a mass of sacerdotal rules, mostly, as it seems to me, in a state of dissolution and decay. A still later treatise, Narada,1 is almost wholly a simple law-book, and one of a very interesting kind. The ancient Brahmanical system has been toned down and tempered in all its parts by the good sense and equity of the school of lawyers from whom this book proceeded. The portions of it which deal with Evidence appear to me especially remarkable, not only for the legal doctrine, which (though the writer believes in Ordeals) is on the whole extremely modern, but for the elevation of moral tone displayed in its language on the subject of true and false witness, which should be set off against the unveracity attributed to the modern Hindu. 'No relatives, no friends, no treasures, be they ever so great, are able to hold him back who is about to dive into the tremendous darkness of Hell. Thy ancestors are in suspense when thou art come to give evidence, and ponder in their mind, "Wilt thou deliver us from Hell or precipitate us into it?" Truth is the soul of man; everything depends upon truth. Strive to acquire a better self by speaking the truth. Thy whole lifetime, from the night in which thou wert born up to the night in which thou wilt die, has been spent in vain if thou givest false evidence. There is no higher virtue than veracity; nor is there a greater crime than falsehood. One must speak the truth, therefore, especially when asked to bear testimony' (Narada, pp. 42, 43, Jolly). The somewhat analogous passage in Manu (VIII. 112) is defaced by the often reprobated qualification, 'In case of a promise made for the preservation of a Brahman, it is no deadly sin to take a light oath.'

The difficulties under which the student of the so-called Sacred Laws of the Hindus has so long laboured have been almost entirely caused by the transitional character of the book which was first introduced to European scholarship as the original source of Hindu Law. If the sample of this branch of Hindu literature first translated into a Western language had been Narada, it would have been regarded as a law-book of a familiar type, and the traces of sacerdotal influence which are to be found in it would probably have been neglected. If, on the other hand, the book first made accessible had been Gautama, or Baudhâyana, or Apastamba, it would probably has been set down at once as a manual of practical religious conduct, the Whole Duty of a Hindu; the law contained in it would probably have been considered adventitious or acci1 The "Institutes of Narada" have been translated into English by Dr. Julius Jolly. London: Trübner & Co., 1871.

dental. But Manu, which Sir William Jones made famous in Europe, neither falls wholly under the one description nor wholly under the other. And so long as it stood by itself there was the greatest difficulty in determining its place in the general history of law. . . . The whole of the literature to which it belongs sprang, it would now appear, from a double origin; in part from some body ́ of usage, not now easy to determine (though the recent investigation of local bodies of Indian custom has thrown some light upon it), but chiefly from the Hindu scriptural literature. The last exercised by far the most important influence. Its creators, far back in antiquity, did not start with any idea of making or stating law. Beginning with religious hymnology, devotional exercises, religious ritual, and theological speculation, some of their schools were brought to Conduct, and to stating in detail what a devout man should do, what would happen to him if he did it not, and by what acts, if he lapsed, he could restore himself to uprightness. Gradually there arose in these schools the conviction that, for the purpose of regulating Conduct by uniform rules, it was a simpler course to act upon the rulers of men than on men themselves, and thus the King was called in to help the Brahman and to be consecrated by him. The beginning of this alliance with the King was the beginning of true civil law.

Nothing which thus happened seems to me to be very unlike what would have happened in the legal history of Western Europe, if the Canonists had gained a complete ascendency over Common Lawyers and Civilians. The system which they would have established might be expected to give great importance to the purgation of crime by penances. This in fact occurred; the preference of the ecclesiastical system with its penances over the secular system with its cruel punishments, had much to do, as may be seen from the legendary stories, with the popularity of St. Thomas (Becket). Then it would be probable that, in the case of graver sin, the ecclesiastical lawyer would invoke the aid of the secular ruler to secure the proper expiation; and this again occurred in the form of entrusting the severer punishments to the secular arm. Finally, if the sole advisers and instruments of the European King in the administration of civil and criminal justice had been ecclesiastics, they would have been driven in the long run to construct a system of civil and criminal law with proper sanctions enforced by the Courts. But the system would have been deeply tinged in all its parts with ecclesiastical ideas, and though it would possibly have borrowed some or many of its rules from older

usage, it would have been very hard to detect their sources and their precise original form.

