"decision between the native parties in a cause appears perfectly clear: but the difficulty lies (as in most other cases) in the application of the principle to practice; for "the Hindu and Muselman laws are locked up for the most

part in two very difficult languages, Sanscrit and Arabic, "which few Europeans will ever learn, because neither of "them leads to any advantage in worldly pursuits; and if we give judgment only from the opinions of the native lawyers and scholars, we can never be sure that we have "not been deceived by them. It would be absurd and ' unjust to pass an indiscriminate censure on a considerable 'body of men ; but my experience justifies me in declaring, "that I could not, with an easy conscience, concur in a "decision, merely on the written opinion of native lawyers, "in any cause in which they could have the remotest inter"est in misleading the Court: nor, how vigilant soever we "might be, would it be very difficult for them to mislead for a single obscure text, explained by themselves, might be quoted as express authority, though perhaps, in "the very book from which it was selected, it might be dif"ferently explained, or introduced only for the purpose of

us;

being exploded. The obvious remedy for this evil had "occurred to me before I left England, where I had "communicated my sentiments to some friends in Parlia"ment, and on the Bench in Westminster Hall, of whose "discernment I had the highest opinion; and those "sentiments I propose to unfold, in this letter, with as "much brevity as the magnitude of the subject will admit. "If we had a complete Digest of Hindu and Muhammedan "laws, after the model of JUSTINIAN's inestimable Pandects, compiled by the most learned of the native lawyers, with an accurate verbal translation of it into English ; and if copies of the work 'were reposited in the proper offices of "the Sedr Diwani Adálat, and of the Supreme Court, that "they might occasionally be consulted as a standard of

'justice, we should rarely be at a loss for principles at least, "and rules of law, applicable to the cases before us, and "should never perhaps be led astray by the Pandits or "Maulavis, who would hardly venture to impose on us, when "their imposition might so easily be detected. The great "work, of which JUSTINIAN has the credit, consists of texts "collected from law-books of approved authority, which in "his time were extant at Rome : and those texts are digested "according to a scientifical analysis; the names of the original "authors, and the titles of their several books, being "constantly cited, with references even to the parts of "their works from which the different passages were selected. "But although it comprehends the whole system of jurisprudence, public, private, and criminal, yet that vast "compilation was finished, we are told, in three years it "bears marks, unquestionably, of great precipitation, and "of a desire to gratify the Emperor by quickness of dispatch; “but, with all its imperfections, it is a most valuable mine "of juridical knowledge. It gives law at this hour to the greatest part of Europe; and, though few English lawyers "dare make such an acknowledgment, it is the true source "of nearly all our English laws that are not of a feudal origin. It would not be unworthy of a British Govern"ment to give the Natives of these Indian Provinces a "permanent security for the due administration of justice among them, similar to that which JUSTINIAN gave to his "Greek and Roman subjects; but our compilation would "require far less labour, and might be completed with far greater exactness, in as short a time; since it would be "confined to the laws of Contracts and Inheritances, which are of the most extensive use in private life, and to which "the Legislature has limited the decisions of the Supreme "Court in causes between native parties: the labour of the "work would also be greatly diminished by two compilations

already made in Sanscrit and Arabic, which approach "nearly, in merit and in method, to the Digest of JUSTINIAN. "The first was composed a few centuries ago by a Bráhman "of this province, named RAGHUNANDANA, and is comprised "in twenty-seven books at least, on every branch of Hindu "law the second, which the Arabs call the Indian Deci"sions, is known here by the title of Fetáwii Aálemgiri, "and was compiled, by the order of AURANGZIB, in five large volumes, of which I possess a perfect and well "collated copy. To translate these immense works, would "be superfluous labour; but they will greatly facilitate the "compilation of a Digest on the Laws of Inheritance and "Contracts; and the Code, as it is called, of Hindu law, "which was compiled at the request of Mr. HASTINGS, will "be useful for the same purpose, though it by no means "obviates the difficulties before stated, nor supersedes the "necessity, or the expedience at least, of a more ample repository of Hindu laws, especially on the twelve different "contracts, to which ULPIAN has given specific names, and

on all the others, which, though not specifically named, "are reducible to four general heads. The last-mentioned "work is intitled Vivádárnava Sétu,(1) and consists like the "Roman Digest, of authentic texts, with the names of their "several authors regularly prefixed to them, and explained, "where an explanation is requisite, in short notes, taken "from commentaries of high authority: it is, as far as it goes, a very excellent work; but though it appear ex

