THE

QUARTERLY,

&c. &c.

JUNE, 1825.

ORIENTAL LITERATURE.

Considerations on the Hindoo Law, as it is current in Bengal,-by the Honorable Sir FRANCIS WORKMAN MACNAGHTEN, Knt. One of his Majesty's Justices of the Supreme Court of Judicature at Fort William in Bengal.-" Misera est servitus, ubi jus est vagum aut incertum.” 4th Inst.-Serampore Mission Press, 1824.

A Work on the Laws of the Hindus by the eminent authority which had long administered them, excited our highest expectations, and we opened the volume with the fullest confidence of its yielding us the most satisfactory information. No common motives had operated on the learned author, to induce him to become thoroughly master of his subject: the rights of individuals depended upon his accurate interpretation of the institutes on which they rested, and with the known intelligence and feeling of an English judge, we felt assured that he would never have been satisfied with the hurried or partial investigation of those arguments by which such important decisions were to be justified to the public and himself.

How far our expectations have been realised will appear, as we proceed, but the preface is of evil augury; it is wholly occupied with charges of inconsistency, and uncertainty against the Hindu code we should have

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thought these qualifications would have pleaded in its favour with an experienced practitioner in our own jurisprudence, and should scarcely have supposed them serious grievances to one, to whom the glorious uncertainty of English law must have afforded, in earlier life, no unfrequent opportunities for the display of acumen and research. The case, however, is otherwise, and Sir F. Macnaghten complains that "the contradictions of Hindu law reduce it to a nullity; that there is hardly any question, that may not be either affirmed or denied under the sanction of texts which are held to be equal in point of authority; and that research is productive of little more than perplexity, for the conflict of lawgivers is endless, and they can never be reconciled."

To these assertions however we must confess, we hesitate in giving unqualified assent: that conflicting authorities may be cited on many subjects may be conceded, but their being held to be of equal weight is by no means universally the case, although a mere English lawyer may be unable to determine which should preponderate: neither is it in our estimation so arduous a task as the learned judge seems to apprehend, to appreciate the reasons why lawgivers disagree, or to reconcile their differences. If that is impracticable, it is seldom difficult to give them that consideration to which they are justly entitled, upon reference to common sense, to obvious analogies, and the unquestionable, and in general rational principles, of Hindu Law. Again, the history of the authorities, the probable dates of their existence, the conditions of Hindu Society to which their institutes apply, and the local character of their influence, ought all to be taken into account in estimating the value of their dicta. Now all this, the criticism of Hindu Law, appears to us to form no part of the studies of the Calcutta Court, and we cannot wonder that its brightest ornaments should often be sadly puzzled. It is quite impossible that it should be otherwise as long as pleaders and judges are wholly at the mercy of the Pundits.

Sir Francis Macnaghten seems rather reluctant to admit the unfavourable testimony of Sir William Jones, as although he cites that really learned Judge's opinion, that the Pundits have it in their power to mislead the court whenever they please, he holds that "the translated Hindu law books, contain enough, without being aided by the craft or cunning of a Pundit, to mislead any man." This is rather a singular mode of defending the Pundits, but if it be the case, of which by the way we are not at all assured, it must be from other causes than that stated by Sir Wm. Jones-in a translation, the reader has an opportunity of seeing the texts of the law in their proper places, applied to what they relate to, bearing upon the subject to which they belong, and corroborating or contradicting others of a similar tendency; but as Sir Wm. Jones observes "a simple obscure text, as explained by the Pundits themselves, might be quoted, as express authority, though perhaps in the very book from which it was selected it might be differently explained, or introduced only for the purpose of being exploded." In a translation, the entire passage of the original is given, whilst in a Pundit's vyavastha it is not unfrequently perverted by incomplete or garbled citation, so as to bear a totally different meaning from that which it really conveys. We have no desire, more than the learned judge, to cast any reflexion upon the Pundits of the Supreme Court, or of any other court, but we have seen too much of them, not to be satisfied, that they are the authors of many of the irreconcileable contradictions of Hindu law.

The circumstances in which the Hindu legal advisers of the courts of justice in this country are situated, are perhaps not so familiar to many of our readers, as to preclude the necessity of our offering some remarks upon the subject. A Pundit, attached to a court in that capacity, is placed in it by personal favour entirely, without being subjected to any examination, and without producing any credentials, who shall say then that he is learned in the law: there is every probability against it, for untill very

lately neither means nor encouragement were offered to the Brahmans to study their own laws, and the assistance latterly given is much too recent to have produced any effect. There are no public establishments amongst the natives themselves, and they are too poor to pay for education: a teacher must feed as well as instruct his scholars, and such 'virtue is no longer extant.' In fact, an instructor was formerly enabled to maintain his pupils, and to glean a surplus for himself by the bounty of Rajas, and even of Nawabs, who gave him a village or two for that purpose, but grants of this description have long been out of fashion: without education there can be no learning, and as Pundits are at best but indifferently taught, they are very rarely indeed learned men.

If the uncertainties of the English law are less perplexing than those of the Hindu law, we doubt if its delays are not something more interminable. A long time elapses before a cause comes for decision, and abundant opportunity therefore is afforded for the traffic of underhand negociation, intrigue and corruption: it is needless to cite instances to prove the consequences, or to make any individual application: public events have rendered the fact notorious. It can scarcely be otherwise. The Pundits are in all cases ill paid, and the sums offered to their acceptance are in general equal to many years purchase of their salaries: they are but men, and where the temptations are so great, they must be more than men to resist them. But is not every opinion to be received with reasonable distrust, emanating from parties, over whom, whether proven or not we cannot doubt undue influence operates, when a cause comes to be adjudged, and when the Pundits are desired to report their opinions on the points of Hindu law.

Besides the opinions of the court Pundits, given in reply to the queries of the court, it seems to be the practice of the Supreme and Sudder Courts at least, to receive the opinions of other Pundits on either