The Government of the Hindoos
GOVERNMENT
Government will in this chapter be taken in its most general acceptance, and will include not merely the form of government, properly so called, but the administration of it in its various departments, civil and military, judicial and fiscal. A subject so wide requires far more space than can be here allowed to it, and yet it seems necessary to make some apology for mentioning it at all. Since British supremacy was established in India, Hindoo government has ceased to exist, and it may therefore be thought that any account given of it can only gratify curiosity without furnishing information of practical value. This inference is plausible—so plausible, indeed, that the East India Company, in the early management of the territories acquired by them, acted upon it, and thought they were giving their new subjects the best proof of their wisdom and justice by endeavouring to govern them in accordance with European ideas. It was not long, however, before they discovered their mistake, and learned, by an experience which cost them dear, that a thorough acquaintance with the principles on which government had previously been conducted was absolutely necessary, in order both to conciliate good-will and prevent gross mismanagement. Even after they had arrived at this conclusion, many serious mistakes were committed; and it would not be difficult to trace some of the worst grievances of which the population of India have had to complain, to rash tampering with the modes of government to which they had been accustomed, and the rights which they had acquired under them. After the lapse of nearly a century, there is reason to suspect that, within the limits of the three provinces of which the dewannee was obtained by Clive from Shah Alum, abuses still exist, and much unintentional injustice is committed, merely because the tenures under which property was held and occupied in early Hindoo times were imperfectly understood. So far, therefore, from thinking that the subject of the present chapter might have been omitted, our only regret is, that it must be treated within limits bearing no proportion to its intrinsic importance.
In form Hindoo government was an absolute monarchy, the nature of which is fully described in the Institutes of Menu. The rajah or king, though presumed to rule in accordance with a code of written laws, is represented as holding his power immediately from the Supreme Being, and subject to no restraint but that which his sense of duty or fear of the consequences of misgovernment might impose. As if he were of a different nature from his subjects, he is said to have been formed “of eternal particles drawn from the substance of Indra, and seven other named divinities;” and in consequence “surpasses all mortals in glory.” “Like the sun, he burns eyes and hearts; nor can any human creature even gaze on him.” “He is a powerful divinity, who appears in a human shape.” He must not suppose, however, that he is born only for himself. He was created, because, “if the world had no king, it would quake on all sides through fear;” and because, if the guilty were not punished, “the stronger would roast the weaker, like fish on a spit.” His great duty therefore is, to “prepare a just compensation for the good, and a just punishment for the bad.” The latter of these two appears to be regarded as the more important and efficacious, and is hence eulogized in such terms as the following:—“Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise consider punishment as the perfection of justice.”
Should the king, instead of faithfully discharging his duty, be “crafty, voluptuous, and wrathful,” he must not hope to escape with impunity; for “criminal justice, the bright essence of majesty, . . . eradicates a king who swerves from his duty, together with all his race; punishment shall overtake his castles, his territories, his peopled land, with all fixed and moveable things that exist on it; even the gods and the sages will be afflicted and ascend to the sky.” In all this, however, he suffers only by a kind of divine retribution. His own will, if he chooses to make it so, may be his only law. No hint is given of the existence of any constitutional check on the abuse of his power, and it is hence left to be inferred that if he played the tyrant his subjects were entirely at his mercy. Having no recognized right to call him to account for misconduct, they had no alternative but to submit, and wait patiently for the vengeance which in some shape, human or divine, would sooner or later overtake him.
The unlimited power possessed by the king made it all the more necessary that he should be surrounded with every species of moral restraint; and accordingly the whole course of conduct which he ought to pursue is carefully prescribed. “Let the king, having risen at early dawn, respectfully, attend to Brahmins, learned in the three Vedas and in the science of ethics.” From Brahmins “who have grown old, who know the scriptures, who are pure, let him continually learn habits of modesty and composure.” From Brahmins who know the three Vedas, “let him learn the triple doctrine comprised in them, together with the primeval science of criminal justice and sound policy, the subject of logic and metaphysics, and sublime theological truth; from the people he must learn the theory of practical arts.” But mere knowledge will not suffice; and therefore “day and night must he strenuously exert himself to gain complete victory over his own organs,” especially shunning the vices which proceed from love of pleasure and from wrath, and labouring to suppress “a selfish inclination which all wise men know to be the root of those two sets” of vices.
Having been thus instructed how to acquire the knowledge and self-command necessary for the discharge of his duty, the king is next told how to proceed in actually administering the government. Since “even an act easy in itself is hard sometimes to be performed by a single man, especially if he have no assistant near, how much harder a kingdom with great revenues;” he must appoint a council of “seven or eight ministers, who must be sworn—men whose ancestors were servants of kings, who are versed in the holy books, who are personally brave, who are skilled in the use of weapons, and whose lineage is noble.” The head or president of the council is to be a learned Brahmin; and though the king is constantly to be consulting with all its members “on peace and war, on his forces, on his revenues, on the protection of his people, and on the means of bestowing aptly the wealth which he has acquired,” to the president alone as prime minister is he to give “full confidence” and “intrust all transactions.”
Besides the council, whose business is to deliberate, various other functionaries are necessary. In particular, there must be an ambassador, to transact “the business by which kingdoms are at variance or in amity;” a commander-in-chief, by whom “the forces of the realm must be immediately regulated;” and “officers of criminal justice,” for “the actual infliction of punishment.” The ambassador being apparently regarded as the most important of all these functionaries, the qualities which he ought to possess, and the manner in which he ought to conduct himself, are specified. He must be “pure within and without, dexterous in business, and endued with an excellent memory;” one “who knows countries and times, is handsome, intrepid, and eloquent.” In the transaction of affairs he must be able to “comprehend the visible signs and hints, and discover the acts of the foreign king, by the signs, hints, and acts of his confidential servants, and the measures which that king wishes to take, by his ministers.”
After the appointment of proper officers, the next thing considered is the selection of a locality for the king’s residence. On this subject a number of injunctions are given, of which the following are the most prominent:—“Let him fix his abode in a district containing open champaigns, abounding with grain, inhabited chiefly by the virtuous, not infected with maladies, beautiful to the sight, surrounded by submissive neighbours; a country in which the subjects may live at ease.” Within this district he is to take up his residence, in a capital rendered difficult of access by natural or artificial barriers, as a desert, a mound of earth, water, trees, and above all, “a fortress of mountains,” which is said to have “many transcendent properties.” Here he may live secure, having built a fort, which he is recommended to do, because “one bowman placed on a wall is a match in war for a hundred enemies; and a hundred for ten thousand.” The centre of the fort is the proper site for the royal palace, which is to be “well finished in all its parts, completely defended, habitable in every season, brilliant, surrounded with water and trees.” Such a palace having been prepared for his mansion, the king is to establish his household, beginning with the choice of “a consort, of the same class with himself, endued with all the bodily marks of excellence, born of an excellent race, captivating his heart, adorned with beauty and the best qualities.” The only members of the royal household specially mentioned are “a domestic priest,” and “a performer of sacrifices.”
The ordinary routine of the king’s life while he resides in his palace deserves to be described. Having risen “in the last watch of the night,” or, as the same thing is elsewhere expressed, “at early dawn,” and performed his religious duties, he is to enter his hall, and standing there, “gratify his subjects before he dismiss them with kind looks and words.” After they are dismissed he is to “take secret counsel with his principal ministers.” For this purpose, and that he may be able to consult with them unobserved, he climbs up the back of a mountain, or goes privately “to a terrace, a bower, a forest, or a lonely place.” This secrecy is deemed of paramount importance; for it is declared that “that prince, of whose weighty secrets all assemblies of men are ignorant, shall obtain dominion over the whole earth.” The other measures which the king takes to secure secrecy are rather curious. “At the time of consultation let him remove the stupid, the dumb, the blind, and the deaf, talking birds, decrepit old men, women, and infidels, the diseased and the maimed; since those who are disgraced (in this life by reason of sins formerly committed) are apt to betray secret counsel; so are talking birds; and so above all are women; them he must for that reason diligently remove.” After the consultation, the king having taken exercise and bathed, retires at noon to his private apartment for the purpose of taking food. This favourite employment must have lost much of its relish from the precautions deemed necessary. “Let him,” it is said, “eat lawful aliment, prepared by servants attached to his person, who know the difference of times and are incapable of perfidy, after it has been proved innocent, and hallowed by texts of the Veda repulsive of poison. Together with all his food let him swallow such medical substances as resist venom; and let him constantly wear with attention such gems as are known to repel it. Let his females, well tried and attentive, their dress and ornaments having been examined (lest, says the commentator, some weapon should be concealed in them), do him humble service with fans, water, and perfumes.” These precautions were not confined to the time of taking meals, for it is immediately added, “thus let him take diligent care, when he goes out in a carriage, or on horseback, when he lies down to rest, when he sits, when he takes food, when he bathes, anoints his body, and puts on all his habiliments.” After eating, and “having idled a reasonable time” in the recesses of the palace among his women, public affairs again occupy his attention, and he comes forth completely dressed, to “review his armed men, with all their elephants, horses, and cars, their accoutrements, and weapons.” The mode of spending the remainder of the day is thus described: “At sunset, having performed his religious duty, let him privately, but well armed, in his interior apartment, hear what has been done by his reporters and emissaries; then having dismissed those informers, and returning to another secret chamber, let him go, attended by women, to the inmost recess of his mansion, to his evening meal; then, having a second time eaten a little, and having been recreated with musical strains, let him take rest early, and rise refreshed from his labour.” The king’s day, as now described, has left several intervals not filled up, and it is therefore necessary to mention, that any leisure which may remain to him, and more especially at noon, or at midnight, when “his fatigues have ceased and his cares are dispersed,” he is enjoined to employ partly on his private affairs, such as the marriage of his daughters, the education of his sons, and the behaviour of his women in the private apartment, and partly in meditating alone, or holding converse with his ministers on important questions of ethics and policy.
