The qualities desirable in a BODY OF LAW may all be summed up under two CHAP. IV. comprehensive titles; I. Completeness; II. Exactness. Completeness has a reference to the matter: Exactness to the form. Qualities desirable in a body of law. I. A body of laws may be said to be Complete, when they include every 1. Completething which they ought to include; that is, when all those rights, the existence ness. of which is calculated to improve the state of society, are created; and all those acts, the hurtfulness of which to the society is so great as to outweigh the cost, in all its senses, necessary for preventing them, are constituted offences. II. A body of laws may be said to be Eract; 1. when it constitutes nothing 2. Exactness. a right, and nothing an offence, except those things precisely which are necessary to render it Complete; 2. when it contains no extraneous matter whatsoever; 3. when the aggregate of the powers and privileges which ought to be constituted rights, the aggregate of the acts which ought to be constituted offences, are divided and subdivided into those very parcels or classes, which beyond all others best adapt themselves to the means of securing the one, and preventing the other; 4. when it defines those classes, that is, rights and offences, with the greatest possible clearness and certainty; 5. when it represses crimes with the smallest possible expense of punishment; and 6. when it prescribes the best possible form of a judicatory, and lays down the best possible rules for the judicatorial functions. To show in what degree the Hindu law approaches, or recedes from, the standard of Completeness, would require a more extensive survey of the field of law, than consists with the plan of the present work. That it departs widely from Exactness, in every one of the particulars wherein exactness consists, enough has already been seen to make abundantly apparent. 1. It creates a great many rights which ought to have no existence; and acts which ought not to be erected into offences it erects in great numbers. 2. It abounds in extraneous matter. 3. The division and arrangement of the matters of law are highly imperfect. 4. The definitions are so far from excluding in the Asiat. Researches, i. 389. See too the Institutes of Menu, ch. viii. 114, 115, 190; Mr. Halhed's Code of Gentoo Laws, ch. iii. sect. 6, ch. ii. sect. 15, ch. xvii. sect. 4, ch. xviii., and the Translator's preface, p. 55, 56. Dr. Buchanan informs us of a shocking species of ordeal in some places used in regard to those," who, having had sexual intercourse with a person of another cast, allege that it was by mistake. If the criminal be a woman, melted lead is poured into her private parts; if it be a man, a red hot iron is thrust up. Should they be innocent it is supposed that they will not be injured." Journey through the Mysore, Canara, and Malabar, under the orders of Marquis Wellesley, i. 307. According to Kaempfer, the Japanese too use a species of ordeal for the discovery of guilt: History of Japan, ch. v. 236. Book II. darkness and doubt, that they leave almost every thing indefinite and uncertain. 5. Punishments are not repressed, but abound; while there is the most enormous excess in the quantity of punishment. 6. The form of the judicatory is bad, as are a certain proportion of the rules for the mode of performing the judicial services. In respect to definitions the Hindu law is in a state which requires a few words of elucidation. Prior to the art of writing, laws can have little accuracy of definition; because when words are not written, they are seldom exactly remem bered; and a definition whose words are constantly varying is not, for the purposes of law, a definition at all. Notwithstanding the necessity of writing to produce fixed and accurate definitions in law, the nations of modern Europe have allowed a great proportion of their laws to continue in the unwritten; that is, the traditionary state; the state in which they lay before the art of writing was known. Of these nations, none have kept in that barbarous condition so great a proportion of their law as the English. From the opinion of the Hindus that the Divine Being dictated all their laws, they acknowledge nothing as law but what is found in some one or other of their sacred books. In one sense, therefore, all their laws are written. But as the passages which can be collected from these books leave many parts of the field of law untouched, in these parts the defect must be supplied either by custom, or the momentary will of the judge. Again, as the passages which are collected from these books, even where they touch upon parts of the field of law, do so in expressions to the highest degree vague and indeterminate, they commonly admit of any one of several meanings, and very frequently are contradicted and opposed by one another. When the words in which laws are couched are to a certain degree imperfect, it makes but little difference whether they are written or not: Adhering to the same words is without advantage, when these words secure no sameness in the things which they are made to signify. Further, in modern Europe, the