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ciples already established,' to use the language of Sir James Stephen. It is a practical question whether his view, that the safer way to deal with new offences of doubtful illegality is to legislate for the future and not to try them at the moment, should have prevailed in this instance. That view is supported by the words of another eminent thinkerl : On the whole it is conceived that there can be very few kinds of minor offences the quality of which can be so altered by agreement,' i.e. conspiracy, 'as to make it necessary to punish them by indictment, and that those kinds ought to be considered beforehand by the legislature and specified in the written law.'
THE ORIGIN AND DEVELOPMENT OF THE BENGAL
SCHOOL OF HINDU LAW (continued).
THE guiding principle of the law of inheritance as propounded
in the Mahanirvana-tantra is affinity, the principle which iegulates the rules of inheritance in most of the advanced systems of jurisprudence. Natural love and affection move the human mind to desire that property on death should pass to certain person or persons, and the tantra laid down rules of inheritance consistent with such love and affection as accorded with the conditions of life existing in those days.
The principle of religious efficacy through the performance of the Parvana Sraddha, the periodical offering of funeral cakeswhich is stated to be the guiding principle of the Dayabhaga system-had little to do with the rules of inheritance laid down in the Mahanirvana-tantra. The principle of inheritance was also not based on connexion by means of particles of flesh and bloodpinda as defined in the Mitakshara, which bases heirship on consanguinity and membership in the gotra or family. Many of the female relations who are now excluded by the current Bengal law are included in the tantras in the line of heirs. They must be excluded on the theory of spiritual benefit by means of offering of funeral cakes. But customary law in Bengal had a different basis. The inclusion of female relations is just what one would expect from the exalted position that Buddhism and the Brahmanical tantras gave to woman. The patriarchal system, which is the foundation of the Mitakshara, is almost entirely ignored in the tantra and was not apparently recognized in practice.
The general rules of inheritance are laid down in chapter xii of the Mahanirvana-tantra in the following verses :
6. Affinity is by means of birth or marriage. The former is superior to the latter.
7. In matters of inheritance, O goddess, the descending line of heirs is superior to the ascending line, and a male is preferred to a female, when they are otherwise equal.
8. Heirship is always regulated by nearness of relationship, and the wise should divide the wealth of the deceased accordingly.
Having enunciated these general rules, the tantra illustrates them and lays down the order of succession which agrees in many respects with the present law of the Bengal school as well as the Mitakshara, but differs from them on some material points. The divergence is the greatest in the case of female relations.
The order of intestate succession almost entirely agrees with that given by Jimutavahana in his Dayabhaga as regards (1) son, (2) grandson, (3) widow, and (4) daughter. This is also the order of succession under the Mitakshara system, when the deceased owner is separate from his coparceners and the patriarchal system has necessarily lost its hold.
The sister is an heir under the tantric system, and the sister's position is almost the same as we find it in the Maharasthra school. Her exclusion in the Bengal school from the line of heirs is based on reasons of spiritual welfare by means of the offerings of pindas, which she is incompetent to offer at the ceremonies called periodical Sraddhas, but the rules in the tantra being based on affinity and not spiritual welfare, the sister naturally comes in as an heiress. She is one of the nearest and dearest of relations, and has consequently a place. It is a pity the Dayabhaga has excluded her. The stepmother is also in the line of heirs, and the sister's sons are brought in very prominently.
Almost all the rules of intestate succession in the tantra are permeated by the same principle of affinity without distinction between males or females, except that males are preferred to females of equal position. The Dayabhaga has accepted a good many of these rules and has thus differed from the Mitakshara, but others are rejected on account of the introduction of principles of religion, foreign to the scope of the law of inheritance as it originally found place in Bengal. A great deal of anomaly has thus been caused by the introduction of the doctrine of religious efficacy-a doctrine in many respects irreconcilable with the law as laid down in the Dayabhaga itself. The rules of survivorship which essentially differentiate the Bengal school from the Mitakshara are expressly excluded in the tantra and the Dayabhaga, notwithstanding its tendency to orthodoxy, could not reintroduce it.
