Indian Usage and Judge-Made Law in Madras, by J. H. Nelson

That's French for "the ancient system," as in the ancient system of feudal privileges and the exercise of autocratic power over the peasants. The ancien regime never goes away, like vampires and dinosaur bones they are always hidden in the earth, exercising a mysterious influence. It is not paranoia to believe that the elites scheme against the common man. Inform yourself about their schemes here.

Indian Usage and Judge-Made Law in Madras, by J. H. Nelson

Postby admin » Fri Sep 10, 2021 5:54 am

Indian Usage and Judge-Made Law in Madras
by James Henry Nelson, M.A.
Some Time Fellow of King's College, Cambridge: of the Middle Temple Barrister-At-Law: A District Judge in Madras: Author of 'A View of the Hindu Law' "The Scientific Study of the Hindu Law' Etc.
1887

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James Henry Nelson who was active in various locations in South India, was unhappy administering the Hindu law created by Jones and other Sanskrit scholars in faraway Calcutta (on Nelson see Derrett 1961: 354-372). He raised the question. "Has such a thing as 'Hindu Law' at any time existed in the world? Or is it that 'Hindu Law' is a mere phantom of the brain, imagined by Sanskritists without law and lawyers without Sanskrit?" (Nelson 1877: 2).

Nelson questioned not only the reliability of the Manusmrti as a source of law, but the existence of Manu himself: "If he at any time existed ... , which is most unlikely, Manu cannot be supposed to have set laws to India" (4).

And he continued:

Assuming however, for argument's sake that a man named Manu once existed and set laws to men ..., it must ... be conceded that he set them only to certain masses of men abiding in and about part of the Punjab, namely to certain Arya tribes or families and in some instances also to certain tribes or families styled Sudras. Now: whether a remnant of any one of those tribes or families still exists in any part of India of course is exceedingly doubtful. And whether a remnant of any one of them existed at any time within the limits of the Madras Province, except perhaps on the Western Coast, is still more doubtful.


-- Chapter 4: Law Books in an Oral Culture: The Indian Dharmasastras, Excerpt from "Studies in Hindu Law and Dharmaśastra", by Ludo Rocher


The usage of the country, or common law of the Hindoos, is very different from the written law, which is in a great measure obsolete among themselves. Before the introduction of a new code, we ought to have employed men qualified to collect all that could be found of usage or Hindoo common law. Many of the rules would have appeared trifling and absurd, and even contradictory, but from the whole a system might have been formed much better adapted to the genius and condition of the people than our theoretical code.

-- Sir Thomas Munro


Contents: [PDF HERE: -- Indian Usage and Judge-Made Law in Madras, by J.H. Nelson, M.A.]

• PRESS NOTICES
• PART I. INDIAN USAGE
o I. INTRODUCTORY
o II. 'USAGE IS HIGHEST DHARMA'
o III. 'REASONS FROM LOCAL USAGE AND THE CASTRAS'
o IV. THE MRICCHAKATIKA
o V. OBSERVATIONS ON NARADA
o VI. HALHED's CODE OF GENTOO LAWS
o VII. THE KAMA-SUTRA OF VATSYAYANA
o VIII. THE JOINT FAMILY
• PART II. OLD JUDGE- MADE LAW
o I. SCHOOLS OF HINDU LAW
o II. THE LAW FOR NON-BRAHMANS
o III. CUSTOMS NOT JUDICIALLY RECOGNISED
o IV. UNION IN THE HINDU FAMILY
o V. ON THE SON COMPELLING THE FATHER TO DIVIDE
o VI. ON A COPARCENER ALIENING JOINT PROPERTY
o VII. PRESUMPTIONS IN FAVOUR OF INFANTS
o VIII. THE WIDOW'S RIGHT
o IX. ZAMINDARIS NOT IMPARTIBLE
o X. PERSONS TO BE ADOPTED
o XI. FABRICATED LAW-BOOKS
o XII. ADOPTION BY A WIDOW
o XIII. A SUMMARY
• PART III. CHAOS.
o I. INTRODUCTORY
o II. THE FIRST HALF-DOZEN CASES
o III. THE CRISIS OF 1881
o IV. RETROGRESSION IN 1882
o V. THE PRIVY COUNCIL ON THE SIVAGIRI CASE
o VI. MOVING FORWARD AGAIN?
o VII. A SUMMARY. CONCLUSION.
• INDEX
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Re: Indian Usage and Judge-Made Law in Madras, by J. H. Nels

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PRESS NOTICES.

'If the bench of India is adorned with many men equal in talent and learning to Mr. Nelson, that country must be singularly fortunate in her judges. The work before us is one of the most remarkable we have ever read. The author of it displays prodigious natural acumen, great research, a liberal and unprejudiced spirit, and withal a modesty and courtesy towards those whose theories he denies, such as are rarely observed in a writer who could justly claim to use a more audacious style. It is evident that Mr. Nelson has received rare gifts from nature, and has laboured to utilise them. Our only regret is that his manifest judicial faculties are not exercised in a sphere of higher importance than in a district of the least of the three Presidencies.'— Law Journal, Nov. 19, 1881.

'All well-wishers to the Madras Presidency must welcome Mr. Nelson's new work.'— Academy.

'The technical and unattractive title of Mr. Nelson's book conceals a critical essay on a subject of considerable social and political importance.' —Saturday Review.

'Mr. Nelson's inquiries and arguments bear on their face the evidence of deep research, of original and powerful thought, of anxious and conscientious deliberation.'— Indian Mail.

'Much attention is deserved by the two works of Mr. Nelson.' —Sir H. S. Maine (in Early Law and Custom).

'J'ai commence ce compte-rendu avec l'intention de dire beaucoup de bien de ce livre et je m'apercois, en finissant, que je n'ai guere fait que le critiquer. Mon opinion sur l'ouvrage n'a pourtant pas change en chemin. Je le crois toujours encore juste, et vrai dans le fond, en progres quant a la facon d'envisager ces etudes, plein d'idees et suitout d'intentions excellentes, eminemment utile.' [Google translate: 'I started this review with the intention of saying a lot of good about this book and I realize, by finishing, that I have done little more than criticize it. My opinion on the work did not however change along the way. I still believe it still correct, and fundamentally true, in progress in the way of considering these studies, full of ideas and following out of excellent intentions, eminently useful.'] — Professor Barth (in Revue Critique).
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Re: Indian Usage and Judge-Made Law in Madras, by J. H. Nels

Postby admin » Fri Sep 10, 2021 6:02 am

INDIAN USAGE

PART I.

CHAPTER I. INTRODUCTORY.


In 1882, about a year after the publication of my Prospectus of the Scientific Study of the Hindu Law, Mr. Justice Innes, then one of the puisne judges of the High Court of Judicature at Madras, and one justly esteemed for his great experience, learning, and ability, addressed to the Governor of Madras, Mr. (now Sir M. E.) Grant-Duff, a printed letter of 110 pages, in which he did me the honour of inviting earnest attention to my published writings on the matter of Hindu law as administered at Madras, and, in particular, strongly denounced the commission that I had 'demanded,' as being 'not necessary or desirable,' but, on the contrary, calculated to 'be productive of extreme inconvenience and public mischief, not to say deplorable disaster.'

Part of his 'Prefatory Letter' ran as follows, namely: —

'Mr. Nelson's assumptions are in many respects ill-founded, and his statements of facts are often reckless and inaccurate, and the conclusions drawn erroneous. His opinions are however asserted with such assurance, and are so constantly reiterated, that they are almost certain to find acceptance with the half-educated portion of the population of Southern India.

'They are calculated to create deep and widespread doubt in the minds of the public as to the authority of the decisions of the High Court, and to foster litigation upon questions long deemed finally determined; and thus to unsettle titles and depreciate the value of property.

