactly the 2d, 3d, 4th, and 5th titles in the list of Menu. His third book, which is entitled, “On the Nonperformance of Agreements,” is divided into four chapters, and these are the same with the four succeeding titles in the classification of Menu.—1. Loans, 2. Deposits, 3. Nonperformance of agreements: These, according to the logic of the Digest, are the grand classes of contracts, and the titles which belong to them. The last of the titles, it is evident, cannot belong to any particular class: Nonperformance is incident to all classes of contracts. Either, therefore, this is an improper title altogether, or it ought to stand as the title of the whole subject of contracts: and then Nonperformance of Agreements would include, loans, deposits, and every thing else. Under Deposits the Digest includes the following sub-titles: 1. Deposits, and other bailments; 2. Sale without ownership; 3. Concerns among partners; 4. Subtraction of gifts: of which the last two have no more to do with deposits than they have with loans, or any the most remote branch of the subject; and the second is either a part of the first, and ought to have been included under it, as relating to the sale of things deposited, or that also has no connexion with the title. Let us next contemplate the sub-titles included under Nonperformance of Agreements. They are, 1. Nonpayment of wages or hire; 2. Nonperformance of agreements, chiefly in association; 3. Rescission of purchase and sale; 4. Disputes between master and herdsman: As if these included all the agreements of which there could be nonperformance. The first and last of them, moreover, are the same thing, or the last is a portion of the first. It is needless to carry the criticism farther.
[1.]It is curious, though some what humbling, to observe how far great men may let authority mislead them. “The articles,” says Dr. Robertson, “of which the Hindu code is composed, are arranged in natural and luminous order.” Disquisition concerning India, Appendix, p. 217.
[1.]Lord Kames, Historical Law Tracts, p. 123, 154. Grotius de Jure Belli ac Pacis, lib. II. cap. ii. 2. Blackstone's Commentaries on the Laws of England, book II. c. i. The annotator on some of the late editions of Blackstone differs from the doctrine in the text. But that writer seems to have mistaken an important circumstance, carefully attended to by the great lawyers quoted above, that when the commodities of the earth began to be appropriated they were not without owners, but the common property of the race at large.
[1.]L. L. Ethel. 10, 12. L. L. Edg. Hickes. Dissert. p. 30.
[3.]Ch. viii. 202.
[1.]A curious enumeration of the cases in which the property of one man is so incorporated with that of another as to be inseparable, is given in the Roman law, under the head of Accessio: Inclusio, adferruminatio, intextura, inædificatio, scriptura, pictura, specificatio, commixtio, et confusio.
[2.]Laws of Menu, ch. viii. 222, 223. See also Halhed's Code of Gentoo Laws, ch. xi. and Mr. Colebrooke's Digest of Hindu Law, book III. ch. iii.
[3.]Ib. 401, 402. It is worthy of remark that this was a regulation too among the ancient Britons. Leges Wallicæ, lib. iii. 247. Henry's Hist. Brit. iv. 202.
[1.]Laws of Menu, ch. viii. 224 to 227.
[2.]See Laws of Menu, ch. viii.; Halhed's Gentoo Code, iv.; Colebrooke's Digest, book II. ch. i.; Heineccii Pandect. pars III. lib. xvi. tit. 3, on the subject of deposits, and the importance of this class of transactions in the early days of Rome, with the causes of that importance.
[1.]Laws of Menu, ch. viii. 189.
[2.]The language of English law in the case of this contract is defective, and a source of confusion. In the case of other contracts, it has one name for the act of one of the parties, another name for that of the other. Thus, in the case of exchange, one of the parties is said to sell, the other to buy; in that of a loan, one of the parties is said to lend, the other to borrow. In the present case, it often uses but one name for the acts of both parties; he who gives, and he who receives, the use, being both said to hire. The Civilians are saved from this inconvenience by the use of the Latin language; in which the act of the one party is termed locatio, that of the other conductio. To let and to hiro, if uniformly employed, would answer the same purpose in English.
[3.]Institut. Justin. lib. in. tit. 25. Locatio et conductio proxima est emptioni et venditioni, iisdemque juris regulis consistit.
[4.]The simplicity of some of the enactments provokes a smile; “If a person hath hired any thing for a stipulated time he shall pay the rent accordingly.” (Gentoo Code, x.) Again, “If a person, having agreed for the rent of the water of a pool, or of the water of a well, or of the water of a river, or of a house, does not pay it, the magistrate shall cause such rent and hire to be paid.” Ibid.
