CHAP. 4. Prior to the art of writing, laws can have little BOOK II. accuracy of definition; because, when words are not written, they are seldom exactly remembered; and a definition whose words are constantly varying is not, for the purposes of law, a definition at all. Notwithstanding the necessity of writing to produce fixed and accurate definitions in law, the nations of modern Europe have allowed a great proportion of their laws to continue in the unwritten; that is, the traditionary state; the state in which they lay before the art of writing was known. Of these nations, none have kept in that barbarous condition so great a proportion of their law as the English. From the opinion of the Hindus that the Divine Being dictated all their laws, they acknowledge nothing as law but what is found in some one or other of their sacred books. In one sense, therefore, all their laws are written. But as the passages which can be collected from these books leave many parts of the field of law untouched, in these parts the defect must be supplied either by custom, or the momentary will of the judge. Again, as the passages which are collected from these books, even where they touch upon parts of the field of law, do so in expressions to the highest degree vague and indeterminate, they commonly admit of any one of several meanings, and very frequently are contradicted and opposed by one another. When the words in which laws are couched are to a certain degree imperfect, it makes but little difference whether they are written or not: Adhering to the same words is without advantage, when these words secure no sameness in the things which they are made to signify. Further, in modern BOOK II. CHAP. 4. Europe, the uncertainty adhering to all unwritten laws, that is, laws the words of which have no certainty, is to some degree, though still a very imperfect one, circumscribed and limited, by the writing down of decisions. When, on any particular part of the field, a number of judges have all, with public approbation, decided in one way; and when these decisions are recorded and made known, the judge who comes after them has strong motives, both of fear and of hope, not to depart from their example. The degree of certainty, arising from the regard for uniformity which may thus be produced, is, from its very nature, infinitely inferior to that which is the necessary result of good definitions rendered unalterable by writing. But such as it is, the Hindus are entirely deprived of it. Among them the strength of the human mind has never been sufficient to recommend effectually the preservation, by writing, of the memory of judicial decisions. It has never been sufficient to create such a public regard for uniformity, as to constitute a material motive to a judge. And as kings, and their great deputies, exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What judicature would pronounce was, therefore, almost always uncertain; almost always arbitrary.1 This passage has been subjected to the especial animadversions of Mr. Ellis, who makes some severe remarks upon the positiveness with which these comprehensive but ill-founded assertions are made. “The "main source of Mr. Mill's error," he continues, "seems to be sufficiently "disclosed by himself, in the first sentence of his chapter on the Hindu laws. "It is the common one of having judged of the whole from a small part. The "materials on which he founds his opinions, seem to have been merely Sir In a JUDICATORY, the qualities desirable are; 1. intelligence; 2. good design; and that is the best judicatory in which the best securities are taken for them. In the judicatories of the Hindus, composed of the king and his Brahmens, or the Brahmens alone, there is no security for either the one or the other; and accordingly neither the one nor the other almost ever appears. The qualities desirable in the forms of judicial procedure, are, 1. efficiency; 2. freedom from delay; 3. freedom from trouble and expense. In these several respects the system of the Hindus displayed a degree of excellence not only far beyond itself in the other branches of law, but far beyond what is exemplified in more enlightened countries. 1. The efficiency of the Hindu system of judicial procedure is chiefly impaired by those rules of evidence the badness of which has already been pointed out: 2. For preventing delay, it enjoys every requisite, "William Jones's institutes of Menu. Mr. Halhed's Code of Gentoo Laws, "and Mr. Colebrooke's translation of Jagannatha Panchanana's Digest. "That they were utterly insufficient for his purpose, the section to which this "note is appended sufficiently shows. When he supposes that there are no "definitions on Hindu law, he has never seen even in a translation, any one "book of the second great class of Hindu law-books, namely:—the Vyak"hyánas or commentaries, and only the translations of two very imperfect "works out of the great multitude of digests, and he relies mainly upon "the institutes of Menu; which being a mere text-book, is never used as "an authority in Hindu courts, but when accompanied by an explanatory "commentary, or incorporated into a Digest. It is true that the Hindus have "not preserved Reports,' after the English fashion, of the decisions " of their courts of justice. But when the 'definitions' of the English common law are sought for, no less regard is paid to those which are found in "Lyttleton's Tenures, or perhaps in Lord Coke's Commentary, than to "those which appear in the 'reports of cases;' and the commentaries of "the Hindus, are considered more decidedly by them to be integral parts "of the body of their law, than any commentary is in England."-Trans. Literary Society of Madras. p. 12.-W. BOOK II. CHAP. 4. CHAP. 4. BOOK II. in its method of immediate, direct, and simple investigation: 3. In the same method is included all that is requisite for obtaining the judicial services with the smallest portion of trouble and expense.1 'One of the most recent witnesses of the phenomena of Hindu society, who possessed extraordinary means of accurate knowledge, speaks in general upon the administration of justice among the Hindus in the following terms. "Without any of the judicial forms invented by the spirit of chicanery in Europe; with no advocates, solicitors, or other blood-suckers, now become necessary adjuncts of a court of justice in Europe; the Hindus determine the greater part of their suits of law by the arbitration of friends, or of the heads of the cast, or, in cases of the very highest importance, by reference to the chiefs of the whole casts of the district assembled to discuss the matter in controversy.—In ordinary questions they generally apply to the chief of the place, who takes upon himself the office of justice of the peace, and accommodates the matter between the parties. When he thinks it more fit, he sends them before their kindred, or arbitrators whom he appoints. He generally follows the last course when the complainants are Brahmans, because persons out of their cast are not supposed capable of properly deciding differences between them. When these methods have been ineffectual to reconcile the parties, or when they refuse to submit to the decision of the arbitrators, they must apply to the magistrates of the district, who decide the controversy without any appeal. "The authority of the Hindu princes, as well as that of the vile emissaries whom they keep in the several provinces of their country for the purpose of harassing and oppressing them in their name, being altogether despotic, and knowing no other rule but their own arbitrary will, there is nothing in India that resembles a court of justice. Neither is there a shadow of public right, nor any code of laws by which those who administer justice may be guided. The civil power and the judicial are generally united, and exercised in each district by the collector or receiver of the imposts. This sort of public magistrates are generally known under the name of Havildar or Thasildar. They are generally Brahmans. This tribunal, chiefly intended for the collection of the taxes, takes cognizance of all affairs civil and criminal within its bounds, and determines upon all causes." Description of the Character, Manners, and Customs of the People of India, by the Abbé J. A. Dubois, Missionary in the Mysore, P, 494. CHAPTER V. The Taxes. THE form of the government is one, the nature of the laws for the administration of justice is the other, of the two circumstances by which the condition of the people in all countries is chiefly determined. Of these two primary causes no result to a greater degree ensures the happiness or misery of the people, than the mode of providing for the pecuniary wants of the government, and the extent to which the agents of government, of whatever kind, are enabled to divide among themselves and their creatures, the annual produce of the land and labour of the community. BOOK II. The matters of detail, which by their number and uncertainty have so exceedingly perplexed the servants of the Company, in the financial operations of the Indian government, cannot here be described. The general outline, and the more important effects, of that system of taxation which is described in the ancient books, are all that falls within the design of an account of the ancient state of the people. 1. "Of grain," says the ordinance of Menu, eighth part, a sixth, or a twelfth may be taken by the king;" to be determined, adds the gloss of the commentator Culluca, "by the difference of the soil, and the labour necessary to cultivate it."1 "an CHAP. 5. |