'I would not be supposed to assume that the Government of Madras would be induced to give effect to the proposals of Mr. Nelson, but unless some exposition of the unsoundness of his views be put forward, there is reason to fear that a continually increasing agitation of the public mind will ensue, which will foment litigation and raise a serious obstacle to the efficient performance of its duties by the High Court.

'The prospect of the release from all law, except that of the individual will, has a great attraction for the multitude, and this is what in his latest work Mr. Nelson holds out. He advocates the enactment of a short relieving and enabling Act. "The desired enactment should recognise and proclaim the general right of the Indian to consult his own inclination in all matters of marriage, adoption, alienation, testation, and the like."1 [Prospectus of the Scientific Study of Hindu Law, p. 182.]

'Fair criticism upon the administration of the law by the Court would of course be allowed to pass unnoticed, and even in regard to unfair criticism it would be unseemly for the Court to enter into a controversy with Mr. Nelson. But having in view the mischief to the public interests which further silence as to Mr. Nelson's published opinions is likely to occasion, I think an answer should be given them.'

I lost no time in publishing a short reply to this letter, addressed to Mr. Innes himself, in which I objected strongly to the mode in which I had been dealt with, and to the serious and deplorable misrepresentation of my views and opinions in which Mr. Innes had permitted himself to indulge. Principally I objected to the unfairness of mainly directing the attack against fugitive pieces written for the Royal Asiatic Society and Madras Literary Society, and never intended for general publication, whilst almost ignoring my Prospectus, which contained the principal things I had had to say about Hindu law. I also took special pains to expose one by one the very numerous misstatements that disfigured almost every part of the letter.

I did not at the time think it necessary or advisable to undertake the task of defending myself against Mr. Innes' attack generally, unless (which seemed to be very unlikely) the Government should call upon me to do so; and I have not since found any occasion to add to what I have already written by way of reply to that gentleman. Nor have I any intention now of reopening a closed matter. But having observed that some of Mr. Innes' statements and arguments are common more or less to a number of opponents, I intend to devote some attention to their refutation. For example, Mr. Innes (at p. 87). thinks it 'idle to ask if any such rules' as those made by the Madras High Court, as to presuming the union of a Hindu family and the like, 'could possibly have brought about the disastrous consequences alleged to have followed from the administration of the law by the High Court in cases of inheritance, succession, &c.' And I shall do my best to demonstrate that the making of such rules, without due consideration and knowledge, most certainly has produced consequences that cannot but be disastrous.

The late lamented Doctor Burnell, who, though unhappily not found to be good enough for a seat on the bench of the Madras High Court, no doubt was one of the shrewdest and most observant, as unquestionably he was one of the most learned and accomplished, of Mofussil judges, penned, when he knew himself to be almost at death's door, the following memorable words of warning, to be found in his 'Introduction' to Manu, p. xlv: — 'The preceding pages will show that Sanskrit law was pursuing a course of spontaneous development; this has been interrupted, and English doctrine has been pitchforked into Sanskrit texts. Is it likely that a satisfactory result will ever follow? The whole subject now is in a chaotic state, and so great is the uncertainty that valuable property is commonly sold for a thousandth part of its value. So for the present policy cannot be viewed with complacency.'

Here we have the testimony and warning of a most able judge, who worked continuously for many years in some of the most important districts of the Madras Province, principally in Tanjore, the 'garden of South India'; and who, by his extraordinary acquaintance with Oriental languages and literatures and ideas, was specially qualified to form a correct opinion upon his subject-matter — who can read them, and doubt for a moment that the administration of Sanskrit law has not been so satisfactory as Mr. Innes and his supporters fondly imagine, and that the question of its radical reform is one of real and pressing importance?

I have already shown in my Prospectus what practical lawyers as well as Orientalists have said about Hindu law in Madras. For myself, after spending upwards of twenty years on the bench in such districts as Madura, Tanjore, and Chingleput, I have no hesitation in affirming that at the present moment, in consequence of endless conflicting and unsatisfactory judgments of the Madras High Court, it is impossible (or very difficult) in any disputed case to guess what may be the ultimate decision upon what to the uninstructed lay mind would seem to be the simplest possible questions of Hindu law; that (as a general rule) it is impossible to say in what person, or persons, the dominion of any given field actually resides; or what powers of alienation (if any) a given ostensible owner of land may, or may not, possess; and that ordinarily one who buys, or lends money on the security of a piece of land, say a flourishing Zamindari, does a most hazardous thing, and may, not improbably, lose all his money and, in addition, be plunged into ruinous litigation. And, further, I unhesitatingly affirm that there must be an immense number of persons in the Madras Province who, in consequence of such judgments, are quite unable to know whether they, or their relatives, have been legally begotten, adopted, or married.

Unquestionably, the principal and most fruitful error in the administration of Hindu law in Madras has been that of supposing that positive law, in its most strict sense, applicable to every inhabitant of India, whether dark-skinned or fair, whether Brahman or non-caste, and to every conceivable case, is to be found by adequate research somewhere in the pages of certain Sanskrit works, such as the Manavadharma-castra, the Mitaksara, and others; and that such law must always prevail in judicial controversy when opposed to local usages and customs.


In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature. [2] As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

-- The Term "Positive Law," by Office of the Law Revision Counsel, United States Code


How grievously the Madras High Court has erred in this respect may be imagined when Mr. Innes, in strenuously attacking my writings, has felt himself compelled to make the following painful confession (at p, 92):—

'It may however be that whereas the Hindu law recognises the existence of peculiar customs in different parts of India, and directs (especially in the case of those not belonging to the four castes) that their customs shall be respected, the High Court has laid down rules in regard to customs which practically prevent their recognition to the extent to which they ought to be recognised, and has in this respect, unintentionally perhaps, failed to carry out the Hindu law in its true spirit, and imposed much inconvenience on families who have governed themselves by customs recognised in their community as legal.'

I was even more surprised than gratified by this confession, coming from such a quarter. But, at the end of his letter Mr. Innes shows plainly that, at all costs, the Madras High Court intends to continue to perform its self-imposed duty of civilising the 'lower castes' of Madras, that is to say, the great bulk of its population, by gradually destroying their local usages and customs, the safety of which the royal proclamation of November 1, 1858, by express words, guarantees. It was Her Most Gracious Majesty the Queen who said, 'We disclaim alike the right and desire to impose our convictions on any of our subjects.... We will that generally in framing and administering the law due regard be paid to the ancient rights, usages, and customs of India.' Mr. Innes, however, as the representative of the Madras High Court, has announced (at p. 110): —

'To adopt Mr. Nelson's suggestions, whether as regards the higher or lower castes, would commit us to chaos in the matter of the Hindu law we are now called on to administer. What is contemplated would result in our abdicating the vantage ground we have occupied for nearly a century, in which, if we continue to hold it, we may hope gradually to remove the differentiations of customary law, and bring about a certain amount of manageable uniformity. It would be to commit us to the investigation and enforcement of an overwhelming variety of discordant customs among the lower castes, many of them of a highly immoral and objectionable character, which if not brought into prominence and sanctioned by judicial recognition, will gradually give place to the less objectionable and more civilised customs of the superior castes.'

If the Government of Madras had called upon me for an explanation of my conduct in constantly 'calling in question the administration of the Hindu law by the High Court of Madras,' this announcement of Mr. Innes would alone, I conceive, have been held to be an ample justification of anything I may have published in this behalf. For, what can be politically more dangerous in these times, to say nothing of the injustice of it and the cruelty, than thus to set about destroying gradually and methodically the local usages and customs of by far the greater part of over thirty millions of people? If the thing to be destroyed were the local usages and customs of the (relatively) educated and influential small minority, consisting of Brahmans and others, the intended action of the court might be less dangerous, in that it would at once provoke and arouse adequate opposition. But the dumb masses of South India will make no sign under any oppression they may suffer, so long as it continues to be anyhow tolerable, and we may know nothing of their feelings till, in a moment of excitement, they begin to work incalculable mischief.

