Growth of Hindu law. Based on law. Súdras. Third, a vast residue termed the Varna - sankara, literally the mingled colours;' a great but uncertain number of castes, exceeding 300, to whom was assigned a mixed descent from the four recognised classes. The first British Census of India, in 1872, proved that the same division remains the fundamental one of the Hindu community to this day. As the Brahmans spread their influence eastwards and southwards from the Middle Land of Bengal, they carried their codes with them. The number of their sacred lawbooks (Dharma-sástras) amounted to at least fifty-six, and separate schools of Hindu law sprang up. Thus the Dáyabhága version of the Law of Inheritance prevails in Bengal; while the Mitákshará commentary on Yájnavalkya is current in Madras and throughout Southern and Western India. But all modern recensions of Hindu law rest upon the two codes of Manu or of Yájnavalkya; and these codes, as we have seen, only recorded the usages of certain Bráhmanical centres in the north, and perhaps did not fairly record even them. As the Brahmans gradually moulded the population of India into Hinduism, such codes proved too narrow a basis for dealing with the rights, duties, and social organization of the people. Later Hindu legislators accordingly inculcated the recognicustomary tion of the local usages or land-law of each part of the country, and of each class or tribe. While binding together, and preserving the historical unity of, the Aryan twice-born castes by systems of law founded on their ancient codes, they made provision for the customs and diverse stages of civilisation of the ruder peoples of India, over whom they established their ascendency. By such provisions, alike in religion and in law, the Brahmans incorporated the Indian races into that loosely coherent mass known as the Hindu population. ism. Plasticity It is to this plastic element that Hinduism owes its success; of Hindu- and it is an element which English administrators have sometimes overlooked. The races of British India exhibit many stages of domestic institutions, from the polyandry of the Nairs to the polygamy of the Kulin Bráhmans. The structure of their rural organization varies, from the nomadic husbandry of the hillmen, to the long chain of tenures which in Bengal descends from the landlord through a series of middle-men to the actual tiller of the soil. Every stage in industrial progress is represented; from the hunting tribes of the central plateau to the rigid trade-guilds of Gujarát. The Hindu legislators recognised that each of these diverse stages of social development had its own usages and unwritten law. Even PERILS OF INDIAN CODIFICATION. 117 of local Hinduism. the code of Manu acknowledged custom as a source of law, Incor and admitted its binding force when not opposed to express law. poration Vrihaspati says, 'The laws (dharma) practised by the various customs countries, castes, and tribes, they are to be preserved; other into wise the people are agitated.' Devala says, 'What gods there are in any country, . . . and whatsoever be the custom and law anywhere, they are not to be despised there; the law there is such.' Varáha-Mihira says, 'The custom of the country is first to be considered; what is the rule in each country, that is to be done.' A learned English judge in Southern India thus summed up the texts: By custom only can the Dharmasástra [Hindu law] be the rule of others than Brahmans [only one-thirtieth of the population of Madras]; and even in the case of Brahmans it is very often superseded by custom.'1 codifica. The English, on assuming the government of India, wisely Perils of declared that they would administer justice according to the modern customs of the people. But our High Courts enforce the tion. Bráhmanical codes with a comprehensiveness and precision unknown in ancient India. Thus in Bengal, the non-Hindu custom of sagai, by which deserted or divorced wives among the lower castes marry again, was lately tried according to 'the spirit of Hindu law;' while in Madras, judges have pointed out a serious divergence between the Hindu law as now administered, and the actual usages of the people. Those usages are unwritten and uncertain. The Hindu law is printed in many accessible forms; 2 and Hindu barristers are ever pressing its principles upon our courts. The Hindu law is apt to be applied to non-Hindu, or semi-Hindu, customs. Efforts at comprehensive codification in British India are thus surrounded by special