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as well for the most virtuous Brahman as for the lowest outcaste or most inveterate heretic; only, whereas the Brahman is to find his dharma mainly by searching the Cruti and Smrti, wherein his usage is fully described, others, less fortunate, must be content to follow the customs of their respective tribes. Custom, as Professor Jolly admits (at p. 36), was never replaced by the Smṛtis. And, if it is true, as he thinks, that custom occupied a subordinate position in the eyes of the Brahmans, except so far as it had been, and was constantly being, embodied in the authoritative works of the Smrti writers,' it must be remembered that, as a body, the Brahmans have troubled themselves only about the usage of Brahmans, not at all about the usage of non-Brahmans, who constitute the great bulk of the population of Madras.

In remarking on the important passage of Gautama referred to above, Professor Jolly says (at p. 35): 'Similar rules occur in other Smrtis. But it is nowhere asserted that, in case of a conflict between custom and the Smrti, the Smrti may be overruled.' I have, however, pointed out that Manu VIII. 46, asserts this very thing in most distinct terms. And I trust that I have done something towards making it clear that a special aim of Manu is to teach those concerned that 'usage is highest dharma'; not only for the privileged classes, for whose benefit alone its author wrote, but also for the irresponsible masses, who ordinarily require no law for their guidance, except, of course, the criminal.

In conclusion, I must call attention to the danger of assuming that, because certain writers of law treatises have declared a usage to be extinct or prohibited, therefore such usage in fact has died out. Take the case of niyoga (levirat). Manu certainly (in IX. 59) gives as valid the approved rule for performing it, before expressing strong disapproval of the practice and by numerous subsequent texts, e.g. IX. 146, 167, 190, sanctions the practice. But Bṛhaspati declares that it is prohibited in the present (Kali) age. And later writers (it is said) without exception assume that niyoga is quite obsolete and impossible. Nevertheless, Marco Polo tells us that when he travelled in India 'a man takes his brother's wife, and all the people of India have this custom.' And, further, he tells us that the King, having five hundred wives of his own, forcibly took to himself the wife of his brother, who discreetly made no opposition to his will. Then, Mandelslo, who travelled in India in 1638, says (at p. 56) of the Vishnu sect: They have this particular custom in this sect, that they permit not the women to burn themselves with their husbands, but they oblige them to perpetual widowhood, even though the husband died before the consummation of the marriage. It is not long since that, among them, the younger brother was obliged to marry his elder brother's widow, to raise up seed to him; but this custom is abolished by an express law, which condemns the woman to celibate.' And doubtless the writer of the monograph on the Vaishnava Tōttiyans

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of Madura, quoted at p. 141 of my View, had niyoga in view when he spoke of their priests compelling unwilling wives to consort with their husbands' brothers and near kinsmen. It is not at all unlikely, it seems to me, that niyoga in different forms may still survive among some of the non-Brahman castes of South India. Anyhow, it must be dangerous to assume the contrary.

This chapter as a whole will be found to be admirably illustrated by some texts remarked on below, pp. 146-7.

CHAPTER III.

REASONS FROM LOCAL USAGE AND THE ÇĀSTRAS.'

In my second chapter I have quoted Manu VIII. 3, which says about the King: 'Day by day (he should judge) separately (cases) under the eighteen titles by reasons (drawn) from local usage and the Çāstras.' And I have ventured to dissent from Burnell's opinion, that we have here authority for the proposition that the Mānava-dharma-çastra was intended 'also for practical use in the tribunals'; since it appears to me to be by no means improbable, but on the contrary probable, that no more may be meant here by the word 'çāstra' than the Vedic literature generally, with which naturally the King's Brahman councillors and Mantris should be familiar. For example, see IV. 260: A Brahman living by this conduct, who knows the Veda-çāstras, freed from sin, is ever glorified in the Brahma-world.' And V. 2 speaks of Brahmans 'who know the Vedaçāstras.' Whilst XII. 94 shows that the Veda-çãstra is the Veda itself; and XII. 99 says: The eternal Veda-çãstra supports all existent things.' There would appear to be no reason why the çāstra referred to here should not be taken to be the Veda.

On the contrary, excellent reasons may be adduced

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for holding that the castra here referred to is the Veda and no other. In the first place, the reasons,' of course, are to be drawn from the castras, not by the King himself, but by his Brahmans and ministers, who (according to the first verse of Lecture VIII.) must know mantras'; by which we must understand Vedic texts.

Then, after the enumeration of the eighteen topics of law, VIII. 8 says: Let (the king), relying on eternal law, determine the affairs of men, who mostly dispute on these topics.' No doubt he is to rely on the eternal Veda, residing in the breasts of his learned advisers.

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And V. 11 is more specific. It says: In what country three Brahmans learned in the Vedas and the king's learned deputy sit, (the wise) have said that assembly (is) of Brahma.'

These three texts taken together seem to show tolerably conclusively that the King, or in his absence his deputy, should sit in judgment with not less than three Brahman assessors learned in the Vedas; whilst other texts that I have given in Chapter II., notably, Manu VII. 43, also point to the conclusion that the author of Manu looked upon a knowledge of the Vedas as constituting the only necessary professional equipment for the King's assessors in judgment.

Whilst, on the other hand, there appears to be no text of Manu that requires or recommends, either explicitly or implicitly, that the King (or his learned deputy) should consult the dharma-çãstras, or 'lawbooks,' when sitting in court as judge. And, looking

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