[1.]If a hired servant perform not his work according to agreement, he shall be fined, and forfeit his wages. What he has been prevented by sickness from performing, he is allowed to execute after he is well; but if he leaves unfinished, either by himself or a substitute, any part of the stipulated service, however small, he is deprived of the hire for the whole. One branch of this subject, the obligations between masters, and the servants who tend their cattle, is of so much importance, denoting a state of society approaching the pastoral, as to constitute a whole title of Hindu law. The principal object is to define those injuries accruing to the cattle, and those trespasses committed by them, for which the keeper is responsible. Laws of Menu, ch. viii. 214 to 218, and 229 to 244. Halhed's Gentoo Code, viii, ix. Colebrooke's Digest, book III. ch. ii. and iv.
[1.]Laws of Menu, ch. vii. Halhed's Gentoo Code, ch. i. sect. 2. Colebrooke's Digest, part I. book I. ch. iii.
[2.]Laws of Menu, ch. viii. Colebrooke's Digest, part I. book I. ch. iv. Halhed's Gentoo Code, ch. i. sect. 3.
[3.]It was perfectly familiar to the Jews at the time of their departure from Egypt; Deuteron. ch. xxiii. 20.
[4.]Laws of Menu, viii. 151.
[1.]Halhed, Preface to the Code of Gentoo Laws, p. 53.
[2.]“Thou shalt not lend upon usury to thy brother, usury of money, usury of victuals, usury of any thing that is lent upon usury. Unto a stranger thou mayest lend upon usury.” Deuteron. xxiii. 19, 20.
[1.]The tribes of Burren Sanker, that is, all the mixed classes, pay at the rate of one in sixteen (or rather more than six per cent.) per month. Halhed's Gentoo Code, ch. i. sect. 1.
[2.]It is curious that this too was a law of Egypt, at least in regard to loans upon security. Diod. Sic. lib. i. cap. 79. Goguet's Origin of Laws, part III. book I. ch. iv.
[3.]For the details respecting the law of interest, consult Laws of Menu, ch. viii. 140 to 154. Halhed's Gentoo Code, ch. 1. sect. 1. Colebrooke's Digest, part I. book I. ch. ii.
[1.]This mode of personal seizure had place at an early age among the Egyptians; but they made sufficient advancement to abolish it. A law of king Bocchoris permitted the creditor to seize only the goods of his debtor for payment. Diod. Sic. lib. i. p. 90.
[2.]Colebrooke's Digest, part I. book I. ch. vi. sect. 240, 241.
[1.]For the laws respecting recovery of debt, see Laws of Menu, ch. viii. Halhed's Gentoo Code, ch. i. sect. 5. Colebrooke's Digest, part I. book I. ch. lvi.
[2.]Laws of Menu, viii. 139.
[1.]See an account of the practice of sitting in dherna, by Sir John Shore (Lord Teignmouth), Asiat. Researches, iv. 330 to 332. He tells us that, since the institution of the court of justice at Benares in 1783, the practice has been less frequent, but that even the interference of that court and of the resident had occasionally been unable to check it. He tells us, too, that some of the pundits, when consulted, declared the validity to such claims as are just: others denied its validity, except where the party confirmed the engagement after the coercion is withdrawn. But it is evident that these restrictions are inconsistent with the facts which Lord Teigumouth records, and are mere attempts of the pundits, according to their usual practice, to interpret their laws into as great a coincidence as possible with the ideas of the great persons by whom the questions are put to them. A regulation was made by the Bengal government in 1795 for preventing this practice. See papers, ordered to be printed by the House of Commons, 3d June, 1813, p. 431. See also Broughton's Mhratta Camp, p. 42.
[1.]“Among barbarians in all parts of the world, persons who belong to the same family are understood to enjoy a community of goods. In those early ages, when men are in a great measure strangers to commerce or the alienation of commodities, the right of property is hardly distinguished from the right of using or possessing; and those persons who have acquired the joint-possession of any subject are apt to be regarded as the joint proprietors of it.” Millar on the English government, i. 190.
