to my own experience of Brahmans, of their doings and sayings, I should certainly think it more consistent with their genius that they should desire a judge to come to court with assessors well versed in the Vedas, in other words armed with all valuable knowledge, than that they should desire him to come to court with a number of treatises on mere law, and make his assessors refer to them from time to time as if ignorant of their business. As I understand the Brahman mind, there must be something to it positively indecent in the spectacle of a judge or an assessor turning for help in court to some written treatise, and thus openly in the eyes of all men admitting his knowledge to be less than universal.

And then it must by no means be forgotten that the Manava-dharma-çãstra (in the opinion at least of Burnell) was written mainly for the benefit of an irresponsible, all-powerful tyrant, accustomed almost from his cradle to regard his own wisdom as perfect, his own will as indisputable. Is it conceivable that such a one would tolerate for a moment the idea of his being obliged or controlled, in the exercise of omnipotence, by the words of a pretentious 'lawtreatise,' and that openly before all his subjects? Or, is it conceivable that a presumably wily courtier, like the author of Manu, would presumptuously offer so to oblige or control a typical tyrant? To my mind either thing is absolutely inconceivable. A man like Pulakeçi, the (supposed) king for whom Manu was written, may very well have been pleased to amuse himself occasionally with giving judgment, sur

rounded by Brahmans who knew, or were said to know, the whole Veda, and listening perhaps to their words of wisdom; for in so doing he would rather increase his own personal importance in the eyes of his subjects, and add to the awe with which his decisions would be regarded. But, I cannot figure him to myself turning over the pages of a 'law-book' for guidance, and publicly acknowledging the existence of vulgar limits to his power. When Eastern kings sit in judgment, law and law-books, it seems to me, are out of place and an absurdity.'

In my next chapter will be found a description of an Indian trial of the good old times, from which readers will be able to judge for themselves whether or no it is probable that works like the Manavadharma-çãstra were used or intended for practical use' in the tribunals of ancient India.

6

The text at present under discussion shows that, whatever may be the meaning in it of 'çastras,' the King should draw reasons' for his judgments in the first instance, and mainly, from 'local usage.' And I have discussed' usage' in my second chapter. Professor Jolly (at p. 35), after showing that in old

Compare what that eminent ruler of men, Sir Thomas Munro, said in a private letter to his father, dated September 21, 1798: We have no ancient constitution or laws to overturn, for there is no law in India but the will of the sovereign; and we have no people to subdue, nor national pride or animosity to contend with, for there are no distinct nations in India, like French and Spaniards, Germans and Italians. The people are but one people; for, whoever be their rulers, they are still all Hindoos: it is indifferent to them whether they are under Europeans, Mussulmans, or their own Rajahs. They take no interest in political revolutions.' Gleig's Life, i. 203.

works like Manu and Gautama, 'local and caste usages are also emphatically recognised,' goes on to observe that the more recent Smṛtis, in which the constitution of a judicial assembly is treated in some detail, refer occasionally to custom as a ground of decision, but they direct that, in general, the king or his judge shall take the written law of the Smrti (Smṛtiçâstra, dharma-çâstra, Smrti) for his guide in deciding any lawsuit. These considerations tend to show the range of authority which had been early acquired by the Smṛtis.'

From these observations (as I understand them) it is to be inferred that, whereas in ancient times the King was directed to rely, when sitting as judge, at all events mainly on local usage, the idea of law was so greatly developed in the course of several centuries that the King came to rely, when so sitting, mainly on written 'law-treatises.' But, the only authorities cited in support of them are Narada and Bṛhaspati. Now, the dates of these two according to Professor Jolly (at pp. 50 and 64) are the fifth or sixth century A.D., and (at the earliest) the sixth or seventh century A.D., respectively. And the date of Manu, according to Burnell, is probably 500 A.D., but may be later. Indeed, looking to all that Burnell writes about the existing recension of Manu, we may (it seems to me) safely suppose that it may have been written several centuries later than 500 A.D. Where, then, in the present state of our knowledge is there room for the above inference? It may be that Narada and Bṛhaspati are much later compositions than the Manava-dharma

çãstra, but as yet it cannot be said to be certain that they are such.

Unfortunately, Professor Jolly has not thought it necessary to discuss the words of the texts of Narada that he cites, without quoting, on this occasion (I. 1, 8, 16, 31), and I am not in a position fairly to combat his arguments. But the texts cited may be considered as they appear in his own translation. I. 1, cl. 8 appears to be a wrong reference, since it speaks only of family councils and other courts. I. 1, cl. 16 says: The eight constituent parts are the king, his officer, the assessors, the lawbook, the accountant, and scribe, gold and fire, and water.' I. 1, cl. 31 says: Taking the law-code for his guide, and abiding by the opinion pronounced by the chief judge.' Now the 'eight constituent parts of a judicial proceeding must surely be regarded as a fanciful and purely arbitrary arrangement, such as the Hindu mind delights in, and like many others in the same chapter. No serious meaning can be attached to words that in themselves attribute as much essential importance to drinking water as to the 'law-book.' And, after all, we may quite fairly suppose that the 'law-book 'intended was not an actual corporeal book, but the knowledge of the Vedas or Smṛtis generally resident in the minds of the King, his officer, and the assessors. For, the next chapter of Narada tells us (like the other Smrtis) that the King's assessors should be 'men skilled in matters of law,' and that the judges of all lawsuits should be 'persons familiar with many branches of science,' and that a right judgment

E

6

may be passed by ten men versed in the Veda and jurisprudence,' or by three men familiar with the Veda.' Again, since the King's officer (or delegate) is a 'constituent' of a judicial proceeding only in the absence of the King, it is clear that the Nārada's ideal court of justice did not need the presence in it simultaneously of the 'eight constituents'; it could, in fact, get on very well with only three of them present. On the other hand, the declaration of the plaintiff, which is not one of the eight constituents, is pronounced by I. 1, cl. 7 to be 'the essence of a judicial proceeding.' As regards I. 1, cl. 31, it appears from the note that Colebrooke translates the first words of it thus : ' placing the sacred code of law before him.' Neither translation, it seems to me, warrants us in supposing that an actual corporeal book is here intended, or that anything more is intended than that (in the corresponding words of Manu VIII. 8) quoted at the beginning of this chapter, the King should judge, 'relying on eternal law,' i.e. the Vedas, as known to, and expounded by, his assessors. See below, pp. 77, 106, 134.

Of Bṛhaspati the Professor says that in one text the author'speaks of the issue of a lawsuit as depending on the customs of the country, reasoning, and the counsel of the lay public,' all of which corresponds tolerably well with the directions of Manu and Gautama referred to above, and in my second chapter; but in another text the author speaks of the issue depending on a Smrti text recited by the judges. Clearly, therefore, the testimony of Bṛhaspati upon this important and interesting question is nugatory