Dissertations on early law and custom : chiefly selected from lectures delivered at Oxford

Front matter

it*>

'Mr

W. li.

Contents

CHAPTER PAGE

I. The Sacred Laws of the Hixdus .... 1

,«» II. Religion axd Law 26

Chapter I. The Sacred Laws Of The Hindus

The study of the sacred languages of India, which has given to the world the modern science of Philology and the modern theory of Race, began virtually in the study of sacred Indian law. Sir William Jones, who. though he was not absolutely the earliest of Anglo-Indian Sanscritists, was the first to teacli the West that there was in the East such a language as Sanscrit, and a literature preserved in it, does not appear during his Oriental studies in England to have suspected tlie existence of the treasure he was destined to disinter. He seems rather to have sought the key to Eastern knowledge in two spoken and highlycultivated lani{uafi:es — Arabic and Persian. But he accepted a Judgeship in a Court of Justice newly established in neri'^al, und(,T an Act of Parliament which reserved to native litigants the application of their ^^own laws and usages in nil f|uestions of inheritance

V THE SACRED I.AWS OF THE HINDUS. chap. i.

and contract ; and, from a much earlier period, it had been the practice of all the Indian Courts to attach to themselves Moolvies and Pundits — that is, native professors of Mahommedan and Hindu law — for the purpose of advising them on the legal rules, of which these experts represented themselves to be tlie depositaries. The correspondence of Sir William Jones repeatedly expresses his suspicions (perhaps not always quite just) of the fidelity and honesty of the native advisers of the tribunals. ' I can no longer bear,' he writes in September 1785, 'to be at the mercy of our Pundits, who deal out Hindu law as they please, and make it at reasonable rates when they cannot find it ready-made.' He therefore formed a determination to acquaint himself personally with the sources of the law from which they j^retended to draw their opinions.' With Arabic he was already fiimiliar, and he therefore required no assistance in his studies of Mahommedan law ; but for the purpose of mastering the virtually unknown lano'uao-e in which the Hindu law was contained, he found it necessary to visit during his vacations several of the decaying and decayed seats of learning in which knowledge of it was still professed, and he organised a staff* of Hindu scholars to aid him in his Sanscrit studies, and to record their results. The plan for improving the administration of Anglo-Indian justice which finally commended itself to him was one for the preparation of a Digest

CHi.P. I. THE SACRED LAWS OF THE HINDUS. 6

in English of Hindu and Maliommedan law, which should need no Pundits or Moolvies for its interpretation. Much to their honour, the Indian Government of the day. formed of Lord Cornwallis and his Council, accepted his offer to preside over the undertaking, and his staff of native experts, considerably increased, was taken into the Government service. On his monument by Flaxman, in the chapel of University College at Oxford, he sits surrounded by his company of native literates, amid conventional Indian foliage, bareheaded, in the open air.

It was in fact from these native Hindu teachers that Sir William Jones learned, and the learned and curious all over the West were gradually informed, that in a part of the world just coming under the British sceptre there existed an ancient language, the elder sister of the classical lanf]^ua2:es so honoured in the West, a series of poems whicli might not unjustly be compared to the Iloineric epics and the Attic drama, and laws twice as old as the legislation of Solon and the Twelve Tables of Uome. It is impossible now — now that India has become more commonplace as slie has got nearer ; now that, here at all events, she is associated with frontier wars, budgets, opium, and grey sliirtings — tr) reproduce the keen throb of intellectual interest which tlie literary portion of these discoveries sent through I'^urope. l>ut Sir William Jones was even more of a jurist than a scjjolar, and

J! -J nothing seems to have surprised and interested him more than the assurance of his teachers that, in the ancient lano:ua2:e he was learnino^, there survived leo'al writino^s asserted to be of sacred orioin, of vast antiquity, and of universal obligation among Hindus. The oldest of them was said to have been dictated by Manu, a divine being who had been mysteriously associated with the creation of all things ; and it was described as the acknowlediJ^ed basis of all Hindu law and Hindu institutions, the fountain of all civil obligation to more than a hundred millions of men. The book was actually extant, and the translation of it which he gave to the world, with the title ' Institutes of Hindu Law, or the Ordinances of Menu, according to the Gloss of Culliica,' was the first-fruits of his labours on the Digest which he had planned. He seems, in fact, to have regarded it as standing to this projected Digest much in the same relation as the Roman Institutes to the celebrated Digest of the Emperor Justinian.

