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^
TAGORE LAW LECTURES-1880.
"^n^pxt §m ^tctxm^-isso.
THE PEINCIPLES
THE HINDU LAW OF INHERITANCE
TOGETHER WITH
I.— A DESCRIPTION, AND AX INQUIRY INTO THE ORIGIN, OF THE SRADDHA
CEREMONIES ;
II.— AN ACCOUNT OF THE 'HISTORICAL DEVELOPMENT OF THE LAW OF
SUCCESSION,' FROM THE VEDIC PERIOD TO THE PRESENT TIME;
III.— A DIGEST OF THE TEXT-LAW AND CASE-LAW BEARING ON THE
SUBJECT OF INHERITANCE.
BY
RAJKUMAR SARVADHIKARI, B.L,
111 '
TAGOUK I,AW PK0FKS80IS ;
LAW IKCTURF.R AND PROFKSSOR OF SANSKRIT, CANNING COLLEGE, LUCKSOW.
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V
pRliSBRVATiOH
CONTENTS.
LECTURE I.
IxTRODUCTiox. Page
Scope of the work — Obsequial offerings and their legal bearing' — Kamja
Sraddha — Ancestor- worship : Its general prevalence and varions sym-
bolizations — Its development among the Roman Catholics — In the form
of feeding the spirits on All Souls" day — Soul-cakes — Their identity
with the j/indag — Severance of the legal and religious aspects of obse-
quial offerings — Illustrated by franhalmoigne land tenure in Saxon
England — The principle of which underlies the tenure of land among
the Hindus — Lands originally held for spiritual services — The laws
relating to funeral expenses in England and Scotland are traceable to
the connection between spiritual service and rights of inheritance —
This connection is still recognized by the Hindus — The Greek view of
sepulchral duties — Roman sacra — Provision for obsequial expenses
indispensable in Rome — Analogous Hindu custom — With the Hindus
the right of inheritance is co-extensive with the obligation of perform-
ing obsequies — Failing competent heir, this obligation extends even to
the king — Funeral rites — In Greece — Obolus — A similar Hindu
custom mentioned in the Yayur-Yeda — Grecian rites described — Choai,
or tomb-offerings — Gemsia, or birthday offerings — Xekiuia. or mortu-
ary offerings — Roman ceremonies — SiUcernium. or funeral feast —
Public feast on the anniversary of death — "Worship of the manes of
the departed — Persia — Peculiarity of the Parsee custom — Exposure
of dead bodies — Five sacrifices — The last of these has affinity with
Hindu Sraddha — Chinese funerals — Their descriptions — Their pre-
eminent importance — Death rendered happy with the assurance of
posthumous ceremonies — Medhursfs account — Egyptian ceremonies —
Mummies — Post mortem trial — The Hindu form of ancestor- worship
quite distinct from the Egyptian — Hebrews — They had nothing akin
to the Hindu mode of worship — Ancestor- worship an Aryan usage —
Inferred from the similarity of ceremonies performed by different
nations ... ••• ••• ••• ••• ••• I
LECTURE IL
Origin axd Growth of Axcestob-Woeship.
Primitive form of ancestor- worship described in the Rig-Yeda — Simplicity
of its spirit PitrU — Solemn sacrifices in honor of the dead formed
no part of the Yedic ritual at first — The term pitris in the Rik hymns
VI CONTENTS.
applicable to ancestors in general — Its limitation to the first three ances-
tors in the White Yayur-Veda — Later classification into ' cognates,' ' ag-
nates,' and ' gentiles ' — Materials abundant to show the link between
ancestor- worship and the rules of inheritance — Funerals in the Vedio
times described — Hindu form of worship three thousand years ago —
Hymns : invocation — Salutation — Presence of the invoked ideally real-
ized — Prayer for protection — Blessings, Forgiveness, and sufiBciency —
Concluded with prayer to the fire — Second hymn elucidated by Rig- Veda
glossator — Law and moral usages of the commentator's times based
upon the revealed Scriptures of the Hindus — S'rdddJia not mentioned
in the hymns — Yajnavalkya — His dissent from the teachings of his
times — His innovations upon the Vedic faith — 'Ancestral sacrifice' —
' Pltaras ' — His system gradually expanded by later teachers — Quota-
tions from his work — Modern 'S'raddha' distinguished from Vedic
' ancestral sacrifice' — Its origin in Fitv'njajna — Pltri-lolin, or ancestral
region — Vedic doctrine of future life compared with the Greek — Vedic
account of the enjoyments of the future state — These enjoyments
limited to the sensual — Yajnavalkya's doctrine — Knowledge, its end
and aim — Inferiority of the Vedic doctrine — Hindu theory of future
existence examined by Professor Roth — Yajnavalkya's idea of the
' ancestral abode ' far less clear than the Rig- Vedic — Lunar region —
Sutra period of Vedic literature — A'pastamba — Gautama — Brahmana
period — Sacerdotal order — Basis laid of funeral S'raddha — Improved
teachings of the Sutra period authors — Gautama's precepts — A'pas-
tamba quoted — Conclusions — Simple ancestral- worship replaced by
daily and monthly S'raddhas — Persons competent to perform the cere-
mony defined — Oblations — Persons excluded from the funeral repast
— Atheists and usurers — Sons dividing the family estate — Community
of property between father and son — Meaning of the term sapinda as
given by A'pastamba and Gautama — Its etymological sense — Consan-
guinity — Necessity for narrowing the application of the term — Insti-
tutes of Manu — Extracts from Manu — According to Mann six genera-
tions of ancestors entitled to obsequial offerings — Pindas being offered
to the first three — And crumbs of pindas to the last three — Lejni — Seven
more generations added by Manu, entitled to libations of water, called
Samanodakas — Omission of maternal ancestors in the Institutes — First
mention of them by Yajnavalkya as having a claim to pindas — Sum-
mary — S'raddha — Derivation of the term — S'raddha means " know-
ledge of truth," i.e., of the real attributea of the superiors inspiring
respect, followed by adoration — Emblematic character of the S'raddha
ceremonies — Worship of ancestors due to the feelings of love and grati-
tude — Patriarchal system the primitive state of society in India — Its
prominent features — Joint undivided family offshoot of the patri-
archal system — Individual merged in the family ; the unit of social
organism — Principle of joint family system — Subordination .of the
private to the common good — Individual emancipation from the family
CONTENTS. Vll
thraldom with the progress of civilization — Due to three causes — I. Page
Intercourse with people beyond the pale of the family circle — For
purposes of commerce — Navigation — Supremacy — Travel : its useful-
ness in fostering independence of spirit. — 2. GroAvth of Philosophy
— Retirement from secular cares and anxieties. Creed of Egoism —
Religion — Consciousness of accountability after death for acts done
inter vivos — S'raddha ceremonies reconciliatory of the struggle between
the individual and the family for supremacy — All Souls' day of the
Hindus — Parvana S'raddha — Religious sanction of sraddha rites —
Obsequial rites classified — 1. Initiatory — 2. Intermediate— 3. Conclu-
sive — Their end and object : re-embodiment of the soul — Elevation to
heaven — Association with the manes — Eternal beatitude — Dwellers
in ' ancestral region ' dependent upon pindas — Necessity for adoption
— Period of sojourn in the ' ancestral region ' determined by good or
bad deeds on earth — Popular notion regarding the ^jiitris'' and 'jjitri-
loka ' — S'raddha rites form the essential elements in the religious and
legal codes of India ... ... ... ... ... 29
LECTURE III.
Nature of Sbaddha Rites. Persons competent to perform these Rites
Times for worship — Yajnavalkya's opinion — Yishnupurana — Neglect to
give offerings to the manes an unpardonable sin — Sraddhas classified •.
1. Nitya — 2. Kamya — 3. Gosthi — i. Suddhi — 5. Karmanga — 6.
Daiva — 7. Yatra — 8. Pushti — 9. Vriddhi — 10. Naimityika — 11.
Sapindikarana — 12. Parvana — Rites essentially the same — Difference
in details of procedure — Not of importance from a legal point of view
— Vriddhi Sraddha described — Occasions of its performance — Proce-
dure — Its other names — Abhyudayika — Nandimukha — Ekoddishta
Sraddha — Described in the Yishnupurana — Its historical interest —
Sapindikarana — As described in the Yishnupurana — Its effects : the
union and fellowship of the deceased with his immediate ancestors —
Prayers offered up at Sapindikarana — Parvana Sraddha — Procedure
described — Invocation of gods — Invitation of the manes — Welcome
offerings — Oblation to fire, and the Moon — Consecration of the residue
— Offering of funeral cakes to the three paternal and maternal ances-
tors — Homage paid to remoter ancestors — Libations of water — Dispo-
sal of cakes — Dismissal of the manes — Circumambulation — Songs of
the pitris — Oblations occasionally offered to the wives of the paternal
and maternal ancestors — Competency of persons to offer oblations deter-
mined by fixed rules — Inefficacy of offerings made by blood-relations in
contravention of the rules — Rules taken from Yishnupurana — Dictum
as to competency of daughter's grandson not followed — Paramount *
authority of the ]Mitakshara — Dharma Sindhu Sara on the order of suc-
cession of blood-relations entitled to perform sraddha — Son — Eldest to
the exclusion of others — Sons separately — Younger son — Adopted
son — Grandson and great grandson — Widow (in case of deceased
viii CONTENTS.
being a male) — Co-wife's son, and then husband (in case of deceased Page
being a female) — Daughter — Daughter's son — Uterine brother — Half-
brother — Brother's son — Father, mother, daughter-in-law, sister —
Sister's son — Father's brother, his son, and other sapindas — Samano-
dakas — Kinsmen of the same gotra — Maternal relatives — Father's
and mother's sister's son — Father's bandhus — Mother's bandhus — Dis-
ciple — Son-in-law — Friend — Any person taking the property (in case
of the deceased being a Brahmin) — Natural father of an adopted son
entitled to pinda - Rules for Sraddha of a deceased female — Initiatory
funeral rites obligatory — Intermediate ones optional — Final ones com-
pulsory on the inheritor of property — Final rites for a woman per-
formed only on the anniversary of her death — Rules for Mithila school
— In case of females — Bengal school — Rules for Bombay school taken
from Nirnaya Sindhu — Persons entitled to pindas according to Nimaya
Sindhu — Pindas ofEerable by females to certain specified persons only —
Libations of water offerable promiscuously by kinsmen — Persons enti-
tled to pindas have a right to libations — Remote ancestors entitled to
libations only — Rules regarding impurity determine proximity of kin-
ship — Effects of impurity — Importance of the rules — Gautama —
Suddhi Tatwa (Mithila school) — Sraddha ceremonies serve as a key to
the Hindu Law of Inheritance — Spiritual benefit the criterion of the
right of inheritance — The principle strictly true in the case of the
Bengal school ... ... ... .. ... ... 78
LECTURE IV.
Sources of Hindu Law.
Ascendency of Law — Sources of Law according to Manu : 1. Revelation,
2. Institutes of sages, 3. Usages — According to Yajnavalkya — Inten-
tion, test of legality — Divine Will, the origin of Law — Custom: its
validity — Revealed Law contained in the Vedas — Human Law in the
Codes of sages — Superiority of the former — The Vedas three in num-
ber, a fourth subsequently added — Sanhlta and Bralimana — Mantras
— Found in the Sanhitas of the Vedas, Rig-Veda — Yajurveda — Brah-
manas — Origin in Divine Will — Sanhitas and Brahmanas of the Rik-
Veda, Sama-Veda, Yajurveda, Black and White Yajus, Atharva Veda,
full of materials of historical interest — Descriptive of society in the
remote past — Rules of conduct sanctioned by revelation — Rig Veda
songs — Indicate advanced stage of civilization — Caste system unknown
in Vedic age — Ramifications of the Vedas — Sutras — Sruti — Smritis —
Served as memorla techniea — Aphoristic school — Cultivation of memory
— Sutras classified — Dharma Sutras, or Maxims of Law — Fountain
* source of the ancient Codes — History of Hindu jurisprudence — Neces-
sity for law not felt in the patriarchal age — Felt with the extension of
social relations — Civil Law not continuously treated of in the Mantras
and Brahmanas — Sutra schools — Charanas — Spiritual fraternities — •
Their number same as tliat of the Vedas — Decline of the influence of
CONTENTS. IX
the fraternities — The ceremonial branch of the aphorisms cnltiyated to
the neglect of the study of legal maxims — Establishment of Civil Go-
vernment — Social progress destructive of priestly ascendency — Buddha
— His teachings — Equality — Summtim- boniini of life — Effects of his
teachings — Rules of Inheritance the same with the Hindus and Buddhists
— Neglect of the study of ancient dharma sutras — Administration of
Law in different periods — Gautama — Law — Judiciary — Constitution
of judicial assembly — Decision of a single man learned in the Yedas —
Privileges of spiritual fraternities discontinued — Brahmanic influence
in the legislative and judicial assemblies — Apastamba — On the origin
of Law — Law created by social wants — Yasishtha — Decisions of emi-
nent lawyers — Mann, Yajnavalkya and Parasara — Yrihaspati— Law laid
down by Jurists — Chronological uncertainty of ancient Sanskrit works
— History of ancient civilization in India divisible into epochs — Possi-
bility of determining the relative ages of ancient lawgivers — Mantras
older than Brahmanas. which again are anterior to Sutras — Mantra
period — Sources of Hindu law: 1. Yeda ; 2. Smritis — Old law-givers
— Yajnavalkya's list — Padma Purana"s addition — Four principal
authorities — Text-books compiled from oral instruction — Institutes of
law classified — Relative ages of four principal law-givers — Gautama
first in order — Baudhayana on Penance and Expiation — Comparison
with Gautama — Yasishtha — His second-hand reproduction of Baudha-
yana"s aphorisms — Both Baudhayana and Yasishtha posterior in date to
Gautama — Similarity of Apastamba"s and Baudhayana's doctrine —
Occasional conflict of their opinions — Apastamba's attempt at over-
throw of Baudhayana's conservatism — Dr. Biihler on the chronological
precedence of the two sages — Apastamba's priority to Yasishtha —
Established by arguments — Their views as to dififerent kinds of sons —
Views of other legislators — Yehemence of Apastamba's language —
Yasishtha's advocacy of ancient institutions — Baudhayana on illegiti-
mate sens — Confuted by Apastamba — Conclusion — But supported by
Yasishtha — Apastamba's native place — Sutra works — Sages of the
aphoristic period — Internal evidence as to their priority to Mann —
Harita — Yuma — SanJika — Current edition of his work written in
prose not referable to Sutra period — Probability of the name of its
author being fictitious — Parasara — Books on ritual and expiation bear-
ing his name, are the metrical editions of the original — The period in
which he lived — Third class of legal treatises — Mann — Calculation of
the period in which he lived — Results of computation made by scholars —
Their mode of calculation not satisfactory — A similar attempt at fixing
the date of Narada — Manu older than Yajnavalkya. and Narada younger
than the latter — Metrical composition characteristic of this period — j
Manu of the ancient legislators not to be identified with the author of
the Institutes — Tradition as to three redactions of Manu examined —
Antiquity of Manu's Code — Narada's work a systematic treatise on law
— Weber on the posteriority of Taj navalkya's Code to Manu's — Chrono-
6
X CONTENTS.
logical sequence of Manu, Yajnavalkya, and Narada — Vishnu — Nature Page
of aphorisms — Vishnu-Smriti is not the metrical version of what are
called the Vishnu-Sutras : fallacy of the contrary proposition — Vishnu's
age subsequent to that of Manu and Yajnavalkya — His description of
social condition — ' Jangala ' — Vishnu's laws point to an advanced
state of society — Four later law-givers — Devala first in the order of
succession — Vrihaspati second — Katyayana — Vyasa — Not identical
with the famous author of the Mahabharata — He delivered his laws at
Benares — Summary ... ... ... ... ... 135
LECTURE V.
Pbikciples of Succession in the Middle Ages.
Knowledge of early forms of juridical ideas — Its importance — Determina-
tion of primitive social institutions of the Hindus not impracticable —
Progressive character of Hindu society — Stability of law — Social con-
dition of the Hindus in the Vedic times was not of a primitive character
— Reference to the rich and poor in the hymns — Laws of property — In-
heritance and contract — Difficulty of exactly determining the state of
law in the Vedic period — Due to absence of continuous treatises on law
— A formal Code of rules for social conduct unnecessary in the patriar-
chal age — Constitution of Hindu society in that age — Griliapati, ' or
pater f amilias ' — His authority supreme in the family — Elasticity of
family law — Political aspect of the family — Necessity for increasing
its members — Slaves — Adoption — Fictitious son — Sacredness of
matrimonial connection — Sons of women marrying a second time —
Rights of different classes of sons as recognized by the Vedas not the
same — Why was a son longed for in the primitive age — Religious as-
pect of the question in later times — Narada on the benefits of a son —
Immortality — Enjoyment of life — Salvation through son a later idea
— Benefits desirable from a son, grandson, and great grandson enumer-
ated — Patra — A sonless man is doomed to eternal torments — On
account of his failure to pay the debt due to his ancestors — Twelve
kinds of sons substituted for son of the body — Hints as to devolution
of property taken from the Veda — Primogeniture — Twelve-day sacri-
fice right of the first-born — Viswamitra's adoption of Sunahsepha aa
the eldest of his sons — Division of property in equal shares — Develop-
ment of the law coeval with the emancipation of the individual from
the family thraldom — Hostile doctrines in the Taittiriya-Sanhita and
the Brahmana — Possibility of their co-existence — Manu the first ex-
ponent of the doctrine of individual rights — Changes in the law of
division of property — Gautama — Baudhayana — Apastamba — Vasish-
tha — Manu — Narada — Vishnu — Vrihaspati — Katyayana — Struggle
between the rival doctrine of primogeniture and equal distribution of
property at last ended in the ascendency of the latter — Polygamy ; its
effect on the law of division — Exclusive right of the eldest son to
inherit the paternal property not favored by legislators since the time of
CONTENTS. XI
Gautama — His right to an additional share or to some special present Page
recognized in certain families by custom — But denied by Apastamba
and YajnaTalkya — Power to dispose of property by will — Testamen-
tary power not co-exbensive with that of making partition or disposition
inter rii-os — Principle of graduating social position of different kinds
of sons — Blood relations preferred to strangers — Sons classified into
'heirs' and ' kinsmen ' — Each including six different kinds — Enumera-
tion of various classes of sons by Harita and Vas'ishtha — The two
enumerations are not wholly in accord as regards order — ' Putrika-putra,'
or appointed daughter's son, explained — By Hemadri — In the Rig-Yeda
— Gautama places him in the category of kinsmen — Baudhayana
assigns his place next to the son born in wedlock — Harita and others
rank him as kinsman and heir capable of inheriting in default of
superior claimant — Appointed daughter's son and wife's illegitimate
son both discarded by Yrihaspati — Legitimacy the principle of classi-
fication with Gautama. Baudhayana, and Mann — Blood relationship
with Harita and others — Sons other than those born in wedlock are
now extinct — except the son given and the son made — Son given —
The practice of adoption a very ancient one — How it originated —
Adopted son how treated at first — Rules as to the class of persons from
which adoption is allowable — Adopted son's position in the list of sons
— Tabular view of the position of different kinds of sons according
to different legislators ... ... ... ... ... 206
LECTURE Yl.
