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ART. VII. Elements of Hindu Law, referable to British Judicature in India. By Sir Thomas Strange, late Chief Justice of Madras. 2 Vols. 8vo. Payne and Foss, Pall Mall; and Butterworth and Son, Fleet Street. EUROPEANS feel no slight interest in examining the civil code of a people so purely patriarchal in manners, and so eminently agricultural, as the Hindus. Their laws are subservient to principles of morality, widely different, in many respects, from those which we acknowledge. In their superstitions, ceremonies, and many of their institutions, we discover, or think we discover, a bewildering fantasy rather than that sound reason which we take to be the basis of our own system of religion and jurisprudence. The rites of their temples seem to us little better than parts of a solemn drama, performed for the purpose of sating the imagination with types and allegories. The people seem to belong to an order of beings different from our own. Their rules of conduct are often actuated by motives unlike any which we have conceived, and they seem to tread the paths of life for an end wholly apart from that which we keep in

view.

Their language is prurient, and overflowing with poetry. And we find that even law, that sternest science of every community, is framed in numbers by the Hindus, and seldom fails to be clothed in ornaments appropriate to the moral sentiment which it is intended to enforce. Is the Hindu required to protect and cherish those dependent upon him? The admonition is, Who leaves his family naked and unfed, may taste honey at first, but shall afterwards find it poison.' Is the duty of forbearance towards the partner of his bed to be enforced? it is said, Strike her not even with a blossom.”

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In the laws of the Hindus is to be found the strangest union of discriminating justice with the most revolting superstition. It is necessary to premise, as the foundation of our remarks, first, that the head of a Hindu family holds the fee of his property rather in trust for his family than to his own arbitrary use; secondly, that the reasons of the Hindu law of inheritance will be found in the benefit supposed to be conferred upon the ancestor, by the performance of his funeral obsequies. With this view of the Hindu law, it was not unaptly that Sir Thomas Strange took for the guidance of his arrangement the natural history of a Hindu family through the changes and contingencies that may happen to it, in its progress, from its origin in marriage, to its absorption, as it were, into a new one by the death of its head.' In the sketch and extracts which we shall give, to make our readers acquainted with the nature and merits of the work, we cannot do better than preserve distinctly the arrangement pursued by the author.

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Property in general. When the English first gained a footing in India the right of the soil was vested in the sovereign, a doctrine which prevails in theory with us, for the explanation of some of

our regulations concerning real property. But what is theory in the constitution of England, is made subservient in the government of India to the wealth of the Company. Such as it was,' says Sir Thomas,the right of cultivation was descendible; affirming for the government, and denying to the inhabitants every thing like property in the soil.' The people had only an annual indefeasible interest, subject to constant diminution at the will of the ruling power.'

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So convenient a doctrine, uniformly maintained by the government that preceded ours, was, upon our acquisition of territory in India, long acted upon by ours, following implicitly what appeared to be the law of the country; till, impressed with its perniciousness, as tending, by the extinction of property, to discourage improvement, the Bengal government, under the administration of Lord Cornwallis, so far restored the subject's right, as to fix, professedly for ever, payable in money, the proportion to which the state should be entitled; leaving to the possessor of the land, after this deduction, the benefit of progressive improvement with an unrestrained power of alienation, to be regulated only by the native law.'- Vol. i. pp. 12, 13.

The property of a Hindu may have descended to him in a course of inheritance, or have been of his own acquisition; - ancestral, or selfacquired; and it will, in either case, as with us, be distinguishable into real and personal, moveable and immoveable: real or immoveable property, according to their law, including, beside land and houses, slaves attached to the land; and Corodies, or annuities secured upon it; a species of property bearing a close resemblance to that designated in the English law by the same term, and enumerated by it among incorporeal hereditaments. But, between the Hindu and our own, there is, in respect to property, this material difference; that whereas, while, by ours, land descends to the heir at law, the personal goods of a deceased vest in executors or administrators, distributable among the next of kin; by the Hindu law, real and personal are alike descendible to the same persons, and subject to the same incumbrances; as will be more particularly seen in the chapters on inheritance, and the charges to which it is liable. But, though real and personal property so far class together, and are not distinguishable, great importance is attached by it to land, in which in particular the sons are considered as possessing a special interest; having, with their father, by birth, according to the doctrine of the Mitachara, prevalent in the Peninsula, and north of India, so far a co-ordinate right in that part of it, which is ancestral, that, if he thinks proper to come to a partition in his lifetime, he must divide it as directed by law; that is, give them and himself equal shares : is it in his power to aliene any considerable portion of it without their concurrence. It is according to the doctrine of this school, like dignities with us, inherent in the blood; and therefore, so far as regards the interest of parceners, unalienable."— Vol. i. pp. 14-16.

