in person; though lawyers by profession, unless in the case of certain high crimes, CHAP. III. might appear in lieu of the principals. The application of the plaintiff might be either oral or written; but the answer was required to be in the same form; oral, if the application was oral; and in writing, if it was otherwise.* The judge examines the witnesses; inspects, if any, the writings; and without any intricate or expensive forms proceeds directly to a decision. Punishment immediately follows conviction.†

One of the most attentive and intelligent of our witnesses affords a picture of the practical state of judicature in India, which, there is every reason to believe, may, with immaterial variations, be applied to Hindu society from the period at which it first attained its existing form. "No man is refused access to the Durbar, or seat of judgement; which is exposed to a large area, capable of containing the multitude. The plaintiff discovers himself by crying aloud, Justice! Justice! until attention is given to his importunate clamours. He is then ordered to be silent, and to advance before his judge; to whom, after haying prostrated himself, and made his offering of a piece of money, he tells his story in the plainest manner, with great humility of voice and gesture, and without any of those oratorial embellishments which compose an art in freer nations. The wealth, the consequence, the interest, or the address of the party, become now the only considerations. He visits his judge in private, and gives the jar of oil: his adversary bestows the hog which breaks it. The friends who can influence intercede; and, excepting where the case is so manifestly proved as to brand the failure of redress with glaring infamy (a restraint which human nature is born to reverence) the value of the bribe ascertains the justice of the cause.-This is so avowed a practice, that if a stranger should inquire how much it would cost him to recover a just debt from a creditor who evaded payment, he would every where receive the same answer; the government will keep one-fourth, and give you the rest.-Still the forms of justice subsist; witnesses are heard, but brow-beaten and removed: proofs of writing produced, but deemed forgeries and rejected, until the way is cleared for a decision, which becomes totally or partially favourable, in proportion to the methods which have been used to render it such; but still with some attention

* Gentoo Code, ch. iii. sect. 5.

+ Orme on the Government, &c. of Indostan, p. 451.

This publicity of judicial proceedings is common to rude nations. In the country and days of Job, the judge sat at the gate of the city, ch. ix. ver. 7. Moses alludes to the same practice, Gen. xxiii. 18; and Homer tells us it was the practice in the heroic ages of Greece, Il. lib. xviii. ver.497. VOL. I.

S

Book II. to the consequences of a judgment, which would be of too flagrant iniquity not to produce universal detestation and resentment.-Providence has, at particular seasons, blessed the miseries of these people with the presence of a righteous judge. The vast reverence and reputation which such have acquired are but too melancholy a proof of the infrequency of such a character. The history of their judgments and decisions is transmitted down to posterity, and is quoted with a visible complacency on every occasion. Stories of this nature supply the place of proverbs in the conversations of all the people of Indostan, and are applied by them with great propriety."*

Analysis of Such are the principal branches of the duty of the sovereign, and in these the Hindu Constitution. various institutions may be contemplated an image of the Hindu government. It is worthy of a short analysis. As the powers of government consist of three great branches, the legislative, the judicative, and the administrative, it is requisite to inquire in what hands these several powers are deposited, and by what circumstances their exercise is controlled and modified. As the Hindu believes that a complete and perfect system of instruction, which admits of no addition or change, was conveyed to him from the beginning by the Divine Being, for the regulation of his public as well as his private affairs, he acknowledges no laws but those which are contained in the sacred books. From this it is evident that the only scope which remains for legislation is confined within the limits of the interpretations which may be given to the holy text. The Brahmens, however, enjoy the undisputed prerogative of interpreting the divine oracles; for though it is allowed to the two classes next in degree to give advice to the king in the administration of justice, they must in no case presume to depart from the sense which it has pleased the Brahmens to impose upon the sacred text. The power of legislation, therefore, exclusively belongs to the priesthood. The exclusive right also of interpreting the laws necessarily confers upon them, in the same unlimited manner, the judicial powers of government. The king, though ostensibly supreme judge, is commanded always to employ Brahmens as counsellors and assistants in the administration of justice; and

7

* Orme on the Government and People of Indostan, p. 444 to 446. Another of our most instructive travellers, Mr. Foster, in the Dedication prefixed to his Journey from Bengal to England, p. vii., calls Hindustan, "A land whose every principle of government is actuated by a rapacious avarice, whose people never approach the gate of authority without an offering."-This is a subject to which he often adverts; he says again, (i. 7,) "In Asia, the principles of justice, honour, or patriotism, as they confer no substantial benefit, nor tend to elevate the character, are seldom seen to actuate the mind of the subject."

whatever construction they put upon the law, to that his sentence must conform. CHAP. III. A decision of the king, contrary to the opinion of the Brahmens, would be absolutely void; the members of his own family would refuse it obedience. Whenever the king in person discharges not the office of judge, it is a Brahmen, if possible, who must occupy his place. The king, therefore, is so far from possessing the judicative power, that he is rather the executive officer by whom the decisions of the Brahmens are carried into effect.

He who possesses the power of making and interpreting the laws by which another person is bound to act, is by necessary consequence the master of that person's actions. Possessing the legislative and judicative powers, the Brahmens were also masters of the executive power, to any extent whatsoever to which they wished to enjoy it. Nor did this influence over the executive power content them. They further secured to themselves a direct, and no contemptible share of its immediate functions. On all occasions the King was bound to employ Brahmens as his counsellors and ministers; and of course to be governed by their judgment. "Let the king, having risen early," says the law, "respectfully attend to Brahmens learned in the three Vedas, and by their decision let him abide."* It thus appears that, according to the original laws of the Hindus, the king was little more than an instrument in the hands of the BrahHe performed the laborious part of government, and sustained the responsibility, while they chiefly possessed the power.†

mens.