'Usage is highest dharma (it is) mentioned in the Vedas, and approved by tradition; therefore, a prudent twice-born (man) should ever be intent on this,' is a most important maxim of Manu (I. 108); perhaps the most important of all the Aryan maxims that have come down to us. I purpose devoting a chapter or two to an examination of its meaning and teaching. For the present it is enough to state my belief that the right interpretation of it suffices in itself to prove that our entire system of administration of Hindu law is erroneous, and, indeed, absurd.

Next, perhaps, in importance to the error of looking for positive law in the Sanskrit castras comes the error of supposing that all the inhabitants of South India who are not Brahmans or Mahomedans, are either Ksatriyas, Vaicyas, or Cudras, and as such are amenable to the above-mentioned law, or at all events to the greater part of it.

I have already dealt with this matter at some length in my View and Prospectus, and have nothing new to add in the way of information. It may be useful, however, to say a few words with reference to Mr. Innes' observation at p. 91: 'There have been, so far as I am aware, no cases before the High Court in which people of the lower castes or tribes, vulgarly classed as Hindus, have repudiated that classification, or claimed or pleaded under a different law of succession, inheritance, caste, religious usage or institution from that of the Hindu.'

I would observe as to this that the circumstance, if existent, is not to be wondered at, or considered incapable of explanation, on the hypothesis that the great bulk of the population of the Madras Province are not true Hindus, and therefore are not subject to the general law of the Sanskrit castras. Maravans and Kallans, and all ordinary ryots, of course, are exceedingly ignorant and helpless, and but little given to generalisation; and probably none of them has ever yet reflected upon his racial, or religious, or legal status. Moreover, the word 'Hindu' either is not known to them, or is barely known only in the sense of non-Muhammadan; so that if a low-caste suitor were asked whether or no he was a 'Hindu,' in the full scientific sense of the word, he would have no idea what was meant by the question, however ingeniously it might be framed. Or, if by any possibility he could be made to understand what was meant, he would, of course, claim to be a Hindu of the highest rank, just as every London shopman nowadays claims to be a gentleman, and for very similar reasons.

An excellent illustration of the ignorance and apathy of suitors in this respect occurs to me out of my own judicial experiences. At Combaconam, about the year 1868, I was rehearing a case that had been dealt with by my predecessor as an ordinary case of Hindu law, when, by accident, it came out that the parties were not Hindus, in any sense of the word, but Jains. I asked the pleader engaged by one party what was to be done, and he said he supposed the parties were Hindus of a kind; upon which I suggested that, as a test, he had better ask the opposite party, who appeared in person, what was the name of his god. He did so, and the answer was 'Arugan.' This proved conclusively that the parties were not Hindus, and accordingly I asked the same party what were his castras. He could not tell me. I then asked him what law he wished to be administered to him. He answered, with complete unconcern, 'Master's pleasure.' What I did upon that I do not remember, nor does it matter. No doubt, however, I went on to administer the Hindu law in vogue, and without the slightest objection being raised on either side.

The next greatest error I take to be that of imagining that certain speculative treatises, e.g. the Mitaksara, believed to be highly admired or respected, and in a sense popular, in certain towns or districts, have the force of codes of law wherever the admiration, or respect, or popularity of or for them is believed, for whatever reason, to exist. I have already protested against this error in several places; but it will be necessary for me to attack it yet again, principally in connection with its pernicious development, the 'Schools of Law' doctrine, of which (I regret to see) Professor Jolly appears to have become enamoured.

And from this error comes yet another error, of great importance to Brahmans, I mean that of treating nearly all Brahmans, whether Raus or Ayyangars, or Ayyars, or whatever they may be, as being identical in point of law, just as if such things as kulas and cakhds and caranas had never existed, and the Brahmans of South India formed one single happy family. No doubt the Nambudris are admitted to be outsiders, and to deserve, as such, exceptional treatment. But this exception only proves the rule. I have, perhaps, said enough upon this head in my Prospectus.

It is from these errors, mainly and principally, that (in my humble opinion) have arisen the fifteen false principles that I ventured to expose in my View in the following form, namely: —

1. That there exist, or formerly existed, in India certain 'Schools of Hindu Law'; and that such schools have authority in certain imaginary parts of India, such as the Karnataka kingdom, the Andhra country, the Dravida country, &c., &c.

2. That the so-called 'Hindu law' is applicable to all persons vulgarly styled 'Hindus' and to their descendants, however remote, and whether pure or not pure.

3. That a custom which has never been 'judicially recognised' cannot be permitted to prevail against distinct authority.

4. That a state of union is the normal and proper state of a Hindu family, and therefore non-division should in all cases be presumed until the contrary be proved.

5. That, as to ancestral property, a son, and therefore a grandson, may compel a division against the will of his father or grandfather.

6. That a member of an undivided family can aliene joint ancestral property to the extent of his own share.

7. That 'self-acquired property' ordinarily is indivisible.

8. That debts incurred by the managing member of a Hindu family should be presumed, in favour of a minor, not to have been incurred for the benefit of the family.

9. That the widow of an undivided coparcener, whether childless or not, has no title to anything but maintenance.

10. That ancient Zamindaris are not divisible because they are 'of the nature of principalities.'

11. That one, with whose mother the adopter could not legally have married, must not be adopted.

12. That the Aliyasantanada Kattu Kattale is a work of authority on the law of South Kannada.

13. That 'survivorship' is a principle upon which the rule of succession in part depends.

14. That a widow can adopt a son with the consent of her husband.

15. That a Hindu family may be at one and the same time divided and undivided.


In defending these principles, Mr. Innes has thought proper to assert with regard to each of them that I have averred 'that the High Court of Madras has made the false rule'; and has taken great pains, in several instances, to show that it is not true, that this court first made the rule in question, but some other court or person made it, and the Madras High Court only adopted it, or if this court did make the rule, the Privy Council has sanctioned it. And any one who reads his letter might very naturally suppose that I had rashly and spitefully imputed to the Madras High Court things of which it was wholly innocent. A glance at my View, however, will show that I have done no more than to impute to the Madras High Court that, habitually, in deciding questions of Hindu law it relies on principles which to me appear to be false. It has been perfectly immaterial to me who first gave shape to any principle, or who (to use Mr. Innes' words) 'may be especially responsible for any doctrine.' All I have sought to do is to attack, and if possible destroy, certain false principles, by whomsoever invented, promulged, or sanctioned. Whenever possible, I have honestly traced the false principle to its source. And in one instance, that of the 'Schools of Law' doctrine, I have actually given the very same history of the principle, that Mr. Innes has himself given for the purpose of proving 'the recklessness of assertion that characterises my work'!

And here I think I may very properly take the opportunity of repudiating, and most emphatically, the idea (which I know has occurred to some) that, in publishing my View and Prospectus, I have thought to lower the Madras High Court in the estimation of the public by treating its decisions with something of derision and contempt. I can honestly say that such thought has been far from me. When I acted as Registrar of that court, some twenty years ago, its President was that admirable judge, Sir Colley Scotland; and two of the puisne judges were Messrs. Holloway and Collett, than whom it would be difficult anywhere to find more able and trustworthy occupants of the bench. It was at their hands I received the most valuable part of my legal training, and it would be strange indeed if I regarded with feelings other than those of kindliness and sympathy a tribunal to which, through them, I owe so much. Of Mr. Justice Innes, too, I would desire to be understood to speak only in the terms of praise, as being an able, a learned, and a high-minded judge.