[2.]The whole too of that Title of law, “Concerns among partners,” refers not so much to a joint-stock property, contributed by certain individuals for carrying on any particular business, as to the property of a number of persons, most commonly brothers or other near relations, who agree to live together, and to have all their effects in common. The multitude of the laws proves the frequency of the transactions.—The old law of inheritance among the Romans was altogether founded upon the same ideas. Fundamentum successionis veteris erat conservatio familiarum. Familia enim universitas quædam videbatur, cujus princeps est paterfamilias.—Quum ergo proximi in familia essent liberi vel sui heredes, tanquam vivo patre, quodammodo domini et [WW] legibus xii. tabularum cautum fuerat; SI INTESTATO MORITUR CUI SUUS HERES NEC ESCIT, AGNATUS PROXIMUS FAMILIAM HABETO. Heinec. in lnst. lib iii. tit. i. sect. 690.
[1.]Laws of Menu, ch. ix. 105.
[2.]Colebrooke's Digest, part II. book V. ch. iii. sect. 114.
[3.]Halhed's Gentoo Code, ch. ii. sect. 11. Colebrooke's Digest, part II. book V. ch. ii. Mr. Halhed has remarked that the demand of the prodigal son in the Gospel for his portion, affords proof of a similar state of things among the Jews. The attentive reader will perceive many other strokes of resemblance. All the more cultivated nations of Asia appear to have reached a stage of society nearly the same.
[4.]Colebrooke's Digest, book V. ch. i. sect 2, subsect. 34. Halhed's Gentoo Code, ch. ii. sect. 12.
[1.]Colebrooke's Digest, part II. book V. ch. 3, subsect. 115, 116, ch. i. sect. 2, subsect. 34.
[2.]Laws of Menu, ch. ix. 214.
[3.]“When there are two sacred texts, apparently inconsistent, both are held to be law, for both are pronounced by the wise to be valid and reconcileable. Thus in the Veda are these texts: Let the sacrifice be when the sun has arisen, and before it has risen, and when neither sun nor stars can be seen: The sacrifice therefore may be performed at any or all of those times.” Ib. ii. 14, 15.
[1.]Laws of Menu, ch. ix. 188.
[3.]Colebrooke's Digest, part II. book V. ch. v. sect 320, 321, 325, 329, 331. In Halhed's Gentoo Code they are thus enumerated; one born an eunuch, blund, deaf, dumb, without hand or foot, or nose, or tongue, or privy member or fundament, and one who has no principle of religion, as well as the victims of various diseases. Gentoo Code, ch. ii. sect 5. The law is thus stated in the Institutes of Menu; eunuchs and outcasts, persons born blind or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage. But it is just, that the heir who knows his duty should give all of them food and raiment. Laws of Menu, viii. 201, 202.
[4.]Laws of Menu, viii. 149, &c. Halhed's Gentoo Code, ch. ii. sect. 2. Colebrooke's Digest, part II. book V. ch. vii.
[5.]The appearance of accuracy given by minuteness of detail has sometimes been quoted as a proof of refined knowledge; but it is a proof of the very reverse. Henry tells us (Hist. of Britain, i. 320) that the laws of the Druids provided with great care for the equitable division of the effects of the family according to the circumstances of every case. The ancient laws of Wales descend to very long and particular details on this subject, and make provision for every possible case with the most minute exactness. Leges Wallicæ, lib. ii. de mulieribus, cap. i. p. 70. The refinement and niceties of the Mahomedan law of succession are perhaps still more remarkable. See Mahomedan law of succession, Works of Sir William Jones, iii. 467, and the Al Sirajiyyah, with Sir William's Commentary, Ib. 505. In fact, the want of skill to ascend to a general expression, or rule, which would accurately include the different ramifications of the subject, is that which gives occasion to this minuteness of detail.
[1.]Those who are unmarried at the death of the father are directed to receive portions out of their brothers’ allotments, Laws of Menu, ix. 118.
[2.]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.” Ib. ch. viii. 416.
[3.]Ib. ch. ix. 192 to 197. Colebrooke's Digest, part II. book V. ch. ix.
[1.]Kames's Historical Law Tracts, i. 162.
[2.]Impressed, when I began to study the history and character of the Hindus, with the loud encomiums I had been accustomed to hear on their attainments, and particularly their laws; which were represented as indicating a high state of civilization; this fact, which is broadly stated by Mr. Halhed, (Preface to the Gentoo Code, p. liii.) very forcibly struck me. Rude as the Arabs were at the time of Mahomed, their ideas of property included the right of devising by will. See Koran, chap. 5.