It does not seem to me possible to doubt that the acco :nt which Sir William Jones gave of the Book of Manu in his Preface to his translation was a rationalised version of the statements made to him by his native teachers, who seem all to have belonged to one particular school of Hindu learning, accustonu'l to hold Manu in especial honour. Sir William Jon( V- considered this personage, who, in the treatise

<:hap. I. THE SACKED LAWS OF THE HIXDUS. 5

called after him, sits * reclining on his arm. with his attention fixed on one object, the supreme God,' as a real individual human being, and the personal author of the lesfislation attributed to him. Sir William Jones compares hun to the Cretan Minos and the Egy^^tian Men, partly on account of the consonance of names. As I have just stated, he sees an analoofv" in this law-book to the Institutes of the Roman Justinian, but he assigns to it the prodigious date of 1,280 years before Christ. In the Hght of newer knowledofe, which nevertheless mioiit not have existed but for Jones, we can see that these statements of his require connection. There is no doubt that, if Manu is to be compared to a book known to Englishmen, it should have been to a book a o'ood deal more familiar to them than the Roman Institutes, the book of Leviticus. For Manu, though it contains 3. goofl deal of law, is essentially a book of ritual, of priestly duty and religious observance ; and to this combination of law with religion the whole family of Hindu writings, to which the book of Manu bekmgs, owe some remarkable characteristics on whicli I am desirous of dwelling. It is not at tlie same time to be supposed that the com])ination is peculiar to the Hindus. Tiierci is no system of recorded law, literally from China to Peru, wliich, when it first emerges into notice, is not seen to b(* entangh^d witli religious ritual and ol>servance. The law oi' the Romans has been thought to be that in which the civil and Pontifical jurisprudence were earliest and most completely disentangled. Yet the meao-re extant fra"Tnents of the Twelve Tables of Rome contain rules which are plainly religious or ritualistic : —

Thou slialt not square a funeral pile with an adze. Let not women tear their cheeks at a funeral Thou shalt not put gold on a corpse.

We are told by Cicero (' De Legibus/ 2, 25, 64) that several of these rules contamed in the Tenth of the Roman Tables were taken from Greek originals. He attributes the Greek rules to Solon, and explains that they limited the costliness of the ancient ritual of funerals.

The opinions of Sir William Jones produced great effects both in the East and in the West. One result which followed from them I must pass by with notice very unequal to its practical hnportance. The Anglo- Indian Courts accepted from the school of Sanscritists Av^hich he founded the assertion of his Brahmanical advisers, that the sacred laws beginning in the extant book of Mann were acknowledged by all Hindus to be binding on them. The impression in the mind of the English judicial officers — an impression shared, I infer from its language, by the English Parliament — manifestly was that the sacerdotal Hindu law corresponded nearly to the English Common Law, and was at least the substructure of all the rules of life followed

CHAP. I. THE SACRED LATTS OF THE HIXDl'S. 7

by Hindus. It is only just beginning to be perceived that this opinion had a very slender foundation, for it is probable that at the end of the last century large masses of the Hindu population had not so much as heard of Manu.^ and knew little or nothino- of the legal rules supposed to rest ultimately on his authority. The original range of operation which it is possible to allow to the sacerdotal laws has been much narrowed by very recent investigation. Some years ago, on my return from India, I stated in a book on ^ Yillaoce Communities in the East and West ' (pp. 52, 53) the opinion which I had formed after personal inquiry among Indian judicial officers. * The conclusion,' I said, ' arrived at by the persons who seem to me of highest authority is, first, that the codified law — Manu and his sflossators — embraced originally a much smaller body of usage than had been imagined ; and next, that the customary rules, reduced to writing, have been very greatly altered by Brahmanical expositors, constantly in spirit, sometimes in tenor. Indian law may in fact be affirmed to consist of a very great number of local bodies of usage, and of one set of customs, reduced to writing, pretending to a diviner authority than the rest, exercising consequently a great influence over them, and tending,