For administrative purposes the whole kingdom is portioned out into military and civil districts. Over two, three, five, or a hundred of the military districts, according to their extent, is placed a body of guards, commanded by an approved officer. The management of the civil districts being rather more complicated is more fully detailed. Ascending by a regularly graduated scale, the officers are ranked as follows:—“A lord of one town with its district, a lord of ten towns, a lord of twenty, a lord of a hundred, and a lord of a thousand.” Each of these, beginning with the lowest, is enjoined to report on the state of his district to his immediate superior; and in this way the actual constitution of all the districts throughout the country being made known, the means necessary for the suppression of any evils existing in them could be provided. The salary or perquisite paid to the lord of one town consists of “such food, drink, wood, and other articles as should be given each day to the king by the inhabitants of the township.” The payment of the other officers is arranged as follows:—To the lord of ten towns “the produce of two ploughlands”—that is, according to the commentator, the produce of as much ground as can be tilled with two ploughs, each drawn by six bulls; to the lord of twenty towns, the produce of ten plough-lands; to the lord of a hundred towns, the produce of a village; and to the lord of a thousand, the produce of a large town. It is easy to conceive the abuses to which such a system must give rise, and hence to understand the necessity of an additional appointment explained as follows:—“In every large town or city let him (the king) appoint one superintendent of all affairs, elevated in rank, formidable in power, distinguished as a planet among the stars; let that governor from time to time survey the rest in person, and by means of his emissaries, let him perfectly know their conduct in their several districts. Since the servants of the king whom he has appointed guardians of districts are generally knaves, who seize what belongs to other men, from such knaves let him defend his people; of such evil-minded servants as wring wealth from subjects attending them on business, let the king confiscate all the possessions, and banish them from his realm.”
One of the principal duties assigned to these lords of towns was the collection of the public revenue, and to it therefore our attention must now be turned. The different sources from which it is derived are pointed out in the Institutes of Menu; but considerable changes have taken place since their date; and it will therefore be necessary, after making an abstract of the information which the Institutes furnish, to render it more complete by having recourse to later authorities. According to the Institutes the public revenue consisted of taxes on all kinds of agricultural produce and merchandise, a trifling annual exaction from petty traffickers, a day’s work every month from “low handicraftsmen, artificers, and servile men, who support themselves by labour;” and a twentieth part, or five per cent. (not, as Elphinstone erroneously says, twenty per cent.) on the estimated profit of all sales. The mode in which the revenue was to be levied is thus explained:—“As the leech, the suckling calf, and the bee take their natural food by little and little, thus must a king draw from his dominions an annual revenue.” “Let him not cut up his own root, nor the root of other men by excess of covetousness; for by cutting up his own root he makes both himself and them wretched.” The taxes on traffic were to be levied after “having ascertained the rates of purchase and sale, the length of the way, the expenses of food and of condiments, the charges of securing the goods carried, and the nett profits of trade.” On produce, and various other specified articles, the taxes were to be as follows:—“Of cattle, of gems, of gold and silver, a fiftieth part may be taken by the king, of grain an eighth part, a sixth or a twelfth” (said by the commentator to be regulated according to the difference of the soil and the labour necessary to cultivate it). “He may also take a sixth part of the clear annual increase of trees, flesh meat, honey, clarified butter, perfumes, medical substances, liquids, flowers, roots and fruit, of gathered leaves, pot-herbs, grass, utensils made with leather or cane, earthen pots, and all things made of stone.”
Agricultural produce, on which a maximum rate of a sixth might have been levied, must have been by far the most productive of these taxes, but it has been maintained that the tax on produce was by no means the only revenue derived from land, because the property of the soil belonged exclusively to the king, and must have yielded him an immense return in the shape of rent, or at least enabled him to meet the expenses of the public establishments, by paying the officers with grants of land, instead of giving them salaries in money. The question thus raised is of great importance, and having direct practical bearings on the actual administration of the government, has been discussed at great length and with much keenness. It would be out of place here to take part in the discussion further than to say, that the leading advocates on both sides have taken too high ground. By regarding India as if it were a single territory, they have first imagined that one uniform system of land tenure was practicable, and then, in support of the view which they advocate, have appealed to the kinds of tenure prevalent in particular provinces or districts. In this way it has been possible to maintain with almost equal plausibility that the property of the soil is in the sovereign, in zemindars, supposed to mean landed proprietors similar to those of Europe, and in the ryots or actual cultivators; whereas the only inference ought to have been, that the tenures were not uniform but various, and that the necessary consequence of recognizing any one of them as exclusive of the others was to commit wholesale injustice. The ryots, as the class least able to defend themselves, have been the greatest sufferers by this rage for uniformity on the part of their rulers; and Sir Thomas Munro did not describe the injustice which has been done in too strong terms when he said, “We have, in our anxiety to make everything as English as possible, in a country which resembles England in nothing, attempted to create at once throughout extensive provinces a kind of landed property which never existed in them; and in the pursuit of the object we have relinquished the rights which the sovereign always possessed in the soil; and we have in many cases deprived the real owners, the occupant ryots, of their proprietary rights, and bestowed them on zemindars and other imaginary landlords: changes like these never can effect a permanent settlement in any country; they are rather calculated to unsettle whatever was before deemed permanent.”1
Besides the sources of revenue above mentioned, the king had mines, in which he is recommended to employ “the brave, the skilful, the well-born, and the honest;” and was moreover entitled, “by reason of his general protection, and because he is the lord paramount of the soil,” to half “of old hoards and precious minerals in the earth.” “Treasure anciently reposited in the ground” belonged to him, subject to two limitations in favour of Brahmins, who, if they were the discoverers of the treasure, took it all without deduction, and if others were the discoverers, received a half. The revenue was, moreover, occasionally increased by certain casualties, of which the most important was derived from property for which, after distinct proclamation, no owner appeared in three years. Even when an owner appeared, the king might, at his discretion, retain a twelfth, a tenth, or a sixth part of the value, as a compensation for having secured it. In the above system of taxation and revenue, a considerable degree of natural equity appears; and yet it must be admitted that little wisdom is displayed in the selection of the articles to be taxed, or the special percentages to which they are made liable. It would also seem that there must have been much injustice and oppression in the levying of taxation by means of the lords of towns above described. Accordingly, in a passage already quoted, the “appointed guardians of districts” are described as “generally knaves who seize what belongs to other men.”
