The sun. [volume] (New York [N.Y.]) 1833-1916, 1883-06-03

n. .. Maine's Latest Essays.

print OF dissertations. some OF which were
originally published In English reviews. while
the others represent tho substance OF lectures
delivered at Oxford. In these papers viewed
collectively. tho author pursues the line OF in
vestigation followed In his preceding works.
his aim being to explain certain existing insti-
tutions by connecting them with primitive or
very ancient usagcs Of mankind. and with the
ideas associated with these usages.
To the American reader tho first four essays
printed In this new volume may be less inter-
ostiBg than they arc to those !.ns!ishincn who
appreciate the huge difficulties involved in the
judicial administration Of British India No
sooner had men recognized the impossibity Of
applying the principles Of the English common
law and the forms of English procedure in the
courts OF the Indian empire than tho question
arose. What body OF substantive Jurisprudence
was to be drawn from native sources and OK
pounded by the ruling power? In the case. in
deed. OF the fifty million Sunnite Moham
medans. tn" problem was easily solved for an
English Judge may ut once lay his hand upon
the books which oil orthodox Moslcms would
concur in pronouncing authentic rOpositO-
ries of tho Mohammedan law. But with
a far more numerous element of the Indian
population-thc Ilindus. who abide in the
Brahmancal relig on-tho ease is widely DIFF
fcrcnt. Hero to be sure. law and religion are
oven more closely ntcrfused than they are
among Mohammcdans. but there Is no inia-
lbe code like the Koran. nor are there any col
lections Of traditional interpretations and de-
ductions which are universally invested with
supreme authority. 1t follows that to admin
lister justice according to Brahmanical law in
a way which should be at once consistent and
acceptable. is entirely impractcable. In one part
OF India, among the adherents OF a particular
sect or school. one document or set OF docu-
ments will b. held In peculiar reverence. while
In another district other tcachin will be more
highly veneratod and more deeply interviewer
with tho local usagos and ideas. Now the
special merit of Sir VI. y. Names essays on tho
subject lies in the direction of neg itive or de-
structive criticism. rather than in that of
illuminating or constructive suggestion. Not
being himself II Hindu scholar. but forced to
obtain his information concerning Drahman-
ical literature at second hand he does not
assume to tell the Government of British India
what particular writings ought to be made the
text books Of Hindu law in this that par
tcular province. But he is able on the other
hand. to point out what Indian administrators
ought not to have done. and what 1t behooves
them to undo rs rapidly rs possible.
The fundamental bundcr committed in this
matter by the Calcutta authors was due. 1t
seems to Sir William Jones. to whom UNI
doub,odly. modern Sanskrit scholarship is
greatly indebted but whose opinions deserved
no more weight than belongs to tho vague and
hasty impressions of pioneer. 1t was Sir
William Jones who translated the so-callcd
Book OF Manu-. and caused the Indian Govern
ment to accept il as the basis of all Hindu law
and institutions. tho fountain Of all civil
obligation to more than hundred millions of
men. To this document ho assigned the date
OF 1880 u. c.. and described it MS holding to-
ward tho mass of Hindu law a position pre-
t1 i'm latin -
tntes to the Digest of Justinan. 1t is special
object OF Sir H. s. Maine in some OF the ESSAYS
now published. to demonstrate tho deplorablc
enocts OF misconception upon which rs on
rotten corner stone. the whole fabric Of Hindu
Jurisprudence. as administered under British
supervision. has been reared. The truth is that
tho Book OF Manu- was composed according
to Max Muller. not earlier than 200 b. c.. and
the high authority OF DR.. Burnel is cited for so
late an age OF the original document as 400
A. ID. Indeed. there is ground to attribute it in
Its present form even to modern II date as
the fourteenth century OF our era. In other
words. book which Sir William Jones sup
posed contemporaneous with the siege Of Troy
Is moro likely to have been contemporancous
with the battle OF Bannockburn. Manu. in fact
belongs to the Hindu apocrypha. 1t is
simply our author says, "a reduction of the
lega! doctrine Of the Manavas. II gems or elan
called after n Manu- frequently mentioned in
Sanskrit literature. but referred to by the
writer Of the extant book as somebody different
from himself Elsewhere We are assured that
II Manu- was to be compared ut all to IA book
known to Enslishmcn. it should have been
likencd to II book good deal more familiar to
them than tho Roman Institutes viz the book
oil Levticus." For Manu-. though it contains
good deal Of law. is essentially "A book of
ritual of priesly duty. and of religious OBJ
servance"
These trcnchant structures on the funda-
mental errors Of the judicial system imposed
upon the Hindu subjects of tho British crown
In India will compel the serious attention of
British legislators. But we have said. the
American reader will be apt to turn with more
curiosity to other papers included in this vol.
ume. such. for Instance. is the discussions of
the Sale law and Of the decay Of feudal
property in France and England or course
In the former OF these last mentioned ESSAYS
the author doe, not waste his time in Staying
the Slain by demonstrating the non-existenco
OF the so-called Sale law of succession invoked
against the claim Of Edward ILL., to the French
crown. But although there never was n Ter
Salicd applicable to tho inheritance Of thrones.
there Is no doubt that since 1916 thorc has been
Salic rus followed in France. and thence
transferred to other countries by which the
right OF succession Is limitoI to males through
males. Blu, why was it that such rule became
established In France at the beginning of the
fourteenth century. when it did not exist in
many other feudal countries in CASTLE.
for instance. or in England. where both
Stephen and Henry III. had derived their title
to the crown from females? 1t the main pur-
pose Of Sir H. s. Maino's essay to account for
this curious anomaly. and he finds the exp!a-
nation in n rare and striking popularity in Tho
family history Of the Capctans. For more
than three hundred years from 0S7 to l32Sl the
Kings sprung from Hugh Capet succeeded ons
another. son to father or brother to brother
there being through all this time no occasion
to call In remote collateral an uncle great
uncle. or cousin. How unusual such sue
ccssion is, Sir II. s. Maine demons, rates by n
very simple test. Let MS take" he says
any half dozen conspicuous men OF u
hundred years since. and we shall find that
their living descendants through males are
few. though their descendants through women
may he numerous. Go two hundred years
back. and you will see that the lewness of male