' A high authority informs me that there are few, if any, references to Manu in the Sanscrit literature other than the legal treati.sf;s. These last quote a * Mann,' but the writings quoted under that name are not those now extant.

if not checked, to absorb them.' Since then, my conclusion has been greatly fortified by more systematic examination of the phenomena. There is in India a province, the Punjab, the country of the Five Rivers, which was the earliest seat of the Aryan Hindus on their descent from their oriofinal home into the Indian plains. The laws and institutions of this province have quite lately been the subject of an exhaustive official inquiry (' Punjab Customary Law,' edited by C. L. Tupper, Calcutta, 1881). Among several results of great interest which seem to me to have been reached, one is that we have in the Punjab the Hindu institutions very much in the state in which they were before the Brahmanical expositors took them in hand. The traces of the religious ideas which profoundly influenced the development of what is known as the Hindu law are here extremely slight ; and few things can be more instructive to the legal archaeologist than the comparison of the Punjab rules with those worked out in Brahmanical schools far to the south-east. This Punjab Hindu law exhibits in fact some singularly close resemblances to the most ancient Roman law. There is also evidence that the stream of Hinduism which at some time or another flowed over the southern peninsula of India was extremely superficial.'^ The southern Hindu has

2 Much attention is deserved by the two works of Mr. J. H. Nelson, A Yieio of the llimbo Law as administered hy Hie High

CHAP. T. THE SACRED LAWS OF THE HIXDUS. 9

always been regarded as a lax Hindu ; but the truth seems to be. not that he negligently violates the Hindu sacerdotal law. but that neither he nor his forefathers ever knew it m anvthino- like its inteoTity. Some other ^dews. which are not now accepted by the most learned Sanscritists, had their origin in the theories first propounded in Sir William Jones's preface. The probable antiquity of Manu's law-book was much exao-aerated. Its true date is un-

CO

known : in Indian literary history there are almost no trustworthy dates : but it is now believed to be relatively modem — almost the most modern of a large family of Sanscrit writings more or less treating of law. This opinion is the result of a test first applied by Professor Max Miiller, and now universally accepted by Sanscritists as conclusive. The law-book of Manu is in verse, and Verse is one of the expedients for lessening the burden which the memory has to bear when writing is unknown or very little used. But there is another expedient which serves the same object. Tliis is Aphorism or Proverb. Even now, in our own country, much of popular wisdom is preserved either in old rhymes or in old proverbs ; and it is well ascertained that

Court of Ma/lraSf and llic Sclfjitific Study of tit f. Jliwtu Lair, particularly the first. Tliere may be a question whether the practical evilg pointed out in these books are now remediable, or, if they are reme^liable, by what methods they should be removed : but of their existence I do not think there can be any reasonable doubt.

10 THE SACRED LAWS OF THE HLXUUS. chap. r.

durino; the Middle Ao^es much of law and not a little of medicine was preserved among professions, not necessarily clerkly, by these two agencies. A great deal of old German law compressed into maxims has been preserved, and it is probable that the Latin legal maxims well known to English lawyers, and sometimes spoken of as the quintessence of wisdom, were really aids to recollection. As to Yerse, the ordinary medical practitioner once carried his professional knowledge with him in the versified Latin rules of the school of Salerno — that curious body of medical precepts which begins with the grim warnuig, ' contra vim mortis non est medicamen in hortis.^ In Sir William Jones's day, an abridgment of Lord Coke's ' Reports ' in verse was in existence ; and he gravely remarks that, if the verse had been smoother and the law more accurate, every student might have been advised to use it. Now, the Sanscrit law-books are sometimes in aphoristic prose, sometimes in verse, sometimes in a mixture of both ; and the canon established by Max Milller is that, in India at all events, books of aphorisms are older than books of verse ; and the clue being once found, many more proofs disclose themselves that Manu, which is wholly in verse, is much more recent than the Hindu law-books (such as Apastamba and Gautama,^

^ Apastamba and Gautama are translated in vol. ii. of Max Miiller's Sacred Books of the East, Yasislitha in vol. ix., Baud-

CH^p. I. THE SACRED LAWS OF THE HIXDUS. 11

which are whoUy in aphoristic prose), and even more modern than books (like Vishnu and Vasishtha*) which are partly in prose and partly in verse. ' In the whole of Yedic (that is Hindu scriptural) literature/ says Max Mliller, ' there is no work written,, like Manu, in the regular epic sloka, and the continuous employment of this metre is a characteristic mark of post-Yedic writings.' Manu, therefore, in spite of its great modern reputation, belongs to the Hindu Apocrypha. Xor is it believed that we have the book m its original form. Dr. Jolly (preface to Vishnu) speaks of the ' abundant evidence ' for its havmg undergone modifications and entire transformations in successive periods.