It is rather curious to find that this part of the system, though the only one of which any disapprobation is expressed, has survived all the revolutions which India has undergone. The higher lordships, indeed, with the exception of the still recognized pergunnah, or lordship of 100 towns, have left only traces of their existence; but the townships themselves “remain entire, and are the indestructible atoms, from an aggregate of which the most extensive Indian empires are composed.” For a description of a township, we cannot do better than continue this quotation. “A township is a compact piece of land, varying in extent, inhabited by a single community. The boundaries are accurately defined and jealously guarded. The lands may be of all descriptions—those actually under cultivation and those neglected, arable lands never yet cultivated and land which is altogether incapable of cultivation. These lands are divided into portions, the boundaries of which are as carefully marked as those of the township; and the names, qualities, extent, and proprietors of which are minutely entered in the records of the community. The inhabitants are all assembled in a village within the limits which, in many parts of India, is fortified or protected by a little castle or citadel. Each township conducts its own internal affairs. It levies on its members the revenue due to the state; and is collectively responsible for the payment of the full amount. It manages its police, and is answerable for any property plundered within its limits. It administers justice to its own members, as far as punishing small offences, and deciding disputes in the first instance. It taxes itself to provide funds for its own expenses; such as repairs of the walls and temple, and the cost of public sacrifices and charities, as well as of some ceremonies and amusements on festivals. It is provided with requisite officers for conducting all those duties, and with various others adapted to the wants of the inhabitants; and though entirely subject to the general government, is in many respects an organized commonwealth complete within itself.”1
Mr. Elphinstone’s account is thus confirmed by Lord Metcalfe:—“The village communities are little republics, having nearly everything they can want within themselves, and almost independent of any foreign relations. They seem to last where nothing else lasts. Dynasty after dynasty tumbles down; revolution succeeds to revolution; Hindoo, Patan, Mogul, Mahratta, Sikh, English, are all masters in turn; but the village community remains the same. In times of trouble they arm and fortify themselves; an hostile army passes through the country; the village communities collect their cattle within their walls, and let the enemy pass unprovoked. If plunder and devastation be directed against themselves, and the force employed be irresistible, they flee to friendly villages at a distance; but when the storm has passed over, they return and resume their occupations. If a country remain for a series of years the scene of continued pillage and massacre, so that the villages cannot be inhabited, the scattered villagers nevertheless return whenever the power of peaceable possession revives. A generation may pass away, but the succeeding generation will return. The sons will take the places of their fathers; the same site for the village, the same positions for the houses, the same lands will be reoccupied by the descendants of those who were driven out when the village was depopulated; and it is not a trifling matter that will drive them out, for they will often maintain their post through times of disturbance and convulsion, and acquire strength sufficient to resist pillage and oppression with success. This union of the village communities, each one forming a little separate state in itself, has, I conceive, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their happiness and to the enjoyment of a great portion of freedom and independence.”2
The next important branch of internal government to be considered is the administration of justice. On this subject the Institutes of Menu treat largely; and continue, notwithstanding the changes introduced subsequently to its date, to be the most valuable text-book. The principal court of justice was held in the capital, and the king himself, if “desirous of inspecting judicial proceedings,” presided over it in person. For this purpose he was to enter it each day, “together with Brahmins and counsellors, who knew how to give him advice;” and “there, either sitting or standing, holding forth his right arm without ostentation, in his dress and ornaments,” to “examine the affairs of litigant parties,” and decide causes, “by arguments and rules drawn from local usages and from written codes.” Where he could not preside himself, he was to appoint a Brahmin of eminent learning, who, sitting as “chief judge, accompanied by three assessors,” should fully consider and dispose of all causes brought into the royal court. The mode of administering justice in places at a distance from the capital is not explained; but it appears from other sources, that in different parts of the country there were local judges who decided in the first instance, but whose decisions might be brought under review by appeal to the court of the capital. The defendant who, after allowing the action to be brought into court, admitted the debt, paid a fine of five per cent.; if he continued to deny it, and it was proved against him, the fine was doubled. These fines being payable to the king, probably went to the judges, and formed part, if not the whole of their official income.
On the subject of judicial procedure, much sound advice is given. The king or his judge, while “understanding what is expedient or inexpedient,” is to consider “only what is law or not law,” and decide accordingly. He is at the same time to have an equitable jurisdiction, and consider himself as the guardian of those who, from nonage or their unprotected situation, labour totally or partially under legal incapacity. The persons thus entitled to his special protection are infants and students; women whose husbands have married other wives because they have proved barren, or had no sons; women without kindred, or whose husbands are in distant places; widows true to their lords; and women afflicted with illness. In examining witnesses and weighing evidence, he is to endeavour, “by external signs,” to “see through the thoughts of men, by their voice, colour, countenance, limbs, eyes, and action.” Neither “himself nor his officers must ever promote litigation,” nor ever neglect a lawsuit instituted by others; but “as a hunter traces the lair of a beast by the drops of blood, thus let a king investigate the true point of justice by deliberate argument; let him fully consider the nature of truth, the state of the case, and his own person; and next, the witnesses, the place, the mode, and the time; firmly adhering to all the rules of practice.”
The plaintiff being bound, especially in a question of debt, to prove his case, may act in such a way as to justify a nonsuit, and thus render further proceedings unnecessary. He may, for instance, after having raised his action, delay to proceed with it, and thereby deserve to be fined or corporally punished. Or he may assert “confused and contradictory facts,” change his ground after “having stated what he designs to prove,” or when “questioned on a fact which he had before admitted, refuse to acknowledge that very fact.” He may, moreover, have tampered with the witnesses, by conversing with them “in a place unfit for such conversation,” or after alleging that he had witnesses, fail, when called upon, to produce them, or stand mute on being “ordered to speak,” or decline “answering a question properly put.” A plaintiff thus behaving, the judge must “declare nonsuited.” On the other hand, should the action proceed, great care is necessary in determining “what sort of witnesses must be produced,” and “in what manner those witnesses must give true evidence.” The good sense which characterizes many of the regulations of the Hindoo code on this head, is sadly marred by others of an unreasonable and fantastical nature. The persons who are to be considered competent witnesses are “married housekeepers, men with male issue, inhabitants of the same district”—“just and sensible men of all the classes, men who know their whole duty and are free from covetousness.” The persons to be rejected as incompetent are those “who have a pecuniary interest,” “familiar friends,” “menial servants,” “enemies,” “men formerly perjured,” “persons grievously diseased,” and “those who have committed heinous offences.” Among the more fantastical arrangements are the exclusion of mean artificers, public dancers and singers, a priest of deep learning in Scripture, a student in theology, an anchorite secluded from all worldly connections, one who follows a cruel occupation, a decrepit old man, and a wretch of the lowest mixed class." Women also, though they “should regularly be witnesses for women,” are excluded generally, on the ground that “female understandings are apt to waver.” In a penury of witnesses, however, “evidence may be given by a woman, by a child, or by an aged man, by a pupil, by a houseman, by a slave, or by a hired servant;” and several of the more injudicious restrictions are virtually removed by an injunction to the judge not to “examine too strictly the competence of witnesses” in “all cases of violence, of theft and adultery, of defamation and assault;” and a declaration that “any person whatever who has positive knowledge of transactions in the private apartments of a house, or in a forest, or at a time of death, may give evidence between the parties.” The weight of testimony is to be determined by the following rule:—“If there be contradictory evidence, let the king decide by the plurality of credible witnesses; if equality in number, by superiority in virtue; if parity in virtue, by the testimony of such twice-born men as have best performed public duties.”
The proceedings in court are conducted with great decorum and solemnity. “The witnesses being assembled in the middle of the court-room, in the presence of the plaintiff and defendant, let the judge examine them, after having addressed them in the following manner:—‘What ye know to have been transacted in the matter before us, between the parties reciprocally, declare at large and with truth; for your evidence in this cause is required. A witness who gives testimony with truth shall attain exalted seats of beatitude above and the highest fame here below; such testimony is revered by Brahma himself; the witness who speaks falsely shall be fast bound in the cords of Varuna, and be wholly deprived of power during a hundred transmigrations; let mankind therefore give no false testimony. By truth is a witness cleared from sin; by truth is justice advanced; truth must therefore be spoken by witnesses of every class. The soul itself is its own witness; the soul itself is its own refuge; offend not thy conscious soul, the supreme internal witness of men. The sinful have said in their hearts, ‘None sees us.’ Yes; the gods distinctly see them, and so does the spirit within their breasts. The guardian deities of the firmament, of the earth, of the waters, of the human heart, of the moon, of the sun, and of fire, of punishment after death, of the winds, of night, of both twilights, and of justice, perfectly know the state of all spirits clothed with bodies.” After this address the examination takes place, and is conducted in a manner in which the deference paid to the different classes is curiously marked. To a Brahmin, the judge must begin with simply saying, “Declare;” to a Cshatriya, with saying, “Declare the truth;” to a Vaisya, with comparing perjury to the crime of stealing kine, grain, or gold; to a Sudra, with comparing it to every crime that men can commit, and addressing him in such language as the following:—“Headlong, in utter darkness, shall the impious wretch tumble into hell, who, being interrogated in a judicial inquiry, answers one question falsely.” “Marking well all the murders which are comprehended in the crime of perjury, declare thou the whole truth with precision as heard and seen by thee.” Such adjurations go far to prove the prevalence of perjury in native Hindoo courts in very early times; and indeed what else could be expected, when the code itself, immediately after inserting these adjurations, neutralizes them by adding—“In some cases, a giver of false evidence from a pious motive, even though he know the truth, shall not lose a seat in heaven; such evidence wise men call the speech of the gods. Whenever the death of a man, either of the servile, the commercial, the military, or the sacerdotal class would be occasioned by true evidence, falsehood may be spoken; it is even preferable to truth. Such witnesses must offer, as oblations to Saraswati, cakes of rice and milk, addressed to the goddess of speech; and thus will they fully expiate that venial sin of benevolent falsehood.” Commentators endeavour to qualify this lax morality by assuming that the falsehood sanctioned is only to favour a man “who had not been a grievous offender,” and to deceive a king notorious for rigour, “even though the fault arose from inadvertence or error.” While a false witness might avail himself of the above lax permission, a true witness might be subjected to gross injustice in consequence of the following absurd and superstitious provision:—“The witness who has given evidence, and to whom, within seven days after, happens disease, fire, or the death of a kinsman, shall be condemned to pay the debt and a fine.”