Principles of Succession in the Middle Kg'e.^— {continued).
Principles of the law of succession on failure of sons — Gautama — Bau-
dhayana — Apastamba — Yas'ishtha — Sankha — Parasara — Manu —
Vriddha lilanu — Yajnavalkya — Yishnu — Yrihaspati — Katyayana —
Examination of Gautama's rule — Its want of precision accounted for —
Baudhayana"s rule more precise — By specifying the heirs — Grandsons
and great grandsons — Distinctly made mention of in consequence of
their helpless condition — Collaterals — Included in the genus Sapindas
— Rules of Apastamba and Yas'ishtha compared — Women ; thair claims
not recognized by these legislators — Exception in favor of an appointed
daughter — Gautama's caution against marrying a brotherless woman —
Baudhayana on the dependence of women — His view upheld by Yas'ish-
tha — Exclusion of women from inheritance — Due to their incompe-
tence to govern the family as its head — Widow, mother, and daughter
placed on the list of heirs by some legislators — With no practical result
— Widow mentioned with reservation by Gautama — Daughter — Men-
tioned by Apastamba in the sense of appointed daughter — Mother and
widow ; their rights first recognized by Sankha — Daughter ; her posi-
tion on the list of heirs assigned by Parasara — Mann's futile attempts
at harmonizing traditional laws with the state of things in his own
time — Illustrated by extracts from his work — HL- recognition of
Xll CONTENTS.
women's status — Daughter — Widow — Sister — Manu's principle of the Page
law of inheritance is wanting in perspicuity — Spiritual benefit — His
indecision has given rise to various schools of Hindu law — Yajnaval-
kya's enumeration of heirs — Nephew mentioned for the first time —
And Bandhus — Etymological sense of the term — Persons connected
together by ties of affection — Limitation of the term to agnatic kins-
men — By Vas'ishtha — Yajnavalkya restricts its meaning to blood
relations of the mother — He did not widen its sense to kinsmen related
through a female — His omission of the word Sapinda — Maternal rela-
tives reckoned among the heirs — Order of succession determined for
the first time — This was rendered necessary by the decay of commu-
nism — Which excluded widow and daughter from the inheritance of
joint property — The effect of which still lingers over the greater
portion of India — Daughter's son passed over by Yajnavalkya in his
enumeration of heirs — Though his rights have been acknowledged in
other places — Narada's rules of succession, in undivided families — In
divided families — His enumeration of heirs defective — His rules were
framed after older legislators without reference to the spirit of his
times — His position among the legislators explained — Vishnu — De-
veloped the scheme of Yajnavalkya's order of succession — On the
doctrine of spiritual benefit — He gave the daughter's son his present
place among the heirs, and excluded sons of tainted blood from inherit-
ance — Vrihaspati carried the development further than Vishnu — His
enumeration of heirs includes maternal kinsmen — He recognizes father's
rights — The doctrine of spiritual benefit upheld by him — His law of
succession as applicable to undivided families — Katyayana's rules the
same as those of Vrihaspati — But he has reluctantly admitted the
daughter's son as an heir — Summary — Equality of son's right —
Adopted son — Son made (Behar) ; wife's son (Orissa) — Heirs jper
repreacntatlonis — Son's son and son's grandson — They take i^er stirpes
— Widow — Daughter — Daughter's sons, when many in number they
take per capita — Father, mother — Brother — Brother's son — Paternal
and maternal kinsmen — Preceptor, pupil, fellow-student, and lastly
the king — Grandmother's position discussed — Theory of spiritual bene-
fit — In the medieval period of Hindu law — Performance of spiritual
rites obligatory on the nearest relations — Necessity for connecting
inheritance with j^inda — Doctrine made applicable to cases of disputed
succession — The doctrine is not a later innovation on the part of Bengal
Brahmins — But is traceable to medieval legislators ... ... 259
LECTURE VII.
The Modern Schools of Hindu Law.
Conflict of legal dogmas during middle ages — Gave rise to commentaries —
Infallibility of the sages — Considered as basis of the Hindu religion
Difficulty of reducing the doctrine to practice — Need of its solution
— AVithout any radical change or innovations against which public
CONTENTS. Xlll
opinion arrayed itself — Supplied by Medhatithis commeDtary on Manu Page
— Difficult points of Manu left untouched by him ; e.g., the real import
of the phrase ' nearest Sapinda ' — Medhatithis opinion on disputed
points held conclusive — His chronological age — Antecedent to that of
Vijnanesvara — The value of his commentary — His successors, com-
mentators of the eleventh century — Bisvarnpa — His voluminous work
condensed and methodized by his pupil Tijnanesvara — Dharesvara —
His supposed identity with Bhoja Raja — His doctrine refuted by Yis-
varnpa and Tijnanesvara — His age the same as that of Bhojadeva —
Middle of the eleventh century — Srikara — Origin of the different
schools of Hindu Law traced — Custom superseding written law —
Growth of independent States — An attempt at harmonising the written
with the unwriten laws — View of the subject by the Privy Cotmcil —
Expressed in its decision as to the widow's right to adopt — Remarks by
Sir H. S. Maine — Commentaries and digests practically form the source
of the ctirrent rides of law — English Lawyers' estimate of what these are
— Distinction between the various schools of law partly due to preference
for particular works — Erroneous view that the law of each school is
only to be found in the works excltisively belonging to it — Is the divi-
sion of Hindu law into schools a myth .' — The question answered in the
negative — Was Hindu law itself ever existent .' — Elpbinstone quoted
in support — Import of the term ' law ' as it governed different princi-
palities in India — Dr. Bnmeirs theory of the probable non-existence
of the schools of Hindu law controverted — The English word • school '
has its counterpart in the original Sanskrit works — ' Sampradaya " —
Resemblance between the laws of different schools — Which are all
based upon the same general principles — Variations how effected —
Integral character of Hindu law — Relation between the approved
treatises on law of different schools — How is it possible to dive into
the ftrndamental principles — How to study the subject ... ... 318
LECTURE Till.
MoDERX Text-Writers.
Comparative ages of the approved commentators and digest makers. Madha-
vacharya — Bom early in the fourteenth century — Tijnanesvara —
His own account of himself — Facts deducible therefrom — His native
place Kalyana, capital of the Chalukyas in the Deccan — Chalu-
kyas — Mitakshara written towards the close of the eleventh century —
Corroboration by modern researches — Elliot's examination of the ins-
criptions of the Chalnkya kings — In keeping with Bilhana's account —
The two Yikramas — Mitakshara written during the reign of Tikrama
II — Conclusively proved by the mention of Dharesvara's name in it —
Three other Yikramas mentioned in the inscriptions — None of whom
can be identified with Yijnanesvara's prince of the same name — Argu-
ments in support of this view — Ajjurarka — Account given by himself
XIV CONTENTS.
— A member of ^the Silahara tribe — The Silaharas — Ramified into two Page
families — Their relation with the Chalukyas — Omission of the name of
each from other's work accounted for — Internal evidence as to
Apararka's posteriority — Positive proof — His work published in the
first half of the twelfth century — Devananda Bhatta, author of Smriti
Chandrika — Opinion that he flourished during the existence of Vidy-
anagara dominion controverted — His date the middle of the 12th
century — Bisvesvara Bhatta — His work Parijata composed towards the
close of the 12th century — Colebrooke's erroneous computation of date
— Lakshmidhara, author of Kalpataru — Pratapa lludra. author of
Saraswati Vilasa — Chandesvara, author of Vivada Eatnakara, contem-
porary of Pratapa Rudra — Flourished at the beginning of the 14th
century — Facts in proof cited — Lakshmi Devi — Composed her work
Vivada Cbandra towards the close of the 14th century — Vachaspati
Misra — Wrote Vivada Chintamani about the beginning of the loth
century — Jimutavahana, author of Dayabhaga — His age assigned to
the beginning of the loth century — Raghunnndana, beginning of the
IGth century — 31itra, Misra, about tbe end of the Ifith century —
JVanda Pandita, author of the Dattaka Mimansa, A.C. 1633 — Balam
^/ta?;^*, middle of the 17th century — Kamalahara, author of Nirnaya
Sindhu, 1G12 A.C. — Nilahantha, author of Vyavahara Mayukha, 17th
century — Srikrishna Tarkalankara, early period of the 18th century —
Summary ... ... ... ... ... ... 361
LECTURE IX.
Development of the Principles op Succession from the Eleventh
TO the Fifteenth Century.
Doctrines of Succession in different schools — Mitahsliara — Right by birth
— Concurrent rights of father and son in ancestral property — Son —
Wife — Daughters — Daughter's son — Two parents : 1st mother, then
father — Brothers — Brothers' sons — Gentiles — Cognates — Preceptor,
pupil, fellow-student, a priest, king-- Effect of reunion with a parcener
— Four canons regarding the rights of parceners — Apararlia's
tabulation of heirs — Sons — Grandsons — Widow — Brother — Excluded
by parents if the property be ancestral — Vcdic theory of exclusion of
women interpreted — Daughter — Parents: 1st father, then mother;
brothers, their sons — Gotrajas — Bandhus — Katyayana's dictum as to
father's right in default of male issue — Mother's right according to
Vrihaspati — Vrihaspati's enumeration of heirs after daughter's son —
Duties of the heir as enjoined in Smriti — Stwiti Cliandriha on heirs —
Shares of male descendants determined ^jc?" stirpes — Adopted son alone
recognized in Kali age, as a substitute for son begotten — Appointment
of a daughter prohibited in the Kali age — Share of the adopted son,
when a son of the body is afterwards born — Widow — Daughters —
Barren daughters excluded — Daughter's son — Parents — Grandmother
CONTENTS. XV
— Uterine brother — Half-brother — Brothers' sons — Got raja — Gotraja Page
excludes father, brother, and his son, also the danghter of the grand-
father and the like females — Females excluded from inheritance
according to Sruti — Their enumeration and order of succession —
Bandhus — Succession in default of them — Parijata's enumeration of
heirs, rrhen a person separated from his co-heirs dies, Tearing no male issue
— Wife — Daughters — Daughter's son — Parents : 1st mother, then
father — Brethren — Brother's son — Gentiles — Cognates — Preceptor
or pupil — Fellow-student — Venerable priests — A Brahmin of the
neighbourhood — The property of a Brahmin does not escheat to the
king — Iktate of a Kshetriya or of one belonging to an inferior tribe
passes to the king to the exclusion of Brahmins — Yirada Ratnakara :
principles of succession founded on spiritual benefit — The rule of in-
heritance when the deceased leaves no male issue — Claims of the widow
considered — Daughter — Mother — Relative claims of the father, mother,
and brother discussed — Sakulya, or distant kinsman — Preference given
to mother — Brothers — Nearest kinsmen, or sapinda3 — Escheat —
Madharacharya's catalogue of heirs — Different classes of sons — Rule
when no son exists — Daughters ; daughter's son — Parents : 1st mother,
then father ; brothers ; brother's son — Paternal grandmother — Pater-
nal grandfather, pateral uncles and their sons — Great grandfather, his
Bons and grandsons — Gotrajas to the seventh degree — Samanodakas —
Bhandhavas — Teacher, pupU. and Brahmins — Rights of women to
inheritance considered — The claim of different kinds of brothers dis-
cussed — Vivada Chintaviani on succession, when the deceased leaves no
male descendant — Chaste wife — Daughters : 1st maiden, then married ;
mother, father, daughter's son, brother, brother's son. sapindas, sagotra,
bandhus, king — Succession in case of reunion — The daughters and the
father entitled to maintenance — relative claims of brothers of various
kinds — Dayahhaga on Inheritance — Rules based on spiritual benefit —
Equality of son's, grandson's, and great grandson's right — When the
two latter are not excluded by their father — Distribution between a
son and grandson by another son who is dead — Right of the son bom
after partition — Widow : her right not affected by her husband's
reunion with his co-heirs — Her right not absolute, but limited to simple
enjoyment — Her right of mortgage or alienation, when she cannot
maintain herself otherwise — Daughter : 1st maiden danghter. then one
who has, or is Hkely to have, male issue — Barren and widowed sonless
daughter excluded — Daughter's son — Father — Mother — Stepmother
excluded — Brothers — First brother of the whole blood, then half-
brother — Equal right of associated half-brother and unassociated uterine
brother — Nephews — The nephew excludes the paternal uncle — The
nearer line excludes the more remote — Paternal uncle excludes brother's
grandson — Sister's son — Grandfather's and great grandfather's lineal
descendants — Maternal kindred — Sakulya, or distant kinsman : allied
by divided oblation - Samanodakas — Strangers ... ... 417
XVI CONTENTS.
LECTURE X.
Development op the Principles of Inheritance from the Sixteenth
TO the Eigthteenth Century.
llagluinandana' s order of succession — Lineal descendants to the third degree
— Widow — Maiden daughter ; married daughter ; daughter's son —
Father — Mother — Brothers — Brother's son — Gotrajas — Bandhus —
Sakulyas — Mltra 31isra on inheritance — Son, grandson, great grandson
— Widow — Daughter — Daughter's son — Mother — Father — Brother
— Brother's sons — Gotrajas, i.e., Sajjindas and samatiodaJuis — Bandhus
— Female gotrajas not recognized — Preference among rival claimants
determined by the degree of spiritual benefit — Nanda Pandita — Son,
grandson, and great grandson — Widow — Widowed daughter-in-law —
Daughters having a son, or likely to have a son — Daughter's son —
Father — Mother — Grandmother — Brothers and sisters — Stepmothers
— Brother's and sister's sons — Division among them made according to
their number — Sapindas : first, father's kindred, then mother's kindred
— Sakulyas — Salani Bliatta on heirs : son, grandson, and great grand-
son — Widow (if her husband died separated from his co-parceners) —
Daughters, maiden preferred to married. Indigent married daughter^
preferred to rich — Daughter's son, daughter's daughter — Father —
Mother — Stepmother — Brothers, sisters : brother's son, sister's son,
sister's daughter — Brother's sons inherit ^Jcr ca]7ita — Gotrajas: Isfc
grandfather, then grandmother — Predeceased son's widow — The term
gotraja includes male and female — Bandhus — Rule of propinquity,
key to the order of succession among gotrajas and bandhus — Right
of inheritance not co-extensive with competence to offer funeral
oblations — Illustration — Nilaliantlia, on inheritance — Son's ownership
due to birth — Equal distribution among sons — Division among grand-
sons made per stirpes — Right of son's great grandson. All secondary
sons except the adopted not recognized in the Kail arje — Widow —
Daughter : maiden excludes the married. Indigent married excludes
wealthy — Daughter's son — Father — Mother — Uterine brother, his
son — Gentile relations : first, paternal grandmother — Sister — Paternal
grandfather and half-brother — Sapindas and samanodakas — Bandhus,
divisible into three classes — Stranger — Dayah-ama Sanr/raha's list
of heirs. Legitimate sons — Grandson, great grandson. These different
classes of heirs may inherit simultaneously — Widow ; her right limited
to simple enjoyment — She may, however, alienate under extreme
necessity — Maiden daughter — Daughter having or likely to have male
issue — Barren and sonless widowed daughters excluded — Daughter's
son — Father — Mother — Uterine brother — Half-brother — Associated
half-brother and unassociated uterine brother share equally — Brother's
son of the whole blood — Preference given to the associated — Brother's
grandson — Father's daughter's son — Brother's daughter's son — Pater-
nal grandfather — Grandmother — Uncle — Uncle's son — Uncle's grand-
CONTESTS. XVlI
• 8on — Grandfather's daugLter's son — TTncle's daughter's son — .Pater- Page
nal great grandfather, great grandmother — Grandfather's brother, his
son, and grandson — Great grandfather's daughter's son — Grandfather's
brother's daughter's son — Maternal relations — Sakulya or remote kin-
dred, descending and ascending — Samanodakas — Strangers — Jagan-
natka on Inheritance — Right co-ordinate with the gift of funeral cakes
— Four persons related through funeral oblations — Sons — Two classes
now recognized, riz., begotten and adopted — Right of succession extends
to the great grandson — The nearer excludes the more remote — Excep-
tions to the rule — When the widow's right accrues — Succession of
daughter — Priority of the maiden to the married — Benefits conferred,
by means of funeral cakes not the sole ground of succession — Daugh-
ter's son — Brother — Xephew — Other near kinsmen — Nearness equal
to proximity by birth and funeral cake — Succession of maternal kin-
dred — Remote kinsmen — BaKdhus ... ... ... ... 471
LECTURE XI.
The Succession of an Adopted Son.