The result of all this literary investigation and discussion is, that no book has had so many dates attributed to it as the book of Manu. Sir W. Jones placed its age at 1280 B.C., Schlegel at 1000 B.C., Elphinstone at 900 B.C., Monier Williams at about the fifth century B.C., Max Miiller at not earlier than 200 b.c. l>ut tlie high authority of the late Dr. Burnell is now cited frjr so hite an a<i:e of tlie original book as 400 a.d., and it has even been attributed in

hayana in the same volume, and his most impoi-tant chapters in West and BUhler's DifjfiHt of lliruhi, Lavj. Tliis writer is regarded by learned Hindus as an extremely old authority, but the extant text is in a very untrustworthy condition, as may be seen from Dr. Biihler's Introduction. Vislinu is translated by Jolly in vol. v.. of the Sacred Jiookn. 4 Ibid.

12 THE SACRP:D laws of the HINDUS. chap, i.

its present form either to the eleventh or the fourteenth century of our era. (See Nelson, ' Scientific Study of Hindu Law,' p. 37.) It is as though it were thought doubtful whether a particular work were composed at the fabulous date of the Taking of Troy, or at the historical date of the Battle of Bannockburn. The book itself, however, purports to be coeval wdth the creation of the world, and I suppose that a Hindu holding the opinions now considered orthodox would be bound to claim for it an indefinitely high antiquity. At the same time, its audacious pretension to be of divine origin is outdone in some of the writings now shown to be older, for tlie so-called Code of A^islmu professes to have been dictated by one of the Persons of the Hindu Trinity to the Goddess of the Earth.

When this sacred legal literature of the Hindus is surveyed in its entirety, it is impossible not to recognise the plausibility of the modern theories of its orio^in. No one treatise, and still less the a2^oTe2:ate of treatises, is the production of an individual man or of an individual mind. The literature is the gradual growth of schools of learned Brahmans, which are still found in India. They are companies or corporations of men devoted to sacred learning. Perhaps the nearest analogy to their work is to be found in the labours of the Benedictines. But the comparison must not be pushed too far. The conception

CHi.p. I. THE SACRED LAWS OF THE HIXDUS. lo

of a celibate order appears to have been imknown to the earlv Hindus. Each school was either in its beginning an actual family, or, if origmally it was a mere collection of voluntary pupils sitting at the feet of a teacher, it tended to shape itself upon the model of the family, as the only known form of permanent association. The distinction between one school and another probably consisted in the particular set of authorities (as it would now be, the particular standard books) which it followed ; and, as it went on from generation to generation, it was recruited partly by voluntar}^ adherence and partly by hereditarv descent. The double process is clearly reflected in the text of one of our oldest authorities, Apastamba. The student desirous of being initiated into sacred learning is to go to a man ' in whose family it is hereditary, who himself possesses it, and who is devout in following the law' (Apastamba, i. i. 1. 11). On the other hand, the pupil is directed to consider the teachers of his teacher as his ancestors^ (Apastamba, i. i. 7. 12). This view of the relation of teacher and pupil lias by no means died out ui India. The Hindus still rej^ard ' a school consisting" of a succession of teachers and pupils as a spiritual family' (Dr. ]>iihler, hn'. cit.) And according to the letter of the law recognised by the Indian Courts^ thongli not j>erhaps according to the actual practice, teacher and jjupil btill inherit from one another, just as they did in the remote days of Apastamba, who lays down that, on failure of the nearer kmsmen, * the spiritual teacher inherits, and in failure of the spiritual teacher a pupil shall take the deceased's wealth, and use it for religious works for the deceased's benefit, or he may himself enjoy it ' (ii. vi. 14. 3).