uncertainty adhering to all unwritten laws, that is, laws the words of which have no certainty, is to some degree, though still a very imperfect one, circumscribed and limited, by the writing down of decisions. When, on any particular part of the field, a number of judges have all, with public approbation, decided in one way; and when these decisions are recorded and made known, the judge who comes after them has strong motives, both of fear and of hope, not to depart from their example. The degree of certainty, arising from the regard for uniformity, which may thus be produced, is, from its very nature, infinitely inferior to that which is the necessary result of good definitions rendered unalterable by writing. But such as it is, the Hindus are entirely deprived of it. Among them the strength CHAP. IV. of the human mind has never been sufficient to recommend effectually the preservation, by writing, of the memory of judicial decisions. It has never been sufficient to create such a public regard for uniformity, as to constitute a material motive to a judge. And as kings, and their great deputies, exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What judicature would pronounce was, therefore, almost always uncertain; almost always arbitrary. sirable in a judicatory. In a JUDICATORY, the qualities desirable are; 1. intelligence; 2. good design: Qualities deand that is the best judicatory in which the best securities are taken for them. In the judicatories of the Hindus, composed of the king and his Brahmens, or the Brahmens alone, there is no security for either the one or the other; and accordingly neither the one nor the other almost ever appears. The qualities desirable in the form of judicial procedure, are, 1. efficiency; Qualities de2. freedom from delay; 3. freedom from trouble and expense. In these several sirable in the In these several form of judirespects the system of the Hindus displayed a degree of excellence not only far cial procedure. beyond itself in the other branches of law, but far beyond what is exemplified in more enlightened countries. 1. The efficiency of the Hindu system of judicial procedure is chiefly impaired by those rules of evidence the badness of which has already been pointed out: 2. For preventing delay, it enjoys every requisite, in its method of immediate, direct, and simple investigation: 3. In the same method is included all that is requisite for obtaining the judicial services with the smallest portion of trouble and expense.* * One of the most recent witnesses of the phenomena of Hindu society, who possessed extraordinary means of accurate knowledge, speaks in general upon the administration of justice among the Hindus in the following terms. "Without any of the judicial forms invented by the spirit of chicanery in Europe; with no advocates, solicitors, or other blood-suckers, now become necessary adjuncts of a court of justice in Europe; the Hindus determine the greater part of their suits of law, by the arbitration of friends, or of the heads of the cast, or, in cases of the very highest importance, by reference to the chiefs of the whole casts of the district assembled to discuss the matter in controversy.-In ordinary questions they generally apply to the chief of the place, who takes upon himself the office of justice of the peace, and accommodates the matter between the parties. When he thinks it more fit, he sends them before their kindred, or arbitrators whom he appoints. He generally follows the last course when the complainants are Brahmans, because persons out of their cast are not supposed capable of properly deciding differences between them. When these methods have been ineffectual to reconcile the parties, or when they refuse to submit to the decision of the arbitrators, they must apply to the magistrates of the district, who decide the controversy without any appeal. BOOK II. "The authority of the Hindu princes as well as that of the vile emissaries whom they keep in the several provinces of their country for the purpose of harassing and oppressing them in their name, being altogether despotic, and knowing no other rule but their own arbitrary will, there is nothing in India that resembles a court of justice. Neither is there a shadow of public right, nor any code of laws by which those who administer justice may be guided. The civil power and the judicial are generally united, and exercised in each district by the collector or receiver of the imposts. This sort of public magistrates are generally known under the name of Havildar or Thasildar. They are generally Brahmans. This tribunal, chiefly intended for the collection of the taxes, takes cognizance of all affairs civil and criminal within its bounds, and determines upon all causes." Description of the Character, Manners, and Customs of the people of India, by the Abbé J. A. Dubois, Missionary in the Mysore, p. 493. CHAP. V. The Taxes. Influence of THE form of the government is one; the nature of the laws for the adminis- CHAP. V. The matters of detail, which by their number and uncertainty have so ex- Outline of the * Laws of Menu, ch. vii. 130. + Ib. 131, 132. Ib. 130. 113 |