(1) The composition of this work was proposed as early as the 18th of March 1773 at the opening of the Court of Sudder Dewanny Adawlut of Bengal, and in December in the same year it was reported to the President that the Digest was nearly completed in the Sanscrit language, and that a translation was being made into Persian for the purpose of being again translated into English. Early in the following year, 1774, Warren Hastings transmitted a specimen of the English version to the Court of Directors: and in the same year, Mr. Halhed published the entire work in English under the title of “A Code of Gentoo Laws."-For the reasons given by Sir William Jones, this is not considered a work of any authority, and reference to it is seldom made in judicial proceedings

"tremely diffuse on subjects rather curious than useful, and "though the chapter on Inheritances be copious and exact, "yet the other important branch of jurisprudence, the Law "of Contracts, is very succinctly and superficially discussed, "and bears an inconsiderable proportion to the rest of the "work. But, whatever be the merit of the original, the "translation of it has no authority, and is of no other use "than to suggest inquiries on the many dark passages "which we find in it: properly speaking, indeed, we cannot "call it a translation; for though Mr. HALHED performed "his part with fidelity, yet the Persian interpreter had "supplied him only with a loose injudicious epitome of the original Sanscrit, in which abstract many essential passages are omitted, though several notes of little consequence are interpolated, from a vain idea of elucidating "or improving the text."*

Besides the great work of RAGHUNANDANA abovementioned, many other Digests have been compiled by Hindu lawyers; which, like his, consist of texts collected from the Institutes attributed to ancient legislators, with a gloss, explanatory of the sense, and reconciling seeming contradictions, to fulfil the precept of their great lawgiver, "When there are "two sacred texts apparently inconsistent, both are held "to be law; for both are pronounced by the Wise to be "valid and reconcileable."+ From various Digests, and from commentaries on the institutes of law, the present Digest has been compiled; and the venerable author, JAGANNATHA, has added a copious commentary, sometimes

* The letter from which this extract is taken, is dated 19th March 1788. On the same date, the then Governor-General, MARQUIS CORNWALLIS, with the concurrence of the Members of Council, accepted the offer in terms honourable to the proposer, and expressive of the most liberal sentiments. "The object of your proposition," they say, 'being to promote a due administration of justice, it becomes interesting to humanity; " and it is deserving of our peculiar attention, as being intended to increase and secure "the happiness of the numerous subjects of the Company's provinces,"

+ MENU, Chap. II, v. 41.

indeed pursuing frivolous disquisitions, but always fully explaining the various interpretations of which the text is susceptible. In restricting this compilation to the law of contracts snd successions, he has omitted the law of evidence, the rules of pleading, the rights of landlord and tenant, the decision of questions respecting boundaries, with some other topics, which should be likewise treated for the purpose of assisting courts of civil judicature in deciding private contests according to the laws which the Hindu subjects of Great Britain hold sacred. The body of Indian Law comprises a system of duties religious and civil. Separating the topic of religious duties, and omitting ethical subjects, Hindu lawyers have considered civil duties under the distinct heads of private contests and forensic practice: the first comprehends law private and criminal; the last includes the forms of judicial procedure, rules of pleading, law of evidence written and oral, adverse titles, oaths, and ordeal. The translation of MENU has sufficiently made known the criminal law of the Hindus, which is now superseded by the Muhammedan system: but another head of private contests, in which, under the name of disputes concerning boundaries, the rights of husbandmen are examined, contains matter both curious and useful; practical law, especially the system of evidence, must be sometimes consulted in the provincial courts, which are not governed by English law; and the rules of special pleading have been pronounced excellent by one whose opinion has great weight.

The D'herma Sástra(2) or sacred code of law, comprising

* Sir William Jones, in a manuscript note.

(2) The Dherma Sastra may be conveniently divided into three classes: I. The Smritis, or Text books, which are the foundation of all Hindu law. II. The Vyakhyana, or Glosses and Commentaries upon the Smritis, many of which partake of the nature of Digests.

III.

The Nibandhana Grandha, or Digests properly so called, either of the whole body of the Law or of particular portions thereof, collected from the text books and their commentators.