nor

Marriage. It is enjoined by Menu, the great Hindu lawgiver, that every father should dispose of his daughter in marriage, even before the attainment of her eighth year. This marriage, however, only means a species of betrothment. The consummation, or second marriage, takes place at the age of puberty, notice of which

it is the duty of the betrothed's relations to give, as soon as its appearances are manifest.

Previous, and up to betrothment, the affair rests legally in promise, which may be broken, subject to consequences, as the breach can or cannot be justified. According to Hindu superstition, an agreement for the purpose would be lawfully determined, on the part of the man, by the occurrence of unfavourable auspices; such as a flight of birds, or the chirping of a lizard, in the one or the other direction, when seeking a prosperous hour for the wedding; and a variety of causes are enumerated, warranting, as they respectively apply, retraction on either side: but, where the attempt to withdraw is without excuse, performance of the engagement may be enforced, as it might have been with us, previous to our marriage-act.' - Vol. i. pp. 36, 37,

The bride when once affianced is considered as blemished ;' and, on the death of her husband, before consummation, is restricted, like other Hindu widows, from a second marriage, except in some cases in which she is allowed, similarly to the provisions of the Mosaic law, to marry a brother of the deceased. The ceremonies on the celebration of a Hindu marriage are very curious:

The

Like other institutions,' observes Sir Thomas, of a mixed nature, partaking of religious as well as civil considerations, the one in question, being duly solemnized, is celebrated with ceremonies, the details of which are thus recapitulated in the "Essay" referred to below.* "The bridegroom goes in procession to the house where the bride's father resides, and is there welcomed as a guest. bride is given to him by her father in the form usual at every solemn donation, and their heads are bound together with grass. He clothes the bride with an upper and lower garment; and the skirts of her mantle and his are tied together. The bridegroom makes oblations to fire, and the bride drops rice on it, as an oblation. The bridegroom solemnly takes her hand in marriage. She treads on a stone and mullar. They walk round the fire. The bride steps seven times, conducted by the bridegroom; and he then dismisses the spectators, the marriage being now complete and irrevocable."- Vol. i. p. 43.

The ceremonies attendant on the marriage of two Brahmins are still more curious:

The marriage having been agreed upon, the celebration of it takes place, on a lucky day fixed by the family-priest (Purohita), or astrologer, for the purpose. On its arrival, the bridegroom with his parents proceed to the house of the bride, accompanied by the Purohitâ, with music, and dancing women, attendants carrying presents of fruit. The next morning, either party having performed their ablutions and ceremonies at their respective houses, the parents of the bride repair to that of the bridegroom, when he, apprized of their approach, having a cloth tied round his head, taking a staff in his hand, and throwing a wallet over his shoulder, with perhaps a book under his arm, preceded by musicians,

* Essay on the Religious Ceremonies of the Hindus, by Mr. Colebrooke, Asiat. Res. vol. vii. p. 309.'