difficulties. For it would be improper to give the fixity of a code to all the unwritten halffluid usages current among the 300 unhomogeneous castes of Hindus; while it might be fraught with future injustice to exclude any of them. Each age has the gift of adjusting 1 Dr. Burnell's Dáya-vibhágha, Introd. p. xv. See also Hindu Law as administered by the High Court of Judicature at Madras, by J. Nelson, M.A., District Judge of Cuddapah, chaps. iii. and iv. (Madras, 1877); and Journal Roy. As. Soc., pp. 208-236 (April 1881). * For the latest treatment of Hindu law from the philosophical, scholarly, and practical points of view, see the third edition of West and Bühler's Digest of the Hindu Law of Inheritance, Partition, and Adoption. 2 vols. Bombay 1884. From the writings of Mayne, Burnell, and Nelson in Madras, and those of the Honourable Raymond West and Dr. Bühler in Bombay, a new and more just conception of the character of Hindu law and of its relations to Indian custom may be said to date. Codes versus survival of fittest customs. Restricted scope of Indian codification. Secular of the Hindus. its institutions to its actual wants, especially among tribes whose customs have not been reduced to written law. Many of those customs will, if left to themselves, die out. Others of them, which prove suited to the new social developments under British rule, will live. A code should stereotype the survival of the fittest; but the process of natural selection must be the work of time, and not an act of conscious legislation. This has been recognised from time to time by the ablest of Anglo-Indian codifiers. They restrict the word code to the systematic arrangement of the rules relating to some well-marked section of juristic rights, or to some executive department of the administration of justice. In its larger sense,' write the Indian Law Commissioners in 1879, of a general assemblage of all the laws of a community, no attempt has yet been made in this country to satisfy the conception of a code. The time for its realization has manifestly not arrived.' The number of works on Law, published in the native languages of India in 1877, was 165; and in 1882, 181, besides 157 in English; total, 338 works on law published in India in 1882. The Brahmans were not merely the depositaries of the literature sacred books, the philosophy, the science, and the laws of the ancient Hindu commonwealth; they were also the creators and custodians of its secular literature. They had a practical monopoly of Vedic learning, and their policy was to trace back every branch of knowledge and of intellectual effort to the Veda. In this policy they were aided by the divergence which, as we have seen, arose at a very early date between the written and spoken languages of India. Sanskrit literature, apart from religion, philosophy, and law, consists mainly of two branches. great epics, the drama, and a vast body of legendary, erotic, and mystical poetry. The Mahá The venerable epic of the Mahábhárata ranks first. The bhárata; orthodox legend ascribes it to the sage Vyása, who, according to Brahman chronology, compiled the inspired hymns into the four Vedas, nearly five thousand years ago (3101 B.C.). But one beauty of Sanskrit is that every word discloses its ancient origin in spite of medieval fictions, and Vyása means simply the 'arranger,' from the verb 'to fit together.' No fewer than twenty-eight Vyásas, incarnations of Brahma and Vishnu, came down in successive astronomical eras to arrange and promulgate the Vedas on earth. Many of the legends in the Mahábhárata are of Vedic antiquity, and the main story STORY OF THE MAHABHARATA. 119 deals with a period assigned, in the absence of conclusive evidence, to about 1200 B.C.; and certainly long anterior to the time of Buddha, 543 B.C. But its compilation into its present form seems to have taken place many centuries later. Pánini (350 B.C.) makes no clear reference to it. The in- Its date; quisitive Greek ambassador and historian, Megasthenes, does not appear to have heard of it during his stay in India, 300 B.C. Dion Chrysostomos supplies the earliest external evidence of the existence of the Mahábhárata, circ. 75 A.D. The arrangement of its vast mass of legends must probably have covered a long period. Indeed, the present poem bears traces of three separate eras of compilation; during which its collection of primitive folk-tales grew from 8800 slokas Its or couplets, into a cyclopædia of Indian mythology and growth. legendary lore extending