*

I said that this ancient literature threw less light on the beginning of law than on the beginning of lawyers. But it is of course to be understood that the men who conceived and framed it were much more than lawyers. All the world knows that they were also in some sense priests; but they were much more than priests. What we have to bring home to ourselves is the existence in ancient Indian society of a sole instructed class, of a class which had an absolute monopoly of all learning. It included the only lawyers, the only priests, the only professors, the sole authorities on taste, morality, and feeling, the sole depositaries of whatever stood in the place of a science. These books are one long assertion that the Brahmans hold the keys of Hell and Death, but they also show that the Brahmans aimed at commanding a great deal more than the forces of the intellect, and that all their efforts came to be directed towards bringing under their influence the mighty of the earth of another sort, the conquering soldier and the hereditary king. They were to become partners with princes in their authority, their advisers and assessors. A King and a Brahman deeply versed in the Vedas, these two uphold the moral order of the world;' thus it is written in one of the oldest of the books. Doubtless, the alliance between Brahman and King was often sealed, and produced great effects; for, amid the obscurities of early Indian history, the fact does seem to emerge that, although religions doubtless at first extended themselves by conversion, they were established over wide areas and again overthrown much less by propagandism than by the civil power. On the whole, the impression left on the mind by the study of these books is, that a more awful tyranny never existed than this which proceeded from the union of physical, intellectual, and spiritual ascendency. At the same time it would be altogether a mistake to regard the class whose ideas are reflected in the literature as a self-indulgent ecclesiastical aristocracy. It is not easy, I must admit, to describe adequately the intensity of the professional pride which shows itself in all parts of their writings. Everybody is to minister to them; everybody is to give way to them; the respectful salutations with which they are to be addressed are set forth with the utmost minuteness. They are to be free of the criminal law which they themselves prescribe. 'A Brahman,' writes Gautama,

L

'must not be subjected to corporal punishment, he must not be imprisoned, he must not be fined, he must not be exiled, he must not be reviled or excluded (from society).' Their arrogance perhaps reaches the highest point in a passage of the law-book of Vishnu, where it is written that 'the Gods are invisible deities; the Brahmans are visible deities. The Brahmans sustain the world. It is by favour of the Brahmans that the Gods reside in Heaven.' Yet the life which they chalk out for themselves is certainly not a luxurious and scarcely a happy life. It is a life passed from first to last under the shadow of terrible possibilities. The Brahman in youth is to beg for his teacher; in maturity, as a married householder, he is hedged round with countless duties, of which the involuntary breach may consign him in another world to millions of years of degradation or pain; in old age, he is to become an ascetic or a hermit. It is possibly to this combination of selfassertion with self-denial and self-abasement that the wonderfully stubborn vitality of the main Brahmanical ideas may be attributed. As I have shown, the sacerdotal legal system, as a system, owes probably much of its present authority to its adoption by the Anglo-Indian Courts of Justice as the common law of India; but some of the points of belief which underlie it, as they do the whole Brahmanical literature, make the most durable part of the mental stock of every Hindu.

SECTION 3

TABOO AS A PRIMITIVE SUBSTITUTE FOR LAW 1

The law issues commands and prohibitions, the essence of which is not that the rights of the individual shall be preserved, but that the original interests of culture in general shall be promoted. Under this head belong the many regulations in respect to sanitation, to the promotion of morality in general, to the preservation of a certain state of the earth's surface (the supervision of rivers, conservation of forests, etc.). Here, too, belong the manifold statutes that refer to education, social and economic conditions, etc. This is the field of cultural advancement through police and penal regulations.

In connection with this stands the law of taboo.

Taboo in general means forbidden, and refers to everything

1 [Reprinted, by permission, from JOSEF KOHLER, "Philosophy of Law" (Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law Series, Vol. XII).]

that, for reasons based on mystical and religious grounds, is forbidden to the individual, the whole or a part of the people. Thus the conception grows out of primitive mysticism, but it has a strongly formative effect, for a great deal of what is necessary to human progress is accomplished by means of such prohibitions. We need only recall the great number of sanitary measures that could not have arisen except in this way. Of course, originally, the taboo was enveloped in a mass of so-called superstitions, that is, in a mass of ideas which, in one direction or another, gave expression to a principle of faith, only to die out later because they were merely of temporary significance, and disappeared in the light of more advanced knowledge.

In this way the custom of taboo could, to a great extent, take the place of our police regulations; for as soon as priesthood and chieftainry become more powerful, not only those things are tabooed that have hitherto been sacred, but the priests and chiefs have the right of putting others under taboo. If they do not

exercise this right arbitrarily, but on rational grounds, the taboo becomes a beneficial means of removing the absurdities and indecencies of the people, and investing life with a certain dignity and sublimity.