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435
INDIAN LAW

but nevertheless it sometimes presents considerable difficulty. On the other hand, in dealing with offences against property the authors of the Penal Code have cleared away entirely the difficulties which have long beset the English law as to how to deal with a man who, having become possessed of property, dishonestly misappropriates it. English lawyers have tried to squeeze as many of these cases as they can into the crime of larceny. The Penal Code simply makes dishonest misappropriation a crime in itself. (See further Criminal Law.)

In 1853 and again in 1861 commissions were appointed in England to draw up a body of laws for India “in preparing which the English law should be used as a basis,” but the only direct result of these two commissions was the Indian Succession Act (Act X. of 1865). But as Hindus and Mahommedans are excluded from the operation of this act its application is limited. The wills of Hindus are provided for by Act XXI. of 1870. Two important acts, however, were passed in India shortly after the attempt to legislate for India through commissions sitting in England came to an end, namely the Evidence Act (Act I. of 1872) and the Contract Act (Act IX. of 1872). Both these acts have been a good deal criticized. Two other important acts passed somewhat later are the Transfer of Property Act (Act IV. of 1882) and the Trusts Act (Act IV. of 1882). These acts are all substantially reproductions of the English law.

The law relating to land revenue has been the subject of innumerable regulations and acts of the Indian legislature. A description of the revenue systems prevailing in India will be found in the article on India. The law which governs the relation of ryots (i.e. cultivators) to those who for want of a better term we must call landlords has grown to a considerable extent out of the revenue system. The view which was at first taken of this relation was unfortunately affected by English notions of the relation of landlord and tenant, but this view has been considerably modified in favour of the tenant by recent legislation.

Books of Reference on Anglo-Indian Law.—Morley, Analytical Digest (1849); Stokes, Anglo-Indian Codes (1887); Ilbert, Government of India (1906), which contains a very useful Table of Acts of Parliament and Digest of their contents; Strachey, India, its Administration and Progress (1903); Baden-Powell, Land Systems of British India (1892); Wigley, Chronological Tables of Indian Statutes (Calcutta, 1897).

4. Hindu Law.—The Hindu law is in theory of divine origin, and therefore unchangeable by human authority. Ask a Hindu where his law is to be found, and he will reply “In the Shasters.” The Shasters are certain books supposed Sources of Hindu Law. to be divinely inspired, and all of great antiquity. They contemplate a state of society very unlike that of the present day, or that of many centuries back. It follows that these sacred writings, whilst they leave many of the legal requirements of the present day wholly unprovided for, contain many provisions which no Hindu even would now think of enforcing. Consequently, in spite of the theory, the law had to be changed. Legislation, which with us is the most potent as well as the most direct instrument of change, has had scarcely any effect on the Hindu law. Probably it never entered into the head of any Hindu before British rule was set up in India that any human agency could be entrusted with the power of making or changing the law; and although both the Indian legislatures and the British parliament have full power to legislate for Hindus upon all matters without any exception, they have, in fact, hardly ever exercised this power as regards the Hindu law. Custom is a less direct instrument of change than legislation, and operates more slowly and secretly, but its influence is very great. The custom which supplants the sacred law may indeed be as old or older than the sacred law, and its existence may be due to the divinely inspired law having failed to displace it; or the habits and necessities of the people may have engrafted the custom upon the sacred law itself. In either view there has been no difficulty in accepting custom where it varied from the sacred law. Indeed, the sacred books themselves recognize to some extent the operation of custom. Thus we find it said in the Laws of Manu (viii. 4, 1), “the king who knows the sacred law must inquire into the laws of castes, of districts, of gilds and of families, and thus settle the peculiar law of each.” It is to the influence of custom that the divergence between the Hindu law of to-day and that of the Shasters is largely due. Another method by which law is developed, and one more subtle still, is interpretation; and it is one which in skilful hands may be used with considerable effect. Without any dishonesty, people very often find in the language of the law words sufficiently vague and comprehensive to cover the sense which they are looking for. The action of interpretation upon Hindu law differs accordingly as it took place before or after the British occupation. Formerly the only persons whose interpretation was accepted as authoritative were the writers of commentaries. But the Indian courts are very sparing in accepting modern commentaries as authoritative, though nevertheless they carefully record their own interpretations of the law, and these are always treated as authoritative. It follows, from the very nature of the influences thus brought to bear upon law, that not only have the sacred books been departed from, but that different results have been arrived at in different parts of India. The differences have led recent writers to speak of five schools of Hindu law, called respectively the Benares school, the Bengal or Gauriya school, the Bombay school or school of western India, the Dravida school or school of southern India and the Mithila school—the district last named being a very small one to the south of and adjoining Nepal. But it would be a great mistake to suppose that the differences between these so-called schools are comparable to each other in importance. As will appear presently, it would be much more correct to speak of two schools, that of Benares and that of Bengal—the other three being subdivisions of the first.

It will be convenient to give a short description of those of the sacred books which are actually in use in the Indian courts when they desire to ascertain the Hindu law. Of these by far the first in importance, as well as the first in Sacred Books. date, is the one which we call the Laws of Manu. It has been translated by Professor Buhler, and forms vol. xxv. of the “Sacred Books of the East,” edited by Professor Max Müller. If we examine it, we find that only about one-fourth of the book deals with matters which we should call legal, the rest being concerned with topics either purely religious or ceremonial. And of these topics only one, that relating to partition of family property, belongs to that portion of the Hindu law which is administered in the courts, and, as one would expect, what is said on this topic has been largely departed from under the influences above described. Very little is known as to the date of the Laws of Manu. They are probably much older than their present form, which Buhler places somewhere between 200 B.C. and A.D. 200. Of more interest than the exact date is the state of society which they disclose. The tribal and nomadic stage had passed away. Society had so far settled down as to possess a regular form of government under a king. The people were divided into four great castes, representing religion, war, commerce and agriculture and servitude. Justice is spoken of as administered by the king. Provision is made for the recovery of debts and the punishment of offences. There are rules relating to the pasture of cattle, trespass by cattle and the enclosure of cultivated fields. There was evidently considerable wealth in the shape of horses, carriages, clothes, jewelry and money. There is no mention of land in general as the subject of permanent private property, though no doubt the homestead and the pasture land immediately adjoining were permanently owned.

The (so-called) Smriti of Yajnavalkya was, no doubt, a work of considerable importance in its day, and is still sometimes referred to. It shows a somewhat more advanced state of society than the Laws of Manu. The occupier of land has a firmer hold upon it, and there seems to be even a possibility of transferring land by sale. The date of it has not been fixed, but it is thought to be later than the Laws of Manu.

The Smriti of Narada belongs to a still later period, perhaps