[3.]Historical Law Tracts, i. 159. How like is this regulation of the Burgundians to the rules among the Hindus for division of property to the sons during the father's life-time?
[1.]Halhed's Gentoo Code, ch. vii.
[1.]Gibbon's History of the Decl. and Fall of the Roman Empire, ch. xliv.
[2.]See the Books of Moses, passim.
[1.]Diod. Sic. lib. i. p. 88.
[2.]Wilkins, Leg. Sax. p. 2. to 20. Mr. Turner, History of the Anglo-saxons, says, book XI. ch. viii. “The most popular of the legal punishments were the pecuniary mulcts. But as the imperfection and inutility of these could not be always disguised—as they were sometimes impunity to the rich, who could afford them, and to the poor who had nothing to pay them with, other punishments were enacted. Among these we find imprisonment, outlawry, banishments, slavery, and transportation. In other cases, we have whipping, branding, the pillory, amputation of limb, mutilation of the nose and ears, and lips, the eyes plucked out, hair torn off, stoning, and hanging. Nations not civilized have barbarous punishments.”
[3.]Charge to the Grand Jury of Calcutta, Dec. 4, 1788, Sir Wm. Jones's Works, iii. 26. Of this feature of their laws, a few examples will impress a lively conception. “The most pernicious of all deceivers,” says the law of Menu, “is a goldsmith who commits frauds; the king shall order him to be cut piecemeal with razors.” Laws of Menu, ch. ix. 292. “Should a wife, proud of her family and the great qualities of her kinsmen, actually violate the duty which she owes to her lord, let the king condemn her to be devoured by dogs in a place much frequented; and let him place the adulterer on an iron bed well heated, under which the executioners shall throw logs continually, till the sinful wretch be there burned to death.” Ib. viii. 371, 372. “If a woman murders her spiritual guide, or her husband, or her son, the magistrate, having cut off her ears, her nose, her hands, and her lips, shall expose her to be killed by cows.” Halhed's Gentoo Code, ch. xxi. sect. 10. “Of robbers, who break a wall or partition, and commit theft in the night, let the prince order the hands to be lopped off, and themselves to be fixed on a sharp stake. Two fingers of a cutpurse, the thumb and the index, let him cause to be amputated on his first conviction; on the second, one hand and one foot; on the third, he shall suffer death.” Laws of Menu, ix. 276, 277. “A thief who, by plundering in his own country, spoils the province, the magistrate shall crucify, and confiscate his goods; if he robs in another kingdom he shall not confiscate his possessions, but shall crucify him. If a man steals any man of a superior caste, the magistrate shall bind the grass beena round his body, and burn him with fire; if he steals a woman of a superior caste, the magistrate shall cause him to be stretched out upon a hot plate of iron, and, having bound the grass beena round his body, shall burn him in the fire. If a man steals an elephant or a horse, excellent in all respects, the magistrate shall cut off his hand, and foot, and buttock, and deprive him of life. If a man steals an elephant or a horse of small account, or a camel or a cow, the magistrate shall cut off from him one hand and one foot. If a man steals a goat or a sheep, the magistrate shall cut off one of his hands. If a man steals any small animal, exclusive of the cat and the weasel, the magistrate shall cut off half his foot.” Halhed's Gentoo Code, ch. xvii. sect. 3. “If a man sets fire to the tillage or plantation of another, or sets fire to a house or to a granary, or to any uninhabited spot where there is much fruit or flowers, the magistrate, having bound that person's body in the grass beena, shall burn him with fire.” Ib. xviii. “For boring the nostrils of cows belonging to priests, the offender shall instantly lose half of one foot. Laws of Menu, ch. viii. 325. The same system of mutilation prevailed in Persia. Xenophon, describing the Persian punishments, says, . Xenoph. Cyropæd. lib. i. p. 92. The common mode of hanging is thus described by an eye-witness: “A hook is fixed to one end of the rope, and this hook the executioner forces with all his strength into the flesh below the criminal's chin; he is then hoisted up, and the other end of the rope is made fast to the gallows.” Bartolomeo's Travels, book II. ch. v. “If a magistrate has committed a crime, and any person, upon discovery of that crime, should beat and ill-use the magistrate, the magistrate shall thrust an iron spit through him and roast him at the fire.” Halhed's Gentoo Code, ch. xvi. sect. 1.
[1.]“The inhuman and unequal principle of retaliation,” says Mr. Gibbon, Hist. of Decl. and Fall of the Rom. Emp. ch. xhv.