But, unfortunately for Hindu law, it has been its peculiar fate to suffer most from the very talents and ability that have been brought to bear upon its administration. Had Jones and Colebrooke not been the giants they were, the errors into which they unavoidably fell would have been comparatively unfruitful in mischief. Had Strange been less strong, his lofty utterances would have done less harm: and in these latter days if Scotland and Holloway and others had been less clever, less self-reliant and masterful, the question of Hindu law would not stand now where it does.

It is useless, worse than useless, to hide the unpleasant fact that during the last eighty years or so Indian judges have been trying, like the German painter, to evolve a camel out of their inner consciousness. Only, instead of one artist attempting the feat, scores have had a hand in the picture, one taking the head, another the tail, and others other parts. What wonder then if the result is a miserable and ludicrous failure? Not only has none of these judges 'seen,' as Hindus would say, the living camel of Hindu law, for if it ever lived, which is exceedingly improbable, it died centuries ago: the existing translations of the 'recollections' of it are so few and scanty that no one who is ignorant of Sanskrit can hope to form a just idea of its size, proportions, and shape. And, at the present moment, strange and incredible as it may appear, the Hindu law of the 'Madras School' practically is but little more than a crude mass of contradictory and dubious aphorisms, based on an inadequate translation of a non-professional commentary on but thirty-six verses of a sectarian Smrti. And this in the presence of the fact that a truly immense body of Sanskrit legal literature is known to exist, and to be (at all events in part) available for use.

Is this scandalous state of things to be permitted to go on? Surely not. I hope to be able to show in due course that during the last ten years or so a radically false system has been producing its necessary results in great abundance, and things have been fast going from bad to worse, so much so that the end cannot now be far off.

Two courses, and (in my humble opinion) two courses only, are open to us, if we would loyally carry into effect, in spirit as well as in letter, the terms of the royal proclamation quoted above, and, without imposing our English convictions on our Indian fellow-subjects, pay due regard, in administering Hindu law, to the ancient rights, usages, and customs of India.

The first, and to my mind by far the preferable, course is to appoint a commission, such as I have before recommended, to ascertain and report on the existing usages and customs of the various tribes and castes, Brahman and non-Brahman, of the Madras Province; and upon the report so obtained base a set of simple provisional rules for the guidance of the courts, which rules might gradually be modified, added to, and improved, as experience suggested, until at length codification of them might hopefully be attempted.

The smiles and sneers of hostile critics notwithstanding, I still fail to see any special difficulty in the way of effecting this series of operations.1 [See Sir Thomas Munro's opinion, on the title-page.] That something of the sort might be done is shown, to some extent, by the recent publication of Mr. Tupper's three volumes of 'Punjab Customary Law.' The first of these volumes, according to the preface, 'is designed to illustrate the history of the treatment of Customary Law in the Punjab;' the second 'contains abstracts of a considerable number of the Tribal Records of various districts and notes from the Settlement Reports; whilst the third is intended to assist Settlement Officers in the compilation of Tribal Records, and was also meant to suggest the outline of a General Code of Tribal Customs, in case it had been resolved to prepare one.' It is true that we have not the sort of Tribal and Settlement Reports that Mr. Tupper has turned to use, but we could very soon get there. And District Officers, both Revenue and Judicial, would very rapidly collect thousands of answers to intelligent questions set by the commission. The difficulties to be encountered in this respect seem to me to be very trifling; whilst the cost of the whole proceeding would be nothing, or next to nothing. And the errors and defects of the original inquiry could be satisfactorily remedied by careful systematic judicial observation during a space of, say, ten or twenty years before attempting codification.

In making the inquiry the gratuitous services of intelligent natives belonging to all the castes, particularly of heads of villages and castes, retired Government officials, managers of temples, and the like, would be largely availed of, and, I make no doubt, gladly rendered. It would be impossible for class prejudices and vested interests to interfere to any great extent with the formation of their various reports, and, if treated with due consideration, they could hardly fail to interest themselves in the performance  of their honourable duty, and to furnish correct and valuable information.

At all events, why not make the experiment, which, if unsuccessful, could not possibly do any harm?

At the worst, if the questions set were unintelligent, and the answers defective, and the inquiry generally scientifically worthless, we should still have a framework of real living usage, upon which we might hopefully work and build, instead of the shapeless inorganic structure that now does duty for Hindu law.

The other, and less profitable, course would be to appoint a commission of native Pandits, from Tanjore, Madura, Combaconum, and other centres of Hindu life, to report on the books (or parts of books) that to their knowledge, or in their opinion, contain the law customarily followed by the several castes at the present day; get the selected books (or parts of books) translated, and at once proceed to codification.

The conceivable objections to this course are numerous and weighty, and the difficulties to be encountered in pursuing it by no means contemptible. But I believe it to be feasible. And most certainly the code of Hindu law that would be achieved would be immensely superior to what we have now, the reported decisions of the Madras High Court. Whatever its defects, from a scientific point of view, it would be Hindu in letter and in spirit, and, as such, satisfactory for the most part to the native mind. It would not be a sickly hybrid clothed in a foreign garb.

In preparing this code it would, of course, be essentially necessary to leave untranslated all terms of art, such as dharma, dayada, vibhakta, and the like, and to abstain altogether from indulgence in 'apt equivalents.' Still more necessary would it be to abstain from 'pitchforking English doctrine into Sanskrit texts.' Probably, therefore, it would be advisable to entrust the work to an eminent foreigner, say Professor Max Muller, or Professor Jolly. If due attention were paid to essentials of this sort, and to brevity — I would not have the code contain more than 500 sections at most — a very passable work might be produced.

But, for obvious reasons, I would vastly prefer a collection of usages and customs to a code of Sanskrit law. The latter might do something for the Brahmans, but (I fear) it would do little or nothing for the non-Brahmans, that is to say, for the great bulk of the people. Many of these non-Brahmans undoubtedly have customs, e.g. polyandry, that are not only opposed to, but actually irreconcilable with, the recognised Brahmanic system of the Sanskrit castras; and it would be simply impossible to decide questions of partition and the like, arising amongst such persons, in accordance with any rules deducible from such castras. So that, if a code of the kind were to be drawn up, probably it would soon be found to be unworkable, for the benefit of any but Brahmans, and a few tribes that more or less closely imitate the Brahman mode of life; and it would be necessary after all to ascertain and commit to writing the usages and customs of the great body of non-Brahmans. In other words, it would soon be found necessary to keep the code for the Brahmans, and appoint a commission (as suggested by me) for the others.


I do not purpose going farther for the present into this very important question. The main object of this book is to bring to public notice the uncertainty that has been caused during the last ten years or so by conflicting decisions on a few questions of paramount importance, connected mainly with the constitution of the so-called Joint Family. To this end I must give abstracts of a considerable number of cases, comments on each, and conclusions as to the probable results of the aggregate. If, as I hope to be able to do, I succeed in showing that the state of Hindu law in Madras is past praying for, no doubt the plan of operations I have suggested, or something like it, will be taken into consideration by the Government.

Another object I have in view, one of less importance, is to revise and improve, as well as I can, what I have written about some of the fifteen 'false principles' dealt with in my View. A considerable space of time has passed since the View was written, during which I have been able to put together a good deal of additional information bearing on matters discussed in its pages, and I shall be glad if I can strengthen certain positions I took up in 1877.

A few miscellaneous chapters on usage, Manu, Narada, the Gentoo Code, the Joint Family, and other necessary subjects of study, will make up the first part of this book. Then will come chapters on the 'false principles.' Lastly, the third part will consist of the review of decisions.