Where no witness could be had, the judge might “acquire a knowledge of the truth by the oath of the parties.” Here the great danger to be guarded against was false swearing; and hence, in order to maintain the sacredness of an oath, it is properly said—“Let no man of sense take an oath in vain; for the man who takes an oath in vain, shall be punished in this life and the next.” Unfortunately, as in the former case, however, the effect of the injunction is neutralized by the following strange declaration:—“To women, however, at a time of dalliance, or on a proposal of marriage, in the case of grass or fruit eaten by a cow, of wood taken for a sacrifice, or of a promise made for the preservation of a Brahmin, it is no deadly sin to take a light oath.” Sometimes when the oath was not deemed satisfactory, another test might be employed—a test most absurd and nugatory; though used for ages, and not long ago abolished for the first time in our own country. It was what is called the trial by ordeal, with reference to which it is said—“Let him (the judge) cause the party to hold fire, or to dive under water, or severally to touch the hands of his children and wife; he whom the blazing fire burns not, whom the water soon forces not up, or who meets with no speedy misfortune, must be held veracious in his testimony on oath.”
The written codes, conformably to which the judge was to decide, contain a complete system of law arranged under distinct heads, and making it impossible to doubt, notwithstanding its numerous defects, that the people employing it were considerably advanced in civilization. In the Institutes of Menu, eighteen “titles of law” are enumerated, and said to be “settled as the groundwork of all judicial procedure in this world.” These titles are classed in the following order:—1. Debt on loans for consumption; 2. Deposits and loans for use; 3. Sale without ownership; 4. Concerns among partners; 5. Subtraction of what has been given; 6. Non-payment of wages or hire; 7. Non-performance of agreements; 8. Rescission of sale and purchase; 9. Disputes between master and servant; 10. Contests on boundaries; 11 and 12. Assault and slander; 13. Larceny; 14. Robbery and other violence; 15. Adultery; 16. Altercation between man and wife, and their several duties; 17. The law of inheritance; 18. Gaming with dice, and living animals. A mere glance at these titles reveals a comprehensive and complicated course of jurisprudence; but the arrangement in not drawing a proper line of demarcation between civil and criminal matters is inconvenient; and it will therefore be proper, in pointing out some of the leading features of the Hindoo code, to disregard this arrangement, and substitute for it our own more natural division of—1. Civil law; and 2. Criminal law.
One of the leading axioms of our law is, that no man is to seek redress at his own hand. The axiom of Hindoo law is the very opposite; for it seems to be implied, that a creditor need not raise his action till other means of redress have failed. Artful management, the mediation of friends, distress, and other compulsory means, may be used by him; and if he thus succeed in retaking his property, the king must not only not rebuke him, but ratify his possession as “payment by the debtor.” Among five modes of recovery which he may employ, “legal force” is mentioned last. “This law” says Mr. Elphinstone, “still operates so strongly in some Hindoo states, that a creditor imprisons his debtor in his private house, and even keeps him for a period without food, and exposed to the sun, to compel him to produce the money he owes.” The interest lent on money without security is to be proportioned to the risk, or “in the direct order of the classes.” Thus, the monthly interest exigible from a Brahmin is 2 per cent.; from a Cshatriya or soldier, 3; from a Vaisya or merchant, 4; and from a Sudra, 5 per cent. It is added, “never more,” and, as one should think, superfluously, since this so-called maximum is at the enormous rate of 60 per cent. per annum. Where a pledge has been taken as a security merely, the interest must not exceed 1½ per cent. monthly, and where the pledge is beneficial—in other words, is used by the pawnee for his profit—he is not entitled to any interest at all. Interest must not be allowed to accumulate till it “be more than enough to double the debt;” but the rule as to a maximum will not apply in the case of extraordinary risks, and therefore “whatever interest shall be settled by men well acquainted with sea voyages or journeys by land, with times and with places, such interest shall have legal force.” A prescriptive right to ordinary moveables may be established; and therefore “whatever chattel the owner sees enjoyed by others for ten years, while, though present, he says nothing, that chattel he shall not recover,” provided he was at the time of legal capacity; but “a pledge, a boundary of land, the property of an infant, a deposit either open or in a chest sealed, female slaves, the wealth of a king, and of a learned Brahmin, are not lost in consequence of adverse enjoyment.”
On the subject of obligations, many nice and important distinctions are made. A contract may be null from being entered into under the influence of force or fraud, or by parties labouring under incapacity; and the judge is bound, on discovering the flaw, to “annul the whole transaction.” For the same reason, “that plaint can have no effect, though it may be supported by evidence, which contains a cause of action inconsistent with positive law or with settled usage.” In some cases, however, a contract, which might not of itself be legally binding, will be enforced. Thus in the ordinary case, when a debtor dies without leaving the means of paying his debt, his family are not bound; but should it be proved that the money borrowed was expended for their use, then “it must be paid by that family, divided or undivided, out of their own estate.” In like manner, “should even a slave make a contract for the behoof of the family, the master, whether in his own country or abroad, shall not rescind it.” On the other hand, there are cases in which an obligation which might have been enforced against the original obligant will not be binding on his representatives. For instance, money “idly promised, or lost at play, or due for spirituous liquors, the son shall not be obliged to pay.” The same rule holds in cases of surety for appearance; but “if a surety for payment should die, the judge may compel even his heirs to discharge the debt.”
Bargains of sale or purchase, though completed by delivery, may be rescinded at the wish of either seller or buyer within ten days; but after that period become so absolute, that the party attempting to rescind is subjected to a fine. It may happen that a seller is not the true owner. If he was aware of the fact, he is of course to be treated as a thief; but what becomes of the sale? The buyer may have paid full value, and been totally ignorant of the theft. Ought he in that case to be the loser? The question is one of some nicety, and is thus answered:—The purchaser, if he has bought “in open market,” and “paid the price,” is entitled to “the absolute property,” provided he produce the seller; but if the seller is not produced, the purchaser, on proving the public sale, only escapes punishment, and the property returns to the original owner. In treating of bargains not fulfilled in terms of the agreement, some curious cases are mentioned. One of these is:—“After one damsel has been shown, another is offered to the bridegroom;” the decision is, that “he may become the husband of both for the same price.” Another case of a similar nature is that of “a kinsman who gives a damsel in marriage,” without having “told her blemishes.” A third case is that of a hired servant or workman who “fails to perform his work according to his agreement.” If the failure is owing to indolence, a fine shall be inflicted, and the wages or hire shall not be paid. On the other hand, if “he be really ill, and, when restored to health, shall perform his work according to his original bargain, he shall receive his pay even for a very long time.”
The title relating to master and servant is very meagre, being confined almost entirely to questions “arising from the fault of such as own herds of cattle, and of such as are hired to keep them.” The general rule is, that “by day the blame falls on the herdsman, and by night on the owner,” if the cattle are kept at home, but “if the place of their food and custody be different, the keeper bears the blame.” As a specimen of the way in which the rule is applied, the following case may be mentioned:—“A flock of goats or of sheep being attacked by wolves, and the keeper not going to repel the attack, he shall be responsible for every one of them which a wolf shall violently kill; but if any one of them, while they graze together near a wood and the shepherd keeps them in order, shall be suddenly killed by a wolf springing on it, he shall not in that case be responsible.”
On the subject of boundaries nothing of much interest occurs. The thing most necessary is to fix boundaries at first in such a manner as to make it almost impossible to mistake them. With this view they ought to be marked both above and below ground; above by natural objects, as streams and lakes, or artificial objects, as pools and wells, temples, planted trees, and earthen mounds; and below by “large pieces of stone, bones, tails of cows, bran ashes, potsherds, dried cow-dung, bricks and ashes, charcoal, pebbles and sand, and substances of all sorts, which the earth corrodes not even in a long time.” In the event of a contest between two villages, such marks, and “long-continued possession,” may enable the judge to find the limit; but “should there be a doubt,” recourse must be had to the declarations of witnesses, who “must be examined concerning the landmarks in the presence of all the townsmen or villagers, or of both the contending parties.” The evidence “must be recorded in writing,” and when the witnesses are about to give it, “let them, putting earth on their heads, wearing chaplets of red flowers and clad in red mantles, be sworn by the reward of all their several good actions, to give correct evidence concerning the metes and bounds.” If there be no witnesses, “four men who dwell on all the four sides of the two villages” must “make a decision concerning the boundary, being duly prepared, in the presence of the king.” Should there be “no such neighbours on all sides, nor any men whose ancestors had lived there since the villages were built, nor other inhabitants of towns, who can give evidence on the limits, the judge must examine the following men who inhabit the woods:—hunters, fowlers, herdsmen, fishers, diggers for roots, catchers of snakes, gleaners, and other foresters.” By such means the king may be able to fix the precise boundary between the two villages. When the dispute is between individuals “as to the bounds of arable fields, wells or pools, gardens and houses,” the testimony of next neighbours on every side will suffice. As a last resource, should all other means fail, “let the king, knowing what is just and consulting the future benefit of both parties, make a bound line.”