[1.]Strabo, lib. vi. p. 398. Potter's Antiq. book I. ch. xxvi. Blackstone's Commentaries, book IV. ch. i.
[2.]Diod. Sic. lib. i. p. 88, 89.
[1.]Laws of Menu, ch. viii. 279. In a style characteristically Hindu, the following, among other cases, are specified; when a man spits on another, when he urines on him, and when he breaks wind on him. The penalties I choose not to describe. See the same chapter, 280 to 284.
[2.]Halhed's Code of Gentoo Laws, ch. xvi. sect. 1.
[5.]Laws of Menu, ch. viii. 270 to 273.
[1.]Laws of Menu, ch. viii, 268.
[4.]Ib; ix, 279.
[1.]There is in one passage of Menu, ch. viii. 126, an incidental exhortation to the judge, not to be regardless of the ability of the sufferer in the infliction of corporal or other punishment; and it is impossible but some regard must have been paid to it in practice: but defined sums are in almost all cases affixed to specific crimes, without the smallest reference to the ability of the payer.
[2.]The orthodox judge, Blackstone, as Mr. Gibbon very significantly denominates him, (See Hist. Decl. and Fall, &c. ch. xliv. n. 145) is quite an advocate for the superior criminality of an injury to a man of a superior rank. “If a nobleman strikes a peasant,” says he, “all mankind will see, that, if a court of justice awards a return of the blow, it is more than a just compensation. The execution of a needy, decrepid assassin, is a poor satisfaction for the murder of a nobleman, in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune.” Commentaries on the Laws of England, book IV. ch. i.
[1.]Laws of Menu, ch. viii. 260, 267.
[1.]Code of Gentoo Laws, ch. xv. sect. 2. Vide supra, p. 166.
[2.]Ib. xvi. sect. 1.
[3.]Laws of Menu, ch. viii. 123.
[4.]Ib. 337, 338.
[1.]Laws of Menu, ch. viii. 124, 125.
[2.]Halhed's Gentoo Code, ch. xvii. sect. 3.
[1.]Halhed's Gentoo Code, ch. xvi. sect. 1.
[2.]Preface to the Translation of the Institutes of Menu, Sir Wm. Jones's Works, iii. 62.
[3.]Laws of Menu, ch. viii. 120, 121. Where the language of the text specifies the fine by naming it technically in the order of amercements, I have stated the sum, that the reader might see at a glance the proportions.
[4.]See the Chapter on Manners.
[1.]Historical Law Tracts, i. 49, 50.
[1.]See the Article Assault in the Code of Gentoo Laws, ch. xvi. sect. 1. Laws of Menu, ch. viii. 279 to 301.
[2.]See Kames's Historical Law Tracts, i. 63, and the authorities there quoted.
[1.]Supra, p. 218, 219.
[2.]Laws of Menu, ch. viii. 344 to 348. Code of Gentoo Laws, ch. xviii.
[3.]Mr. Halhed makes so curious an apology for this article in his preface to the Code of Gentoo Laws, p. lxiii. that I am tempted to transcribe it: “The nineteenth and twentieth chapters,” says he, “present us a lively picture of Asiatic manners, and in them a strong proof of their originality. To men of liberal and candid sentiments, neither the grossness of the portrait nor the harshness of the colouring, will seem improper or indecent, while they are convinced of the truth of the resemblance; and if this compilation does not exhibit mankind as they might have been, or as they ought to have been, this answer is plain, ‘Because it paints them as they were.’—Vices, as well as fashions, have their spring and their fall, not with individuals only, but in whole nations, when one reigning foible for a while swallows up the rest, and then retires in its turn to make room for the epidemic influence of a newer passion. Wherefore, if any opinions, not reconcileable to our modes of thinking, or any crimes not practised, and so not prohibited among us, should occur in these chapters, they must be imputed to the different effects produced on the human mind by a difference of climates, costoms, and manners, which will constantly give a particular turn and bias to the national vices.—Hence it would be a weak and frivolous argument for censuring the fifth section of this nineteenth chapter, to object that it was levelled at an offence absurd in itself, not likely to be frequent, or supposing it frequent, still to be deemed of trivial consequence; and to make this objection merely in consideration that the offence may not be usual among us, and has certainly never been forbidden by our legislature, such cavils would betray a great ignorance of the general system of human nature, as well as of the common principles of legislation; for penal laws (except for the most ordinary crimes) are not enacted until particular instances of offence have pointed out their absolute necessity; for which reason parricide was not specified among the original institutes of the celebrated lawgiver of Sparta. Hence we may with safety conclude, that the several prohibitions and penalties of this fifth section were subsequent to, and in consequence of, the commission of every species of enormity therein described.”—Mr. Halhed here maintains with very cogent reasons, though rather an unskilful style, that the Hindu morals are certainly as gross as the Hindu laws; that the latter grossness is, in fact, the result of the former.