Changes in mediaeval law — Twelve classes of sons. Jlitakshara on their
rights — Apararka : the adopted son recognized as substitute for the son
of the body in the Kali age — Smriti Chandrika — Appointment of a
daughter to raise up a son prohibited — Dattaka Chandrika — Madhara
— Visvesvara Bhatta — Vivada Chintamani — Dayabhaga — Dattaka
Mimansa — Nirnaya Sindhu — Dharma Sindhu — Colebrooke's Digest —
' Practice of affiliating subsidiary sons (except the adopted) has become
obsolete, though countenanced by the leading authorities — Affiliation of
daughters not in vogue — Authorities on questions of adoption — Rights
of subsidiary sons discussed by authors to show the nature of the practice
of affiliation in ancient times — The practice, if existent anywhere in the
present time, viewed in the light of special custom — Privy Council's qncere
as to the rights of an appointed daughter's son answered in the negative
— Mitra Misra on the rights of subsidiary sons — Legitimate sons of the
body and sons given are the only descriptions of sons recognized in
modern times — ' Sons given ' includes kritrima son, or ' son made ' —
Kritrina adoption valid in the districts governed by Battalia Mimansa
and Vyavahara itadhava — Kritrima adoption chiefly prevalent in
Mithila ; also occasionally practised in Behar and Benares — Form of
kritrima adoption — Xon-observances of religious ceremonies — Status
of the kritrima SOB. — Wife's son by an appointed brother or kinsman
not recognized — Wife's son — Son of a remarried woman — Sons
bought — Practice of admitting pupils on payment of price as prevalent
among the ascetics is not adoption by purchase — Adoption in two forms
only legalized, dattaka and kritrima — Bwyamugfiifoyana, or son of two
fathers; his status in two families — Validity of the adoption of an
only sou as dityamiiihyayana — Law regarding drryavntshyayana form
c
XVllI CONTENTS.
of adoption practically unimportant — This kind of adoption is a Page
branch of the dattaka form — Adopted aon stands in the place of a son
born — His rights when a legitimate son is afterwards born — " One-
fourth share" — Different interpretations of the phrase — Interpreta-
tion by the Bengal Courts : one-fourth of the entire estate of the late
owner — Questioned by the Madras and Bombay Courts — Their inter-
pretation : one-fourth of the share of the legitimate son, i. e., one-fifth
of the entire estate — Nanda Pandita's view : one-fourth of what he (the
adopted son; would be entitled to were he a legitimate son — In the
Bengal School his share one-third of the entire estate — Hia share as
recognized by different schools concisely shown in algebraic symbols —
He is an heir of the sapinda kinsmen of his adoptive father — Position
of the dattaka son in the classification of sons by ancient lawgivers —
His right of succession both lineally and collaterally — His right of colla-
teral succession settled by decided cases— Tara Mohun v. Kripaviayi —
Padmaliumari v. Jugathhliore — Uitia Sankar Maitra v. Kalikaimil
Mazumdar ... ... ... ... ... ... ... 511
LECTURE XII.
Principles of Succession under the Mitakshaka Law,
Mitakshara on lineal succession — Sons : equal distribution of property
among them — Per cajnta — Grandsons : distribution pc7' stirpes —
Great grandson — His rights founded on two texts — Two texts of
Yajnavalkya containing the whole Hindu law of inheritance — They
determine the different classes of heirs — Ten in number — His enu-
meration not exhaustive, but illustrative — Number and priority deter-
mined by commentators and text- writers — Benares School — Consan-
guinity — Propinquity — Sir William Jones's translation of Manu's
text (ix, 187) on inheritance not literal — A new translation proposed
— The deceased and his heir must be sapindas oi each other — Appli-
cation of the rule to sisters' son and grandson — Two principles derived
from Mann's text determining the heirs and the priority among them —
Principle of propinquity applicable in determining order of succession
among kinsmen who are not sapindas — Texts cited from Mitakshara —
Conclusions from them — Meaning of the term ' propinquity ' — Nearnesa
of blood — Ascertained by the number of corporal particles — " Nearest
degree of kindred to the deceased " — Criterion of propinquity — Not
clearly indicated in the Mitakshara — But ascertainable from Viramitro-
daya's exposition — Propinquity through benefit — Conferred by the pre-
sentation of pindas at the parvana s'raddha — Connection between spiri-
tual benefit and propinquity — Title to offer pindas not co-extensive with
title to inheritance — It is simply a guide — Viramitrodaya's exposition
accepted by the Privy Council — Propinquity founded on superior efficacy
of oblations settles the precedence among rival claimants — When the
heirs are known, the same principle determines the order of their succes-
sion — Hindu law of succession so difficult to unravel on account of its
CONTENTS. XIX
lAtimatie connection with religion — Principle on which Hindu law is Page
administered by the British Courts in India — List of heirs given in
standard works not exhaustive — The general principles they have laid
down applicable to each case according to its particular circumstances —
Hindu law of succession in course of development — It contains within
itself the principles of its own exposition — Gotrajax. or gentiles, ex-
clude the bandhiu, or cognates — This rule has been upheld by decided
cases — Who are gotrajag — Those that are connected by birth and
family name — Kinsmen on the paternal side related by blood, or
descendants from the same stock — Gentiles classified into sapindai and
tamanfldakai — Paternal grandmother, the first gotraja — Sapindas —
According to Vijnanesvara. they include seven generations — They are
blood relations — Yajnavalkya's texts — Forming the subject of com-
ments in the Mitakshara — Etymological sense of sttpinda — Relation-
ship through connection of the parts of the same body — The rule of
obitual impurity among sapindas does not extend to the maternal family
— Various meanings of the term iapitida — Definition already given too
wide — Limitation to a certain fixed number — Enumeration made until
the seventh degree — How a girl's relationship with a given person is
reckoned — Summary of Vijnanesvara "s views as to sapinda-relation-
ship — Remarks made by Visvesvara Bhatta — Nilkantha — The t«rm
sapinda includes blood-relations within seven degrees of ascent and
descent on the paternal side — The relationship does not rest on different
basis for the purposes of inheritance and performance of ceremonies —
Conclusion as to Vijnanesvara's meaning of sapinda — Medhatithi on
sapindas — Seven generations of the same family — Sapinda-relation-
ehip ends with the seventh degree — Medhatithi's theory departed from
by the author of the Mitakshara — Compromise between their systems
effected by the followers of the Mitakshara — Smriti Chandrika — Nanda
Pandita — Kamalakara — Dharma Sindhu, the latest work of the Benares
School — Definition of sapinda forms the hinge on which turns the law of
inheritance — Mitakshara's definition of daya, or heritage — Inheritance
by reason of relation to the owner — Order of succession regulated by
propinquity — Inchoate rights — Visvesvara Bhatta on heritage — Balam
Bhatta — Persons falling within the range of sapinda-relationship —
Tabular sketch — Explanations — Descendants — Ascendants — Collate-
rals — Degrees of relationship how ascertained between collaterals —
Sagotra sapindas — Mode of computing degrees of relationship among
bandhns — Mother's line — Denotation of the term bandkn — All kins-
men related through females ... ... ... __ 553
LECTrRE XIIL
Order of Successiox under the Mitakshara Law.
T. Gotrajas.
Gotraja sapindas : order of succession among them according to the Mitak-
shara — Vijnanesvara's text embodying the essence of the law — His
XX CONTENTS.
euumeration not exhaustive, but illustrative — Priuciple of propin- Page
quity — Propiuquous sapiudas of the deceased — Enunciation of the
principle according to which preferable right is determined — Calcula-
tion of benefit from oblations — Sapindas in the father's line — In the
grandfather's line — In the great grandfather's line — Nearer line
excludes the remoter — Omission by Apararka of parents and other
ancestors accounted for — Remote descendants postponed to the pro-
piuquous sapindas in the ascending line — Rule as to different classes
of heirs among the sapindas succinctly stated — Heirs in the lines of
4th, 5th, and 6th ancestors — Fourteen classes of sapinda heirs in all —
Do they include widow, daughter, and daughter's son ? — Graphic view
of the Order of Succession among them — Female gotraja sapindas not
entitled to inheritance excepting such as are specifically mentioned in
the Mitakshara — Two classes of gotraja females: 1. Daughters of
gotrajas, whether married or unmarried, excluded from succession
according to the Bombay Digest — Also according to the Maharashtra
School, which, however, excepts the sister — Sister in the Maharashtra
School — Balam Bhatta's exception in favor of daughter's daughter,
&c. — Nanda Pandita's exceptions in favor of daughter of the father and
other ancestors — The wives and widows of male gotraja-sapindas —
Excluded from succession according to the Viramitrodaya — Full Bench
Ruling of the Calcutta High Court denying the step-grandmother's right
to succeed — Mitakshara law as accepted in Bengal does not recognize
the title of the second class of gotraja females — Gauri Salial v. RiMio —
In Western India their rights co-extensive with their husbands —
Lalliibhai Baimhlial v. 31an-havarhai — Privy Council Ruling on the
above case — Samanodakas succeed in default of gotraja-sapiudas, i.e.,
persons bearing the same family name with the deceased and descended
from common progenitor — Principle of the order of succession among
them the same as among the sapindas ... ... ... 639
II. Bamllms.
Bandhus succeed on failure of gotraja-spindas — They are the cognate
sapindas, or sapinda relations through a female — Test of reciprocal
sapindaship — Illustration — Mitakshara's list of bandhus not exhaus-
tive — Three descriptions of bandhus: 1, The deceased's own ; 2, his
father's; 3, and his mother's — Illustration by a genealogical tree —
Heritable right determined by the criterion of reciprocal sapindaship —
The doctrine applicable to bandhus — Hypothetical case of a sapinda
not being an heir — Bandhu is a cognate sapinda within four degrees —
Construction of synoptic tables — The tables explained and illus-
trated — Table I («) : cognate sapindas ex parte paterna — Five classes
of bandhus in the descending line — There are seven such persons :
1, Daughter's son; 2, Daughter's son's son; 3, Son's daughter's son ;
4, Son's daughter's grandson ; 5, Grandson's daughter's son ; 6, Daugh-
ter's daughter's son ; 7, Son of the daughter of the sou's daughter —
No others are bandhus with rights of inheritance in the descending
CONTENTS. XXI
line — Seven heritable bandhus in the lines of each of the four imme- Page
diate ancestors — Four parallel ascending lines — In the ascending and
descending lines the bandhus are altogether thirty-five in number —
Succession among them regulated by the law of propinquity — Illustra-
tions of the principle — Law of gradation of three classes of bandhus
for heritable purposes ; (1) one's own bandhus, (2) his father's, (3) and
his mother's, arranged in order of preference — Elucidation of the law
with examples — Tables I (b) : cognate sapindas ex parte viaterna
arranged in three parallel lines — Their order of succession slightly
different from that of the previous class, though based on the spiritual
principle — The way in which it is fixed — Tables II and III : father's
and mother's bandhus — Two parallel Unes — Order of succession the
same as in Table I (J), or as among bandhus ex parte materna — In
expansion of the Mitakshara's list which enumerated only nine — Effect
of judicial decisions and the law of progress and evolution — Can a
brother's daughter's son succeed under the Mitakshara law — Doorga
£'ibee v. Janaki Prasad, Giridharl Lai Roy v. The Gorernment of
Sengal, Umrita Kumari Debi\. Lalihi Narayan — Sister's daughter's
Bon — Uined Bahadur v. Udoi Chand — Sister's son in competition with
mother's sister's son — Ganes Chunder Roy v. NUkomul Roy — Mayne
on succession among bandhus according to the Mitakshara law — Affi-
nity determines the right, and propinquity the order of succession —
Male line preferred to the female — Father's paternal aunt's son
preferred to mother's brother's or her sister's son — So is also mother's
paternal aunt's son — Father's maternal aunts son and his maternal
uncle's son exclude the same relations of the mother — Why are father's
and mother's paternal atint's son placed in the second and third series
of heirs, their natural place being in the first .' — West and Biihler on
the succession of bandhus — Their conclusion erroneous — Reason of
the law a safer guide than the letter ... ... ... ... 687
111. The Principle of Snrtitorship.
Doctrine of survivorship enunciated by the Privy Council — Applicable to
the joint property of an undivided family — But not to separate pro-
perty — Sadabart Prasad v. Foelba^h Koer — Devolution of separate
and joint property — i?<y'a Ram Xarain v. Perttim Singh — Widow
excluded by surviving members of the family — Bebi Pershad v. Tliahur
Dyal — Predeceased brother's son succeeds along with surviving bro-
thers by right of representation — Bhimul Bass v. Choonee Lull — Yiew
of the Madras High Court — Conclusions — Heirs bv descent — By
survivorship — When there has been a partition — Mistaken notions
regarding survivorship — The survivors take per stirpes — Professor
Groldstiicker's view of the Privy Council judgment — Its incorrectness
proved by authorities cited — Dharma Sindhu — Dayabhaga — Mitak-
shara — Madana Parijata — Viramitrodaya — Principle of survivorship
a relic of the past ... ... ... ... ... 735
XX 11 CONTENTS.
LECTURE XIV.
PuiNciPLEs OF Succession under the Dayabhaga Law.
I.
Dayabliaga — Its principle of inheritance : spiritual benefit — Manu's dictum
as to ' nearness of kin ' interpreted by the author of Dayabhaga —
Criterion of the superiority of benefits derivable from oblations — Three
modes of conferring' benefits on the deceased — Competency to perform
exequial rites key to the rule of inheritance — Preferential right of
the performer oi 2?a)'vana rites — Persons competent to per£ovm. jJni'vaiia
s'radkha — Relative value of their offerings — Presentations by the
agnate superior to those by the cognate descendants — The doctrine of
participation — Participation in offerings to the common ancestor —
Preferable right of father's descendants over grandfather's — Nephew's
claim prior to uncle's — Brother's grandson excludes paternal uncle —
Recapitulation — Rule of proximity of kinship to the proprietor —
Illustrations — Sapinda — Baudhayana's definition : partaker of un-
divided oblation — Sapiuda- relationship extends to seven generations —
Two requisites of the relationship — Illustration of the rule as regards
son — Grandson — Great grandson — Daughter's, sou's daughter's, and
the grandson's daughter's son do not come under the above definition —
Father — Brother — Uncle — Grand-uncle's grandson — Summary —
Baudhayana's definition, though elaborate, is incomplete — It does not
include kinsmen related through females — Jimutavahana's definition —
Persons allied by a common oblation, without reference to the stocks
to which they belong — Connection by funeral offerings the only requi-
site — Cognate and agnate sapindaships; their distinctive marks —
Genealogical scheme of sapindas — In the father's line — In the
mother's line — ' Agnates ' higher than ' cognates ' — Summary — Cal-
cutta High Court's definition of sapinda-velntion — Limited to the
aagotraa — Definition including the sagotras and bhlmiagotras — Daya-
bhaga's list of heirs not exhaustive — Specific mention of daughter's
son, father's, grandfather's, and great grandfather's daughter's son aa
cognate kinsmen — Three more heirs named in the Dayakrama San-
graha — Brother's daughter's son — Uncle's daughter's son — Grand-
father's brother's daughter's son — Jagannatha's extension of the list
of heirs — Enumeration of cognate sapindas — Order of their succes-
sion — As propounded in the Dayabhaga — By Vijnanesvara and his
followers — Claims of daughter's son as heir first recognized by Jimuta-
vahana — Why do not the cognate sapindas of father, grandfather,
and great grandfather inherit after the agnate descendants — Agnate
and cognate sapindas of a nearer line exclude the sapindas of a remoter
line — Illustrations — Extracts from the Dayabhaga — In support of
the heritable rights of cognate sapindas — In preference to an agnate
sapinda of a remoter line — Sister's son — Grandfather's .and great
grandfather's daughter's sou — They inherit in the relative order of the
CONTENTS. XX in
funeral oblations — According to Manu the agnate and cognate descend- Page
aats are on the same footing — The order of their succession being
determined by the following rule — Offerer of oblation to a near ances-
tor is preferred to one presenting the same to a remote ancestor —
Daughter's son: sense of the term as used in the Dajabhaga — ''Sons
of the daughters of the family " — Omission of certain cognate kinsmen
as heirs in the Dayabhaga how accounted for — Their i)osition — Not
precisely stated in the Dayabhaga — Have they been excluded by
Jimutavahana from their appropriate places — The question answered
in the negative — Son of son's daughter, and son of grandson's daughter,
Buccessi vely come in as heirs after the daughter's son — Though not
mentioned by Jimutavahana — Order of cognate sapindas as given in
the Dayabhaga examined by the Calcutta High Court — Jn Govlnd
Prasad v. Mahesh Chnnder — Paternal grandfather's great grandsons
preferred to brother's daughter's son — In Guru Govind Saha v. Anund
xjuI Ghose — Four propositions laid down — High Court "s decision in
the former case commented on as incorrect — Disputed questions as to
the preferential claim of two or more competitors, e.g.. between nephew
and uncle ; or between father's and daughter's son — Resolved by the
degree of benefit conferred by piudas — Nearer cognate kinsmen pre-
ferred to remote agnate — Piudas divided into three classes : 1 . direct ;
2, participated ; 3, obligatory — The classification made in order of
merit — Value of the piudas offered by rival claimants, whe*:her agnat«
or cognate kinsmen, determines their right of succession — Recapitu-
lation — Sapinda heirs arranged in seven groups ... ... 758
LECTURE XV.
Principles op Succession undeb the Dayabhaga Law. — (continued.)
II.
Wbo inherits in default of sapindas ? — Passages quoted in answer — Sum-
marized by Srikrishna Tarkalankara — Sakulyas — Subdivided into two
classes — Propinquons, or connected through divided oblations — The last
term includes in its sweep •■descendants of the daughters of the same
family," — e.g.., daughter's son's son — Order of succession among the
samanodakag governed by the same principle as succession among the
gapitidas — Principles of consanguinity and competency to perform exe-
quial rites determine the right of inheritance — Are the cognates post-
poned to all the agnates ? — Does the Mitakshara determine heirs solely
by the test of propinquity ? — Mr. Mayne's treatment of the question —
' Any benefit ' is a sufficient foundation of the title to inherit — Spiritual
principles applicable to the Benares school — Illustrated by example —
Points of agreement and difference between the Bengal and Benares
Schools noted en passant — Daughter's son ; his case exceptional —
Priority of mother's claim over that of father accounted for — I. Phi-
lologically — 2. Sentimentally — 3. Physiologically — Not on religious
XXIV CONTENTS.
ground — Bandhus take their place as heirs after the agnates are exhaust- Page
ed (Mitakshara) — Father's cognate kindred on his mother's side ; their
rights founded not only on affinity, but also on their competency to
perform sraddha rites — Sacrificial offering a mere evidence of right —
Intimate connection between the inheritor of property and the per-
former of sacrifices — Preference of right determined by the sacrificial
test — Affinity the sole basis of inheritance in Bengal and Benares
Schools — Religious test applicable to both schools in settling rival
claims — Difference between the two schools consists in the interpreta-
tion of a religious dictum anent the comparative efficacy of oblations
offered by the agnate and cognate kinsmen — Doctrine of religious
efficacy accepted by the lawyers of the Benares School — Viramitrodaya ;
authority of its exposition on doubtful points ... ... ... 825
LECTURE XVI.