I must here take the opportunity of tendering my hearty thanks to the Orientalists and scholars who have done me the honour of reviewing, or noticing, my little works on Hindu law. As I have no Sanskrit, and can only utilise the labours of others in making short excursions into the dangerous field of Oriental learning, I had not hoped for serious criticism of my humble efforts, such as I have been favoured with by savants like Professor Barth. That such a one should have taken the trouble to point out in the most kindly manner some of my numerous errors and shortcomings, is an honour to me as welcome as it was unexpected; and I have endeavoured to show my appreciation of it by aiming in this present work at greater carefulness and moderation. I may observe, however, that some of the errors of which I have been found guilty are not mine, but those of eminent Sanskritists. For example, it was my lamented friend, Doctor Burnell, who told me that 'Cudra' comes from the root cvid, and means 'sweater.'

I cannot but regret that Mr. Mayne should have been advised to speak, in the preface to his third edition of his Hindu Law, of Professor Barth's review of my Prospectus, in such a manner as necessarily to lead his readers to suppose that the reviewer had snuffed me out, with every circumstance of ignominy. In justice to myself I must quote the more important parts of the last section of Professor Barth's monograph in the Revue Critique, of August 28, 1882. They run as follows: —


'J'ai commence ce compte rendu avec l'intention de dire beaucoup de bien de ce livre et je m'apercois, en finissant, que je n'ai guere fait que le critiquer. Mon opinion sur l'ouvrage n'a pourtant pas change en chemin. Je le crois toujours encore juste, et vrai dans le fond, en progres quant a la facon d'envisager ces etudes, plein d'idees et suitout d'intentions excellentes, eminemment utile et malheureusement justifie en beaucoup de ses attaques.... Meme pour le profane, il est visible que sur bien des points il y a abus, que la loi qu'on applique n'est pas toujours celle a laquelle les parties auraient droit et que, dans cette application, la jurisprudence n'est parfois consequente, ni avec la loi, ni avec elle-meme. Il est impossible de ne pas condamner avec l'auteur les envahissements progressifs de ce judge-made law, dont certaines exigences en matiere de transmission des biens et de statut personnel sont vraiment iniques et de nature a porter de graves atteintes a la prosperite du pays. On lui pardonne alors ses vivacites, ses exagerations et sa trop grande facilite a faire, comme on dit, fleche de tout bois. Car ce livre, ecrit avec une opiniatre conviction, est avant tout une oeuvre de combat, et c'est comme tel qu'il faut le juger, si on veut etre equitable en vers lui.' [Google translate: 'I started this account with the intention of saying a lot of good about this book and I realize, by finishing, that I have done little more than criticize it. My However, opinion on the book has not changed along the way. I still believe it still correct, and fundamentally true, in progress in the way of considering these studies, full of ideas and following out of excellent intentions, eminently useful and unfortunately justifies in many of his attacks .... Even for the layman, it is visible that on many points there is abuse, that the law we apply is not always the one which the parties would be entitled to and that, in this application, the case law is sometimes not consistent, neither with the law, nor with itself. It is impossible not to condemn with the author the invasions progressives of this judge-made law, some of which in matters of transmission of property and status staff are really iniquitous and likely to bear serious damage to the country's prosperity. We him forgive then his vivacity, his exaggerations and his too easy to do, as they say, fleche de all wood. Because this book, written with stubborn conviction, is above all a work of combat, and it is as such we must judge it, if we want to be fair towards him.]

I am entirely at one with Mr. Mayne in thinking this monograph to be a model of 'acute, candid, and courteous criticism;' and I sincerely wish that more such were forthcoming. I do not profess to be an Orientalist, or a 'philologue,' and am only too happy to be corrected, when my ignorance of Sanskrit misleads me (as from time to time it must) into error. My sole object in writing about Hindu law is to arouse attention, by all available means, to a neglected and very important question.  
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Re: Indian Usage and Judge-Made Law in Madras, by J. H. Nels

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CHAPTER II. 'USAGE IS HIGHEST DHARMA.'

The aphorism 'Usage is highest dharma' occurs in Verse 108 of the First Lecture of Manu, and is thus amplified and explained by the words next following: — '(It is) mentioned in the Vedas and approved by tradition; therefore a prudent twice-born (man) should ever be intent on this. A Brahman who has fallen away from usage gets not the fruit of the Veda; but (if he be) attached to usage, he enjoys the full fruit. Thus devotees, having seen (that) the course of dharma is according to usage, comprehend usage to be the final root of all austerity.' See Burnell's Manu.

Verse 107 states, in brief, the subject-matter of the whole book. 'In this (treatise) dharma is fully declared, also the good and bad qualities of actions; likewise, also, the perpetual usages of the four castes.'

Then, verses 111-18 give a more extensive account of the contents of the work, the last of which are declared to be 'the eternal dharma of countries, castes, families; also the dharmas of heretics (and) of guilds.'

Taking this whole passage as it stands, there can be no doubt, it seems to me, that the author of Manu (or whoever may have written the first lecture thereof, by way of a preface to the work) considered that for all human beings, whether regarded as individuals, or as joined together in companies or nations, and whether Brahmans, women, Cudras, heretics, or barbarians, the long established usage peculiar to each individual (or aggregate) constitutes highest dharma, for each his (or its) own.

The question then arises, What is dharma? And the answer is, that this phrase or expression cannot be satisfactorily rendered in English, inasmuch as it represents a primitive concept, wholly foreign (and indeed incomprehensible) to the modern English mind.
And it is for this reason Burnell has in some places in Manu left the phrase untranslated. In a note to p. 40 of my Prospectus I have attempted to give a rough explanation of it in the following words: —

This mysterious word has been greatly misunderstood. It would seem to be connected with a root signifying to 'hold,' and possibly may mean the inherent efficacy of acts, that holds up a man through life. Dharma is not at all comparable with our 'virtue'' (manliness), or with our 'duty'; still less does it resemble our 'law.' According to Haradatta (see Max Muller, An. Sus. Lit., 101), 'dharma (virtue) is the quality of the individual self, which arises from action, leads to happiness and final beatitude, and is called apurva, supernatural.' According to Narada, in the good old times men conformed themselves to dharma alone, and then there was no room for vyavahara, or mere ordinary business. When the corruption of morals bred avarice, hatred, and the like, vyavahara necessarily came into existence. See V. N. Mandlik, Introd. Hindu Law, lxx.

I have lately had my attention drawn to a curious and difficult passage in the Mahabharata (Vanaparva, 246), which seems to throw some light on the meaning of 'dharma,' as used in the text under notice, and in Manu generally. According to the translation now being published by Protap Chundra Roy (Calcutta), Savitri is made to say that: 'They who have not their souls under control acquire no dharma by leading the four successive modes of life, viz. celibacy with study, domesticity (dharmam), retirement into the woods, and renunciation of the world. That which is called dharmam is said to consist of vijnanam (true knowledge). The wise, therefore, have declared dharmam to be the foremost of all things, and not the passage through the four successive modes. By practising the duties of even one of these four modes agreeably to the directions of the wise, we have attained to dharmam, and, therefore, we do not desire the second or the third mode, viz. celibacy with study or renunciation. It is for this, again, that the wise have declared dharmam to be the foremost of all things.' The meaning of the passage (briefly) seems to be that Savitri, who is endeavouring to rescue her husband from the clutches of Yama, argues thus: True religious merit cannot be attained by those who do not control their souls; on the other hand, it is attained by those who properly pass through even one of the four successive modes: I and my husband have so passed through one of them, namely, domesticity, and therefore we have no need to pass through another. Here, then, 'dharma' seems to stand by itself for (1) general merit, (2) the special merit of domesticity, and (3) true religious merit — the foremost of all things. And this last is said to consist in 'vijnana,' true knowledge.

It would seem to be not improbable that as in this passage so in Manu three kinds or degrees of 'dharma' are intended to be spoken of. Thus, for example, in VIII. 9, true religious merit obviously is intended. The text is: 'For a man performing the dharma declared by revelation and tradition obtains fame here and after his death extreme happiness.' With this compare II. 13: 'A knowledge of dharma is ordained for men not given up to wealth and pleasure; of those who would know dharma the Veda (is) the supreme authority.' Also II. 1: 'Learn the dharma which is followed by the learned (and) good, by those ever free from spite and passions, (and) which is acknowledged by the mind.'