There are analogies to this sacredness and strictness of literary relations in the literary history of two societies with little or no intellectual likeness to the Hindus. Mr. Grote's theory of the Homeric poetry, taken in a mass (ii. 176-178), is that it was the aggregate production, not of one man, but of a gens or clan of Homeridae, of whom Homer was the name- giving ancestor, real or supposed, the ' divine or semi-divine eponymus or progenitor, in whose name and glory the individuality of every member of the gens was merged.' ' Homer is no individual, but the divine or heroic father of the Homerids, the ideas of worship and ancestry, coalescing, as they constantly did, in the Grecian mind.' A still nearer analogy is one which, like many others, occurs in the ancient legal literature of the Irish. ' Literary fosterage,' I wrote in a former work ('Early Histor^^ of Institutions,' p. 242), ' was an institution nearly connected with the existence of the Brehon law schools, and it consisted of the various relations established between the Brehon teacher and the pupils he received into his house for instruction in the Brehon lore.

CHAP. I. THE SACRED LAWS OF THE HINDUS. 15

However it may surprise us that the connection between Schoolmaster and Pupil was regarded as peculiarly sacred by the ancient Irish and as closely resembling natural fatherhood, the Brehon tracts leave no room for doubt on the point. It is expressly laid down '' that it created the same Patria Potestas as actual paternity ; and the literary foster-father, though he teaches gratuitously, has a claim through life upon portions of the property of the literary fosterson. Thus the Brehon with his pupils constituted, not a school in our sense, but a true family. While the ordinary foster-father was bound by the law to give education of some kind to his foster-children — to the sons of Chiefs instruction in ridin2f, shootinsr with the bow, swimming, and chess-playing, and instruction to their daughters in sewing, cutting out, and embroidery — the Brehon trained his foster- sons in learning of the liighest dignity, the lore of the chief literary profession. He took payment, l)ut it was the law which settled it for him. It was part of his status, and not the result of a bargain.'

On the whole, few literary theories of modern mintage have more to recommend them tlian that which Professor Max Mliller first gave of the large

* The literary foster-father has the power of pronouncing judgment and proof and witness upon tlie foster-pupiJ, as ]ias the father u£X)n the son, and the Church upon lier tenant of ecclesiastical lands {Ancifmt Lav)8 of Irdaml^ ii. 349).

extant body of Hindu sacerdotal legal writings. They were gradually evolved by Brahmanic families, real or artificial. ' The great number of these writings,' he says in his letter, first printed in Morley's Digest,^ ' is to be accounted for by the fact that there was not one body of Kalpa- Sutras binding on all Brahmanic families, but that different old families had their own Kalpa- Sutras. These works are still very frequent in our libraries, yet there is no doubt that many of them have been lost. Sutras are quoted which do not exist in Europe, and the loss of some is acknowledged by the Brahmans themselves.' As regards the Manava Dharma Shastra, the Manu translated by Sir William Jones and asserted by his native teachers to be the basis of all sacred Hindu law, it is a late redaction of the legal doctrine of the Manavas, a gens or clan called after a Manu frequently mentioned in Sanscrit literature, but mentioned by the writer of the extant book as somebody different from himself. If the old jManu ever composed a law-book (which is doubtful), it would certainly not have been composed in the metre of the extant code.

The theory upon which these schools of learned men worked, from the ancient, perhaps very ancient. Apastamba and Gautama to the late Manu and the

6 Now to be read at p. 1 of the Tntroduction to Apastamba, m vol. ii. of the Sacred Books.

CHAP. I. THE SACKED LAWS OF THE HINDUS. 17

still later Xarada, is perhaps still held by some persons of earnest relis^ious convictions, but in time now buried it affected every walk of thought. The fundamental assumption is, that a sacred or inspired literature beins^ once believed to exist, all knowledo;e is contained in it. The Hindu way of putting it was, and is, not simply that the Scripture is true, but that everything which is true is contained in the Scripture. From very ear^y times, the Hindu doctors appear to have been conscious of difficulties in the interpretation or application of their theory. Sometimes books of authority contradicted one another. Sometimes they failed to supply a basis for received doctrines or for immemorial religious practice. One of the earliest of expedients was to suppose the loss of passages in the most ancient portion of the Scriptures. 'If you ask,' says Apastamba, 'why the decision of the Aryas presupposes the existence of a A'edic passage, then I answer. All precepts were originally taught in the ]>rahmanas, but these texts have been lost. Their former existence may, however, be inferred ihnn usage. It is not, however, permissible to infer the former existence of a Vedic passage where pleasure is obtained by fcjllowing the ciistoni ; lie who follows such usage becomes fit for Hell ' (i iv. \'2. \i)). With the aid of such expedients, of which several are still in use among learned Hindus the theory has survived ; and it is to be observed that