The commercial spirit of the newly formed nation in the eastern corner of the Indian peninsula with its deltaic character and nearness to the sea, the new ideas which other nations trading with it were bringing in every day, the necessary admixture of races in some parts of the country, the religion of Buddha which for centuries was here the religion of the sovereign as well as the people, and the influence of the Buddhistic tantras combined to bring about a law of property dissimilar in material respects from the rules propounded by the Brahmanical sages of old, and explained and commented upon in the Mitakshara and the books based on the
same. The Buddhistic tantras and the Hindu tantras which replaced Buddhism practically accepted this new law of property as consistent with the essential principles of the faith and ceremonials prescribed by them. The worship of the goddess Kali and the different forms of the goddess who represents feminine energy in nature was widely disseminated throughout the Bengal districts and Assam, Cachar and Sylhet, and the municipal law as enunciated in the most authoritative of the tantras must have been accepted by the people and administered by the Hindu Rajas for a long time. The greatest inroad was against the joint family system and its rules as to survivorship and want of power of alienation of individual members, because these rules were anti-commercial, The religion of the tantras also favoured the women, Brahmanical influence, however, commenced its work with the revival of the Brahmanical faith, and in the course of a few centuries affected the outskirts of a system of municipal law which had grown up under conditions peculiarly its own.
It is difficult to trace the history of any people from remote times, and it is almost impossible to trace with any degree of definiteness the sociological progress of the people now governed by the Dayabhaga school. When and how there were traceable indications of a revival, it is difficult to predicate. The materials are scanty and extremely imperfect. It is a mistake, however, to suppose that in ancient India kings made laws and promulgated them to the people as their command. Kings only administered the law which time-honoured sages had enunciated and custom had established and which learned scholars expounded and explained to the king to enable him to administer it. The customs and customary law of each locality were important elements for consideration in the administration of justice. The king could not ignore them. Law in India was moulded by custom and was enunciated by jurisconsults, if I may borrow the expression, and was not king-made. A king might occasionally ask a learned lawyer to compile a book on law for his own use and the use of the other scholars. A scholar might of his own motion compile a book on law, and such a book might be accepted as correctly laying down rules of law. But the king never made laws. It seems to me that the Hindu law, as now administered in Bengal, is customary law, as it prevailed in the province, with the exposition of learned Sanskrit scholars, who attempted to introduce into the old existing law or custom, principles and rules laid down by the ancient Brabmanical sages, and who introduced modifications, wherever possible, to make customary law consistent with original Hindu notions. The effect of Brahmanical influence did not, and could not go further. The old type was retained in Brahmanical dress.
The work of revival began with the advent of learned Sanskrit scholars from the ancient seats of Aryan learning in the Mithila country and the North-Western Provinces of India. The Dravidian seats of Sanskrit learning are of later date. Scholars from Upper India began to pour into the new Hindu Kingdom of Bengal soon after the overthrow of the Buddhistic Pal Dynasty. They found the existing practices, the customary law of the people, to be at variance with the law as administered in the older Hindu provinces on the west and the north-west. The Mitakshara had been composed and had been accepted by learned lawyers as a correct exposition of the rules laid down by Yajnavalkya and other great sages, and it accorded no doubt with the existing practices of the people who had accepted it. Bengal was evidently then as now beyond the pale of the Mitakshara. The people had their own customary law, the product of circumstances peculiarly their own. I do not think that the Mitakshara was ever accepted as giving law to Bengal.
The learned Sanskrit scholars who were called upon to help the later Hindu rulers of Bengal in the administration of justice in civil matters found in the existing practices of the people much that had no warrant in the texts of Manu and Yajnavalkya and other sages and their accepted interpreters. In some matters there were semblances of authority in the texts of the sages. In the administration of justice, however, the king was bound to follow the customary law of each locality, as it is so ordained by the ancient sages themselves; and where customary law was reconcilable with the texts, there was not much difficulty. Where, however, they were inconsistent and where customary law could be definitely ascertained, the king had to give effect to it, notwithstanding express texts of the sages to the contrary. Where, on the other hand, custom or usage could not be definitely ascertained, or was not sufficiently ancient and uniform, the king had to apply the law his learned advisers knew and were familiar with, i.e, the Hindu law as laid down by the sages and its modern expounders.
Thus, for centuries, the Bengal law must have been in the process of development and was gradually conforming itself to the notions of the scholarly interpreters of Brahmanical law. Buddhistic principles, so far as they were anti-Hindu, were gradually losing bold on the people, but as regards certain matters the grip of Buddhism and of the philosophy and ceremonial rites of the tantras was hard to loosen. The family had given place to the individual, women bad been recognized with certain restrictions as persons in law as much as men, married women had rights of the same