On the other hand, we have in I. 115 the special dharma of gambling, and in 114 that of women; whilst in I. 99, and other texts, ordinary dharma is meant.

The connection of dharma (in its highest sense) with vijnana, true knowledge, is illustrated by the name of the author of the Mitaksara, Vijnanecvara or Vijnana Yogi. And Anquetil Duperron (Leg. Orient. p. 92) tells us that Vijnanecvarudu was the name of a Telugu King, 'who had collected the laws of which is composed the book of right,' i.e. (it is to be presumed) the Vijnanecvariyam.

The word dharma would seem to be connected with the Greek Themis, the Anglo-Saxon Deman, the English Doom, and other cognate words. And in some respects it agrees exactly with Themis, e.g. in denoting what is meet and right because established by immemorial usage, as opposed to statute law. Themis personified is the goddess of law and order, the patroness of existing rights, and Dharma may mean much the same. Themis also is used for punishment, and so is Dharma.

According to Talboys Wheeler (History of India, iii. 212 et seq.) 'the edicts of Priyadarsi inculcate goodness, virtue, kindness, and religion, as summed up in the one emphatic term Dharma.''

On the other hand, the Kama-sutra (see below p. 134) regards dharma as obedience to the castras in the matter of sacrifices and the like.

Perhaps, on the whole, 'blessedness,' as having in it a decided religious tincture, would come as near as any other word to the meaning of dharma in the passage under notice. But, having indicated in a rough general way what ordinarily it denotes and connotes, I shall prefer to leave the word untranslated.

Usage 'is highest dharma,' which again consists in true knowledge, and 'the prudent twice-born man will ever be intent on this.' Where, then, is 'usage to be found? An answer is afforded by Manu I. 108, quoted above. Other constituents of dharma are mentioned in II. 12: 'The Veda, tradition, good custom, and what is pleasing to one's self, that (the wise) have plainly declared to be the fourfold definition of dharma.'' Evidently, usage is to be discovered by searching the Veda and dharmacastras (see II. 10), and one's own conscience.

But it is only a twice-born man who can so discover his usage and dharma: Cudras, and women, and all others must look elsewhere for information.


This is rendered sufficiently plain by a consideration of the following circumstances. The so called Code of Manu begins with the statement that the Seers come to Manu, and ask him to tell them 'truly in order the rules of all the castes, and of all the castes that arise between (them).' And (as Burnell points out) 'Medhatithi says these laws refer to only the Brahmans, Ksatriyas, and Vaicyas, not to the Cudras. Confer IV. 80, 81, from which it is evident that this is correct. Medhatithi might have quoted the Apastamba dharmasutra (i. I. 5) to the same effect, also verse 91 of this lecture.'

Whereas Manu is represented (in I. 107) to have declared in this treatise 'the perpetual usages of the four castes,' I, 91 declares specifically: 'One duty the Lord assigned to a Cudra — service to those (before mentioned) classes without grudging.'

And IV. 80, 81 run as follows: — 'One may not give advice to a Cudra, nor (give him) the remains (of food), or (of) butter that has been offered. And one may not teach him the law, or enjoin upon him religious observances. For he who tells him the law, and he who enjoins upon him (religious observances), he indeed, together with that (Cudra), sinks into the darkness of the hell called Asamvrtta.' And in his note thereon Burnell says that, according to Medhatithi, advice means here in regard to the Cudra's conduct, not simply friendly advice. Whilst the commentators affirm that, where the author of Manu does seem to give advice to Cudras, it is only to family servants that he gives it. And similarly X. 126, says: 'There is not any commission of sin in a Cudra, and he ought not to receive the initiation; he has no authority in respect to a rule of right, and no restraint in consequence of a rule of right.'

It appears clearly from several passages in the Satapatha-Brahmana (translated by Eggeling) that, before its publication, the Brahmans and Ksatriyas had firmly established themselves in positions high above that of the Vaicyas, or ordinary clans; and that, whilst the Ksatriya preyed on the Vaicya, the Brahman attached himself to, and lived upon, the Ksatriya. Thus, Vol. I. 82 shows the Ksatriya to be the oppressor of the Vaicya; I. 94 that the former was served by the latter; II. 66 that the former lived on the latter; II. 228 that the people must go down before the Ksatriya; whilst II. 270 essays to prove (by the story of Varuna and Mitra) the necessity of a king who desires success, always having with him a Brahman to speed his deed. For Mitra, or intelligence, is the Brahman, and Varuna the nobility. The priesthood is the conceiver, and the noble is the doer.

This alliance between the King and the priest seems, at all events in theory, never to have been abandoned. And, whether we look at the Smrti or the drama, at the Kama-sutra or the Gentoo Code, we shall everywhere find, I imagine, abundant indications of the two privileged classes keeping apart from and lording it over the masses. Indeed, judging from the materials at my disposal, I should suppose that Sanskrit works generally have been composed for the two first classes alone: mainly, of course, for the Brahmans.

It is no doubt owing to the exclusion of Cudras and women, and the lower classes generally, 'from immediate access to the more original sources of information' that the epics and similar compositions were intended for their edification, as is pointed out by Sayana in his commentary on the Black Yajur Veda. See Burnell, Introduction to Manu, p. xxiii.

For Cudras, women, and heretics, therefore, and practically for almost all but virtuous Brahmans and kings, Manu has no information to give as to their proper conduct in life, other than that 'usage is highest dharma'; and it only remains for them to ascertain, each for himself, as best he may, what his own particular usage may be.

The twice-born man, as we have already seen, is to search the scriptures and his own conscience for his usage; and in order to facilitate such search for the future, the author of Manu gives his reader some information as to usage in respect to sundry matters, such, e.g. as partition.

But, he does not say that this information is in any degree obligatory on all twice-born men: or that the 'recollections' (Smrtis) of other writers like himself are to be ignored. On the contrary, he expressly says that the Veda is the supreme authority for those who would know dharma (II. 13); and that there may be opposite texts in the Veda, each of which is dharma because each was declared by the wise (II. 14). Where, therefore, the author 'reminds' readers of what is in accord with one of two opposite texts in the Veda, another author may remind his readers of what is in accord with the other; and what each says will be right, and (in certain circumstances) proper to be followed.

Thus, admittedly, divergences of excellent usage are to be looked for in different countries. And, if it be asked where may the best usage be found? answer is made by II. 17, 18: 'The (country) which is between the divine rivers Sarasvati and Drsadvati, that land, fixed by the gods, (the wise) call Brahmavarta. What custom of the (four) castes (and) the mixed castes has been handed down by course of succession in that country, that is called good custom.' The next verse gives the names of four countries that are 'next' to the best, that is (according to the commentators), inferior. And then comes the important declaration: 'All men in the world should learn their own proper behaviour from a Brahman born in that country,' i.e. Brahmavarta.

So far, therefore, the author of Manu teaches three things: (1) Dharma depends upon usage, which is to be found in both Cruti and Smrti, ultimately, of course, and mainly in the former. See below, p. 133. (2) The best usage is that of the Brahmavarta country. (3) All twice-born men should learn their usage from a Brahman born in that country.

As we have seen above, it is clear that the expression 'all men in the world' must be limited in the first place to the twice-born.
A further limitation seems to be intended by II. 7, 8, which point out that a 'learned man' should certainly be firm in his own dharma, because 'a man performing the dharma declared by revelation and tradition obtains fame here and after his death extreme happiness.' I gather from this that the author writes almost entirely for a small class of learned men, principally Brahmans, and solely for their spiritual benefit. If they learn each his own proper usage or dharma (blessedness) from a duly qualified teacher like himself, they will obtain eternal happiness.