c

18 THE SACKED LAWS OF THE HINDUS. chap. i.

such a theory, firmly held during the mfancy of systematic thought, tends to work itself into fact. As the human mind advances, accumulatincf observation and accumulating reflection, nascent philosophy and dawning science are read into the sacred literature, while they are at the same time limited by the ruling ideas of its priestly authors. But as the mass of this literature grows through the additions made to it by successive expositors, it gradually specialises itself, and subjects, at first mixed together under vague general conceptions, become separated from one another and isolated. In the history of Law the most important early specialisation is that which separates what a man ought to do from what he ought to know. A great part of the religious literature, including the Creation of the Universe, the structure of Heaven, Hell, and the World or Worlds and the nature of the Gods, falls under the last head, what a man ought to know. Law-books first appear as a subdivision of the first branch, what a man should do. Thus the most ancient books of this class are short manuals of conduct for an Aryan Hindu who w^ould lead a perfect life. They contain much more ritual than law, a great deal more about the impurity caused by touching impure things than about crime, a great deal more about penances than about punishments. They are intended to guide the faithful Hindu of the three higher castes from birth to death,

CHAP. I. THE SACRED LAWS OF THE HIXDUS. 19

and a'ive liim fall directions for livino; first as a student of lioly books, ne.vt as a householder (or, as Ave should say, a citizen), and finally — for that is assumed to be the proper lot of every man in old age — as a reliofious ascetic or a hermit.'

This remarkable distribution of life runs through the whole series of sacred legal writings, and only disappears when they become mere law-books. The Brahman alone teaches, but the entire youth of the three higher castes, Brahmans, Kshatriyas, and A^aisyas, come and sit at his feet to be instructed in sacred learning ; it is rot even certain from some passages whether the lowest and most despised of castes, the Sudras, are always excluded. This is the period of Studentship. When it comes to an end, the instructed Hindu returns to liis family and to civil affairs. He is then the Householder. But, when old age is beginning, it is assumed in these books (whatever may have been the actual practice) that he withdraws from active life and closes his days as a Hermit or Ascetic, following a code of self-denial wliich is prescribed for him in i'liU detail. It is of course to the second of these periods, that of life as a Householder, that we must look for whatever li":}it the sacrefl laws of the Hindus may throw upon the ancient

^ The Student, who had cornjjhited hi.s novitiato. might at any time Ix'come an Ascetic, but the regular course of life is that indicated in the text.

(; 2

20 THE SACRED LAWS OF THE IIIXDUS. chap. r.

history of law. The first of them, Studentship, is remarkable, as disclosing the true secret of the hold of the sacred literature on large portions of the Hindu race, and of the respect paid by it to the teachers of the race, the Brahmans. For the education of the young Hindu is not merely an education in the holy texts and doctrines; it is a training in reverence, almost amounting to abject servility, bestowed on the literature and its professors in about equal proportions and inculcated by a system of rules adapted with extreme skill to immature minds. The third period, however, that of Asceticism, is the one which on the whole seems most unintellii>:ible to the modern reader of these books, and it merits some special attention before this chapter is closed. The duty of adopting the ascetic life, and the rules for following it, referred to in all the law tracts, are discussed at much length by Manu in the sixth chapter. ' Having thus remained,' it is written, ^ in the order of Householders, let the twice-born man (" twice-born," that is, through the study of the Yedas), wdio has before completed his studentship, dwell in a forest, his faith being firm and his organs wholly subdued. AVhen the flither of a family ])erceives his muscles become flaccid and his hair grey, and sees the child of his child, let him then take I'cfuge in a forest. Abandoning all food eaten in towns, and all his household uten-sils, let him repair to the lonely wood, committing the care of his wife