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ON

THE HINDOO LAW,

AS IT IS CURRENT IN BENGAL.

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BY

THE HONORABLE
SIR FRANCIS WORKMAN MACNAGHTEN, Knt.

One of His Majesty's Justices of the Supreme Court of Judicature
at Fort William in Bengal.

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MlSERA EST SERVITL'S, UBI JLS EST VAGUM AUT INCERTUM." 4lh Inst.

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IT was not until the beginning of this year, that I determined upon a publication, relating to such topics of the Hindoo law, as most frequently come into discussion before the Supreme Court of Judicature.

My views, yet limited, were enlarged as I made progress. I at first, intended to confine myself to the few principles which seemed to have been reduced by practice, or by common consent, into axioms; but I afterwards (perhaps erroneously) conceived, that more might be done with advantage to the public; and thought if it was desirable to make known what was fixed, that it could not be useless to show how much remained in a state of uncertainty.

There is hardly any question arising out of Hindoo law, that may not be either affirmed or denied, under the sanction of texts, which are held to be equal in point of authority.

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But I did not enter upon an enlarged plan, from a belief in my own competency to complete it. I knew the task to be arduous; and I felt well assured, that its performance required more time, and more talent, than I had of either to bestow.

AS

If another had engaged in the work, he might have commanded my most earnest assistance; and I should have been much better pleased in giving my aid unobserved, than I am in coming forward as an ostensible author.

- I avow myself an author, because I have been told by some whose opinions I value, that no good could be expected from an anonymous publication. I never imagined that this would be enhanced by my name, but I gave credit to those who assured me, that such a one sent forth without any name, would be likely to pass without any notice.

• > It did not require much sagacity to discover, that an attempt of

this nature must be displeasing, because it may be injurious, to

men whose importance and profits depend upon the obscurity of

laws, which it is their business to expound.

The interpreter of an ambiguous, or equivocal ordinance, becomes a legislator at once; and if, in all his constructions, he can find authorities for his support, he may legislate with indemnity, and without control.

# I will not dissent from him who may affirm that I have done

but little 5 and it is not for my own sake that I shall desire evidence of the fact, that I shall ask to be judged by comparison. Let sentence of inefficiency be passed, and it will be received with submission, if pronounced by one, who in his own endeavours may prove that he can do more than I have been able to accomplish.

It was a belief, whether well or ill founded, of its necessity, iliat led me into a very troublesome, and probably a very thankless, undertaking; but, when a man approves of his own motives, he is hot without reward. I neither desire nor deserve any other; I am therefore regardless of opinions, and secured against disappoint* ment.

By some, I may be thought to have come to conclusions with too much assurance ; by others, with too much distrust. Let me not toe 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 JMussebnan 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/*

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