The subject of husband and wife, though in some respects the most important of all, is not treated with much judgment in the Institutes of Menu. The wife in particular is degraded from her natural position, and made to be the slave rather than the companion of her husband. The very first announcement of this part of the Hindoo code is as follows:—“Day and night must women be held by their protectors in a state of dependence; but in recreations, though rather addicted to them, they may be left at their own disposal. Their fathers protect them in childhood, their husbands protect them in youth, their sons protect them in age; a woman is never fit for independence.” Again, “Women must, above all, be restrained from the smallest illicit gratification: for not being thus restrained, they bring sorrow on both families; let husbands consider this as the supreme law ordained for all classes, and let them, how weak soever, diligently keep their wives under lawful restrictions.” It is admitted indeed that “no man can wholly restrain woman by violent measures,” and that “those women are truly secure who are guarded by their own good inclinations.” Such inclinations, it would seem, they must have from nature, for they are precluded from the use of the means which, even the Brahmins being judges, are best fitted to instil them, it being expressly declared that “women have no business with the texts of the Veda.” Their social position is only too significantly expressed by the classification adopted and the treatment enjoined in the following passage:—“For women, children, persons of crazy intellect, the old, the poor, and the infirm, the king shall order punishment with a small whip, a twig, or a rope.”
Eight forms of marriage are mentioned, but two of them only to be stigmatized. Of these two, the last and basest, called paisacha, is where advantage is taken of a “damsel sleeping, or flushed with strong liquor, or disordered in her intellect;” the other, called asura, is vitiated by the mercenary spirit in which it is transacted, “the bridegroom having given as much wealth as he can afford to the father and paternal kinsmen, and to the damsel herself.” In the four most approved forms the father simply gives his daughter away with certain prescribed ceremonies. One or other of these forms must be used when the bridegroom is a Brahmin. The fifth and sixth forms, called respectively gandharvas and rakshasas, seem competent only to a soldier or member of the Kshatriya class. The former of these is the only one in which the inclinations of the bridegroom and bride receive effect, for it is defined to be “the reciprocal connection of a youth and a damsel, with mutual desire;” the latter not only requires no consent, but takes place in circumstances which preclude the possibility of it, since it is nothing less than “the seizure of a maiden by force from her home, while she weeps and calls for assistance, after her kinsmen and friends have been slain in battle, or wounded, and their houses broken open.” As a general rule the father disposes of his daughter absolutely, and is under no obligation to consult her inclinations, though he is advised to give her “to an excellent and handsome youth of the same class,” and reminded that though marriageable it is better she “should stay at home till her death than that he should ever give her in marriage to a bridegroom void of excellent qualities.” The marriageable age was fixed at eight, but if after waiting three years beyond that period, she was not provided with a husband, she was entitled to choose for herself. In so acting “neither she nor the youth chosen commits any offence,” though as a kind of penalty for the irregularity, she cannot without committing theft “carry with her the ornaments which she received from her father, nor those given by her mother or brethren.” In all cases intermarriage between individuals of the same class is to be preferred, but the rule of law is unequally applied, and while men may, women are absolutely interdicted from marrying into classes inferior to their own.
In married life the idea of equality is altogether scouted, and as Mrs. Speir justly says, “obedience is the beginning and the middle and the end of female duty.” 1 Her proper business is to be “employed in the collection and expenditure of wealth, in purification and female duty, in the preparation of daily food, and the superintendence of household utensils,” but her person and rights are wholly sunk in those of her husband, and she is classed with a son and slave as one of the three persons “declared by law to have no wealth exclusively their own; the wealth which they may earn is acquired for the man to whom they may belong.” Marriage is said to be indissoluble, and what is called “the supreme law between husband and wife” is thus summarily expressed:—
“Let mutual fidelity continue until death.” But even in this point gross inequality is apparent. A husband, though married in legal form, may abandon his wife on the ground of blemish or disease fraudulently concealed from him. He may also supersede her by another wife on the vague charges of drinking spirituous liquors, acting immorally, showing hatred, being mischievous and wasting his property, or speaking unkindly. In all these cases, indeed, some degree of blame attaches to her, but she may in like manner be superseded when the worst that can be said of her is that she is unfortunate. Thus she may be superseded in the eighth year if she has proved barren, or in the tenth if all her children are dead, and in the eleventh if she has borne only daughters. Should she resent this harsh usage, and depart in wrath from the house, “she must either instantly be confined, or abandoned in the presence of the whole family.” On the other hand, whatever be the husband’s faults, though “inobservant of approved usages, or enamoured of another woman, or devoid of good qualities,” he “must constantly be revered as a god by a virtuous wife.” Though addicted to gaming, fond of spirituous liquors, or diseased, she is liable, if she neglect him, to be “deprived of her ornaments and household furniture,” and cannot get quit of him except in the not very probable case of his not only deserting her, but living abroad without reasonable cause for at least three years. On the dissolution of marriage by death the woman is still made the principal sufferer. He, if the survivor, may immediately supply her place, but she, if once a widow, is expected to spend the remainder of her life in the painful austerities “becoming a woman devoted to one only husband,” and must not “even pronounce the name of another man.” Nothing, indeed, is said of any obligation to submit to the horrible sacrifice of suttee, but her second marriage, if not absolutely illegal, is stigmatized in such language as the following:—“The marriage of a widow” is not “even named in the laws concerning marriage.” Another practice, however, not unknown to the Jewish law, that of raising up issue to a brother, appears, though not without considerable hesitation, to have been permitted, not only to the higher classes, in the special case of a husband dying “after troth verbally plighted, but before consummation,” but to all Sudras, whenever the husband died without male issue. The practice, while permitted, being reprobated as “fit only for cattle,” afterwards fell into desuetude.
Immediately connected with the law of husband and wife is that of inheritance. In the Hindoo code the rights of succession are considered subservient to the due performance of obsequies to ancestors, and hence the heir to whom the performance of these obsequies properly belongs is always preferred. To this is to be ascribed the important place occupied by the eldest son as the representative of the family. “By the eldest, at the moment of his birth, the father, having begotten a son, discharges his debt to his own progenitors; the eldest son, therefore, ought to manage the whole patrimony,” and the other sons “may live under him as under their father.” If they do not choose so to live, a division takes place according to certain rules. Two modes of division are mentioned as being equally legal. According to the one, a deduction from the whole patrimony is first made—the eldest son receiving a twentieth, together with the best chattel, the youngest son an eightieth, and each intermediate son a fortieth—and then the residue is distributed in equal shares. If the division is made without any previous deduction, the eldest son receives a double share, the next born a share and a half, and the younger sons a share each. Married daughters appear to be excluded, but the unmarried daughters are provided for by their brothers, each of whom is bound to contribute for this purpose “a fourth part of his own distinct share,” and “shall be degraded” if he refuse. The existence of more wives than one gives rise to curious complications. One of these is stated as follows:—“A younger son being born of a first married wife, after an elder son had been born of a wife last married, it may be a doubt, in that case, how the division shall be made.” The decision is that the son of the elder wife is to be preferred, but in a less degree than he would have been if he had been also the eldest born.
A man who has no son may appoint his daughter to raise up a son for him, by saying “the male child who shall be born from her in wedlock shall be mine, for the purpose of performing my obsequies.” In this case the son succeeds to all the wealth of his maternal grandfather: should she have no son she takes the succession in her own right, for, as it is justly asked, “How, if a man have no son, can any inherit his property but a daughter, who is closely united with his own soul?” Here, however, a question arises. Suppose that the father, after a son is thus raised up to him by his daughter, has a son of his own body, which of the two sons shall be his heir? The answer is, that they shall divide the heritage between them. Failing either of these sons, a man may obtain a son by adoption. Such a son enjoys all the rights of a son in the family into which he has been adopted, but “must never claim the family and estate of his natural father.” In the event of there being no son, actual or adopted, and no son raised up by a brother or kinsman, as under the Jewish law, a series of substitutes, called sons only by an extraordinary legal fiction, are provided, “for the sake of preventing a failure of obsequies,” such a failure being regarded by a Hindoo as the greatest of all possible calamities. Instead of attending farther to these substitutes, it is of more consequence to trace the order of succession should there be no son of any kind nor daughter to take it. First in order come grandsons, then nephews, then parents, then brothers, then grandfathers and grandmothers, then kinsmen so near as to be entitled to perform obsequies to ancestors. On complete failure of kindred, the spiritual preceptor, the pupil, or the Brahmins succeed. Last of all comes the king, as ultimus heres, subject, however, to the important limitation, that the deceased was not a Brahmin, for “the property of a Brahmin shall never be taken by the king:” this is a fixed law, but the wealth of all other classes, on the failure of all heirs, the king may take. It is rather singular, that though the right of a father to dispose absolutely of his property, or distribute it among his children, in his lifetime, is implied by various passages in the Institutes, there is not the least hint of his being able to dispose of it by will.