Law of Succession in a Divided Family.
Law of Succession in a divided family — Son, grandson, and great grand-
gon — Right of representation extends to the grandson — Primogeni-
ture — Neelkisto Deb v. Bcerchunder Thakoor — Sons separated excluded
by those not separated — In the Mitakshara School, son's right in the
ancestral real property runs xjari j)assu with the father's — Diversity of
opinion as to his rights in ancestral personal property as well as in the
self-acquired estate of his father — Accrual of right by birth — Law of
the Dayabhaga distinguished from that of the Mitakshara — According
to the former the son has no interest in the ancestral property as long
as his father lives — Opinion of the late Sudder Court quoted — The
existence of a son does not affect the father's absolute right over a
property, whether inherited or self-acquired — Law laid down by the
Privy Council as to a successor being " the heir of the last full owner " —
Rio-ht of male heirs absolute, that of female heirs qualified — Succession
not traced from female heirs, they not being full owners — Doctrine of
non-abeyance — When does abeyance take place and to what extent ? —
Law as to devolution when the succession vests in a female — Illustrated
in the case of sister's sons born either before or after the maternal
uncle's death, and in that of a grandson bom after the death of his
maternal uncle but during his grandfather's lifetime — Widow : her
legal rights — Life-interest — Power of alienation limited, and exer-
cisable under certain necessities — Widow's inheritance does not consti-
tute her stridhan ox iiecnlmm — On her death the inheritance passes
to her husband's heir living at the time — Widow's rights according
to Dayabhaga — Defined by the Privy Council — Residence with her
deceased husband's relations not compulsory — Absolute possession, and
restricted power of alienation of the property left by him — Whether
real or personal — Mithila Law — Absolute dominion over moveable
property, which can be alienated by the widow at her pleasure — Her
interest in the landed property is limited — Chastity a condition pre-
CONTENTS. XXV
cedent to widow's right to inherit — Does incontinence on the pari; of
the widow after inheriting an estate entail forf eitum of the same ? —
Question answered in the negative by the Calcutta ^gh Court; — The
decision upheld by the Privy Council, whose judgment is quoted at
length — Unchastity disqualifies all female heirs from succession —
Yajnavalkya and his great commentator quoted in proof of the exist-
ence of the positive rule that incontinence in a woman deprives her
of her legal rights — Daughters ; their classification — In all the schools
of Hindu law the unmarried daughters supersede the married — In
Bengal, daughters of a certain description excluded from inheritance —
Property inherited by an unmarried daughter devolves at her death on
her issue, to the exclusion of her married sister and their male issue —
The rule is not of exceptional character — In Bombay, a daughter's
inheritance is looked upon as her stridhan — Under the Mitakshara law,
property inherited by an unmarried daughter passes to her sister,
although the former leaves a son surviving her — In the Benares School,
the disputed claim betwoen the married daughters is settled by the
criterion of relative poverty — Xo such rule in the Mithila School —
Law of the Dravira School — Barren daughters disinherited — Daugh-
ter's interest extends for life only — She is her father's heir, but not her
mother's — Her legal position not better than that of the widow — Xon-
cesser of the vested right — Survivorship — Daughter's son — ' Per
capita ' rule — Recognition as heir by Mithila Law — Parents — Bro-
thers — Piecedence determined by the criteria of whole blood and
association — Srikrishna's summary of the rule — Full Bench Ruling
of the Calcutta High Court — Sisters recognized as heirs in Bombay —
Nephews — Precedence determined by the rule of blood with reference
to the fathers and by that of union with reference to themselves — They
take per capita — Mitakshara on the right of a brother's son, his
father having predeceased his uncles — Brother's grandson — Strangers
— Law as to escheat laid down by the Privy Council — Legal heirs fail-
ing, the Crown takes the property subject to trusts, &c., if any — Heirs
to property left by ascetics — " Associate in hoUness " — Interpretation
of the phrase by the Calcutta High Court — One living in fellowship
and personal association — Bairagis not divested of civil rights as such —
Succession to their property regulated by ordinary rules — Illegitimate
sons, their rights — Maintenance when they belong to the three regen-
erate castes — Mitakshara on their rights to succession when they belong
to the Sudra caste — Expounded by the Bombay High Court — Son of a
concubine considered as the son of a female slave — Allahabad High
Court's view of the same — Bengal High Court lays down no sweeping
rule — Certain descriptions of illegitimate sons entitled to inherit in
the absence of legitimate issue — The Dayabhaga law on the point is
based on Manu's text — Knlluka Bhatta's commentary thereon — Jagan-
natha Bhatta — Dattaka Mimansa's explanation of the term ' dasi ' —
Distinction between a concubine and a female slave — Among the
d
XXVI CONTENTS.
Sudras the ouly illegitimate sons entitled to inherit are those born of a Page
female slave, or ^ a slave's female slave — Their status affected by Act
V of 1843 — Shares of the illegitimate children when they are entitled
to inherit — They cannot succeed to the property left by their putative
father's collaterals — The reason of this rule is not obvious — Illegiti-
mate son of one of the mixed classes — Status of children begotten by
an Englishman on a Brahmin woman — Maina Bai v. Uttaram — Re-
union, its legal import — Between what persons it can be effected — Order
of succession among reunited coparceners according to the Mitakshara
— Different from that laid down in the Viramitrodaya — Rule applicable
to all the schools of law — Exclusion from inheritance — Blindness —
Lameness, &c. — Insanity, idiocy — Incurable disease — Elephantiasis,
&c. — Loss of caste — Disqualified females excluded — Legitimate issue,
if free from disqualifications, inherit — But not adopted sons — An
after-born son — Removal of disqualifying defects — Custom ... ... 879
ERRATA.
Page 46, line 21, for 'remot,' read 'remote.'
M 217,
308,
356,
383,
394,
458,
557,
696,
699,
703,
779,
784,
805,
805,
943,
„ 22,
„ 16,
» 9,
„ 27,
„ 11,
â– note,
'or,'
' f alure,'
' his,'
' so far,'
' cottcn,'
' nor.'
' failure.'
' their.'
' so far as.'
' balanced.'
' P. C. Tagore,' read ' Colebrooke.
line 8, after ' in,' in-scrt ' the.'
last line, /<7r 'rights,' read 'right.'
line 18, ,, 's,.' „ 'Sy'
6 (note), omit ' mentioned above.'
13, „ 'by them.'
19, „ ' by him.'
17, for 'have,' read 'has.'
20, „ ' his,' „ ' the author "s."
24, „ ' issues,' „ ' issue.'
LECTURE I.
INTRODUCTION.
Scope of the wort — Obsequial offerin<?s and their legal bearing — Kamya
Sraddka — Ancestor-worship: Its general prevalence and various sym-
bolizations — Its development among the Roman Catholics — In the form
of feeding the spirits on All Souls' day — Soul-cakes — Tiieir identity
with the pindas — Severance of the legal and religious aspects of obse-
quial offerings — Illustrated by franhalmoigne land tenure in Saxon
England — The principle of which underlies the tenure of land among
the Hindus — Lands originally held for spiritual services — The laws
relating to funeral expenses in England and Scotland are traceable to
the connection between spiritual service and rights of inheritance —
This connection is still recognized by the Hindus — The Greek view of
sepulchral duties — Roman sacra — Provision for obsequial expenses
indispensable in Rome — Analogous Hindu custom — With the Hindus the
right of inheritance is co-extensive with the obligation of performing
obsequies — Failing competent heir, this obligation extends even to the
king — Funeral rites — In Greece — Obolus — A similar Hindu custom
mentioned in the Yayur-Yeda — Grecian rites described — Choai, or tomb-
offerings — Genesia, or birthday offerings — Nekusia, or mortuary offerings
— Roman ceremonies — Silicernium, or funeral feast — Public feast on
the anniversary of death — Worship of the manes of the departed —
Persia — Peculiarity of the Parsee custom — Exposure of dead bodies —
Five sacrifices — The last of these has affinity with Hindu Sraddka —
Chinese funerals — Their descriptions — Their pre-eminent importance —
Death rendered happy with the assurance of posthumous ceremonies —
Medhurst's account — Egyptian ceremonies — Mummies — Post mortem trial
— The Hindu form of ancestor-worship quite distinct from the Egyptian
— Hebrews — They had nothing akin to the Hindu mode of worship
— Ancestor-worship an Aryan usage — Inferred from the similarity of
ceremonies performed by different nations.
The subject of the present course of lectures is — Scope of
o/ /^ • ^^^ work.
" The Nature and Origin of the S raddha Ceremonies,
and the Gradual Development of the Principles of
Inheritance in the diiferent Schools of Hindu Law."
2 ANCESTOR-WORSHIP.
Lecttjee The first part of the subject does not at first sight
— seem to be very attractive. Death and mourning,
Obsequial obscquial offerings, and funeral ceremonies are seldom
and their calculatcd to cxcitc plcasaut feelings. To the lawyer,
le^al bear-
ing- however, they have a melancholy interest of their
own. It will be our object to show that this interest
is founded on reason, and that obsequial offerings and
funeral rites are intimately connected with one of the
most important branches of Hindu law.
Kamya It is usual with dcvout Hindus to perform, before
undertaking any important task, some mystic rites
in honor of their departed ancestors. These rites
are known by the rather cacophonic name of kdmya
s'raddha. The spirits of the dead are solemnly in-
voked to bless the work which is about to be under-
taken, and to give strength to the performers to
accomplish the object desired. Let us follow this
time-honored practice, and begin our lectures with
ancestor-worship — the keystone, as it were, of the
Hindu Law of Inheritance.
Ancestor- Great importaucc has been attached by almost
every nation to the obsequies of the dead, dictated
in the first instance by love and affection, sanctioned
afterwards by religious conviction, and moulded into
various forms by stubborn social necessity. Funeral
customs are associated with a wide variety of senti-
ments, from gentle and rational sorrow, up to deifi-
cation of the departed ; and we owe to these customs
some of the most mao:nificent fruits of architectural
ITS GENERAL PREVALENCE 3
genius and labour. The Pyramids of Egypt, the Lecturb
Castle of St. Angelo, and the Taj of Agra speak of —
undying affection, gratitude, and veneration for those
we lov^ed and revered. The temples dedicated to
patron saints also bear testimony to the religious
care and reverence with which the hallowed memo-
ries of the dead were preser^-ed in every part of the
world. These tombs and temples are now the honor-
ed heirlooms of humanity, and form an essential
part of the necessary conditions of civilized exist-
ence. They are the visible representations of the
inner sentiments of love and respect for those who
have left us never to return. Are these not symbols
of ancestor- worship ? Strictly speaking, they are
not so. These grand and ma2TiijS.cent buildins^s were
not in every instance erected by descendants to per-
petuate the memory of their beloved ancestors ; but
the central elements of ancestor-worship can be
clearly discerned in the feelings which dictated the
erection of these standing monuments of aflectionate
remembrance.
Abundant evidence can be gathered from historical r»s -renerai
prevalence,
records to show that ancestor-worship has existed
from a very remote period. It existed among the
Greeks and the Romans, the ancient Persians and
the Egyptians, as well as among the Teutons and
the Celts ; and it is practised to this day by the
modern Chinese and by all pious Hindus. Even the and various
repressive influence of Christianity has not been liona!" '^'
4 AND VARIOUS Si^MBOLIZATIONS.
Lecture able to stamp it out in civilized Europe. What are
— the offerings of flowers upon the graves of friends
and relatives and parents, but an indication of the
sentiments which originated the solemn institution
of ancestor- worship. The decorations of graves and
tombstones also point in the same direction. The
portraits of dead parents are calculated to excite
feelings akin to those which are associated with the
worship of ancestors. The dead parents are often
figured in the minds as real beings who exercise a
beneficial influence over the conduct of their living
descendants. The dying injunctions of these parents
acquire all the force of sacred obligations, and the
shades of the departed are fancied as following their
descendants wherever they go, and however they
may be engaged in the various occupations of life.
The dead ancestors are considered as guardian angels,
who warn their descendants of dans^ers to come, and
rescue them from perils in which they are involved.
The manes among Protestants do not receive divine
honors, it is true, but the sentiments with which
they are regarded are allied in every respect to those
connected with ancestor-worship. The souls of the
departed are with them actual spirits, who take a
deep interest in all the transactions in which their
descendants may be concerned. In short, this belief
is nothing more or less than that which is at the
root of ancestor-worship.^
' Spencer's Principles of Sociology.
ITS DEVELOPMENT
This is the feeling in Protestant Europe. It lecture
takes a much more developed form amoncr Roman —
^ ° Its devel-
Catholics. The chapels over the dead, and the op^nent
r ' among the
prayers to the dead, are only different shapes ofcatToHcs.
ancestor-worship. When a dead ancestor is thought
not to be in purgatory, prayers, we are told, are offered
up to them for intercession. A Hindu, or a Chinese,
does nothing more. The chapels over the dead
constantly remind the worshippers of the souls of the
departed for whose benefit they have been erected.
" If erecting a chapel to the virgin," says Herbert
Spencer, '" is an act of worship, then the sentiment of
worship cannot be wholly absent if the erected chapel
is over a dead parent." The sanctified remains are
there rousing rehgious sentiments closely related to
ancestor-worship.^
But this is not all. The custom of feeding the in the form
_ of fee<Iiii!»
spirits, both annually and at other times, affords an 'te spirits
indisputable proof of the existence of ancestor-
worship among the Catholics of Europe. We refer
to the feasts held on All Souls' day in various parts on ah
of Europe, both among Teutons and Celts. The ii^y.
object of the festival, it is stated, is to alleviate the
sufferings of the souls in purgatory, by prayers and
almsgiving. The origin of this festival is thus
related: " A pilgrim returning from the Holy Land,
was compelled by a storm to land on a rocky island
somewhere between Sicily and Thessalonica. Here
' Spencer's Principles of Sociology.
6 AMOXG ROMAN CATHOLICS.
lectube he found a hermit, who told him that, amonor the
— chfFs of the island, was situated the opening into the
under-world through which huge flames ascended,
and the groans and cries of souls tormented by
evil ang-els were audible. The hermit had also
frequently heard the complaints and imprecations
of the devils at the number of souls that were
torn from them by the prayers and alms of
the pious. The pilgrim acquainted his Abbot with
the facts which had come to his knowledge, and the
Abbot thereupon appointed the day after 'All-Saints'
to be kept in his monastery as an annual festival
for ' All Souls.' " This observance is adopted by the
whole Catholic world ; but the theological account
of the ori2:in of the festival cannot conceal the fact
that the feast of All Souls, in which the spirits of
the dead are annually fed, is a relic of an earlier
institution, and is now incorporated with Christian
rites, and is sanctioned by the canons of the Catholic
church. AVe may remark by the way that the
festival of All Souls corresponds to the 'pitri pinda
yajna of the Hindus.
Soui-cakcs, In some parts of the west of England, it is still
the custom, we read, for the village children to go
round to all their neighbours souling^ as they call
it, collecting small contributions, and singing the
following verses :
Soul ! soul ! for a soul -cake ;
Pray good mistress, for a soul-cake.
SOUL-CAKES. 7
One for Peter, two for Paul, Lectuee
Three for them who made ns all. I.
Soul ! soul ! for an apple or two ;
If you have got no apples, pears will do.
Up with your kettle, and down with your pan ;
Give me a good big one, and I'll be gone.
We do not go beyond the limits of reason, if we Tiieir iden-
affirm that the soul-cakes referred to in the verses ^^^pind<u.
quoted above are pindas, which are still presented
by the Hindus to the souls of the deceased. The
ceremonies attending the presentation of the soul-
cakes have been discontinued by the edicts of the
Christian church, but the original pinda remains
to remind us of the original institution which was
universally adopted by the Aryan world, and carried
by the Aryan immigrants to different parts of the
world from their common home in the plains of
Central Asia.
I In Christian countries the legal obligation and the Severance
of the legal
reliofious duty of performino; the obsequies of deceased and reii-
relatives have ceased to be blended. The point ofpf*^'^**.*,
-l obsequial
development at which law breaks away from religion °^^""°^-
has been passed, but we are not quite prepared to
admit that every trace of the intimate relation which
once existed between them has entirely disappeared
from the jurisprudence of modern Europe. We still
find signs which lead us to suppose that at one time
the connection was inseparable, and that it is only
the spirit of utility, guided by reformed religious
faith, which has loosened the bonds which once
subsisted between the legal obligation and the
8 FRANKALMOIGNE.
Lkcture religious duty of celebrating the obsequial rites of
— deceased ancestors,
iiiustrafed Qne of tlic land tenures in Saxon Ensfland was
by fran- ^
fai't'f mre ^^^^^^ by the uamc of frankalmoigne. It was a
Engi'alid! tenure by which a religious corporation held lands on
condition of praying for the souls of the grantor
and his heirs. " By the ancient common law of
Eno-land, a man could not alienate lands which came
to him by descent without the consent of his heir,
but he might give a part to God in free alms."
The condition, as we said above, on which lands were
held in frankalmoigne of the superior lord was that
masses and divine services should be said for the
donor and his heirs, but no other particular service
was insisted upon. It was an understood thing that
divine service should be performed for the deceased;
but if the tenant in frankalmoigne failed to comply
with this condition, the lands could not be taken
away from him. They were given to him and his
heirs for ever. The tenure by divine service was also
of this nature ; the difference being that in the latter
case the tenant was bound to render fealty, and the
lord was entitled to distrain, in the event of failure
to perform the service.