The uncontrolable sway of superstition, in rude and ignorant times, confers upon its ministers such extraordinary privileges, that the king and the priest are generally the same person; and it appears somewhat remarkable that the Brahmens, who usurped among their countrymen so much distinction and authority, did not invest themselves with the splendour of royalty. It generally happens that some accidental circumstances, of which little account was taken at the time, and which after a lapse of many ages it is impossible to trace, gave occasion to those peculiarities which we remark in the affairs and characters of

Laws of Menu, ch. vii. 37.

+ Even under a system, where the power of the altar was from the beginning rendered subservient to the power of the sword, the right of interpreting a code of sacred laws is found to confer an important authority. Hear the opinion of a very recent, and penetrating observer :"L'expression vague des preceptes du Koran, seule loi ecrite dans les pays Musulmans, laisse aux docteurs une grande latitude pour les interpretations, et bien des moyens d'augmenter leur autorité. Quoique cette religion ait peu de dogmes, le fanatisme qu'elle inspire est un instrument que les prêtres savent employer avec succés." De l'Egypte, par le Gen. Reynier, p. 62.

Book II. nations; and with this reflection it is found that we must very often content ourselves. Yet it is by no means unnatural to suppose, that to a people, over whom the love of repose exerts a wonderful sway, and in whose character aversion to danger forms a principal ingredient, the toils and perils of the sword appeared to surpass the advantages with which it was attended; and that the Brahmens thus transferred to the hands of others, what was a source of too much labour, as well as danger, to be retained in their own.

!

So many, however, and important were the powers which this class reserved to themselves that the kingly state appears reduced to that of a dependant and secondary office. We should expect to find the sovereign a mere cipher. With this inference the fact does not appear to correspond. The monuments of the Hindus, imperfect as they are, convince us that their monarchs enjoyed no small share both of authority, and of that kind of splendour which corresponded with the state of society. They had entrusted to them two engines, the power of which their history serves remarkably to display: They were masters of the army; and they were masters of the public revenue. These two circumstances, it appears, were sufficient to counterbalance the legislative, and the judicative, and even a great part of the executive power, reinforced by all the authority of an overbearing superstition, lodged in the hands of the Brahmens. These threw around the sovereign an external lustre, with which the eyes of uncultivated men are easily dazzled. In dangerous and disorderly times, when every thing which the nation values is placed on the soldier's sword, the commander, by universal consent, exercises unlimited authority. So frequently is this the situation of a rude and uncivilized people, surrounded on all sides by rapacious and turbulent neighbours, that it becomes in a great measure the habitual order of things. The king, by commanding both the force and the revenue of the state, had in his hands the distribution of gifts and favours; the potent instrument, in short, of patronage; and the jealousy and rivalship of the different sets of competitors would of their own accord give him a great influence over the Brahmens themselves. The distribution of gifts and favours is so powerful an engine, that the man, who enjoys it to a certain extent, is absolute; with whatever checks he may appear to be surrounded; even, as in the case of the Hindu sovereigns, though almost every power of government may appear to be lodged in other hands.*

See what is observed by three great authors, Hume, Blackstone, and Paley, on the influence of the crown in England. See also what is observed by Lord Bolingbroke on the same subject, in his Dissertation on Parties.

CHAP. IV.

The Laws.

NEXT to the form of government, in determining the political condition of CHAP. IV. the people, is the body of law; or the mode in which the rights of individuals are created and secured. For elucidating this important point, in regard to the Hindus, materials are abundant. The detail, however, or even the analysis of the Hindu code, would far exceed the bounds, to which in a work like the present such a topic must be confined. I shall limit myself to the endeavour of conveying an accurate conception of the character and spirit of the Hindu laws; and of that particular point in the scale of excellence, or defect, at which they may truly be considered as placed.

One preliminary observation is, that amid the imperfections adhering to the A confusion of subjects, in state of law among a rude and ignorant people, they preserve not their maxims the Hindu of justice, and their rules of judicial procedure, distinct from other subjects. In codes of law. the law books of the Hindus, the details of jurisprudence and judicature occupy comparatively a very moderate space. The doctrines and ceremonies of religion; the rules and practices of education; the institutions, duties, and customs of domestic life; the maxims of private morality, and even of domestic economy; the rules of government, of war, and of negotiation: all form essential parts of the Hindu codes of law, and are treated in the same style, and laid down with the same authority, as the rules for the distribution of justice. The tendency of this rude conjunction of dissimilar subjects, amid other inconveniences, is, to confound the important distinction between those obligations which it is the duty of the magistrate to enforce, and those which ought to be left to the suggestions of self-interest, and the sanctions of morality; it is to extend coercion, and the authority of the magistrate, over the greater part of human life, and to leave men no liberty even in their private and ordinary transactions; while it

* Examine that important specimen of an original Hindu book of law, the Institutes of Menu. See too the confession of Mr. Colebrooke in the preface to his translation of the Digest of Hindu Law on Contracts and Successions; a work compiled a few years ago, under authority of the English government, by some of the most learned and respectable of the Brahmens.