In my second Part I have shown that, since I published my View, in 1877, more than the half of the Fifteen False Principles denounced by me have been abandoned, expressly or by implication; and others have been seriously shaken, if not actually disestablished.

Altogether, therefore, the result of a decade of law-making by the Judges is that the Madras High Court has got itself into a quite hopeless state of disagreement in respect to the most elementary propositions of Hindu law; and, in doing this, has gradually and reluctantly abandoned the greater, and by far the more important, part of the Established Rules and Fixed Principles to which in 1877 I invited the attention of the public.

6

The 'vantage-ground' on which Mr. Innes makes so determined a stand (see above, p. 7) has in fact been abdicated': and whether my suggestions are adopted or rejected, the High Court stands 'committed to chaos in the matter of the Hindu law,' which, in the opinion of qualified observers like Burnell (see above, p. 4), is 'in a chaotic state.'

It would be sheer waste of time, and more than useless, for me to enter here upon an inquiry into the causæ causantes and causa proxima of the existence of this state of chaos. I shall content myself with observing that, however greatly principal causes of it, as for example the arbitrary selection of a few works of no general authority or importance as representing the whole immense existing Sanskrit law literature, the employment of faulty translations, the

attachment of undue weight to isolated and ambiguous texts, 'the pitch-forking of English doctrine into Sanskrit texts,' the abolition of Pandits, the dissociation of law from Orientalism, and numerous other things, may have severally contributed to the bringing about of a lamentable result, the one main source of error and of mischief has been unwillingness on the part of those responsible to recognise 'Indian Usage' as the sole exponent of Indian Law.

may

Whatever have been the case in England, there can be no reasonable doubt that in India ‘Usage' has been everything, and 'Law' nothing, except in so far as it has enshrined, explained, and preserved Usage.

Also, there can be no reasonable doubt that in India Usage has been, and is, infinitely multiform ; the whole population having been from time immemorial, not homogeneous and aggregated, but segregated in numberless castes, sub-castes, clans, and Families.

I have shown what the author of the now current recension of Manu wrote about Usage, and compared with his views the views of many others, including the joint presentment of the eleven Pandits who compiled the Gentoo Code. I will now give in addition a few excerpts from the very valuable Introduction to the Honourable V. N. Mandlik's work on Hindū law, a work marked by great common sense, a large experience of the working of judge-made law in Western India, and commendable moderation in expressing strong views.

He observes, at p. xliii., with regard to Usage: 'I am inclined to hold that this has always been the main source of the Aryan law from the earliest times; and that our Smritis and Puráņas, so far as they relate to the Dharmaśástra, have been merely the records of customs that existed in those days.' After giving a string of texts showing the importance of Usage, he says, at p. xlv., of a text of Bṛhaspati: 'It will appear from this text that our indigenous law does not support the English law in respect to custom, that it must be of a certain kind before it can be upheld. I must take occasion here to remark that it is wrong, in my opinion, to apply English rules of custom to the determination of our native usages.' Next he remarks: An áchára (usage) accepted by a community becomes dharma (law). Yájñavalkya says (Chap. i. 156) that even dharma itself, if opposed to the usages and wishes of the people, is not to be practised.'

The same writer protests strongly, and, being a learned native who thoroughly understands his subject, he deserves to be heard with attention,-against the mode in which the English Courts misuse Indian law treatises. Of the so-called Mitākṣarā he says, at p. xlix.: The publication of the Sanskrit work in 1813, and a translation of the Dáyabhága section under the auspices of Government, stamped it at once with importance, being an official publication,' though it is but a commentary on 36 verses out of 1,009 of Yajnavalkya, which is but one of hundreds of Smṛtis, and of which the authority, outside the author's own

çākhā, 'is of no peculiar importance.' Again, at p. lxx., after implying regret for the abolition of the Pandits, and for the passing away of old times when the courts used to consult all current works and usages,' he observes: To say that the Mitākṣarā or any other similar treatise is decisive of Hindū law, is, in my opinion, completely to ignore the history and growth of the Hindu law itself.' Then, after showing that 'dharma in the case of the Hindus pre-eminently means usage or custom,' and that the people go for their law to the Bhattas of Benares, who belonged to them and wrote for them, rather than to works supposed to be of great repute, he says, at p. lxxi.: 'Vijñāneçvara was a very learned writer; and he wrote an excellent commentary on the Yajnavalkya Smriti. But apart from that there was nothing very special about it. And as a matter of fact, it is less consulted than the works of Hemádri, Madhava, and the Bhattas.'

It is quite delightful to me to find an Indian who knows all about it speaking thus of the absurdly overrated Mitākṣarā, that most mischievous of all clever law-treatises. Had the eleven Pandits who compiled the Gentoo Code had the slightest reason to suspect that English Judges would be betrayed into accepting this work as being the Paramount Authority, indeed the law itself, I make no doubt that they would have spoken their minds about it with considerable freedom: as it was, since apparently they did not even know the name of its author, they practically ignored its theoretic developments,' of

which writers like Goldstücker, Jolly, and Burnell have so poor an opinion.

Being very anxious to know what Professor Max Müller thinks of the Mitākṣara as an authority for Madras, I wrote and asked him, and he was so kind as to send me the following reply, dated December 7, 1886 The Mitāksharā in the South of India is what the Code Napoléon would be in England, supposing England was conquered by the French. It may be a very good Code, but it would be a foreign Code. It is strange that a saving clause forming part of Manu and the other Brahmanic Law books should have been so little acted on-namely, that the custom of the country (desadharma) should be respected, except where it is in direct opposition to the sacred law.'

This important opinion, it will be observed, corroborates most directly two of the principal views exhibited in this book.

With regard to Madhava, whom Mr. Mandlik pronounces to be an authority superior to Vijñāneçvara, I have shown in my Prospectus that in 1812 Ellis held him to be the principal authority in South India, having been 'the lawgiver of the last Southern Hindu dynasty,' whereas the Mitākṣarā was 'generally supposed to have been composed in Northern India'; and that Ellis's native adviser named the Madhaviyam and Sarasvati-Vilasa as the two authorities for the Carnatic, and declined to accept the Mitākṣarā as the Paramount Authority for South India.