DOI Page / Citation link:
https://doi.org/10.11588/diglit.49827#0048
PRINCIPAL SMRITIS.
33
tion. This has been pointed out by competent English Lecture
observers of Indian life, and the same result may be
gathered from an impartial study of the Indian law-books,
ancient and modern.1 Orientals do not like public tribunals
to meddle with their private affairs, and there were excel-
lent reasons for this natural aversion in India, as the
Native Courts, and not unfrequently the Rajahs themselves,
were excessively corruptible. As therefore the public
Courts had far less legal business to transact than the
Panchayats and other private tribunals established ad hoc,
it was but natural that customary law should have played
a more prominent part in those times than written law.
This was changed under British rule so far that customTn
order to acquire the force of law must be proved to be
continuous and ancient. But within these limits the valid-
ity of custom has been recognized to the fullest extent
in the Courts.2 They would not, and could not, assign an
inferior position to written law on principle. By doing so
everything would have been made indistinct, and the con-
fusion, which appears to have existed before the establish-
ment of British Courts in India, would have become worse
confounded.
But, it has been argued, do not the authors of the The
Sanskrit Law-books themselves refer to custom as some- ^handuka
thing distinct from and superior to their own rules ? To on local
this assertion it may be replied that both the modernusage-
works and the Smritis allude to custom very often,
but without acknowledging its validity in any case
where it is opposed to written law. Thus, to begin with
the modern works, the Smritichandrika contains a whole
chapter on local usage (Degadharma). This chapter has
been made very much of, and has been taken to prove
the correctness of the opinion advanced by Ellis that
the law of the Smritis has never been the law of the
Tamil and cognate nations.3 It is, however, expressly
observed in that very chapter of the Smritichandrika that
those usages only shall be judicially recognized and estab-
lished which are not opposed to the teaching of the Vedas
1 See e. g. the texts collected in Colebrooke’s Essay on Hindu Courts o£
Justice.
2 Mayne, §§ 40—»56.
’ See Nelson, A View of the Hindu Law, pp. 115—117, where an English
version of the greater portion of this chapter from the pen of Dr. Bur-
nell may be found.
3
33
tion. This has been pointed out by competent English Lecture
observers of Indian life, and the same result may be
gathered from an impartial study of the Indian law-books,
ancient and modern.1 Orientals do not like public tribunals
to meddle with their private affairs, and there were excel-
lent reasons for this natural aversion in India, as the
Native Courts, and not unfrequently the Rajahs themselves,
were excessively corruptible. As therefore the public
Courts had far less legal business to transact than the
Panchayats and other private tribunals established ad hoc,
it was but natural that customary law should have played
a more prominent part in those times than written law.
This was changed under British rule so far that customTn
order to acquire the force of law must be proved to be
continuous and ancient. But within these limits the valid-
ity of custom has been recognized to the fullest extent
in the Courts.2 They would not, and could not, assign an
inferior position to written law on principle. By doing so
everything would have been made indistinct, and the con-
fusion, which appears to have existed before the establish-
ment of British Courts in India, would have become worse
confounded.
But, it has been argued, do not the authors of the The
Sanskrit Law-books themselves refer to custom as some- ^handuka
thing distinct from and superior to their own rules ? To on local
this assertion it may be replied that both the modernusage-
works and the Smritis allude to custom very often,
but without acknowledging its validity in any case
where it is opposed to written law. Thus, to begin with
the modern works, the Smritichandrika contains a whole
chapter on local usage (Degadharma). This chapter has
been made very much of, and has been taken to prove
the correctness of the opinion advanced by Ellis that
the law of the Smritis has never been the law of the
Tamil and cognate nations.3 It is, however, expressly
observed in that very chapter of the Smritichandrika that
those usages only shall be judicially recognized and estab-
lished which are not opposed to the teaching of the Vedas
1 See e. g. the texts collected in Colebrooke’s Essay on Hindu Courts o£
Justice.
2 Mayne, §§ 40—»56.
’ See Nelson, A View of the Hindu Law, pp. 115—117, where an English
version of the greater portion of this chapter from the pen of Dr. Bur-
nell may be found.
3