Page images

meeting like the present, to the geographical superficies of India, its immense population, its various nations and languages, its former history of semi-barbarous conquerors, or its civilized European merchants, subsequently its invaders and present possessors. It will be sufficient to say, that from the earliest period of time down to the conquest of India by Tamerlane or Timour in 1398, the Gentoo or Hindú law was the rule of action of the whole of the continent of Hindustan. After that time, as the power of the Mogul began to be consolidated, the Mahomadan law has almost divided the supremacy with the Hindú; indeed, in some respects, superseding it.

The Gentoo or Hindú law, like our own, is a mixture of religious observances and positive rule. The Mahomadan law is embodied and comprised in the Korân, so far a purely religious ritual, but containing the grounds of civil jurisprudence.

The Hindú law is of the greatest antiquity; very careful English writers upon the subject have considered it to have taken form and consistence, as it at present exists, at least 1000 years before Christ. The Mahomadan law, as we all know, dates from the promulgation of the Korân—this in general terms may be considered as taking its origin 600 years after Christ.

Religion forms an integral part of the laws, both of the Hindoo and the Musselman, as they are respectively believed by them to be of direct divine revelation. I

purpose to invite your attention to the leading and prominent features of these two systems of laws; then shortly to state the circumstances attending the introduction of English law into the three Presidencies; and the provisions which were made by the supreme government for the administration of the Hindú and Mahomadan laws amongst the natives of India. I should premise that I abstain from noticing at all the criminal laws either of the Hindoos or Musselmen. The translation of Menu sufficiently made known what the criminal law of the Hindoos was. That, however, is now completely superseded by the Mahomadan system. Nor shall I make any reference to our own criminal law as administered in India. To those who are curious on this subject, the perusal of the Draft of the Criminal Code composed by the present Lord Macaulay, shortly after he was appointed fourth member of Council in 1833; the reports of the Indian law commission, lately presided over by the Master of the Rolls, and some short time since published; and the correspondence which took place with reference to all these between the authorities in India and in England, would not only furnish them with a great intellectual treat, but give them also a curious, as well as useful, insight into the delays, the caprices, and the mode of dealing with matters of most vital importance, when these have reference to prospective legislation in India.

1. As to HINDU LAW:-This may be divided into two parts. That which the Hindoos believe to have been revealed direct from Brahmâ or the supreme deity—which constitutes the “ Vedás ;” and that which they believe to have been composed by inspired writers who have recorded holy precepts, for which a divine sanction is presumed. The “Vedás” principally concern Religion and its ceremonials; the “Smriti” (what was remembered) containing the general body of law, civil and criminal. That law is to be sought in the Institutes or Collections attributed to holy sages. These are very numerous, according to some writers amounting to eighteen; according to others, to twice that number. The Hindoos revere these Institutes as containing a system of sacred law confirmed by the Vedá itself. This would appear to be demonstrated from the text, thus translated by Sir William Jones, according to the gloss of Sancara :-“God, having created the four classes, had not yet completed his work; but in addition to it, lest the royal and military class should become insupportable through their power and ferocity, he produced the transcendent body of law; since law is the king of kings, far more powerful and rigid than they, nothing can be mighter than law, by whose aid, as by that of the highest monarch, even the weak may prevail over the strong.” The Dharmâ Shastrâ, or Institutes of Menu, is of the very highest authority—believed by the Hindoos to be not only the oldest

[ocr errors]

work, but the most holy after the Vedas, and to be implicitly followed. The Code of Menu is divided into twelve booksI need not state their names, nor the character of the divisions of the subject matter of each. It may be sufficient to say the Commentaries and Digests founded upon them are very numerous. This is accounted for principally from the fact, that each dynasty in India, at its commencement, gave out as a rule of its government a new commentary, or new digest of ancient Text-Books. To this circumstance may also be attributed the fact that, in the several parts of India, there are various schools or sects of jurisprudence. The school of Benares, in Central India, governed by the authority of one set of commentaries; in the north-west, south, and west of India by others. These of course are all particularly designated as the Mítakshárá, the Vyása Purânás, the Mithilâ, and various others. I do not trouble you with further names; but it may, however, be noticed in passing, that that which is called “the Digest," is the work most familiarly known to English students of Hindú law, was completed at the instance of Sir William Jones by an eminent native Pundit (Jagganathá), and translated from the original Sanscrit by Mr. Colebrooke. It consists, like the “Roman Digest,” of texts collected from works of authority extant in the Sanscrit language only, having the names of their several authors prefixed, together with an ample commentary by the compiler. In restricting this compilation to the law of “contracts and succession,” he has omitted the laws relating to pleading and evidence, and other questions which are of course necessary to be studied, to assist Courts of Civil Judicature in deciding private contests, according to the laws which the Hindu subjects of Great Britain bold sacred.