In this view of the aim and object of the author of Manu, 'law' as we understand the phrase, or (as I have defined it) 'an aggregate of rules of conduct that courts of justice habitually recognise and enforce,' is not to be looked for in his teachings. If, here and there, we find in Manu what looks like the setting of a law proper, we should regard it as a mere recommendation to the wise to follow the established and best usage of Brahmavarta, rather than a command to any to do or forbear from some act.


And thus to treat the Manava-dharma-castra as a religious essay on usage, rather than as a code of positive law, is to act entirely in accordance with the history of the work as ingeniously constructed by Burnell in his Introduction thereto. According to him, this castra (or treatise) on dharma most probably, almost certainly, was published by some Panjab Brahman about the year 500 A.D., under the Calukya sovereign Pulakeci, at Kalyanapuri, with the object of popularising Brahman teaching, and particularly of instructing the king of a Mleccha (or beyond the pale) country as to the right mode of making all men do their religious duty. And it was called 'Manava,' not from the mythic sage Manu, but from the Brahman gotra called 'Manava'; and by way of compliment to the Calukyas, who claimed to be 'Manavyas.'

Burnell thinks that the work was also 'intended for practical use in the tribunals,' though not in the way supposed by English lawyers, being 'essentially a religious book, and not, as in England, and most of Europe, a profane treatise on mere law. The ordeals mentioned are all, e.g. religious ceremonies.'

The only text of Manu cited by Burnell in support of his proposition, that it was also intended for practical use in the tribunals, is VIII. 3, which runs as follows, namely: 'Day by day (he should judge) separately (cases) under the eighteen titles by reasons (drawn) from local usage and the treatises.' Now, the word for 'treatises' here is 'castra,' which (according to the note) means a body of teaching on a subject, whether ascribed to divine or human origin; and it seems to me to be very doubtful whether it may not mean here the Vedic compositions, generally, rather than the Manava-d.-c and other Smrtis. For, in verse 8 of the same Lecture it is declared that the King should determine suits 'relying on the eternal law'; and in verse 11 it is declared that the three assessors of his deputy should be 'learned in the Veda'; which (it will be remembered) is stated in II. 13 to be 'the supreme authority 'of those who would know dharma. I do not forget, of course, that, according to II. 6-12, tradition, as embodied in the dharmacastras, is one of the constituents of dharma. Still, I cannot help thinking that we cannot safely infer from VIII. 3 that the author intended his work for 'practical use in the tribunals.'

In connection with this point, VII. 43 may be consulted with profit. It is to the effect that the King should learn the Vedas from those who know them, as also policy, logic, and knowledge of self: 'but business from the people.' This text agrees with VIII, 41: 'A king knowing dharma should cause his own dharma to be established, after making careful inspection of the dharma of the different castes and country folks, and of the dharma of the (different) guilds, and of the dharma of the (different) families.' This must not be supposed to mean that the King is to set aside the dharmas of the castes, &c., but that he is to ratify and confirm, or (as Jones renders it) 'establish them,' as his own. Compare Gautama XI. 12-22, which declares amongst other things that the King should learn the state of affairs from those who (in each class) have authority, and decide accordingly. And Narada (II. 17, cl. 1-4) speaks of separate laws for heretics, traders, companies, quarrels between father and son, &c. In quarrels between gamblers, other gamblers are to be consulted, and decide (II. 16, cl. 4).

Taking these and other texts together, I venture to think that the intention of the author of Manu probably was to declare that the King, in judging, whilst taking his general views of usage and dharma from learned Brahmans, should (wherever necessary) take his views of any special usage or dharma applicable to the particular case, from lay persons, such as merchants, cultivators, headmen, and others capable of informing his mind. See below, pp. 88-91, and 119.


However this may have been, it is quite certain that Medhatithi, in commenting (about the year 1000?) on the above quoted text, VIII. 41, observes that the dharmas of the castes and others are to be regarded, 'if they are not repugnant to the law (dharma?) given by tradition.' And Kulluka (of the fifteenth century?) said the same. Whilst the Smrticandrika (of the thirteenth century?) is supposed by Professor Jolly (at p. 34) to show as distinctly as possible that the Smrti is to be placed above custom (Acara).

As regards the commentators, it is to be observed in the first place that their assumption is distinctly opposed to the introductory statement of Manu (1. 118), that 'Manu has declared in this treatise the eternal dharma of countries, castes, families; also the dharmas of heretics (and) of guilds.' Manu can be said to have declared these dharmas only in the sense of declaring their existence, and (by implication) their propriety; and if they exist, they must necessarily be separate from, and, in a measure, opposed to, the dharma of the twice-born. Certainly, the author of Manu did not pretend to teach the dharmas of heretics, and Mlecchas, and outcastes generally. And, as a fact, he has not taught the dharmas of guilds and families; but as certainly he has recognised and proclaimed their existence.

Then, take the very important text, VIII. 46: 'Whatever may be practised by good and virtuous men of the twice-born castes, let (the king) cause that to be ordained (as law), if it does not conflict with (the laws of) districts, families, (and) castes.' Surely we have here the strongest possible recognition of the validity of the usage of any district, or family, or caste, that may happen (or seem) to be 'opposed' to the usage declared in the Smrtis. Medhatithi would appear to have been struck by this, since he contradicts another commentator who tries to explain away the obvious meaning of this highly important text; whilst Kulluka would refer it to settling a lawsuit.

It is possible that the (apparently) unwarrantable opinions of Medhatithi and Kulluka, and the author of the Smrticandrika and others, upon usage may be accounted for upon the following hypothesis. If, as would seem to be by no means improbable, they should be taken to have been thinking, not of the general dharmas of whole countries and classes, but of the case of a special acara (or custom) of twice-born men, as the thing opposed to the Smrtis; and as being opposed, not to general teaching of the Smrtis, but to special directions covering the particular case — if this view of their opinion is to be taken, no great difficulty would, I think, be occasioned in practice by what they have said.

The words of the text in the Smrticandrika upon which Professor Jolly relies, as refuting the argument in my View (at pp. 115-17) upon the question of usage versus law, are not given; but, from what the learned professor says, I gather that, logically, it is not in itself of great weight, and should not be construed as practically stultifying the author, who immediately afterwards gives the world a whole chapter of decadharma (country dharma), obviously as a specimen of the exceptional dharmas intended by Manu and other Smrtis to be upheld.

The argument subsequently put forward by Professor Jolly appears to me to be quite unsustainable. It is to the effect that we are to be obliged by the following 'climax,' established in a preceding chapter of the Smrticandrika. The Veda, where opposed to the Smrti, must prevail. And both of them must overrule custom (Acara), or a verdict of an assembly of learned Brahmans.

In the first place, as I have shown above, the author of Manu expressly provides for the case of two (apparently) contradictory texts of the Veda; and (by implication) he also provides for the case of a text of a Smrti (apparently) contradicting a text of the Veda. For, such contradictory text must necessarily be a 'recollection' of an eternally existing but forgotten text of the Veda, and therefore equally good and valid with the other text.


Then 'custom' (Acara) is, I take it, to be distinguished, and broadly, from the dharmas of countries, &c. Its very juxtaposition with 'a verdict of an assembly' would seem to further limit it to a special custom of a small body of men, probably learned men, supposed to have deviated by chance from the established path.

In all this nothing, it seems to me, forbids the supposition that, where precise words of a Smrti give information as to right usage, and a few learned men have adopted a course different from the recommended course, one seeking to do right should preferably follow the Smrti; and that the rational and beneficent declarations of Manu, touching the dharmas of countries, &c., are not to be understood as being in fact limited by words not expressed, and which virtually destroy the whole force of such declarations.