Theprin- Amoug Hiudus all immovable property may
whicirun- be said to be held in frankalmoigne. The Hindu
dciiics tlie t t /> 7 7 •
tenure of lieir, or the tenant in Indian frankalmoigne, is
irhKi^V'^ bound by law and religion to present soul-cakes
to the relative from whom he inherits the pro-
FRANKALMOIGNE. 9
perty. As in frankalmoigne lands could not be Lecturb
taken away from the donees once they were vested —
in them, so the Hindu heir cannot be deprived of the
inherited property, even on failure of the original
condition upon which it descended to him. Once the
title is created, it is indubitable, and no subsequent
act or omission of the heir can divest him of the
property to which he is now lawfully entitled.
The tenure in frankalmoiqne then furnishes a clear Lands ori-
•^ "^ ^ ginally
proof of the fact that there was a time when lands ^^y\ ^^^
^ spiritual
were held on condition of rendering spiritual services ^®'^**^«=^
to the donor. This was not a feudal tenure ; it
might be called a spiritual tenure of land. Spiritual
tenures are not the exception, but the rule in India.
The law reorulatinor funeral expenses in Eno-land The laws
° ° ^ ° relatin-to
and Scotland shows that the connection between the ^""erai
expenses
duty of performing the obsequies, and the right of land"a1id
inheriting the property of a deceased relative, has not arT trace-
yet been entirely severed. It does not, of course, exist connectioa
between
in that visjor in which it is met with in India ; but spiritual
*-' ' service aad
nevertheless connection does exist, and the heir is ^^it^ce.
bound by law to comply with certain conditions
which are inseparable from his tenure of the inherited
property. '* Funeral expenses are a privileged debt,
allowed before all other debts and charges, both in
England and in Scotland. If the parties primaiily
liable neglect the duty of giving decent burial to the
dead, a stranger may do so, and claim reimburse-
ment out of his effects, before all others having rights,
10 GREEK SEPULCHRAL DUTIES.
Lecture whether heirs or executors." Keformed notions of
— religion and spiritual duty have changed the primi-
tive ideas about spiritual benefits, and produced an
order of thino-s foreim to the reliorious Government
CD CD O
of the ancient world.
This con- ]3u^ tiig central element found in the theory of
nection is *'
nize/by ^' Spiritual benefits, which regulates the devolution of
dus. '"" property among Hindus, forms an essential part of
the law relating to funeral expenses in England and
Scotland.
The Greek u Scpulcliral dutics," savs Grotc, " were sacred be-
view 01 se- i ' J ^
duties?^ yond all others in the eyes of a Greek." The dead had,
as it were, a legal and a moral claim to obsequial rites.
If these were not rightly performed, the souls of the
dead wandered disconsolate, and could not taste the
joys of the Elysian abode. By one of the laws of
Solon, children who were released from all other obli-
gations to unworthy parents, were nevertheless bound
to perform their funeral rites. Those who neglected
to perform this last act of duty, were condemned to
eternal infamy. It was a grave charge against the
moral character of a man that he failed to celebrate
the obsequies of his relatives. Children could be
prosecuted for neglecting this solemn duty, just as
they were liable to criminal prosecution, if they neg-
lected to support their parents who were incapable of
earning a livelihood. The first obligation of an heir
was to perform the customary funeral rites. If no
money was left, the relatives were still bound to
KOMAN SACIUL 11
celebrate the obsequies. K they failed to do so, the Lecture
Government could, after odvinor wamino^, cause the —
funeral rites to be duly performed, and then compel
the nearest of kin to pay double the expenses. When
a rich man died, his nearest relatives hastened to pay
respect to his remains, probably to raise a presump-
tion of their being the rightful heu*s. The obsequial
rites among the Greeks, as we will show, were held
periodically, and the heirs were bound to duly per-
form them at the appointed times. The due perform-
ance of the ceremonies was an incident of property
and the claim of the dead upon their heirs was sanc-
tioned by the law of the country.
Great care was taken by the civil law to make Roman
sacra.
due provision for the performance of the sacra of
the Romans. These saa^a were sacrifices and cere-
monies held in honor of deceased ancestors. They
were family rites, which every member of the family
was obliged to perform in honor of the dead. Xo
adoption in the family could take place, unless pro-
per arrangements were made for the celebration of
the saci'a of the family, from which the adoptive son
was taken, and no testament was allowed to distri-
bute an inheritance unless the different co-heirs aofreed
to share in due proportions the expenses of the sacra
of the family.
It was the custom in Rome to reserve a certain sum Provision
for obse-
of money for the obsequial rites of the deceased. IfquiaUx-
*' ^ penses in-
no such provision was made by the deceased himself '^^'"'
12 HERITABLE RIGHT
Lecture during his lifetime, the duty of paying the expenses
^^^~~~ and of celebrating the rites devolved upon the heir,
^^"^^' to whom the property was left ; and in the event of
his dying without a will, this duty devolved upon
his relatives, according to their order of succession to
the property.^
Analogous Thcrc docs Hot sccm to have been much difference
Hindu cus-
tom, jjjj^ ]^jg respect between the Eoman and the Hindu
system. " He who inherits the property," says
Yishnu, " shall also offer the funeral cake. A son
must present this cake, even if he does not get any
portion of his father's property." By the law of the
Romans also a son was compelled to pay homage to
his deceased father, in the shape of certain funeral
ceremonies, even if he did not obtain any property
from him. The Hindu system went further, and laid
it down as an imperative rule, that the right to in-
With the herit a dead man's property is exactly co-extensive
Hindus the x i. ./ j
hSlvduce' ^^^^ the duty of performing his obsequies. The
ten'^lve^' dcvolutioH of property depends upon the competence
obligation to pcrform the obsequial rites of the deceased. They
of perform-
ing obse- cannot be separated. He who is entitled to celebrate
quies. '-
these rites, is also entitled to inherit the property ;
and he who gets the property must perform the funeral
rites of the last owner. If there are no relatives
who are legally competent to perform them, the
railing law of succession does not apply, and the property
hekftws escheats to the Crown. The king takes the property
obligation
' Smith's Greek and Roman Antiquities.
AMONG HINDUS. 13r
as an heir, and as such, is also bound to discharge all Lecture
the oblio^ations of an heir. He must cause the last — r
o extends
rites to be performed for the deceased, and must also tl^g/** ^^^
see that they are periodically celebrated on the ap-
pointed days. The '• water " and "the cake " are essen-
tially necessary for the lasting peace of the soul of
the deceased, and he who inherits his property must
perform ceremonies which would conduce to his spiri-
tual welfare. Hindu law has thus inseparably con-
nected the duty of presenting the " water " and •' the
cake " with the rio-ht of inheritance, and this makes it
absolutely necessary that a clear conception should be
gained of the sraddha rites which form the basis of
the Hindu law of inheritance.
Before we come, however, to the description of the Funeral
funeral ceremonies as they exist among the Hindus,
let us take a rapid survey of funeral rites as they
existed among the different nations of the ancient
world.
We first come to the classic fields of ancient in Greece.
Greece.
The Greeks either buried or burnt their dead. It
was common to anoint the body, to crovm it with
flowers, and then to layit on a bed of state, before
performing the holy rites of cremation. On the
third day after death, it was taken outside the town
before sunrise by the fi-iends of the deceased, and
there those rites were performed, without the due
performance of which the soul of the departed would
1 4 FUNERAL RITES IN GREECE.
Lecture not be allowed to dwell with the blessed, and live at
— ease and in abundance among innocent pleasures in
the fields of Elysium.
Oboius. Before consigning the dead body to the purifying
flames, an oboius was put into its mouth for Charon,
and a honey-cake for Cerberus, All those who took
part in these ceremonies were considered as polluted,
and had to perform rites of purification before they
could again be admitted into the temple of the gods.
A similar Puttini^ thc obolus iuto the mouth of the corpse-
Hindu cus- ^ '
SeTin" corresponded, it should be remarked, to the Hindu cus-
Veda.''^ "'^' torn mentioned in the Yayur-Veda of placing a piece
of gold in the open mouth of the deceased, with what
object it is difficult to imagine. When a man un-
dertakes a long journey, he supplies himself with
ample funds to meet his travelling expenses. When
the deceased was about to start upon a journey to
that distant land, " from whose bourne no traveller
returns," it was but natural for his affectionate rela-
tives to provide for his comforts on the way, and as
gold can command all the comforts we require, what
could be more reasonable than to place a piece of gold
in the hands of the traveller.
Grecian Xo rctum from this diOTCSsion. On the third day
rites de- ^ •'
scribed, after death, the Greeks offered a sacrifice to the dead
called trita. The other sacrifices'^ and ceremonies
which followed the funeral were known as trita, ennata,
triakades, enagismata, and choai. The principal sacri-
' Smith's Greek and Roman Antiquities.
MORTUARY OFFERINGS. 15
fice to the dead was on the ninth day, called ennata. Lecture
The mourning for the dead appears to have lasted till —
the thirteenth day after the funeral, on which day
sacrifices were again offered. At Sparta the time of
mourning was limited to eleven days. During the
time of moumins: it was considered indecorous for the
relatives of the deceased to appear in public; they
were accustomed to wear a black dress, and in ancient
times cut off their hair as a sign of grief.
The tombs were preserved by the family to which ^<'7«j *^
they belonged with the greatest care, and were re- offerings.
garded as among the strongest ties which attached a
man to his native land. On certain days the tombs
were crowned with flowers, and offerings were made
to the dead, consistini; of o-arlands of flowers and
various other things. The act of offering these pre-
sents was called enagizein, and the offerings tli em-
selves enagismata, or more commonly choai.
The aenesia, we quote Dr. Smith, mentioned by Gentsia, or
^ ' ^ ' '' birtliday
Herodotus, appear to have consisted of ofterings of "^^""=*-
the same kind which were presented on the anniver-
sary of the birthday of the deceased. The nekusia yehma, or
•' . -' mortuary-
were, probably, the offerings on the anniversary of the offerings.
day of death, when meals were presented to the dead
and burnt.
The Roman ceremonies were analogous.
Inhumation was practised in the earlier aires ; but R^man
towards the close of the Republic, and during the "^"â–
first four centuries of the Empire, the body was
16 ROMAN CEREMONIES.
Lecture usually consumed by fire and the ashes consigned to
— the tomb m an urn. When the whole was consumed,
the glowing embers were extinguished with wine,
the charred bones were collected*, sprinkled first with
wine, then with milk, dried with a linen cloth, mixed
with costly perfumes, and enclosed in an urn, which
was deposited in one of the niches arranged in regular
rows in the interior of the family tomb.^
The preparation of the body for burial or crema-
tion was performed by a hired body of men. The
corpse was dressed in its best attire : if a magistrate,
in official robes ; and if he had, while alive, been
crowned, then wearing the crown. In early times the
burial took place at night, but in later times this was
the practice only of the poor, who could not aff*ord a
funeral display. On the eighth day the body was
carried to the grave in a stone coffin on a wooden,
or in some cases a golden bier, amid music and
lamentation, and sometimes mimic representations
of the life and merits of the deceased by professional
players. The sons of the deceased went with their
heads veiled, and the women beat their breasts and
lacerated their cheeks. When the body was burnt,
oil, perfumes, ornaments, and everything supposed to
be agreeable to the deceased were thrown into the
fire. On returning from the funeral, friends were
purified by sprinkling themselves with holy water,
or stepping over a fire. There were days set apart
' Ramsay's Roman Antiquities,
PARENTALIA. 17
for the purification of the family. The mourning Lecture
and the solemnities connected with the dead lasted for —
nine days after the funeral; at the end of which time
a sacrifice was performed called novendiale; and we
also read that nine days after cremation a repast
called coena feralis was placed beside the tomb, and
of this the manes were supposed to partake.
A feast was given in honor of the dead, but it is
uncertain on what day. It sometimes appears to
have been given at the time of the funeral, some-
times on the novendiale, and sometimes later. The suicer-
nium, or
name of silicemium was odven to this feast. fanerai
"^ feast.
After the funeral of great men, there was, in addi- Pnbiic
feast on the
tion to the feast for the friends of the deceased, aann'^«-
sarj' of
distribution of raw meat to the people, and sometimes '^^^
a public banquet. Public feasts and funeral games
were sometimes given on the anniversary of fimerals.
At all banquets in honor of the dead, the guests were
dressed in white.
The Romans, like the Greeks, were accustomed to worship
of the
visit the tombs of their relatives at certain periods, â„¢a"es o^
^ ' thede-
and to offer them sacrifices and various gifts. TheP*^'^
manes were regarded as gods, and were worshipped
with divine honors. At certain seasons which were
looked upon as sacred days, sacrifices were offered to
the spirits of the departed. An annual festival, which
belonged to all the manes in general, was celebrated
on the 19th of February, under the name o^feralia or
parentalia, because it was the duty of children and
18 PARSEE CEREMONIES.
Lectuee heirs to offer sacrifices to tlie shades of their parents
— and benefactors.^
Persia. Anccstor-worship existed in ancient Persia, and is
practised to this day by the Parsees of Bombayo The
Parsees are descendants of the ancient Persians, who
were expelled from Persia by the Mahomedan con-
querors. Their religion, says an eminent scholar
as delivered in its original purity by their Prophet
Zoroaster, and as propounded in the Zend-Avesta, is
monotheistic, or perhaps rather pantheistic, in spite
of its philosophical dualism, and in spite of its appa-
rent worship of fire and the elements, regarded as
visible representations of the deity. Its morality,
we are told, is summed up in three precepts of two
words each — "good thoughts," "good words," "good
deeds;" of which the Parsee is constantly reminded
by the triple coil of his white cotton girdle. In its
origin the Parsee system is allied to that of the Hindu
Aryans, as represented in the Veda, and has much
in common with the more recent Brahmanism.
Peouiiaiity Ouc notablc peculiarity distinguishes Parseeism.
Parsee Nothing similar to its funeral rites prevails among
custom.
other nations. Before the Parsees remove the body
from the house where the relatives are assembled,
funeral prayers are recited, and the corpse is exposed
to the gaze of a dog, regarded by the Parsees as a sacred
Exposure animal. The dead bodies are not buried, but exposed
of (lead
bodies.
' Smith's Greek and Roman Antiquities, Classical Dictionary, Ency-
clopeedia Britannica, Chambers's Enoyclopsedia, Tegg's Last Act, kc. See.
FIVE SACRIFICES. 19
on an iron grating in the dakhmas, or towers of silence, lectubk
to the fowls of the air, to the dew, and to the sun, —
until the flesh has disappeared, and the bleaching bones
fall through into a pit beneath, from which they are
afterwards removed to a subterranean cavern. The
mourners repeat certain gaihas, and pray that the spirit
of the deceased may be safely transported on the
fourth day after death to its final resting-place.^
The sacred books of the Parsees prescribe five Five sacri-
lice3.
sacrifices, which ever}^ faithful worshipper of fire is
bound to perform. These are : the slauorhterino- of
animals for public or private solemnities ; prayers ;
the daruns sacrament, with its consecrated bread and
wine, in honor of the founder of the law ; the sacri-
fice of expiation, consisting either of flagellation, or
gifts to the priest ; and lastly, the sacrifice far the
souls of the dead. The sacrifices for the dead resem- ri.e last
ble the sraddhas of the Plindus. On reading the hlstfil^-
prayers calling upon the spirits of deceased ancestors, """'»
' sraddha,
we are struck by the resemblance they bear to the
Vaidic mantras recited by Hindu priests on those
solemn occasions when funeral oblations are presented
to the souls of the dead. It is but natural that there
should be greater resemblance between the Zoroastrian
and the Vaidic ceremonies, than between tlie Hindu
and the Greek funeral rites. The ancestors of the
ancient Persians and those of the Yedic Aryans
dwelt for a long time together, before a religious
' Professor Monier Williams.
20 CHINESE FUNERALS.
Lecture schism separated them from each other. They shared
— common beliefs and common traditions, and it is rea-
sonable to expect that the two religious systems
should have much in common. The Parsees have
apparently the same respect for the spirits of the
departed, who were also called pitaras, as the Hin-
dus have for their ancestors. Sraddhas were as
familiar to the ancient Persians as they are to the
Hindus of the present day.
SieS. I* ^^^ been supposed that the Chinese and the
Hindus are the only two nations of the present age
which celebrate Sraddha ceremonies in honor of their
departed ancestors. We have seen that the Parsees
also perform ceremonies which are analogous to the
Sraddha rites. The Chinese funeral sacrifices have
many points in common with those prescribed by the
Hindu S'astras. It is difficult to imao;ine from what
sources the Chinese could have borrowed these rites.
The Budhists show an aversion to these rites, and it
was not possible, therefore, that the Budhist mission-
aries could have imported them from India. They
must, therefore, have been of indigenous growth.
Their de- " As soon as a Chiuesc has expired, some relation
scriptiou.
or friend immediately takes his coat, goes to the top
of the house, and turning his face towards the north,
calls as loudly as possible upon the soul of the de-
ceased three times successively. After which, he
folds up the coat and turns his face towards the
south ; and then unfolds his coat agam, and spreads
CHINESE FUNERALS. 21
it over the deceased, there to remain three days un- Lectcbe
touched, in expectation that his soul will resume its —
former state.
" There is no business in the life of a Chinese so Their pre-
eminent
important to him as his funeral; and no object of art importance
or science in which he is so interested as his coffin*
A wealthy man, we are told, will spend 1,000 crowns
upon this piece of vanity; a poor man will give all
he is worth ; and a son is frequently known to sell
himself for a slave, that he may purchase a rich
coffin for his father."^
" The patriarchal system of hfe is dear to the heart ^^«^^ '■en-
■■- •' (lered liap-
of every Chinaman, and when his time comes to die, fife'^^J^.
death loses to him half its teiTors if he is assured p"sUiu-
^ ^ nious cere-
that his sons will be present at his tomb to perform monies.
the customary rites, and to offer the prescribed sacri-
fices. It is the firm belief of every Chinaman that
the peace of his soul entirely depends on the due
celebration of these posthumous observances."