over eighteen books and 220,000 lines. The twenty-four books of Homer's Iliad comprise only 15,693 lines; the twelve books of Virgil's Æneid, only 9868. the Mahá The central story of the Mahábhárata occupies scarcely Central one-fourth of the whole, or about 50,000 lines. It narrates story of a pre-historic struggle between two families of the Lunar bhárata. race for a patch of country near Delhi. These families, alike descended from the royal Bharata, consisted of two brotherhoods, cousins to each other, and both brought up under the same roof. The five Pándavas were the miraculously born sons of King Pándu, who, smitten by a curse, resigned the sovereignty to his brother Dhrita-ráshtra, and retired to a hermitage in the Himalayas, where he died. The ruins of his capital, Hastinapura, or the Elephant City,' are pointed out beside a deserted bed of the Ganges, 57 miles north-east of Delhi, at this day. His brother Dhrita-ráshtra ruled in his stead, and to him one hundred sons were born, who took the name of the Kauravas from an ancestor, Kuru. Dhrita-ráshtra acted as a faithful guardian to his five nephews, the Pandavas, and chose the eldest of them as heir to the family kingdom. His own sons resented this act of supersession; and so arose the quarrel between the hundred Kauravas and the five Pándavas which forms the main story of the Mahábhárata. The nucleus of the legend probably belongs to the period when the Aryan immigrants were settling in the upper part of the triangle 12th cenof territory between the Jumna and the Ganges, and before tury B.C. they had made any considerable advances beyond the latter river. It is not unreasonable to assign this period to about the 12th century B.C. The hundred Kauravas forced their father to send away their Its outline. five Pandava cousins into the forest. The Kauravas then burned down the woodland hut in which the five Pandavas dwelt. The five escaped, however, and wandered in the disguise of Bráhmans to the court of King Draupada, who had proclaimed a swayam-vara, or maiden's-choice,—a tournament at which his daughter would take the victor as her husband. Arjuna, one of the Pandavas, bent the mighty bow which had defied the strength of all the rival chiefs, and so obtained the fair princess, Draupadi, who became the common wife of the five brethren. Their uncle, the good Dhrita-ráshtra, recalled them to his capital, and gave them one-half of the family territory towards the Jumna, reserving the other half for his own sons. The Pándava brethren hived off to their new settlement, Indra-prastha, afterwards Delhi; clearing the jungle, and driving out the Nágas or forest-races. For a time peace reigned; but the Kauravas tempted Yudishthira, 'firm in fight,' the eldest of the Pándavas, to a gambling match, at Gambling which he lost his kingdom, his brothers, himself, and last of matches. all, his wife. Their father, however, forced his sons to restore their wicked gains to their cousins. But Yudishthira was again seduced by the Kauravas to stake his kingdom at dice, again lost it, and had to retire with his wife and brethren into exile for twelve years. Their banishment ended, the five Pándavas returned at the head of an army to win back their Final kingdom. Many battles followed. Other Aryan tribes between overthrow the Jumna and the Ganges, together with their gods and divine Kauravas. heroes, joined in the struggle, until at last all the hundred Kauravas were slain, and of the friends and kindred of the Pándavas only the five brethren remained. of the 100 Reign of the five Their uncle, Dhrita-ráshtra, made over to them the whole kingdom; and for a long time the Pándavas ruled gloriously, Pandavas. celebrating the aswa-medha, or great horse sacrifice,' in token of their holding imperial sway. But their uncle, old and blind, ever taunted them with the slaughter of his hundred sons, until at last he crept away with his few surviving ministers, his aged wife, and his sister-in-law the mother of the Pándavas, to a hermitage, where the worn-out band perished in a forest fire. The five brethren, smitten by remorse, gave up their kingdom; and taking their wife, Draupadí, and a faithful dog, Their pil- they departed to the Himalayas to seek the heaven of Indra grimage to on Mount Meru. One by one the sorrowful pilgrims died upon the road, until only the eldest brother, Yudishthira, and the dog reached the gate of heaven. Indra invited him to enter, but he refused if his lost wife and brethren were not also heaven. |