The criminal law of the Hindoos is much more defective than the civil, and is characterized throughout by partiality, caprice, and cruelty. Punishments are regulated not so much by the heinousness of the offence as the caste of the offender; and thus, while some of the worst crimes escape with comparative impunity, the most venial are visited with barbarous mutilations and tortures. The principal heads under which criminal law is arranged are, slander and assault, larceny, robbery and other violence, adultery, and gaming. This arrangement is arbitrary and incomplete, classing together crimes which have little in common, and omitting many by which the peace of society is disturbed and individuals are seriously injured. A few specimens selected from each head will show the spirit which pervades the whole.
Defamatory words are punished by fine if the offender belongs to a superior class, and corporally if he be a Sudra. In fixing the fine, the rule is to deal most leniently with the Brahmin who offends, and most severely with the person with whom he is offended. Thus, a Brahmin for slandering a soldier was fined fifty panas, for slandering a merchant twenty-five, and for slandering a Sudra twelve. If he was slandered, the fine imposed on the soldier was 100 panas, and on the merchant 150 or 200. For the very same offence “a mechanic or servile man” was whipped. He might even be glad to escape so easily, for, if convicted of insulting “the twice-born with gross invectives,” or of mentioning “their names and classes with contumely,” he is in the former case to “have his tongue slit,” and in the latter to have “an iron style ten fingers long thrust red hot into his mouth.” With regard to assault the general rule is, that “with whatever member a low-born man shall assault, or hurt a superior, even that member of his must be slit.” Accordingly, “he who raises his hand or a staff against another shall have his hand cut; and he who kicks another in wrath shall have an incision made in his foot.” Even the meaning of the word “assault” is stretched, for the purpose of making it reach offences not properly included under it. In this way it is provided that “a man of the lowest class who shall insolently place himself on the same seat with one of the highest, shall either be banished with a mark on his hinder parts, or the king shall cause a gash to be made on his buttock.” For a variety of insults in more aggravated forms, lips, hands, and other offending members are to be similarly gashed. In some cases treatment which might amount to assault, may be justified by the authority of the person who inflicts it, and be nothing more than legitimate chastisement. The only case mentioned, apparently by way of illustration, is so singular as to be worth quoting. It runs thus:—“A wife, a son, a servant, a pupil, and a whole brother may be corrected, when they commit faults, with a rope or the small shoot of a cane; but on the back part of their bodies, and not on a noble part by any means.”
In introducing the subject of theft and robbery, the code labours to impress the king with the importance of the duty of restraining them, reminding him that “by restraining thieves and robbers his fame and domain are increased;” and that a king “who receives taxes in kind or in value, market duties and tolls, the small daily presents for his household, and fines for offences,” without protecting his people by the punishment of offenders, “falls directly to a region of horror.” On the other hand, it is gravely asserted, not only that “by restraining the bad and by encouraging the good, kings are perpetually made pure,” but that “men who have committed offences, and have received from kings the punishment due to them, go pure to heaven, and become as clear as those who have done well.” Minor thefts are punished by fine, and it is very remarkable that this is a penalty which the king himself may incur, for it is expressly said that “where another man of lower birth would be fined one pana,1 the king shall be fined a thousand.” “This,” it is added, “is a sacred rule.” But who, it may be asked, was to enforce it? The commentator answers: “He shall give the fine to the priests, or cast it into the river.” In more serious cases of theft a fine was not considered sufficient, and imprisonment, confinement by fetters, and various kinds of corporal punishment were added. These last, according to the usual practice, consisted of mutilations, such as the amputation of a hand or a limb. It deserves to be noticed, that in imposing fines for theft the rule adopted is much more equitable than in the case of assault, inasmuch as the amount is increased with the rank of the criminal, the fine of a Sudra being only eight fold, while that of a Vaisya is sixteen, that of a Kshatriya two-and-thirty, and that of a Brahmin four-and-sixty fold. The object, doubtless, was to deter the Brahmin from the commission of a crime by which, as it is essentially mean and despicable, he reflected disgrace on his order.
The next branch of criminal law considered in the code is that relating to crimes of violence. It is disposed of in a few sentences, and is only deserving of notice on account of the manner in which a just self-defence is sanctioned. While it is said that “neither on account of friendship, nor for the sake of great lucre, shall the king dismiss the perpetrators of violent acts, who spread terror on all creatures,” it is distinctly intimated that “the twice-born may take arms when their duty is obstructed by force,” and “in their own defence;” and that “in a war for a just cause and in defence of a woman or a priest, he who kills justly commits no crime.” That there may be no mistake as to what is meant by killing justly, it is explained to be “killing an assassin who attempts to kill, whether in public or in private.”
The subject of adultery is treated at large, and, it must be confessed, with more particularity than delicacy. One thing deserving of notice is the importance attached to what are called “overt-acts of adulterous inclinations,” such as talking with the wife of another man “at a place of pilgrimage, in a forest, or a grove, or at the confluence of rivers;” sending her “flowers or perfumes;” sporting and jesting with her; touching “her apparel and ornaments;” and sitting “with her on the same couch.” In all such cases a fine is exigible. A very proper distinction, however, is made. If a man before noted for adultery “converses in secret with the wife of another,” his guilt is presumed and he incurs the penalty; but “a man, not before noted, who thus converses with her for some reasonable cause, shall pay no fine, since in him there is no transgression.” In like manner it is intimated that husbands have themselves to blame if their wives are not “most especially guarded;” and that therefore the laws against adultery “relate not to the wives of public dancers and singers, or of such base men as live by intrigues of their wives; men who either carry women to others, or lying concealed at home, permit them to hold a culpable intercourse.” The actual commission of the crime is punished with little regard to equity, the punishment being generally light in proportion to the rank of the male, and rigorous in proportion to the rank of the female offender. Hence a Brahmin, even for forcing a guarded woman, incurs only a fine, and at the very worst is subjected to “ignominious tonsure;” whereas, “should a wife, proud of her family, and the great qualities of her kinsmen, actually violate the duty which she owes to her lord,” her sentence is “to be devoured by dogs in a place much frequented;” and that of her paramour to be placed “on an iron bed well heated, under which the executioners shall throw logs continually till the sinful wretch be there burned.” When the crime is committed under similar circumstances by a soldier or a merchant, the form of the punishment is slightly varied, and the adulterer is “burned in a fire of dry grass or reeds.” After treating of the subject of “gaming either with inanimate or animated things, and recommending the king to exclude it wholly from his realm, because “both those modes of play cause destruction to princes,” and to “punish corporally at discretion both the gamester and the keeper of a gaming-house,” the code enumerates various crimes not included under the previous titles, and specifies their punishments. Ministers “who are employed in public affairs, and, inflamed by the blaze of wealth, mar the business of any party concerned,” are to be stripped of all their property. Such as “forge royal edicts, cause dissensions among the great ministers,” or join the king’s enemies, are to be put to death. Whatever business “has at any time been transacted according to law” is to be considered as “finally settled,” and the king should refuse to re-open it; but when his ministers or a judge have acted illegally it is his duty to re-examine the case, and fine them for their misconduct.
For the purpose of detecting crime, and bringing offenders to justice, a system of internal police must be established. In all communities there are “two sorts of rogues—the open and the concealed;” open, who “subsist by cheating in various marketable commodities;” and concealed, “who steal and rob in forests and the like secret places.” There are also “receivers of bribes, extortors of money by threats, debasers of metals, gamesters, fortune-tellers, impostors, and professors of palmistry;” in short, “scoundrels with depraved souls, who secretly prowl over this earth”—worthless men, all the more dangerous from often “bearing the outward signs of the worthy.” As a security against their machinations, and for the prevention of robberies, the king must employ soldiers, stationary and patrolling, as well as secret watchmen at “much-frequented places, cisterns of water, bake-houses, the lodging of harlots, taverns, and victualling shops, squares where four ways meet, large well-known trees, assemblies and public spectacles, old courtyards, thickets, the houses of artists, empty mansions, groves and gardens.” It will also be requisite to employ “able spies.” The description given of them is curious. They are to be men who were “once thieves,” and thus “knowing the various machinations of rogues, associate with them and follow them,” for the purpose of enabling the king to “detect and draw them forth.” Even their mode of proceeding is detailed. On some pretext or other, such as the promise of “dainty food and gratifications,” the spies are to procure an assembly of rogues. Being thus brought within the grasp of the law, the king is to seize them all at once, as well as any of their gang whose suspicions may have deterred them from joining the assembly, and do summary justice by putting them to death, “with their friends and kinsmen, paternal and maternal.”