The followins^ curious particulars related by the Medimrst's
^ ^ accuuuu
eminent missionary Medhurst will be read with in-
terest : —
" According to the precepts of Confucius, children
are bound to sacrifice to their deceased ancestors ;
and at the anniversary^ of their parents' death, as
well as at the feast of the tombs, all persons must
present offerings to the manes of their progenitors.
" These sacrifices are not offered as an atonement or
' Tegg's Last Act.
22 CHINESE FUNERALS.
Lkcture propitiation, but merely for the support of the departed
— individuaL The ghosts are supposed to feed upon
the provisions offered up, and, in consequence, for-
bear to annoy their descendants ; or, it may be, exert
some influence in their favor. As the food, however,
does not decrease in bulk after being feasted on by the
spirits, the Chinese imagine that the flavour only is
taken away, while the substance remains. Thus
those who leave children and grandchildren are well
provided for by their descendants ; but alas ! for those
who happen to die without posterity. Deprived of all
sustenance, they wander about in the invisible regions,
cold, hungry, and destitute. The Budhists have
grounded on this prevailing sentiment many super-
stitious services. They induce survivors to call in
their aid at almost every funeral, that the souls of
their deceased relatives may be released out of purga-
tory. They have also got up public services for the
wretched ghosts who have no posterity to provide
for them. This they put forth as an entirely bene-
volent undertaking, and a committee is appointed to
collect the funds, and lay in the necessary provisions.
On the day fixed for the ceremony, stages are erected,
one for the priests, and the other for the provisions.
Flags and lanterns are displa37"ed near; gongs and
drums beaten to give notice to the forlorn ghosts
that a rich feast is provided for them ; and then the
priests set to work to repeat their prayers, and move
their fingers in a peculiar way, by which means they
EGYPTIAN FUNERALS. 23
believe the gates of hell are opened and the hungry Lecttire
ghosts come forth to receive the boon. Some of the —
spectators profess to be able to see through the open
portals, and the scampering demons, pale and wan,
with hair standing on end, and every rib discernible,
hurrying up to the high table, and shouldering away
the baskets of fruit and pots of rice, or whole hogs
and goats, as the case may be, and returning with
satisfied looks, as if they had enough to last them till
the next anniversary. When the priests have gone
through the service, the rabble come forward, and
scramble for what the spirits have left."
The funeral ceremonies of ancient Egypt require E<rrpti.in
only a passing notice : ''When any of their relations
died, the whole Egyptian family quitted their })lace
of abode, and during sixty or seventy days, ac-
cording to the rank or quality of the deceased,
abstained from all the comforts of life, excepting
such as were necessary to support nature."^ It is
worthy of notice that the embalming of the body
and the judgment of the dead were pecuHar to the
Egyptian system. Bodies were embalmed to preserve
them from decay, and placed in prominent positions
in dwelling-houses, or entombed in stupendous struc-
tures called pyramids. The mummies were dressed Mummies.
in the habiUments of the living, and received marked
respect from their descendants. They were guarded
as sacred treasures ; nay more, they were often wor-
' Barder.
24 POST MORTEM TRIAL,
Lecture shipped as embodiments of tlie spirits of tlie dead.
— For full twelve months the embalmed bodies were
kept in the house, and feasts were held in their honor.
After the year was over, they were taken out, and
carried to the margin of a lake, where forty-two
judges sat in solemn judgment upon the departed
Post mor- individual. The question to be decided was, whether
tern trial.
the merits of the individual during his lifetime were
such that his remains deserved the honors of burial.
All persons who brought any accusations against the
dead were patiently heard, and judgment was pro-
nounced after deliberate consideration. There were
wailing and lamentation if the judgment was unfavor-
able; but shouts of applause rent the sky if the judges
thought that the remains were worthy of the honors
of burial. The body was then carried over to the
other side of the lake in a boat by a ferryman called
Charon. All the legends about this distinguished
personage that are related in Greek and Roman my-
thologies had probably their origin on the banks of
the Nile.
The Hindu It is' to bc remarked that although the mummies
form of
ai.cest^r- -^r^re oftcu treated in Esrypt as idols are in Hindu
â– worship '-'â– ' "â–
dnctfrom houscholds, they were not looked upon as gods, and
tiLn.^^'"^^' no periodical sacrifices were offered to them. Ances-
tors were certainly worshipped, but 7iot in such a
form as in hidia, Greece, or Rome. The similarity
between the Egyptian forms and those of India was
but slight, and we have no hesitation in saying that
HEBREW FUNERAL CEREMONIES. 25
SraddhaSy at least in the form in which we have them LECTtniB
in India, were utterly unknown in Egypt. It has —
been often thought that the social and religious sys-
tems of ancient Egypt and India had many points in
common, and people have even gone so far as to say
that the Vedic Rlshis borrowed their rehgious tenets
and social customs from the priests of Isis and Osiris.
We need not enter into this vexed question at present.
It is enough for our purpose to say that one of the
most solemn of religious sacraments, the Sraddhas
of the Hindus, was not sanctioned by the spiritual
regime of Egypt. India and Egypt, in this instance
at least, did not meet upon common ground, and assist
each other in framing their social and religious laws.
The care which was taken of the dead, plainly show-
ed that the gratitude of the Egyptians to their
deceased relations was immortal. " Children, by
seeing the preserved bodies of their ancestors, recalled
to mind those virtues for which the public had honored
them ; and were excited to a love of those laws
which such excellent persons had left for their secu-
rity." We thus see that ancestor- worship in Egypt
took a shape quite distinct from that iu vogue in
India. Ancestor- worship did prevail in Egypt, but
it was worship of a peculiar type, and we cannot
institute any comparison between the Indian and the
Egyptian modes of such worship.
I have been often asked whether the Hindu Srad- nebrewi.
dhas had any counterpart in the Hebrew funeral
4
26 ANCESTOR- WORSHIP
Lecture ceremonies. We search in vain in the sacred books
„ — of the Hebrews for any indication of ancestor-wor-
They had ^
akin't!f the ®^^P ^^ ^^ samc form in which we meet with it in
inode"of India. Elaborate ceremonies were performed at the
time of burial, but they were not of the same nature
as those observed in India. The Hebrew books
prescribed innumerable feasts and sacrifices, but
none of them were like the Sraddhas of the Vaidic
Aryans. There were burnt offerings, and peace offer-
ings, and sin-offerings, but there were no obsequial
offerings similar to those of the Hindus. The cere-
monies performed in connection with the funeral
honors paid to Joseph in Egypt merely followed
Egyptian observances, and were not Jewish in their
nature. Even these ceremonies had very little in
common with the Indian rites. Whatever, there-
fore, might be said to the contrary, and however
plausible the arguments against the theory, we are
strongly disposed to think that ancestor-worship
was an Aryan institution, and its outward forms
Ancestor- wcrc of a pccuharly Aryan character. Ancestor-
. worship aa
Aryan worship must havc arisen from the natural instinct
usage. ^
of man, and must have been developed in different
forms according to the varied circumstances of the
countries in which it originated. That ancestor-
worship did exist in some shape or other among all
the nations of the earth cannot admit of a doubt.
What we simply contend for is, that the form in
which we meet with it in Hindustan is characteristic of
AN ARYAN USAGE. 27
the Aryan race, and the Semitic modes of such worship Lectubb
had not the faintest resemblance to the obsequial offer- —
ings presented by us to our departed ancestors.
You will thus see that ancestor- worship was a very inferred
common form of primitive worship. It was a tn- similarity
■•• of cere-
bute of respect paid to the memory of departed ances- ™°^'^'^*
tors, and was a pleasing expression of the sentiments JaJj^s?
of love and affection which their descendants bore to-
wards them. The lawgivers and the philosophers of
ancient Greece and Rome enjoined it as a sacred duty
to the risins: generation, and the faithful followers of the
Zendavesta and the Yeda practise it as a solemn rite of
religion to this day. The ceremonies performed by
the Aryan nations bear a striking resemblance to each
other, and it is a natural inference, therefore, that
the common ancestors of the Greeks and the Romans,
Zoroastrians and Hindus, honored and worshipped
their departed forefathers before they left their origi-
nal seat at the source of the Oxus and Jaxartes. "K
we find," says Cox, " that in the traditions of differ-
ent Aryan tribes the same characters reappear with
no other difference than that of title and local colour-
ing, the inference is justified that a search into the
mythical stores of all the Aryan tribes would disclose
the same phenomenon. If our conjectures are veri-
fied here, it will be impossible to withstand the con-
clusion that these tribes must have started fi-om a
common centre, and that from their ancient home
• Spencer's Principles of Sociology.
28 ANCESTOE- WORSHIP AN ARYAN USAGE.
Lecttjbe they must have carried away, if not the developed
— myth, yet the quickened germ from which might
spring leaves and fruits, varying in form and hue
according to the soil to which it should be committed
and the climate under which the plant might reach
maturity."^
' Myth. Aryan Nations, Vol, I, p. 99.
LECTDRE II.
ORIGIN A^TD GROWTH OP ANCESTOR-WORSHIP.
Primitive form of ancestor-worship described in the Rig-Veda — Simplicitr of its
spirit — PUrit — Solemn sacrifices in honor of the dead formed no part of the
Vedic ritual at first — The term pitris in the Kik hymns applicable to ances-
tors in general— Its limitation to the first three ancestors in the White
Tayur- Veda— Later classification into "cognates," " agnates," and "gen-
tiles " — Materials abundant to show the link between ancestor-worship and
the rules of inheritance — Funerals in the Vedic times described — Hindu form
of worship three thousand years ago — Hymns: invocation— Salutatioi; — Pre-
sence of the invoked ideally realized— Prayer for protection — Blessings,
Forgiveness, and sufl5ciency — Concluded with prayer to the fire — Second
hymn elucidated by Rig-Veda glossator — Law and moral usages of the com-
mentator's times based upon the revealed Scriptures of the Hindus — S'rdddha
not mentioned in the hymns — Yajnavalkya— His dissent from the teachings
of his times— His innovations upon the Vedic faith—" Ancestral sacrifice" —
*' Pitaras" — His system gradually expanded by later teachers — Quotations
from his work- Modern " S'raddha" distinguished from Vedic " ancestral
sacrifice "—Its origin in Pitriyajna — PUri-loka, or ancestral region — Vedic
doctrine of future life compared with the Greek — Vedic account of the enjoy-
ments of the futiu-e state— These enjoyments limited to the sensual— Taj na-
valkya's doctrine— Knowledge, its end and aim — Inferiority of the Tedic
doctrine —Hindu theory of future existence examined by Professor Roth —
Yajnavalkya's idea of the " ancestral abode" far less clear than the Rig- Vedic
— Lunar region — Sutra period of Vedic literature — A'pastamba — Gautama —
Brahmana period — Sacerdotal order — Basis laid of funeral S'raddha — Im-
proved teachings of the Sutra period authors — Gautama's precepts — A'pas-
tamba quoted — Conclusions — Simple ancestral-worship replaced by daily
and monthly S'raddhas — Persons competent to perform the ceremony ^de-
fined — Oblations — Persons excluded from the funeral repast — Atheists and
usurers — Sons dividing the family estate — Community of property betweea
father and son — Meaning of the term sapinda as given by A'pastamba and
Gautama — Its etymological sense — Consanguinity — Necessity for narrowing
the application of the term— Institutes of Manu— Extracts from Mauu —
According to Manu six generations of ancestors entitled to obsequial offer-
ings— Pindas being offered to the first three — And crumbs of pindas to the last
three — Zt^xi— Seven more generations added by Manu, entitled to libations
of water, called Samanodakas — Omission of maternal ancestors in the Insti-
tutes — First mention of them by Yajnavalkya as having a claim to pindas —
30
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectubb
II.
Summary — S'r4ddha — Derivation of the term — S'raddha means " knowledge
of truth," i.e., of the real attributes of the superiors inspiring respect,
followed by adoration — Emblematic character of the S'raddha ceremonies —
Worship of ancestors due to the feelings of love and gratitude — Patriarcha
system the primitive state of society in India — Its prominent features — Joint
undivided family offshoot of the patriarchal system — Individual merged in
the family ; the unit of social organism — Principle of joint family system-
Subordination of the private to the common good — Individual emancipation
from the family thraldom with the progress of civilization — Due to three
causes — 1. Intercourse with people beyond the pale of the family circle — For
purposes of commerce — Navigation— Supremacy — Travel : its usefulness in
fostering independence of spirit— 2. Growth of philosophy — Retirement from
secular cares and anxieties. Creed of Egoism — Religion — Consciousness of
accountability after death for acts done inter vivos — S'raddha ceremonies
reconciliatory of the struggle between the individual and the family for supre-
macy — All Souls' day of the Hindus — Parvana S'raddha — Religious sanction
of sraddha rites — Obsequial rites classified — 1. Initiatory — 2. Interme-
diate — 3. Conclusive— Their end and object : re-embodiment of the soul —
Elevation to heaven — Association with the manes — Eternal beatitude —
Dwellers in " ancestral region" dependent upon pindas — Necessity for adop-
tion — Period of sojourn in the " ancestral region" determined by good or bad
deeds on earth — Popular notion regarding the " pilris " and pitri-loha—
S'raddha rites form the essential elements in the religious and legal codes of
India.
Primitive
form of
ancestor-
worship
described
in tlie Kig
Veda,
Simplicity
of its spi-
rit.
We find tlie first trace of ancestor- worship in the
Rig- Veda, the most ancient written record of the
Aryan family. It occurs there in its most primitive
form. The spirits of the dead ancestors are invoked
to bless their children and their children's children, to
confer upon them long life and prosperity, and to
protect them from the evils inseparable from human
existence.
A childlike simplicity pervades, in the earlier books
of the Rig- Veda, the spirit of the hymns sacred to
the pitris or ancestors, and we cannot but believe
that the inspired sages of ancient India never dreamt
of the elaborate systems of ancestor- worship invent-
ORIGIN AND GROWTH OF ANCESTOR- WORSHIP. 31
ed in comparatively modem times by the followers of i-^ctcbe
the Brahmanic faith. Roots and fruits, milk and butter, —
are offered to the dead, and they are earnestly prayed
to come and sit among their children on the husa
grass spread for them, and to eat the simple food
placed before them. The spirits in invisible forms
come before their children, taste the food presented
in love to them, applaud those who thus remember
them, and depart ia peace, strengthened by the in-
vigorating drink offered to them. In the ceremonial
of the Rig- Veda, the ancestors are generally known
as pitris, and are not separately distinguished. A puris.
general offering was given, probably corresponding
to the enagismata of the Greeks.^ The word ances-
tral sacrifice is mentioned only once in the Rig-Veda,^
and that in such a way as plainly to indicate that solemn
SftCn ilC63
solemn sacnikes in honor of the dead did not oriorinallv in honor of
the dead
form a part of the Vedic ritual. The paternal and ^•'""^<1 "<>
' part of the
maternal ancestors were not mentioned by name, Jt^su'"*^
and whatever might be the interpretation given by
the later lawgivers to the Rik hymns celebrating the
pitiis, the original authors of them studiously re-
frained from enumerating the pitris invoked by them.
The pitris are always mentioned in the plural num-
ber, and it seems to be clear, therefore, that the Vedic The term
oblations of roots and fruits, water and milk, butter the Rik
hymns ap-
and rice, were intended for all the ancestors in srene- pi'^^i^'e to
' o ancestors
• in geueraL
* Smith's Greek and Roman Antiquities.
* Big- Veda, X, 16. 10.
32 Origin and growth of ancestor-worship.
Lecture ral. Who these ancestors were, and what was meant
— • by the term ^zV(2m5, there is no means of ascertain-
ing from the wording of the hymns.
Its limita- The White Yayur- Yeda, which must have been com-
tion to the •' '
anclsto'Tin poscd at Icast four hundred years after the compilation
Yayur- '^ of thc Rik hymns, goes a step further, and mentions
the three immediate ancestors — father, grandfather,
and great grandfather — by name. This shows pro-
gress in the Yedic ideas of pitaras^ and goes a great
way in proving the assertion that ages elapsed before
the cognates and agnates and gentiles in the modern
^'1'®':, dio-ests of Hindu law^ were evolved out of this simple
cla.ssinca- " r
'cTgnates,' Gxprcssion j9zVam<9, ov patres. The intimate connection
ami''gen- bctwccn, and the gradual development of, ancestor-
tiles.' , „ , ,
worship and of the principles of Inheritance, is the
aim and scope of the present course of lectures ; and
Materials I hopc to bc able to point out the landmarks and
abundant
Hnkb'^^^^^^ give a general outline of this important subject.
Sstor-wor- There are materials in abundance in the original
th'e^ruiesof Sanskrit works, Yedic and non- Yedic, legal and cere-
inlieiit- •ii'i»r>
ance. monial, which, it properly used, are sure, after a
patient investigation and thoughtful study, to yield
a rich harvest of important juridical truths.
Funerals Bcforc I procccd further, I would draw your atten-
Vedic tion to the following; account of the Yedic funerals r
times ae- '-'
scribed. u ^yj^en the remains of the deceased have been
placed upon the funeral pile, and the process of cre-
mation has begun, Agni, the god of fire, is prayed
not to scorch or consume the departed, not to tear
ORIGIN AND GROWTH OF ANCESTOR- WORSHIP. 33
asunder his skin or his limbs, but after the flames have Lkcture
done their work, to convey to the fathers the mortal —
who has been presented to him as an ofl*ering. The
eye of the departed is bidden to go to the sun, his
breath to the wind, and his different limbs to the
sky, the earth, the waters, or the plants, according
to their several affinities. As for his unborn part,
Agni is supplicated to kindle it with his heat and
flame, and assuming his most auspicious form, to
convey it to the world of the righteous. Before,
however, this unborn part can complete its course
from earth to the third heaven, it has to traverse a
vast STulf of darkness. Leavino- behind on earth all
that is evil and imperfect, and proceeding by the paths
which the fathers trod, the spirit, iuvested with a
lustre like that of the gods, soars to the realms of
eternal liofht, in a car. or on wlqots on the unde-
caying pinions wherewdth Agni slays the j^ahhascis;
wafted upwards by the Maruts, fanned by soft and
gentle breezes, and refreshed by showers, recovers
there its ancient body in a complete and glorified
form ; meets with the forefathers who are living in
festivity with Yama ; obtains from him, when recog-
nized by him as one of his own, a delectable abode ;
and enters upon a more perfect life, which is crowned
with the fulfilment of all desires, and which is passed
in the presence of the gods, and employed in the
fulfilment of their pleasure." ^
' Muir"s Sanskrit Texts, Vol. V, p. 303.