The work upon Hindú Law to which I have been most indebted in my researches upon the subject, has been that by Sir Thomas Strange, on Hindú Law, published here in 1830 (a). The author was a man of most estimable character.

(a) “ Hindú Law; principally with reference to such portions of it as concern the administration of justice in the King's Courts in India.-London: Parbury & Co., 1830."

[ocr errors]

He was first recorder and subsequently the first Chief Justice
at Madras. He is represented “ to have possessed most of the
qualities requisite for an Indian Judge-of disposition mild
and manners courteous; and, although he had not attained
any great knowledge of the languages of India, he was imbued
with a strong predilection in favour of the natives, and spared
no pains and omitted no opportunity of gaining information
upon the subject of their laws and institutions." This work,
with others by Sir W. Jones, by H. Colebrooke, Sir F.
McNaghten, Mr. Ward, and Mr. Ellis, furnish a complete body
of Hindú law, so far as concerns the administration of it by
English tribunals amongst the natives of India. I have
adopted the classification of the subjects of law which Sir T.
Strange introduced :-
These are, 1. On Property in general.

2. On Marriage.
3. On the Paternal relation.
4. On Adoption.
5. On Slavery. This, however, has become obso-

lete, by theentire abolition of slavery through

out India since the work was published. 6. On Inheritance; embracing the disabilities to

inherit, and the charges on the Inheritance. 7. On Partition. 8. On Widowhood. 9. On the Testamentary Power; and lastly,

on Contracts. Now, on two of these great branches of Law, I mean “Inheritance” and “Contract," our charters and legislative enactments relating to India specially provide, that where these are the subjects of contest between natives, the Hindú and Musselman laws are to be administered between them by the Judges of our Supreme and the Company's Native Courts; but the other heads of Jurisprudence before mentioned, are so blended and mixed up with the law of “Inheritance" and “ Contract," that it is impossible, without a competent knowledge of them, to do justice to the latter. The Testamentary Power may, at first sight, appear an anomaly—as it was strictly unknown to the Hindoos prior to British rule in India. It is, however, established at one of the Presidencies by law, and in exercise at all. This power is, however, a modified one. A Hindoo cannot devise or bequeath property which could not have been the subject of gift or partition during his lifetime—in other words, he cannot confer upon a stranger, or his own kin, by will (a donation in contemplation of death), what he could not bestow by deed of Gift or partition of Patrimony during his life.

A few words on Property in general, as defined by Hindú law. In all stages, and in all parts of the world, property is necessarily divided into moveable and immoveable.

Land, as a necessary consequence, takes the lead in point of importance. It has always been peculiarly so with the Hindoos, at all times an agricultural rather than a commercial people. As to the sovereignty of the soil—it is laid down by one of the Institutes of Menu, that “cultivated land is the property of him who cut away the wood, or who cleared and tilled it” (a), of the produce of which the ordinary proportion accruing to the sovereign was a sixth, and, in times of urgent distress, a fourth. It has always been the fund destined for the provision of families; and the right to it has been clung to, both by the Hindoos and Musselmen, with a tenacity of which we are at this moment witnessing the force in Oude. It was the same when the Musselmen of the North subjugated the Central and Southern Hindú nations. The Hindoo then became the mere CULTIVATOR of the soil under his Mabomadan taskmaster; but even then he possessed a quasi proprietary right in a share of the produce of the land-which was descendible. The right to the proprietorship in the soil itself, was endeavoured to be restored to the Hindoo by Lord Cornwallis in 1793, who, by his celebrated “ Permanent Land Settlement,” so far restored it as to fix, payable in money, the proportion to which the state should be entitled, leaving to the possessor of the land after this deduction, the unrestrained

(a) Menu, ch. ix. 52. 53. “Memoir on Central India, by Sir John Malcolm," vol, ii. p. 1.

[ocr errors]
« EelmineJätka »