and accompanied by a few relations, walks out in a northerly direction, exclaiming, with a loud voice, "I am going to Causee*;" upon which the parents of the bride, similarly accompanied, and contriving to meet him, request he will not go to Causee, and that they will give him their daughter. With this he stops; and, having a cocoa-nut put into his hand, the whole party return together to the house of the bride, where being seated, the Purohitâ commences the marriage-rites. In the course of these, a cloth, by way of curtain, being suspended from the roof, the bridegroom sitting on one side, the bride on the other, the Purohitâ recites verses to Vishnu, and other deities, praying them to watch over the destinies of the contracting pair. Then the curtain being removed, the bride and bridegroom pour handfuls of rice on one another's heads; while the father of the bride, having a little water and a piece of money in his right hand, puts them into his daughter's, and joining it with the hand of the bridegroom, says, "I give this virgin to you for a wife.” Upon this, the Purohitâ invests the bridegroom with a second shoulder string; and a small gold plate, called a bhuto, with a hole in the middle, having a string through it, being first presented to the company present on a salver for their blessing, is given to the bridegroom, who ties it round the neck of the bride. The Puhoritâ then performs a homam, or burntoffering, before the pair, putting grain into different pots. Other ceremonies follow, figurative of the ends of marriage, intermixed with muntras, or prayers, addressed principally to female divinities, for the happiness of the one in question. In the course of these proceedings, presents and offerings of clothes and fruits are made to the parties, and money distributed to the attendant Brahmins. Another homam being performed at night, the bride and bridegroom quitting the house, walk seven feet in the open air, gazing at the star named Arundhati, when they re-enter, and being reseated, further ceremonies take place. These, with variations, are repeated five successive days. On the fifth is performed the ceremony of dismissing the manes of their ancestors, who had been invoked to be present at the wedding. This is done by chunamming an earthen pot, and inscribing on it something like hieroglyphics. Other preparations being made, the new married couple walking round it three times fill it with boiled rice, or platters made of leaves, as oblations to the manes, who are thus considered as dismissed to their celestial abodes. The rice being afterwards taken out, the pot is stored up by the family. On the evening of the fifth day, the parties seated in a palanquin, or mounted on horseback, preceded by girls dancing and singing, and bajuntries beating tom-toms, sounding trumpets, and blowing flageolets, and followed by some of the married women of the family, parade under a canopy, supported by bearers, and surrounded by relations and friends. In this manner, the procession having traversed the streets of the town or village, returns to the bride's house, where the whole ends with a feast; the expense of the marriage being defrayed, as may have been previously agreed.'- Vol. ii. pp. 54-56.

With a wisdom which would do honour to the legislatures of nations more advanced in the scale of civilisation, adultery is always punished criminally by the Hindus. In the following extract from a case given in the Appendix, the circumstantial proofs,

admissible in the trial for this crime, are said to be very correctly enumerated.

If a man should use equivocal expressions to another's wife, or laugh with her, and ogle, or eye her with amorous looks, or if he should hold conversation with her in such a place, or at such a time, where, or when he ought not to have been speaking with her; -any instance of this sort is to be regarded as a crime in the first, or lowest degree. Or, if a man, with the view of seducing the wife of another, should send her fragrant sandal powder, or flowers, such as jessamine, &c. or perfumes, or jewels, or wearing apparel, or edible fruits; if any of these circumstances be proved against him, it is a crime in the second, or middle degree. If a woman and a man should meet in a secret place, or should embrace one another, or if they should sit together on a bed, or remain together in a dark place, or if he should converse with her, handling her hair at the time amorously, or should wound her breast with his nails, or her lips with his teeth, or untie the knot of her cloth; if any of these circumstances should be proved, the crime imputed is to be inferred.'—Vol. ii. pp. 36;37.

Menu enjoined, for the most part, great forbearance and tenderness towards the fair; but it will be seen that he did not like to run the risk of seeing them spoilt, for want of occasional wholesome chastisement.

The early codes of all nations,' Sir Thomas remarks, seem to have subjected the wife, among other members of a man's family, to corporal chastisement; the civil law, to the extent of allowing the husband, for some misdemeanours, flagellis et fustibus acriter eam verberare,- for others, modicam castigationem adhibere. Our own gave the like permission, restricted only within somewhat more reasonable bounds; and Menu, whether he set, or only followed the unmanly example,, certainly includes the wife among objects of domestic discipline, when conceived to deserve it. Less brutal indeed, in this respect, than the civil law, with him the authorised instrument is, "a small shoot of a cane;" to which truth, however, compels to be added, the option of "a rope;" the correction however to be inflicted "on the back part only of the body, and not on a noble part, by any means." For what sort of delinquencies such barbarism might be indulged, may be collected perhaps out of an extract from Harita, with the comment on that citation. But, for the credit of Hindu law, a maxim, of authority deemed to be equivalent to that of Menu, says, beautifully, "Strike not, even with a blossom, a wife guilty of a hundred faults." Vol. i. pp. 47, 48.

But Sir Thomas assures us, that the King's courts in the presidencies are more courteous, and reject all the abominations of this system, not justifying so much as the holding up of a finger against a woman.'

Adoption.-The future beatitude of a man depends, according to the Hindu superstition, in the performance of his obsequies, and the payment of his debts (generally, however, only as far as assets extend,) by a son, as the means of redeeming him from an instant state of suffering after death. When, therefore, marriage fails in this chief object, a son is adopted according to prescribed cere