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It was a belief, whether well or ill founded, of its necessity, that led me into a very troublesome, and probably a very thankless, undertaking ; but, when a man approves of his own motives, he is not without reward. I neither desire nor deserve any other; I am therefore regardless of opinions, and secured against disappointment.
By some, I may be thought to have come to conclusions with too much assurance; by others, with too much distrust. Let me not be suspected of a disposition to dictate, and I shall be satisfied.
The Right of Hindoos to have their contests decided by their own laws, has been established by the legislature of Great Britain; and I most cordially concur in the sentiments which have been expressed by Sir William Jones, upon this subject. In the month of March, 1788, he uses the following language, when addressing the Chief Government of India :-“ Nothing indeed,” he says, "" could be more obviously just, than to determine private con" tests according to those laws which the parties themselves, had “ever considered as the rules of their conduct and engagements « in civil life; nor could any thing be wiser, than, by a legislative “act, to assure the Hindoo and Musselman subjects of Great “ Britain, that the private laws, which they severally held sacred, '“ and a violation of which, they would have thought a most “ grievous oppression, should not be superseded by a new system, "of which they could have no knowledge, and which they must “have considered as imposed on them by a spirit of rigour and ,“ intolerance."
: As to the Hindoos, I have not a predilection for the tenets of any of their schools, or for the doctrines of any of their scholiasts, in particular. Such as their law is, they have a right to an administration of it, among "the parties themselves.” To deprive them of this right against their will, or without their desire, would be rigorous in a civil, and intolerant in a religious, point of view; for, their laws, and their religion are so blended together, that we cannot disturb the one, without doing violence to the other,
I am fully aware of the difficulty, at which I have now arrived, I may be asked, if I myself, have not shown that the contradictions amount to a nullity of the Hindoo law? I admit that there is much in the books, which is quite unintelligible; I admit, in many instances, where authors can be understood, that they neutralize the authority of each other. Still I say, their own is the only law to be administered to them. It is our duty to select such parts of the code, as may be most beneficial to the people. These will be confirmed into use, by their undeviating application to cases, which may call for decision in o’r Courts of Justice; we may command consistency, at least; we may hope, in timę, to cleanse the system of its aggregated corruptions, and to defecate the impurity of ages,
Give them not any laws but their own, yet undeș a pretext of dealing those out, let us not subject the people to wrong. By this time the Ilindoos ought to have had such rules, as are applicable to ordinary occurrences of their lives, established with some degree of accuracy and precision.
Laws which are repugnant to each other, must not all keep
their ground; and where we cannot reconcile, we must abrogate. Let equity and wisdom declare the preference.
I would not expunge any thing, because I thought it absurd ; yet, if absurdity be met by absurdity, I would make the most detrimental give way. By removing one, I should render the more harmless that which remained. One despot may be consistent, and may be endured, but an archonship of co-ordinates in tyranny, is intolerable ; and what will be the fate of that community in which none of them can conquer or be vanquished ?
I do not profess to censure, and I could not attempt it, without the risk of doing injustice.
Legislators may have given laws, lawyers may, in opposition to each other, have commented upon them without blame, and with good intentions. It is enough that we know there are conflicting authorities, and that no man can be secure against the powers of construction.
, Mini sters of Justice, ought not to be makers of laws; much less ought they to be furnished with authorities which may justify any decree. If left to their own discretion, they must act at their peril; but when right and wrong may be sustained by equal powers, the condition of suitors becomes truly deplorable. We might wish for an establishment of the worst system, as a relief from such a state. A chance of receiving justice is nothing, if there be. a power of doing wrong according to law.
The plan of Sir William Jones may have been excellent, but the execution of it fell to the share of Jagannatha. He has given us the contents of all books indiscriminately. That he should have reconciled contradictions, or made anomalies consistent, was not to be expected; but we are often the worse for his sophistry, and seldom the better for his reasoning. His incessant attempts to display proficience in logic, and promptitude in subtilty, he might have spared without the regret of his readers.
If it should be objected that I have advanced much which may be refuted by a reference to Hindoo sages, I shall admit that I have advanced much which may be so refuted. I undertook this work, because little can be advanced which is not refutable by such authority. I have endeavoured to collect from decided cases, such principles as ought, in my judgement, to be adopted, and such as ought, if adopted, to continue immutable,
I had felt the inconvenience which was universally experience ed, of being obliged to have recourse to Pundits, upon points as they arose.
I have published in the Appendix, many opinions which were obtained for me by my son, Mr. William Hay Macnaghten, Registrar of the Sudder Dewannee Adawlut. The question was simply, whether or not an adopted son, could succeed to the estate of his adopting father's father ; and it is hardly credible that such a one should have produced the contrariety of opinion which will appear. Still more strange, that in the support of opposite doctrines, reliance should have been placed upon the same authorities,
Those "holy saints” to whom the Pundits refer, are greatly at variance with each other. Some holding that such a son is, and others that he is not, heir to kinsmen. These opposing opinions, we are told, may be reconciled, by a reference to the qualities, good or bad, of the person adopted ; but this criterion seems to be abolished, in the present, or Kali, age of the world ; and its meaning is yet to be defined. To constitute good qualities, we are told by some, that a man must be versed in all learning, and adorned with every virtue ; whilst good qualities are reduced by others, to liberality alone.
Of the twelve descriptions of sons, six are said by Menu, to be heirs of kinsmen, and six heirs of their fathers only. The doubt is, to which class a son given in adoption belongs.
In their enumeration, different sages assign different places to “the son given.” As the six highest are heirs of kinsmen, and the six lowest heirs of their fathers only, those who rank a son given in the first class, make him heir to kinsmen generally ; those who rank him in the second, confine his heirship to the father. It is affirmed that the original collocation has been, and affirmed that it has not been, altered by transcribers ; that the son given ought to stand in the first, and that he ought to stand in the second, class; and I know not how, without the aid of common sense, such a question can ever be decided.
It is said, in the way of reasoning, because he is to present the funeral cake to the manes of his grandfather, that he is to suc,,