After recommending a number of other executions, conceived in the same sanguinary spirit, the code disposes of a variety of minor delinquencies, properly falling within the department of police; such as taking away the water of an ancient pool, obstructing a water-course, breaking down a foot-bridge, or removing a public flag. For all these fines are appointed. In other cases offenders are punished by imprisonment. Of course, prisons are necessary, but the only information given with regard to them is, that they are to be placed “near a public road, where offenders may be seen wretched or disfigured.” From the subject of police the code adverts to various forms of meditated crime, which, though they may have failed of their effect, deserve punishment. Those particularly mentioned are, “sacrifices to destroy innocent men,” “machinations with roots,” and “witcheries.” From these an abrupt transition is made to several fraudulent practices. After specifying the sale of bad grain for good, the placing of good seed at the top of the bag to conceal the bad below, and the removal of known landmarks, and declaring that those guilty of such offences “must suffer such corporal punishment as will disfigure them,” the code concludes its denunciations of fraud with the following startling sentence:—“But the most pernicious of all deceivers is a goldsmith who commits frauds; the king shall order him to be cut piecemeal with razors.” The barbarous punishment thus reserved for the goldsmith may be thought justifiable from the difficulty of detecting his frauds, and the value of the materials with which he is intrusted; but most persons will see in this shocking punishment, only an exemplification of the barbarous manner in which criminal justice was, and still is administered by Hindoo sovereigns.
Another important branch of government, not yet considered, is its foreign policy, or the measures rendered necessary by the relations, peaceful or warlike, which it may bear to other states. For it must always be remembered that India did not form one single undivided empire, but was composed of a number of separate and independent sovereignties, always jealous of each other, and often engaged in open hostilities. The importance attached to the office of ambassador, and the qualifications necessary for the performance of its duties, have already been advertised to. Incidental notice has also been taken of the division of the kingdom into military districts, and the appointment of a commander-in-chief with a “company of guards,” evidently of the nature of a standing army, to act as “the protectors of the realm.” The leading principle by which the king is to be guided in his foreign policy is to be “always ready for action.” While acting on all occasions “without guile and never with insincerity,” he is to keep himself “ever on his guard.” In the exercise of this caution he is to consider “the power immediately beyond him, and the favourer of that power” as hostile, “the power next beyond” as amicable, and all powers still more remote as neutral. His troops are to be “constantly exercised; his prowess constantly displayed; what he ought to secure, constantly secured; and the weakness of his foe constantly investigated.” At the same time he must be careful not to disclose his own “vulnerable part.” On this subject the advice is, “Like a tortoise, let him draw in his members under the shell of concealment, and diligently let him repair any breach that may be made in it; like a heron, let him muse on gaining advantages; like a lion, let him put forth his strength; like a wolf, let him creep towards his prey; like a hare, let him double to secure his retreat.” In short, “Let him so arrange all his affairs, that no ally, neutral prince, or enemy may obtain any advantage over him; this, in a few words, is the sum of political wisdom.” He must not be satisfied, however, with acting on the defensive. Glory and conquest rather than peace must be his object, since “those rulers of the earth, who, desirous of defeating each other, exert their utmost strength in battle, without ever averting their faces, ascend after death directly to heaven.” With such a stimulus added to the innate ambition of rulers, it is not strange that war seems to be contemplated as their natural and necessary employment. Accordingly, the principles on which the king is to act are thus inculcated: “What he has not gained, let him strive to gain; what he has acquired, let him preserve with care; what he preserves, let him augment; and what he has augmented, let him bestow on the deserving.”
In accordance with these principles, the existence of war being assumed, a very minute and curious account is given of the manner in which it is to be carried on. The king having made all the necessary preparations for conquest, is to invade the enemy’s country in the fine months when autumnal or vernal crops are on the ground. He may indeed set out “even in other seasons, when he has a clear prospect of victory, and when any disaster has befallen his foe.” Having secured “the three sorts of ways,” that is, over water, on plains, and through forests, and placed what is called “his six-fold army” (elephants, cavalry, cars, infantry, officers, and attendants) in complete military form, he is to “proceed by fit journeys toward the metropolis of his enemy,” keeping “much on his guard against every secret friend in the service of the hostile prince, and against emissaries who go and return.” The line of march, as stated in the text, and explained by the commentator in the words here placed in brackets, is curious: “On his march let the king form his troops either like a staff [in an even column]; like a wain [in a wedge with the apex foremost]; like a boar [in a rhomb, with the van and rear narrow and the centre broad]; like a makara [a sea monster, that is, in a double triangle with apices joined]; like a needle [in a long line]; or like the bird of Vishnu [in a rhomboid, with the wings far extended].” The king’s own position, meanwhile, is more secure than dignified, for he is always to conceal himself “in the midst of a squadron like a lotus-flower.”
Having arrived at the scene of action the king is to proceed thus:—“On all sides let him station troops of soldiers in whom he confides, distinguished by known colours and other marks, who are excellent both in sustaining a charge and in charging; who are fearless and incapable of desertion. Let him at his pleasure order a few men to engage in a close phalanx, or a large number of warriors in loose ranks; and having formed them in a needle or in a thunderbolt, let him give the orders for battle,” fighting on a plain “with his armed cars and horses,” on watery places “with manned boats and elephants,” on ground full of trees and shrubs “with bows,” and on cleared ground “with swords and targets and other weapons.” When the troops are formed in array, he is to encourage them (with short animated speeches), and then “try them completely” by risking the encounter. Sometimes it may be more advisable to block up the enemy. In that case the king is to “sit encamped and lay waste the hostile country,” spoiling its “grass, water, and wood;” destroying “the pools, wells, and trenches,” harassing the foe by day and alarming him by night. Meanwhile he is secretly to bring over to his party as many of the enemy as he can, and acquaint himself by means of spies of all their movements, and “when a fortunate moment is offered by Heaven” give battle, “pushing on to conquest and abandoning fear.” This bold course, however, he is not to adopt till other expedients—negotiation, well-applied gifts, and creating divisions—have failed; since there is always hazard in a decisive action, “and victory or defeat are not surely foreseen on either side; when two armies engage in the field.”
When a battle does take place the rules of honourable warfare must be observed. No combatant is to “smite his foe with weapons concealed, nor with arrows mischievously barbed, nor with poisoned arrows, nor with darts blazing with fire.” Neither is one who is mounted “to strike his enemy alighted on the ground; nor an effeminate man; nor one with closed palms (suing for life); nor one whose hair is loose; nor one who sits down; nor one who says ‘I am thy captive.’” In these, and various similar cases which are enumerated, mercy is to be shown. With the exception of gold and silver, all the articles taken in war are “the lawful prizes of the man who takes them;” but he “must lay the most valuable before the king,” and the king “should distribute among the whole army what has not been separately taken.” Should the country against which the expedition was undertaken be conquered, the king must not play the tyrant in it, but conciliate favour by respecting “the deities adored in it and their virtuous priests, by distributing largesses, and by loudly proclaiming a full exemption from terror.” In settling the future government of the country he may send a prince of the royal race to rule over it, not leaving him, however, to exercise his own discretion, but giving him “precise instructions,” and taking care, moreover, that the laws previously in force shall be maintained. The confiscation of property causing hatred in those who lose it, and love in those to whom it is granted, “may be laudable or blamable on different occasions.” Instead of ruling the conquered country as a province added to his former territories, the king may find it more expedient “to form an alliance with the vanquished prince, and proceed in union with him, using diligent circumspection,” since “by gaining wealth and territory a king acquires not so great an increase of strength, as by obtaining a firm ally, who, though weak, may hereafter be powerful.” It may happen that the expedition proves unfortunate, and the king, sustaining a serious reverse, is obliged instead of attacking other territories to defend his own. In that event, the expediency of abandoning “even a salubrious and fertile country, where cattle continually increase,” for the sake of preserving himself, is easily perceived, but some doubt may not unreasonably be felt as to the soundness and good taste of the following singular advice:—“Against misfortune let him preserve his wealth; at the expense of wealth let him preserve his wife; but let him at all events preserve himself even at the hazard of his wife and his riches.”