34 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture I ^ill now give you a few hymns which will ex-
- — plain the nature of ancestor-worship prevalent among
wâ„¢wp *^^ Hindus three thousand years ago. The following
sa"d yearT cxtract is taken from the Tenth Book of the Rig-
•^»- Veda:'- ' '
Hymns: "May thc soma-lovinp* fathers, who are both of
invocation. '' "-"
low degree and of high rank, rise and accept the clari-
fied butter we offer unto them. There is not one
among us who bears any ill-feeling towards them.
They truly know how we are disposed towards them,
and so they have come to us to preserve us from
harm. Oh ! let them come, and protect us from evil
in the performance of these our sacrifices.
Salutation. " Salutatiou to thc fathers, who were born be-
fore me, and those who, though born after me, have
already departed from this world before me. Salu-
tation to my fathers, who are sitting on the bare
ground among friends well able to entertam them with
the richest viands.
Presence " Mv auccstors havc hoHorcd me with their
of the in- "^
iSf presence. They know the love and respect I bear
realized. ^Q^^rds them. The sacrificial rites have fairly com-
menced and will have an auspicious end. My fathers
are sitting upon the husa grass I have spread for
them, and are eating the food, and drinking the soma
juice I have placed before them.
Prayer for "Fathers, who are now sitting upon the husa
protection. ^^^^^^ ^^^ ^j^l havc to protcct US, your children,
• Rig-Veda, X, 15.
OBIGIN AND GROWTH OF ANCESTOR- WORSHIP. 35
ignorant of the ways of the world. Accept this lectokb
clarified butter we have prepared for you, and then —
give us effective protection, and increasing our happi-
ness, remove the cause of our grief, and save us from
sin and misery.
" This sacrificial butter is like a precious gem, Blessings,
dear to you. Come near unto this, we pray you, kind
fathers ; give a gracious hearing to your praises ; speak
well of us, and confer blessings upon us.
" Sitting at your ease at my right hand, may all Forgive-
of you accept these oblations we offer unto you. K we
commit any offence against you, through our human
infirmities, fathers, forgive us.
" I am but a weak and mortal man, but I give and suffici-
ency.
unto you this clarified butter — it is all I possess.
Sitting near these bright flames I have kindled for
you, give unto us and to our children enough to
live upon — enough to make us happy.
*' ! ye bright and omniscient flames, you know concluded
all about my fathers, whoever and wherever they may to the fife,
be. Those who are here and those who are not here ;
those whom we know and those whom we do not
know — all, all of them are known to you. Preside
at this sacrifice, and accept the food I offer unto
you."
The " sacrifices " which are mentioned here could
not have been attended with those elaborate and com-
phcated ceremonials met wdth in later Yedic writino-s.
They must have been simple offerings, presented with
36 OEIGIN AND GROWTH OF ANCESTOR- WORSHIP.
Lecture a full and loving heart, and dignified by the name of
— " sacrifices."
hvnul'iiu- Sayanacharya, the celebrated commentator on the
lifjj'.ypj'f Eig-Yeda, who flourished at the court of Yijaya-
g ossa or, ^^^^^^ in the fourteenth century, gives the following
traditional explanation of the second hymn quoted
above : —
" By the expression those ivlio ivere born before me
is meant those who were born before the birth of
the sacrificer, viz., elder brothers, grandfathers, and
others ; and by the expression born after me is meant
younger brothers, his own sons, and others."
Sayana here is trying to base the ceremonial funeral
fabric of his day, which contained within it descend-
ants and ascendants, collaterals and cognates, upon
the simple Vedic foundation contained in the words
"born before" and " born after." Sayana, it should be
remembered, lived nearly two thousand years after
Law and the Ycdic hymus were composed. Revolutions upon
usages of rcvolutious had passed over the land, uprootine: the
the com- ^ ' r o
ame^based ^^^ Ycdlc Idcas, and introducing entirely new no-
re^velied tlous about rcligiou, morality, and property. The
of the Brahmanic theogony had flourished and decayed, and
Budhism had spread its influence far and wide,
shaking to its foundation the ancient faith of the coun-
try. The Brahmanic revival was still struggling to
assert its domination over the minds of men, when
Sayana and Miidhava, availing themselves of those
means which their situation and influence secured
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 37
them, employed the most learned Brahmans they Lecture
could attract to Yijayanagara upon the works which —
bear their names, and to w^hich they contributed
their ow^n labour and vast stores of learning. It
was their object to show that the systems of law
and morality w^hich w^ere prevalent in their age,
had grow^n out of the revealed Scriptures of the
Hindus, and should, therefore, be accepted as sacred
law. Their forced interpretation of the Vedic texts
sounds sometimes very strange in our ears, but it is
a natural propensity of human nature to ground its
belief of the present upon that of the past, which is
ever hallowed in the minds of men.
It will be seen in the extract given above, that s'rdddha
not meii-
thouo'h the word " sacrifice " is often mentioned, the ^\°^f '"
o 'the bymns.
word S'rdddha — the ancestral sacrifice of the later
lawgivers — was never used. The word S'rdddha came
into existence long after the Vedic ceremonial had
hardened into shape.
I will give the next extract from the Vdjasaneya Tainavai-
kya.
Sanhitd of Yajnavalkya, better known as the White
Yayur Veda.
The exact time when Yajnavalkya flourished can- His di.-sent
from tlie
not be ascertained, but there cannot possibly be a teachings
doubt that he composed his great work many hun- *'â„¢^^-
dred years after the Rik hymns had formed the stand-
ard of faith of the Aryan Hindus. He also was an
inspired sage, and his word was law to millions of
Aryan Hindus. He was a dissenter from the religious
38 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectueb teachings and practices of his time, and his work ori-
— ginated in a schism, of which the great sage was a
leader. He was a reformer, but a reformer of the
His inno- Yedic type. He introduced many new ideas into the
vations •' *■"^
Vedicfikh ^^dic faith, but these were strictly modelled upon
those he received from his spiritual teachers following
" Ancestral the aiicicnt path. The words " ancestral sacrifice "
sacrifice."
had come into more general use, and the expression
'Titaras:' ^'^ pitavas, " or patres, was beginning to be developed
mto the more immediate ancestors. It should be
remarked, however, that Ydjnavalkya, though he
inculcated the duty of paying homage to the three
immediate ancestors of the sacrificer, could not boldly
come forward and enjoin upon his followers their
absolute obUgation of offering sacrificial food to them,
and thus connect them with the patres of the preced-
ing generation. He uses the word " svadhd,^^ or food,
but does not say what connection this food had with
the " salutation," which immediately followed it. Pro-
bably he wished to invoke the spirits of the ancestors
to taste this food, but he could not boldly speak out
his mind. That would be, he probably thought, too
great an innovation upon the preceding ceremonial.
His system Hc was yet feeling his way ; but a fair beginning
gradually
expanded "vvas made, and the later teachers following his lead,
by later ' .
teachers, gradually expanded his system of funeral obsequies
into their present shape. Many of the prayers and
hymns made use of during the present age on the
occasion of performing the S'rdddha ceremonies are
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 39
borrowed from the Yajasaneya Sanhita of Yajna- Lecture
valkya. Let us see now what Yajnavalkya himself —
says upon this subject : —
" Gratify my ancestors, ! ye invigorating waters ! ^om^hlr*
Ye are all in all to us. Ye are food fit for our pro- ^'^^^'
genitors; ye are nectar and milk, clarified butter
and fruits collected in spring/
" May our progenitors, who are worthy of drinking
the soma-juice, and who have been purified by fire,
approach us through the paths travelled by gods ;
and pleased with the food presented at this sacrifice,
may they ask for more, and preserve us from evil.^
" Ancestors I rejoice, take your respective shares,
and be strong as bulls. ^
" Give us, ! fathers, houses and wives and chil-
dren, that we may not want for anything. May
you accept the garments, ! fathers, we ofter unto
you.''
" i^Iay those in my family, who have been burnt by
fire, and those who have not been so burnt, be satis-
fied with this food presented on the groimd, and pro-
ceed contented along the supreme path of eternal
bHss.'
" We invoke thee, 1 Lord, and place thee iu our
heart of hearts. In taking thy name, the darkest
recesses of our minds shine with divine light. Listen
to our prayers, and let our ancestors come unto us
' n, 2, 34. - XIX, 58. » II, 31.
* n, 32. » XIX, 59.
40 OllIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture and taste the clarified butter we shall offer unto
— them/
" Here is food. Salutation unto our fathers, who
would gladly eat this food.
" Here is food. Salutation unto our grandfathers,
who would gladly eat our food.
" Here is food. Salutation unto our great grand-
fathers, who would gladly eat our food.
'' Our fathers have eaten our food ; our fathers have
rejoiced; our fathers are gratified; give your blessings
unto us, ! fathers.
" Let my fathers, drinking the soma-juice, purify
me ; let my great grandfathers bless me with a hun-
dred years of life, which I may pass in joy and
holiness.
" Let my grandfathers purify me ; let my great
grandfathers sanctify me, and bless me wdth a hun-
dred years of life. May I attain the age allotted to
man.
Modern It should be carefullv borne in mind that neither in
"S'raddha" ''
^'s.t\"-, the Riff-Veda, nor in the White Yayur-Veda, is there
guished o :> J I
"'aiTcel-*^'*^ any mention of the S'rdddhas of the present age.
ike."^*^"' Their " ancestral sacrifice" is a daily sacrament, which
is observed to this day. The funeral S'raddha is a
later institution, and is quite distinct from the an-
cestral sacrifice of the Rik and the Yayu. It cannot,
Its origin however, be doubted that the S'raddha orig;inated in
in piirv ' "^
yajna. ^^^rz yajiia, but is not identical . with it. The
' Rig- Veda, X, 16, 12, vv. 19, 70. ^ XIX, 36, 37.
OBIGIN AND GPwOWTH OF ANCESTOR-WORSHIP. 41
manti'os used on both occasions are in many instances Lecture
the same, but still there is a line of demarcation —
between them, and they should on no account be
confounded with each other.
In the Satapatha Brdhmana, which is also ascribed
to Yajnavalkya, and which is the most complete
and systematic of all the Brdhmanas^ mention is PUri-ioia,
or ancestral
made of a pitn-loka,^ or ancestral region. region.
It would be interestinof to compare the Vedic doc- ^'^dic
" doctrine
trine of a future life with that of the Greeks : — ?.*. ^"'"'■^
iife com-
" The Elysian plain, or ' land of the dead,' is, accord- fhe Gre'k.^
ing to the Greeks, far away in the west, where the
sun goes down beyond the bounds of the earth, and
Eos gladdens the close of day as she sheds her
violet tints over the sky. The abodes of the blessed
are golden islands sailing in a sea of blue, the bur-
nished clouds floating in the pure ether. Grief and sor-
row cannot approach them; plague and sickness can-
not come near them. The blissful company gathered
together in that far western land inherits a tearless
eternity. What spot or stain can be seen on the
deep blue ocean in which the islands of the blessed
repose for ever? What unseemly forms can mar the
beauty of that golden home lit by the radiance of a
sun which can never go down ? Who then but the
pure in heart, the truthful, and the generous can be
suffered to tread the violet fields ?" ^
' Weber's Edition of SatapaUia Brahmana, p. 1101.
* Cox, Vol. II, 322.
4^ ORIGIN AND GROWTH OF ANCESTOR-WORSHIP,
lectuek " In the earlier books of the Rio^-Yeda there is
II. .
— little reference to a future state, but in the ninth and
tenth it is frequently mentioned. A state of blessed-
ness is distinctly promised to the virtuous, and these
allusions are more full and frequent in the Atharva.
In some passages of the latter, the family ties of the
earth are represented as renewed in heaven." ^
v«dic The enjoyments of the future state are said in the
account of
the enjoy- Rio;- Ycda to bc Conferred by the o;od Soma.
ments of ^ ./ o
state"'""^^ " P1^^6 ^6? ^ • purified Soma, in that imperishable
and unchanging world, where perpetual light and
glory are found. Make me immortal in the realm where
king Vaivasvata dwells, where the sanctuary of the
sky exists, and where pure and sweet waters flow.
Make me immortal in the third heaven, in the third
sky, where action is unrestrained, and the regions
are luminous. Make me immortal in the world,
where there are pleasures and enjoyments — in the
sphere of the sun — where ambrosia and satisfaction
are found. Make me immortal in the world, where
there are joys, delights and pleasures, and grati-
fications, and where the objects of desire are aU
attained."
o^^yments" The " plcasurcs " and " gratifications " spoken of
th^sensuai. hcrc by the inspired Rishis of the Rig- Yeda are
all of a sensual kind, and we search in vain for
those spiritual "joys and pleasures," of which so
1 Muir's Sanskrit Texts, Vol, V.
* IX, 113. 7.
ORIGIN AXD GROWTH OF ANCESTOR-WORSHIP. 43
much has been said in the later writmgs of the lectuke
Brahmans.
In the Satapatha Brabmana,^ however, vre fiiidj^p*jjj-
thousfhts runnino: in a different channel. We meet *''"*•
with ideas of a transcendental nature, of which it is
impossible to form a clear conception. The sublime
mysticism of the later philosophers must have owed
its origin to the mystic doctrine of a future state
propounded by Yajnavalkya : —
" This soul is the end of all this. It abides in the
midst of all the waters. It is supplied with all ob-
jects of desire. This soul is free from desire, and
yet possesses all the objects of desire, for it desires
nothino:. On this subject there is this verse : ' By Know-
.... ledi?e, its
knowledo-e men ascend to that condition in which e?J aad
<-> aim.
desires have passed away. Thither gifts do not
reach, nor austere devotees who are destitute of know-
ledge; for no person attains that world by gifts or
by rigorous abstraction. It pertains only to those
who have such knowledo-e.' "
There is much in this which commends itself to inferiority
enhcrhtened reason, but there is much also which vedic doc-
° ' triae,
cannot be comprehended by human reason unaided
by the spirit of the inspired sage who propounded
this doctrine. We cannot stop here to analyse it, but
we cannot refrain from stating that Yajnavalkya's ideas
about the state of blessedness after death are superior
to those of the authors of the hjTnns of the Rig-
' X, 0, i, 16.
44 ORIGIN AND GROWTH OF ANCKSTOR-WORSHIP.
Lecture Yed<a. The joys of the " ancestral region " are not^
according to him, sensual enjoyments, whatever else
they may be.
Hindu Eeferring to the Hindu doctrine of a future state,
theory of '
future Professor Roth says :^ —
existence ''
brp!o°fes- " ^^^ P^^^® where the glorified ones are to live is
heaven. In order to show that not merely an outer
court of the divine dwellings is set apart for them,
the highest heaven, the midst or innermost part of
heaven, is expressly spoken of as their seat. This
is their place of rest; and its divine splendour is not
marred by any specification of particular beauties
or enjoyments, such as those with which other reli-
gions are wont to adorn the mansions of the blessed.
There they are happy ; the language used to describe
their condition is the same as that with which is
denoted the most exalted felicity. ' What shall be
the employment of the blest, in what sphere their
activity shall expend itself ? ' To this question ancient
Hindu wisdom sought no answer."
Yajnavai- "Whatcvcr may be the opinion of enthusiastic
kya's idea
°/ *« , , European scholars upon this subject, we are bound to
'ancestral L ^ o j
i'ess'ciear Say that the ideas of Ydjnavalkya and his followers
Kig^'-vedic. about the " ancestral abode " are not very clear and
suggestive. The poets of the Rik hymns described
the ancestral world as similar in every respect to the
world we live in, only the blessed beings were free
from the evils of life, and their enjoyments were
' Jour. Amer. Ori. Soc, III, 343.
ORIGIN AND GROWTH OF ANCESTOR- WORSHIP. 45
increased to a far greater extent than could be ex- lecture
pected amidst the troubles and anxieties, bustle and —
tumult, of human existence. The poets of the Rig-
Veda would appear to be more rational in their
explanations than the great author of the Satapatha
Brahmana. But the explanation given by the Rishis
of the Rio;- Veda has been thouo-ht to be unsatisfac-
tory by the later philosophers, — or rather, to speak
with greater precision, the materialistic language of
the Vedic poets is said to contaia within it a rich
miae of profound truths, which far-reaching wisdom
alone can discover! Yajnavalkya must have had a
glimpse of these transcendental truths ; but it is
extremely difficult to understand the meaning of his
words. He spoke in enigmas, which it is impossible to
unriddle. We are anxious to know his ideas about
"the ancestral region," of which mention is made
so often in his writings. He might have communi-
cated in confidence the holy secrets of this blessed
abode to Maitreyi, his beloved wife and favorite
disciple ; but he has left us entirely in the dark,
and his uttered sayings give us no clue to his pro-
found thoughts on this subject. But there can be
no doubt that the seed sown by him fructified, and as
a result we have in later days a boundless " lunar Lunar
region," inhabited by seven classes of corporeal and
incorporeal spirits of departed ancestors, and the
progenitors of the human race.
I will now give you a few extracts from works com- s»tra
period of
46 OKIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture posed by human authors during the Sutra period
— of Yedic literature, which extended, accordinsr to
literature. Max MiiUcr, from 600 to 200 B. C. The extracts
A'pastam- are taken from Gautama and A'pastamba, the latter
of whom cannot, according to recent researches, be
Gautama, placcd later than the third century B. C. Gautama
flourished before A'^pastamba, but his exact age
cannot be ascertained. Gautama's work can safely be
declared, however, to be the oldest of the existing
works on sacred law.^
The Sutra period does not immediately follow the
age of hymns and prayers. Another period, called
Brkhmana the Brahmaua period, intervened between them.