[1.]Laws of Menu, ch. viii. 356, 357.
[2.]Ib. 352 to 386. Code of Gentoo Laws, ch. xix.
[1.]Laws of Menu, ch. viii. 3.
[4.]“Let him fully consider the nature of truth, the state of the case, and his own person; and next, the witnesses, the place, the mode and the time.” Ib. 45. From these circumstances it is probable that the emendation of the commentator has been added from the more enlarged knowledge of later times.
[1.]Laws of Menu, ch. viii. 60. The same law is stated still more generally and absolutely, in the Gentoo Code, ch. iii. sect. 8.
[2.]Laws of Menu, ch. viii. 77.
[3.]Halhed's Gentoo Code, ch. iii. sect. 8. “If the plaintiff or defendant, at their own option, appoint a single person only, not fraudulently inclined, &c. he may be a witness.”
[5.]Laws of Menu, ch. viii. 62.
[1.]Laws of Menu, ch. viii, 64 to 67.
[3.]Ib. 69, 70, 71.
[1.]“If,” says Mr. Hume, “the manner of punishing crimes among the Anglosaxons appear singular, the proofs were not less so: and were also the natural result of the situation of those people. Whatever we may imagine concerning the usual truth and sincerity of men who live in a rude and barbarous state, there is much more falsehood, and even perjury, among them, than among civilized nations: Virtue, which is nothing but a more enlarged and more cultivated reason, never flourishes to any degree, nor is founded on steady principles of honour, except where a good education becomes general; and where men are taught the pernicious consequences of vice, treachery, and immorality. Even superstition, though more prevalent among ignorant nations, is but a poor supply for the defects in knowledge and education: Our European ancestors, who employed every moment the expedient of swearing on extraordinary crosses and reliques, were less honourable in all engagements than their posterity, who, from experience, have omitted those ineffectual securities. This general proneness to perjury was much increased by the usual want of discernment in judges, who could not discuss an intricate evidence, and were obliged to number, not weigh, the testimony of witnesses.” History of England, Appendix I.
[1.]Code of Gentoo Laws, ch iii. sect. 6, p. 107.
[2.]Laws of Menu, ch. viii.
[1.]Laws of Menu, ch. viii. sect. 104.
[2.]Halhed's Gentoo Code, ch. iii. sect. 9.
[4.]We know that grants of land by their princes were made in writing; and sunnuds, pottabs, and other writings, of legal import are numerous in modern times. That so little of them is indicated in the more ancient books of law, implies a ruder period of society; though, doubtless, we cannot be sure of their being as destitute of legal writings as the few, which we possess, of their ancient monuments would give reason to suppose.
[1.]For a full account both of the law and the practice respecting the trial by ordeal, see a discourse “On the Trial by Ordeal among the Hindus, by Ali Ibrahim Khan, chief magistrate at Benares,” in the Asiat. Researches, i. 389. See too the Institutes of Menu, ch. viii. 114, 115, 190; Mr. Halhed's Code of Gentoo Laws, ch. iii. sect. 6, ch. ii. sect. 15, ch. xvii. sect. 4, ch xviii., and the Translator's preface, p. 55, 56. Dr. Buchanan informs us of a shocking species of ordeal in use, in some places, in regard to those, “who, having had sexual intercourse with a person of another cast, allege that it was by mistake. If the criminal be a woman, melted lead is poured into her private parts; if it be a man, a red hot iron is thrust up. Should they be innocent it is supposed that they will not be injured.” Journey through the Mysore, Canara, and Malabar, under the orders of Marquis Wellesley, i. 307. According to Kœmpfer, the Japanese too use a species of ordeal for the discovery of guilt: History of Japan, ch. v. 236.
[1.]One of the most recent witnesses of the phenomena of Hindu society, who possessed extraordinary means of accurate knowledge, speaks in general upon the administration of justice among the Hindus in the following terms.