Before quitting the subject of Hindoo government, it may be necessary to refer to the more important changes which have been introduced into its different departments in comparatively modern times, and of which notice has not yet been taken. In its form the government remains as despotic as ever, while the administration of it has in some respects become more arbitrary. Instead of a regular council, composed of a fixed number of members, a prime minister, probably indebted for the appointment not so much to his qualifications as to caprice, favouritism, and court intrigue, rules almost as absolutely as his master over the heads of the different departments. The military divisions no longer exist, but the civil divisions bear a considerable resemblance to those of Menu’s time, though the name of governments has been substituted for the highest lordships. The townships themselves, however, as already shown, still subsist. The burden of taxation has been greatly increased. The revenue exigible from land, which could not exceed a sixth, except in times of war or public distress, when it might be raised to a fourth, has been increased by means of taxes and cesses, falling chiefly on cultivators, till it amounts usually to a half, and seldom falls below a third of the whole produce. Worse than this, demands are made on frivolous pretexts, and the villagers thus exposed to arbitrary exactions can only evade them by concealing their income, bribing collectors, or throwing their lands out of cultivation. The only effect of this monstrous system is to produce oppression on the one hand, and fraud and wretchedness on the other. These evils are greatly aggravated by farming out the revenue to the highest bidder who offers sufficient security to the treasury. The contractor, by subletting, introduces a body of middlemen of different grades, each of whom endeavours to squeeze out a larger amount than his immediate superior, till at last all their extortions fall with accumulated weight on the poor cultivator.
The law though still based on the code of Menu, has been much modified by the interpretations of commentators, who have thus become the founders of distinct law schools, named from the provinces in which their authority is recognized. There is thus the school of Bengal, of Mathila or North Behar, of Benares, of Maharashtra or the Mahratta country, and of Draveda or south of the peninsula. Many of the changes introduced are the natural result of a more complicated state of society; but others of them are very questionable improvements. Thus, marriage formerly allowed between unequal castes is now prohibited, and the power of a father over his property, particularly when it is ancestral, is greatly restricted if not wholly annulled. Indeed, the Draveda school, making no distinction between property which the father has inherited and property which he has himself acquired, places him in respect of the power of disposal on the same footing as his sons, and gives him no privilege superior to theirs, except that of present enjoyment. The power of making a will, of which no hint is given by Menu, is still denied by all the schools except that of Bengal, which admits it only in certain cases. The criminal law has fallen into desuetude, but unfortunately nothing better has been substituted for it; and punishments are regulated partly by custom and partly by arbitrary will. Regular law courts have also been in a great measure superseded by commissions, the members of which obtaining them by court favour, usually exercise their powers in accordance with the wishes of their patrons. They are therefore interested, partizans rather than impartial judges. Almost the only cases in which justice can be said to be impartially administered is by bodies of arbitrators called panchayets, when the parties themselves select them and agree to abide by their decision.
In no department have the changes been so great as in that of war. From the account given above it is manifest, that at the date of the code, the art itself was in a very rude state. Every expedition being limited to a few weeks’ duration, when the weather was favourable, was an isolated inroad rather than a campaign, and therefore could not form part of a systematic and comprehensive plan, to be pursued through a series of years till the object was accomplished. A marked improvement in this desultory mode of warfare was apparent in the resistance which the Hindoos made to the early Mahometan invaders. Besides forming extensive confederacies, they brought powerful armies into the field; and when one campaign ended, kept these armies ready to commence another as soon as the season for renewed operations should arrive. As yet, however, the implements of war were rude and ineffective. Any position strong by nature might by a little art be rendered impregnable. The use of ordnance, by introducing a new and powerful engine of destruction, made it impossible to act any longer on the previously received axiom that “one bowman placed on a wall is a match in war for a hundred enemies, and a hundred for ten thousand.” For the last great improvement, the introduction of regular battalions, by which the whole face of war has been changed, the Hindoos are indebted to their European conquerors.
Though a considerable advance has been made in the mere art of war, discipline has rather degenerated, and the generosity and mercy so strongly inculcated on the victor by Menu are seldom experienced by the vanquished. Owing to the longer duration of campaigns the wants of armies are greatly increased, and the numbers assembled are out of all proportion to the effective force. On the march they form a disorderly crowd spread over the country for ten or twelve miles in length, by two in breadth, while parties scattered to greater distances scour the fields and villages for forage and plunder. “The main body,” to borrow Mr. Elphinstone’s graphic description, “is in some places dense, and in others rare, composed of elephants and camels, horse and foot, carts, palanquins, and bullock-carriages, loaded oxen, porters, women, children, droves of cattle, goats, sheep, and asses, all in the greatest conceivable disorder, and all enveloped in a thick cloud of dust that rises high into the atmosphere, and may be seen for miles. When there are regular infantry they march in a body, or at least by regiments; and the guns form a long line, occasioning continual obstructions, from the badness of the roads or the breaking down of carriages. The rest of the troops straggle among the baggage. Two tall standards, accompanied by kettle-drums (all perhaps on elephants), represent a body which ought to be from 500 to 5000 horse, but are followed by from five to fifty. The other horsemen belonging to them are riding singly or in groups, each, perhaps, with his spear poised on his shoulder, to the imminent danger of those who press behind, while the owner is joking with his companion, or singing in a voice that may be heard amidst the surrounding din.” With all this want of order, “good intelligence and numbers of light troops” prevent surprise; and “these apparently unwieldy masses,” even when warring with European troops, “have often gained great advantages from the secrecy and celerity of their movements.”1
When the ground for encampment is reached, the place allotted to each chief or department is marked by conspicuous flags. The camp itself is thus described:—“The camp, when pitched, is a mixture of regularity and disorder. The bazaars are long and regular streets, with shops of all descriptions, as in a city. The guns and disciplined infantry are in lines, and the rest scattered about, without any visible regard to arrangement. The tents are mostly white, but often striped with red, green, or blue, and sometimes wholly of these colours. Those of the poor are low and of black woollen; sometimes merely a blanket of that description thrown over three spears stuck in the ground, though the owners of spears are seldom so ill-lodged. The tents of the great are splendid; they are disposed in courts formed of canvas screens, and some are large and lofty for public receptions, while others are low and of moderate size, with quilted, and sometimes double walls, that secure privacy, while they exclude the dust and wind. They are connected by covered passages, and contain every accommodation that would be met with in a palace.” The Hindoos excel particularly in artillery, and hence the most important part of their battles is a cannonade. Skirmishing is also a favourite mode of fighting; but the most characteristic mode, and usually also the most decisive, is a general charge of cavalry. When they move on at speed “the thunder of the ground, the flashing of their arms, the brandishing of their spears, the agitation of their banners rushing through the wind, and the rapid approach of such a countless multitude, produce sensations of grandeur which the imagination cannot surpass.” At first the whole appear coming at full speed against their adversaries’ front, but by a sudden and dexterous movement part wheel inwards so as to bring the charge at once on front and flanks. This manœuvre, however, is more grand than effective, and is easily resisted by disciplined troops standing in regular array. In the art of conducting sieges the Hindoos have made little progress; and when places of any strength fall, it is far less frequently by regular assault than by blockade, surprise, or an unsuccessful sally.
What may be called the commissary department is very efficient. Though the government scarcely interferes, the supplies of armies and camps are in general abundant. The brinjaries or carriers of grain, collecting from all quarters, and often in distant countries, sell it wholesale to the larger dealers, while smaller dealers buy from the inhabitants of the surrounding districts. These regular sources of supply are eked out by plundering, which is carried on in the most merciless manner. The inhabitants of the village, aware of what awaits them, flee with whatever property they can carry; the rest is pillaged. Doors and rafters are carried off for firewood; the ground is probed by iron rods to find the pits where grain is buried, or dug over in the hope of discovering treasure. Desolation spreads on every side. “In a tract often traversed by armies the villages are in ruins and deserted; and bushes of different ages scattered over the open country show that cultivated fields are rapidly turning into jungle.”
In the code no information is given as to the pay of soldiers. By the present practice cavalry are sometimes paid by assignments of the rent or revenue of particular districts, but more frequently by direct payments from the treasury. These payments are made either to military leaders, who receive according to a fixed rate for each soldier serving under them, or to individual troopers, who, providing their own horse and accoutrements, and being generally fine men, well mounted, expect more than ordinary pay. Bodies of cavalry are sometimes raised, equipped, and maintained entirely at the expense of the government. Being thus entirely dependent on it, they rank lower than the single troopers, but often surpass them both in obedience and general efficiency. The best foot are also mercenaries, from the banks of the Jumna, Ganges, and Indus.
Minute on the State of the Country, and Condition of the People under the Presidency of Fort St. George, dated 31st Dec. 1824, and ordered by the House of Commons to be printed, 17th May, 1830; p. 26. ↩︎ ↩︎ ↩︎ ↩︎ ↩︎
Report of Select Committee of House of Commons, 1832, vol. iii. Appendix 81, page 331. ↩︎