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Chapter 3 – Changes in the Law

Changes in the written law

Civil law

The Code of Menu is still the basis of the Hindu jurisprudence; and the principal features remain unaltered to the present day. The various works of other inspired writers, however, and the numerous commentaries by persons of less authority, together with the additions rendered necessary by the course of time, have introduced many changes into the written law, and have led to the formation of several schools, the various opinions of which are followed respectively in different parts of India. In all of these Menu is the text-book, but is received according to the interpretations and modifications of approved commentators; and the great body of law thus formed has again been reduced to digests, each of authority within the limits of particular schools.

Bengal has a separate school of her own; and, although the other parts of India agree in their general opinions, they are still distinguished into at least four schools: those of Mithila (North Behar); Benares; Maharashtra (the Maratta country); and Dravida (the south of the Peninsula).

All of these schools concur in abolishing marriages

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between unequal casts; as well as the practice of raising up issue to deceased brothers, and all the species of sons mentioned in Menu, except a son of the body and one by adoption. Most of them, however, admit a species of adoption unknown to Menu, which is made by a widow in behalf of her deceased husband, in consequence of real or supposed instructions imparted by him during his life. Some schools give the power to the widow independent of all authorisation by the deceased.

All the schools go still further than Menu in securing to sons the equal division of their family property. Most of them prevent the father’s alienating ancestral property without the consent of his sons, and without leaving a suitable maintenance for each of them; all prohibit arbitrary division of ancestral property, and greatly discourage it even when the property has been acquired by the distributor himself. The Dravida school gives to the sons exactly the same rights as to the father, in regard to the disposal of all his property, and puts them on a complete equality with him, except in the present enjoyment339.

All, except Bengal, in certain cases, still withhold the power of making a will.

The law now goes much more into particulars on all subjects than in Menu’s time. Land is often mentioned under a variety of forms, and some of

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the relations between landlord and tenant are fixed.

Attornies or pleaders are allowed: rules of pleading are prescribed, which are spoken of with high praise by Sir William Jones340.

Different modes of arbitration are provided; and, although many of the rudest parts of the old fabric remain, yet the law bears clear marks of its more recent date, in the greater experience it evinces in the modes of proceeding, and in the signs of a more complicated society than existed in the time of the first Code.

The improvements, however, in the written law bear no proportion to the excellence of the original sketch; and the existing Code of the Hindus has no longer that superiority to those of other Asiatic nations which, in its early stage, it was entitled to claim over all its contemporaries.

Changes in practice

Many great changes have been silently wrought without any alteration in the letter of the law. The eight modes of marriage, for instance, are still permitted; but only one (that most conformable to reason and to the practice of other nations) is ever adopted in fact.

Criminal law

The criminal law, also, which still subsists in all its original deformity, has (probably for that very reason) fallen into desuetude, and has been replaced by a sort of customary law, or by arbitrary will.

The regular administration of justice by permanent

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courts, which is provided for in Menu, and of which the tribunals, with their several powers, are recorded by later writers341, is hardly observed by any Hindu government. The place of those tribunals is in part taken by commissions appointed in a summary way by the prince, generally granted from motives of court favour, and often composed of persons suited to the object of the protecting courtier. In part, the courts are replaced by bodies of arbitrators, called Panchayets, who sometimes act under the authority of the government, and sometimes settle disputes by the mere consent of the parties. The efficiency of these tribunals is in some measure kept up, notwithstanding the neglect of the government, by the power given by Menu to a creditor over his debtor, which still subsists, and affords a motive to the person withholding payment to consent to an inquiry into the claim.

On the whole, there cannot be the least doubt that civil justice is much worse administered in Hindu states at the present time than it was in the earliest of which we have any certain knowledge.

Besides rules of Menu which have been altered Local laws. in later times, many local customs are now observable, of which no notice is taken in the Institutes.

Most of these are unimportant; but some relate to matters of the first consequence, and are probably remains of the laws which prevailed in the

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nations where they are now in force before the introduction of Menu’s Code, or of the authority of the Bramins. Perhaps the most remarkable instance of this sort is to be found among the Nairs of Malabar, where a married woman is legally permitted to have unrestrained intercourse with all men of equal or superior cast; and where, from the uncertainty of the issue thus produced, a man’s heirs are always his sister’s sons, and not his own342.


339. Mr. Ellis, Transactions of Madras Literary Society, p. 14.

340. Colebrooke’s Digest, preface, p. xii.

341. See Mr. Colebrooke on Hindu Courts of Justice, Transactions of Royal Asiatic Society, vol. ii. p. 166.

342. Dr. F. Buchanan’s Journey through the Mysore, &c., vol. ii. p. 411, 412.

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