A further development of the meaning of the aphorism 'Usage is highest dharma' is to be found in Manu VII. 201-3, which shows that the proper course for a conquering king to adopt towards the conquered country is (amongst other things) to worship its gods and righteous Brahmans; to appoint one of its inhabitants its ruler, giving him 'precise directions'; and to 'make authoritative their laws as declared.' He was not to set to work to destroy their usages, as being in his opinion inexpedient and immoral: he was to do precisely what Her Majesty the Queen did in her proclamation (referred to above in the introductory chapter) of November 1, 1858. And, similarly, the Yajnavalkya Smrti (I. 342) says: — Of a newly subjugated territory the monarch shall preserve the social and religious usages, also the judicial system and the state of classes as they already obtain. See, too, Vishnu III. 42; and below, p. 107.

The Province of Madras, of course, was never conquered by an Arya monarch; but surely the above directions of Manu are applicable in spirit to the case of that country, if Manu as a whole is to be in any degree, or for any purpose, applied thereto. For, no doubt, the whole of the Madras Province was more or less under the sway of the Calukya dynasty, for whose special instruction (according to Burnell) the Manava-d.-c. was composed; and both as being a conquered country, and as being a mleccha (outcaste or barbarous) country, it must have been entitled many centuries ago to have its own peculiar dharma established by its overlord.

And hence it is that Ellis, that admirable inquirer and observer, was enabled to declare unhesitatingly that the Brahmans never fully introduced the law of their Smrtis into the South, and, though they succeeded in abolishing the Jaina faith, were compelled to wink at many inveterate practices of the people of South India. (Transactions Madras Lit. Soc. Part I.)

According to Manu, 'usage is highest dharma,' as well for the most virtuous Brahman as for the lowest outcaste or most inveterate heretic; only, whereas the Brahman is to find his dharma mainly by searching the Cruti and Smrti, wherein his usage is fully described, others, less fortunate, must be content to follow the customs of their respective tribes. Custom, as Professor Jolly admits (at p. 36), was never replaced by the Smrtis. And, if it is true, as he thinks, that custom 'occupied a subordinate position in the eyes of the Brahmans, except so far as it had been, and was constantly being, embodied in the authoritative works of the Smrti writers,' it must be remembered that, as a body, the Brahmans have troubled themselves only about the usage of Brahmans, not at all about the usage of non-Brahmans, who constitute the great bulk of the population of Madras.


In remarking on the important passage of Gautama referred to above, Professor Jolly says (at p. 35): 'Similar rules occur in other Smrtis. But it is nowhere asserted that, in case of a conflict between custom and the Smrti, the Smrti may be overruled.' I have, however, pointed out that Manu VIII. 46, asserts this very thing in most distinct terms. And I trust that I have done something towards making it clear that a special aim of Manu is to teach those concerned that 'usage is highest dharma'; not only for the privileged classes, for whose benefit alone its author wrote, but also for the irresponsible masses, who ordinarily require no law for their guidance, except, of course, the criminal.

In conclusion, I must call attention to the danger of assuming that, because certain writers of law treatises have declared a usage to be extinct or prohibited, therefore such usage in fact has died out. Take the case of niyoga (levirat). Manu certainly (in IX. 59) gives as valid the approved rule for performing it, before expressing strong disapproval of the practice: and by numerous subsequent texts, e.g. IX. 146, 167, 190, sanctions the practice. But Brhaspati declares that it is prohibited in the present (Kali) age.

Brihaspati, also known as Guru, is a Hindu god. In the ancient Vedic scriptures of Hinduism, Brihaspati is a deity associated with fire, and the word also refers to a rishi (sage) who counsels the devas (gods). In some later texts, the word refers to the largest planet of the solar system, Jupiter, and the deity is associated with the planet as a Navagraha.

Sage

Brihaspati appears in the Rigveda (pre-1000 BCE), such as in the dedications to him in the hymn 50 of Book 4; he is described as a sage born from the first great light, the one who drove away darkness, is bright and pure, and carries a special bow whose string is Rta or "cosmic order" (basis of dharma). His knowledge and character is revered, and he is considered Guru (teacher) by all the Devas. In the Vedic literature and other ancient texts, sage Brihaspati is also called by other names such as Bramanaspati, Purohita, Angirasa (son of Angiras) and Vyasa; he is sometimes identified with god Agni (fire). His wife is Tara (or goddess who personifies the stars in the sky).

The reverence for sage Brihaspati endured through the medieval period, and one of the many Dharmasastras was named after him. While the manuscripts of Brihaspati Smriti (Bṛhaspatismṛti) have not survived into the modern era, its verses were cited in other Indian texts. Scholars have made an effort to extract these cited verses, thus creating a modern reconstruction of Bṛhaspatismriti. Jolly and Aiyangar have gathered some 2,400 verses of the lost Bṛhaspatismṛti text in this manner. Brihaspati Smriti was likely a larger and more comprehensive text than Manusmriti, and the available evidence suggests that the discussion of the judicial process and jurisprudence in Brihaspati Smriti was often cited.

Brihaspati sutras

Brihaspati sutras, also called the Barhaspatya sutras, is an ancient Sanskrit text named after its author Brihaspati, known for its theories of materialism and anti-theism. Its tenets are at the foundation of the Charvaka school of non-orthodox Indian philosophy. The Brihaspati Sutras manuscript has been lost to history or yet to be found. However, the text is quoted in other Hindu, Buddhist and Jaina texts, and this secondary literature has been the source for reconstructing the Brihaspati sutras partially.

Some scholars suggest that Brihaspati sutras are named after Brihaspati in the Vedas, but other scholars dispute this theory because the text rejects the Vedas.


-- Brihaspati, by Wikipedia


And later writers (it is said) without exception assume that niyoga is quite obsolete and impossible. Nevertheless, Marco Polo tells us that when he travelled in India 'a man takes his brother's wife, and all the people of India have this custom.' And, further, he tells us that the King, having five hundred wives of his own, forcibly took to himself the wife of his brother, who discreetly made no opposition to his will. Then, Mandelslo, who travelled in India in 1638, says (at p. 56) of the Vishnu sect: 'They have this particular custom in this sect, that they permit not the women to burn themselves with their husbands, but they oblige them to perpetual widowhood, even though the husband died before the consummation of the marriage. It is not long since that, among them, the younger brother was obliged to marry his elder brother's widow, to raise up seed to him; but this custom is abolished by an express law, which condemns the woman to celibate.' And doubtless the writer of the monograph on the Vaishnava Tottiyans of Madura, quoted at p. 141 of my View, had niyoga in view when he spoke of their priests compelling unwilling wives to consort with their husbands' brothers and near kinsmen. It is not at all unlikely, it seems to me, that niyoga in different forms may still survive among some of the non-Brahman castes of South India. Anyhow, it must be dangerous to assume the contrary.

It is generally known that a peculiar system of marriage prevails in Tibet—a plurality not of wives but of husbands. The cases of polyandry are; first, when several brothers take the same woman as their wife at the same time; second, when two or more men not brothers, marry the same woman by mutual agreement; and thirdly, when a woman, already married to one man, gains influence over her husband, and, with his consent, marries another in addition. In case the mother of a family dies, either the father or the son takes a new spouse, who becomes at the same time the wife of the other male members of the family without infringing the law of the country. They are quite insensible to the shame of this dissolute condition of matrimonial relations, which can scarcely be even imagined by people with a civilised moral sense; and yet there do exist some restrictions: marriage of brothers with sisters, or between cousins, is not only censured by the public as immoral, but also prohibited by the law as criminal.

-- Three Years in Tibet, by Shramana Ekai Kawaguchi


This chapter as a whole will be found to be admirably illustrated by some texts remarked on below, pp. 146-7.
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