HISTORY.] INDIA 783 successful struggle for the supremacy, had established in the Middle Lund of Bengal. The Brahmans, indeed, claimed for their laws a divine origin, and ascribed them to the first Manu, or Aryan man, 30 million* of years ago. But, as a matter of fact, the laws of Manu are the result of a series of attempts to codify the usages of some not very extensive centre of Branmanism in northern India, a metrical digest of local customs condensed by degrees from a legen dary mass of 100,000 couplets (slokas) into 2684. They may pos sibly have been reduced to their final form of a written code with a view to securing the system of caste against the popular movement of Buddhism, and thus giving a rigid fixity to the privileges of the Brdhmans. The second great code of the Hindus, that of Yajnavalkya, belongs to a period when Buddhism had established itself, and probably to a territory where it was beginning to succumb to the Brahmanical reaction. It represents the Brahmanical side of the great contro versy (although a section of it deals with the organization of mona steries), refers to the execution of deeds on metal plates, and altogether marks an advance in legal precision. Its compilation be longs to a period apparently not earlier than the 2d century A.D., and certainly not later than the 6th or 7th. These codes deal with Hindu law in three branches, namely (1) domestic and civil rights and duties, (2) the administration of justice, (3) purification and penance. They stereotyped the un written usages which regulated the family life and social organiza tion of the old Aryan commuiiiti. S in the middle land. They did not pretend to supply a body of law for all the numerous races of India, but only for Hindu communities of the Brahmanical type. It is do ibtful whether they quite accurately represent the actual cuitom.uy law even in such communities, for they were apparently drawn up with a view to asserting and maintaining the special pri vileges of the Brahmans. This they effect by a rigid demarcation of the employments of the people, each caste or division of a caste having its own hereditary occupation assigned to it ; by stringent rules against intermingling the castes by marriage ; by forbidding the higher castes, under severe penalties, to eat or drink or hold social intercourse with the lower; and by punishing the lower castes with still more cruel penances for defiling by their touch the higher castes, or in any way infringing 011 their privileges. They exhibit the Hindu community in the four ancient divisions of priests, warriors, cultivators, and serfs (sudras). But they disclose that this old Aryan classification failed to represent the actual facts even of the Aryan communities in northern India. They admit that the mass of the people did not belong to any one of the four castes, and ascribe its origin to mixed concubinage or illicit connexions. The ancient Brahmanical communities in northern India, as revealed by the codes themselves, consisted first, of an Aryan element divided into priests, warriors, and cultivators, all of whom bore the proud title of the twice-born, and wore the sacred thread ; second, of the subjugated races, "the once-born" Sudras; and third, of the vast residue of the Varna-sankara, literally the " mingled colours," a great but uncertain number of castes to whom was assigned a mixed des :ent from the four recognized classes. The same division exists to this day. According to the census of 1871, the separate tribes and castes in Lower Bengal do not fall short of a thousand ; in the North-Western Provinces the Hindu population was arranged under two hundred and ninety-one specified castes besides numerous sub divisions. The distinctly recognized "mixed castes " throughout British India cannot be estimated at less than three hundred, and probably amount to many more. As the Brahmans spread their influence eastwards and southwards from the Middle Land, they carried their codes with them. The number of their sacred law books (Dharma-sdstras) amounted to at least fifty-six, and separate schools of Hindu law sprang up. Thus the Dayabhaga version of the law of inheritance prevails in Bengal while the Mitakshara commentary on Yajnavalkya is current in Mad IMS and throughout southern and western India. But all modern recensions of Hindu law rest upon the ancient codes ; and these codes, as we have seen, only recorded the usages of certain .ahmanical centres in the north, and perhaps did not fairly record even them. As the Brahmans gradually moulded the population
- India into Hinduism, such codes proved too narrow a basis for
dealing with the rights, duties, and social organization of the people. The later Hindu legislators, accordingly, inculcated the recognition 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 civilization of the ruder peoples of India, over whom they established their ascendency. By such provisions, alike in religion and law, the Brahmans incorporated the Indian races into that loosely coherent mass known as the Hindu population. It is to this plastic element that Hinduism owes its success; and is an clement which English administrators have sometimes over looked. The races of British India exhibit many stages of domestic institutions from the polyandry of the Nairs to the polygamy of the Kulin Brahmans. The structure of their industrial organization varies, from the nomadic husbandry of the Burmese to the long chain of tenures which in licngal stretches from the proprietor through a series of middle-men to the actual tiller of the soil. Every stage in human progress is represented, from the hunting tribes of the central plateau to the rigid trade-guilds of Guzerat. The Hindu legislators recognized that each of these diverse stages of social development had its own usages and common law. Vriha- spati says : " The laws (dharmu] practised by the various countries, castes, and tribes, they are to be preserved; otherwise the people are agitated." Devala says : " Vhut 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." Varahamihira sa}s: "The custom of the country is first to be considered; what is the rule in each country, that is to be done." The most learned Eng lish scholar in southern India has thus summed up the matter: " By custom only can the Dharma-sastra [Hindu law] be the rule of others than Brahmans [only one-thirtieth of the population of Madras], and even in the case of Brulunans it is very often super seded by custom." J The English, on assuming the government of India, wisely de clared that they would administer justice according to the customs of the people. But the high courts enforce the Brahmanical codes with a comprehensiveness and precision unknown in ancient India. Thus in Bengal the custom of sagai, by which deserted or divorced wives among the lower castes marry again, was lately tried accord ing to " the spirit of Hindu law "; while in Madras learned judges have pointed out a divergence between the Hindu law as now ad ministered and the actual usages of the people. Those usages are unwritten and uncertain. The Hindu law is printed in many accessible forms, and Hindu barristers are ever pressing its principles upon the courts. Efforts at comprehensive codification in British India are thus surrounded by special difficulties, for it would be im proper to give the fixity of a code to all the unwritten half-fluid usages current among the three-hundred unhomogeneous castes of Hindus, while it might be fraught with future injustice to exclude any of them. Each age has the gift of adjusting 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, that prove suited to the new social developments under British rule, will live. But the process of natural selection must be, to some extent, the work of time, and not a single act of conscious legislation. This has been recognized by the ablest of Anglo-Indian codifiers. They apply 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 7 Commissioners, 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 reali zation has manifestly not arrived." The Brahmans were not merely the depositaries of the 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 intellectual effort to the Veda. In order to understand the long domination of the Brahmans and the influence which they still wield, it is necessary to keep in rnind their position as the great literary caste. Their priestly supremacy has been re peatedly assailed, and was during a space of several hundred years overthrown. But throughout twenty-two Brahman, centuries they have been the counsellors of Hindu princes civiliza- and the teachers of the Hindu people. They represent tl911 the early Aryan civilization of India ; and the essential history of the Hindus is a narrative of the attacks upon the continuity of that civilization, that is to say, of attacks upon the Brthmanical system of the Middle Land, and of the modifications and compromises to which that system has had to submit. Tho.se attacks range them selves under six epochs : first, the religious uprising of the half-Brahmani/ed Aryan tribes on the east of the Middle Land, initiated by the preaching of Buddha in the 6th century B.C., culminating in the Buddhist kingdoms 1 Dr Burnell s I)dya-VilMrjha, Introd. p. xv.; see also The Hindu Law as administered by the lliyh Court of Judicature at Madras, by J. Nelson, M.A., District Judge of Cuddapah, chaps, iii. and iv.
(Madras, 1877).