Ritual and liturgy were the chief objects of the
writings of this age. But these writings were full
of philosophical speculations about the origin of
things and the destiny of man. The Yedic hymns
were invested with supernatural charms, and legends
were invented to give shape and form to ideas about
law and morality which lay dormant in the minds
of the inspired giants of remot antiquity. Myths
and traditions had gathered round the old hymns;
these were systematized, and gave rise to the untram-
Sacerdotai i^ellcd thcological dreamers of this age. The priestly
^''^^'^' order was mstituted, and its power and influence
were fully established. The members of this class,
well versed in Yedic lore, monopolized the teaching
of sacred truths, and laid the foundation of that
* Sacred Books of the East, Buliler, Vol- II, p. liv.
ORIGIN AND GROWTH OF ANCESTOR- WORSHIP. 47
theoloo-ical sovereisrnty which brouorht under its Lectcbb
O n •/ cj tt
sway the conscience and will of all the subsequent —
srenerations. The simple "ancestral sacrifice" of Basis laid
O ^ of funeral
the Rik and Yaju was maintained intact, but the S'rWdha.
basis of another sacrifice, the fimeral S'rdddha, was
laid, which in time well nigh supplanted the parent
institution. In the Aitareya Brdhmana attached to
the Rig-Veda, we find that " ancestral sacrifice " had
become an unquestioned article of faith, and the
denizens of the " ancestral region " had defined rights
and privileges.^ The writers of the Sutra period improve
teacliing3
improved upon the teachings of their predecessors, of the
and converted the funeral sacrifice into "a feast ofp^l**'^
authors.
the dead." In the Grihya Sutras of A'swalayana, com-
prising rules for the conduct of domestic rites and
the personal sacraments, extending from the birth of
a man to the end of his life, we find that the " an-
nual," the " occasional," and '" the general " ancestral
sacrifices had crystallized into form, and directions
were given for their performance, ^e will not, how-
ever, analyse the canons of this sage, but will come at
once to Gautama and A'pastamba, fi'om whom all the
subsequent lawgivers drew their inspiration. We
will hear fi'om their own lips what they have to say
about our obligation to perform the S'rdddha.
Gautama, Chap. 15 :' Gauuma-s
*' He, the sacrificer, shall offer the funeral oblations p'^^'-^p'^
' Aita. Br., Hangs Ed., p. 226.
» Sacred Books of the East, Biihler. Vol. II.
48 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectuee to the manes on the day of the new moon. No
— restriction as to time and place need be observed,
if holy Brahmans are at hand, or if he is near a
particularly sacred place.
" On failure of sons, the deceased person's sapindas,
the sapindas of his mother, or a pupil shall offer the
funeral oblations. On failure of these, an officiating
priest or teacher.
"Let the sacrificer select as good food as he can
afford, and have it prepared as well as possible.
" The manes are satisfied by gifts of sesamum, rice,
barley, and water ; by fish, and the flesh of deer,
hares, turtles, boars, and sheep; by cow's milk ; and
by the flesh of cranes, goats, and of a rhinoceros,
mixed with honey.
" Let him entertain such as possess divine know-
ledge, and such as are endowed with eloquence and
beauty, of a suitable age, and of a virtuous disposi-
tion. Let him feed upwards of three, or one guest
at least, endowed with particularly good qualities."
A'pastamba The followiug cxtract is taken from A'pastamba,
quoted.
Prasna II '}
" On account of the blood-relations of his mother,
and on account of those of his father within six
degrees, or as far as the relationship is traceable, he
shaU bathe, if they die.
"At all religious ceremonies, he shall entertain
Brahmans, who are pure, and who have studied and
' Sacred Books of the East, Biihler, Vol. II.
ORIGIN AND GROWTH OF ANCESTOR- WORSHIP. 49
remember the Yeda. That food must not be eaten of i-ecturb
which no portion is offered in the fire, and of which
no portion is first given to guests. Xo food mixed
with pungent condiments or salt can be ofi'ered as
a burnt offering.
"A female shall not off'er any burnt oblation, nor a
child that has not been initiated.
" Formerly men and gods lived together in this
world. Then the gods, as a reward for their sacrifices,
went to heaven, but men were left behind. Those
men who perform sacrifices in the same manner as
the gods did, dwell after death with the gods and
Brahm^ in heaven. Now, seeing men left behind,
Manu revealed this ceremony, which is designated
by the word S'rdddha : and thus this rite has been
revealed for the salvation of mankind. At that rite
the manes (of one's father, grandfather, and great
grandfather) are the deities to whom the sacrifice is
offered. But the Brahmanas who are fed, are the
sacrificial fire (the mouth of the gods).
" That rite must be performed in the latter half of
every month. Numerous and distinguished offspring,
success in agriculture and trade, store of cattle, suc-
cess in battle, and the attainment of general pros-
perity, are the rewards which the sacrificer obtains,
if he performs the ceremony at stated periods.
" The substances to be offered at these sacrifices are
sesamum, rice, barley, water, roots, and fruits. But
the satisfaction of the manes is greater, if food is
7
50 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture mixed with fat, and if heef, buffalo's meat, and the
— flesh of other tame and wild animals is offered to
them,
" He shall not perform a funeral sacrifice at night,
unless an eclipse of the moon takes place.
" Now follows the daily funeral oblation. This he
shall perform every day during a year. After that
he may offer a funeral sacrifice once a month, or stop
altogether."
Conciu- Here we see that the primitive ideas about ances-
Simple an- tor-worship havc undergone a change. The simple
cestral-
worship ancestral sacrifice has been replaced by the daily and
replaced by i- J j
daily and monthlv S'rdddlias. and a new word for "ancestral
S'laddha. gacrifice" has been coined to express the new ideas.
The S'rdddhas have become recognized as a permanent
Persons rcligious institution of the country. The persons
conipefent
to perform entitled to perform the ceremony have been defined.
the cere-
mony de- Sons, and sapindas, ex parte paterna and ex parte
materna, are, according to Gautama, fully competent
to perform the exequial rites. Apastamba could
not, it is true, go so far. The blood-relations of the
deceased, both through father and mother, he says,
are affected by impurity. Though as yet no connec-
tion is sought by him to be established between these
and the persons entitled to perform the S'rdddha
ceremony, still it cannot but strike a careful observer
that the bonds between them are being drawn closer
and closer, and that it would not be long before the
blood-relations, both paternal and maternal, would
ORIGIN AND GROWTH OF A>'CESTOR-WORSHIP. 51
be acknowledged as those whose imperative duty it LEcrrmB
was to offer funeral oblations to their deceased —
kinsman. To the simple presents of roots and finiits
were added burnt oblations and meat offerings, and ObiaUon*.
even beef, the very touch of which contaminates a
pure Hindu, and for which a severe penance is
required to free him from defilement, was considered
as a great delicacy, by tasting which but once '' the
manes became satisfied for a year."
Minute directions are given both by Grautama and Persons
excluded
Apastamba as to the class of men who should be fr"â„¢ 'te
'â– faneral
invited to the funeral repast. " Atheists" and "p^*-
" usurers " were mercilessly excluded, and it is to be Atheists
and
particularly noted that " sons who have enforced a osurers.
division of the family estate against the wish of their sons di-
fathers " should on no account be in^'ited to the feast family es-
tate.
of the dead. They were outcasts in Hindu society,
and were looked upon with contempt.
This prohibition points to a very significant communi-
fact. Community of property between fathers and peny be-
'' i i. ./ tween
sons was held to be a firmly established institu- ^^^^^^ ^^
J son.
tion of the country; but at the same time the son's title
to the ancestral property was at the time of Gau-
tama as good as that of his father ; and if the former
wished, he could force his father to make a partition,
and such partition was acknowledged to be just and
right, and was fully sanctioned by the law of the
country.
We may remark in passing that the word sapinda Bieaning of
the term
52 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture often occurs botli in Gautama and Apastamba. Gau-
— - tama lays it down that " sapinda relationship ceases
sapinaa as •' ^ ^
S'pastam- ^^^^ *^® ^^^^ ^^ *^® scventh anccstor." ^ Apas-
Gautama. tamba says, that it extends to blood-relations of mother
and father within six degrees. Haradatta, the learned
commentator on Gautama, states that the Sapinda
relationship, spoken of by Gautama, "extends to
four degrees in the case of the son of an appointed
daughter, while it includes relatives within six degrees
in the case of the legitimate son of the body."'
If this explanation of the texts of our authors be
accepted, there is apparently no difference of opinion
between them with regard to the much contested
Sapinda relationship. Both of them restrict it to six
generations, excluding the deceased. This definition
evidently includes ascendants, descendants, and colla-
terals, but the precise degree of kindred in which
a relative should stand to the deceased person to
entitle him to be called a Sapinda is not clearly
indicated. There is nothing also in Gautama's
reference to Sapinda relationship to show that he
considered that relatives on the mother's side were
considered by him as Sapindas.
Its etymo- Wc will not furthcr discuss this point at present,
logical
sense. but rescrvc our remarks for a future Lecture. Suffice
it to say, however, that the word sapinda, according to
one class of writers, is derived from " saha," with, and
' Gautama, Ch. XIV, 13.
' Sacred Books of tlie East, Biihler, Vol. II, pp. 136, 247. .
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 53
" pinda," body. This derivation is angrily rejected lecture
by another class of lawyers. The etymological sense, —
however, in which the word is understood by the
former class of writers is " persons proceeding from
the same body," " children of the same ancestor." consan-
guinity.
In this sense sapinda-relationship means " consan-
guinity," and sapindas would include all the relatives
on the father's and mother's side, extendinsr to o^enera-
tions untold. This would " make the whole world
kin," and all the nations of the earth would claim
this relationship. The title to the property of the
deceased depended, in a great measure, upon the right
of the claimant to this relationship ; and it was neces- Necessity
sary, therefore, to restrict the term withm certain jng the
application
bounds. Both Gautama and Apastamba felt this "* ^'^^
i term.
difficulty, and limited the signification of the word
to " six degrees," counting from, but excluding, the
deceased. We shall revert to this subject, and show
through what diJfferent stages of progress the word
has passed in the course of at least two thousand
years. The word has a history of its own replete with
interest, and if this history could be scientifically
traced to its source, a great portion of the ancient
history of India would be unearthed, and the different
phases of thought of the Aryan Hindus would be
clearly displayed — to the lasting benefit of philoso-
phical inquirers into the ancient condition of India.
We come now to comparatively modem times.
Our next extract will be taken from the Institutes of in?'it°*e
of Mana.
54 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectube Manu, the father of modern lawgivers. The Code of
— Manu is the foundation of modern Hindu law, and is
held in the highest reverence. The age of the Code is
supposed by some to be the fifth century B. C. The
internal evidence it contains, however, makes it pro-
bable that the work was composed at least three or
four centuries later. We will discuss this point in
a future lecture. Suffice it to say in the meantime,
that it is a record of old Hindu society worthy of
veneration, and is a most important digest of the
current laws and creeds of an age long anterior to
the modern schools of Hindu jurisprudence. The
following extract is from the third Chapter of Manu: —
Extracts " From mouth to month, on the dark day of the
from Manu.
moon, let a twice- born man having finished the daily
sacrament of the pitris, and while fire is still blazing,
perform the solemn S'rdddha in honor of his ancestors.
" At the S'rdddha of the gods he may entertain two
Brahmans ; at that of his father, paternal grandfather,
and great grandfather, three ; or one only at that of
the gods, and one at that for his three paternal ances-
tors: though he abound in wealth, let him not be
solicitous to entertain a large company.
" With great care let him give food at the S'raddha
to a priest who has gone through the Rik or Yaju,
or Saman. With that man whose oblation has been
eaten, after receiving due honors, by any one of those
three Brahmans, the ancestors are constantly satisfied
as high as the seventh person (or to the sixth degree).
ORIGIN AND GROWTH OF ANCESTOR-WOHSHIP. 55
*' The divine manes are always pleased with an i^ctube
oblation in empty glades, on the banks of rivers, —
and m solitary spots.
" Having walked in order from east to south and
thrown into the fire all the ingredients of his obla-
tion, let the sacrificer sprinkle water on the gromid
with his right hand. From the remainder of the
clarified butter, after having formed three balls of rice,
let him offer them with fixed attention, in the same
manner as the water, his face being turned to the
south.
" Then having offered those balls, after due cere-
monies and with an attentive mind (to the manes
of his father, his paternal gTandfather, and great
grandfather), let him wipe the same hand with the
roots of kusa, which he had before used, for the sake
of his paternal ancestors in the fourth, fifth, and
sixth degrees, who are the partakers of the rice and
clarified butter thus wiped off.
" If his father be alive, let him offer the S'raddha to
his ancestors in three higher degrees. Should his
father be dead, and his grandfather living, let him,
in celebrating the name of his father (that is, in per-
forming obsequies to him), celebrate also his paternal
great great grandfather.
" Before the obsequies to ancestors as far as the
sixth degree, they must be performed to a Brahmana
recently deceased; but the performer of them must
in that case give the S'raddha without the ceremony
56 ORIGIN AND GROWTH OF ANCESTOR- WORSHIP.
Lecture to the gods, and ofFer only one round cake (and
— these obsequies for a single ancestor should be annu-
ally performed on the day of his death).
" When, afterwards, the obsequies to ancestors as
far as the sixth degree, including him, are performed
according to law, then must the offering of cakes be
made by the descendants in the manner before
ordained (for the monthly ceremonies).
" A householder (unable to give a monthly repast)
may perform obsequies here below, according to
sacred ordinance, only thrice a year, in the seasons
of winter, and summer, and during the rains."
According It will bc obscrvcd that Manu has added three
to Manu
tionfo"r^' ^^^® ancestors to the list of the immediate three;
entfuetuo 01", in othcr words, the father, the grandfather, and the
ofEerings. great grandfather of the great grandfather of the
sacrificer are, according to him, also entitled to ob-
sequial offerings. Six generations of ancestors form,
in this manner, a community of progenitors whose
names must be celebrated, and to w^hom a tribute of
respect must be paid, by their descendants, at least
thrice every year,
pandas j^ distinction, however, is made between the
thefifst" three immediate ancestors and the three beyond
them. The solemn S'rdddhas are to be performed
in honor only of the former, and the pindas or balls
of food are to be offered only to them. The latter
are not entitled to pindas, but to what may be called
crumbs *^® crumbs or filings of pindas. They are partakers
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 57
only of the divided oblations of the rice and clarified LEcrcBE
butter wiped off from the hand with the roots of . - —
'^ of Dindas
kusa grass. These three ancestors are the sahdyas [^^'^ ***'
of the modem Digests of Hindu Law.
Manu, however, does not stop here. In the chap- Seven
^ more
ter treating of impurity caused by the death of a ^^,^^^^1,'°°'
near relative, he speaks of another class of ancestors ^^'^'
who are evidently entitled, not to offerings of food,
but to oblations of water. His definition of these entitled
. to libations
ancestors is not clear and exhaustive. He apparently ot water;
left room for a fiirther addition being made. The
thin end of the wedge was introduced at this point,
and seven additional generations of men, known as
Samanodakas entered by the opening thus made, called
Samano-
Manu's Samanodakas, or relatives connected "by an d^^tas.
equal oblation of water," may also include all persons,
whose "births and family names are no longer
known." ^
Manu has thus provided for the ^rdddhas of all the omission
paternal ancestors, but the maternal ancestors do not nai ances-
tors in the
yet come in for a share of the S'rdddha. Up to this institutes.
time, the paternal relationship alone was honored,
and the kinsmen through the mother had no place in
the family sanctum. By including all the paternal
ancestors, even those " whose births and family names
are no longer known," Manu had reached the limits
of the agnatic family, and no new member could find
any entrance into this group, large as it is.
' Manu, Chap. V, 60.
58 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectube It seemed, however, to Yajnavalkya and his fol-
— lowers, that this was a clear case of injustice to our
them by "^ kinsHien through the mother, and they laid down the
kyi"as^ " rule that the three immediate maternal ancestors are
claim to also entitled to pindas from the sons of their daughters.
pindas. , ^
" After funeral obsequies," says Yajnavalkya, " have
been duly performed, in honor of paternal ancestors,
balls of food should also be offered to the maternal
ancestors."^ This Yajnavalkya must not be con-
founded with the inspired sage of the Yedic age.
This was only his namesake. It is probable that
^ our author incorporated in his treatise the teachings
of the Yedic writer, but the latter must not be con-
founded with the former. Yajnavalkya, the law-
giver, probably promulgated his Code towards the
middle of the first century after Christ.
Sammary, To SUm Up.
The Rik-Yeda enjoined general offerings to the
shades of departed ancestors, and the White Yaju
distinctly hinted that, in adoring the progenitors in
genera], our three immediate ancestors should also
be remembered. Gautama and A'pastamba laid it
down that the three immediate ancestors had a right
to funeral oblations from their descendants, and defin-
ed the degrees of relationship within which the com-
petence to perform the S'rdddha ceremonies should
be confined. Manu commanded that not only the
father, the grandfather, and the great grandfather are
« Ya]., I, 242.
ORIGIN AND GROWTH OF ANCKTOR-WORSHIP. 59
entitled to obsequial offerings, but the three ancestors i^cttoe
beyond them should also partake of butter and rice —
from the hands of their successive children of chil-
dren's children. Even the more remote ancestors
were not forgotten. If their birth and family names
be unknown, balls of funeral cakes cannot be present-
ed to them, but libations of pure water should be
given in their honor, that they too from whom we may
have derived the least particle of blood, may be satis-
fied that they live in the minds of posterity, and are
gratefully remembered as the first progenitors of the
family. Yajnavalkya, the lawgiver, pointed out
that the maternal ancestors are equally entitled like
the paternal ancestors to acts of adoration in the
shape of S'rdddhas, and the impulse given by him
gained accelerated strength in subsequent ages, and
created that elaborate system of funeral ceremonies,
which has guided, and is still moulding, in spite of
foreign influences, the national character.
We will analyse now the term S'rdddha, and S'raddha.
attempt to discover the original idea imbedded in this
word. The word is immediately derived from S'rad-
dha, faith, devotion, veneration. The word S'rdd- Derivation
of the term.
dha, therefore, means an act prompted by faith or
veneration. Xow the word S'raddha is derived
from two Sanskrit roots: srat, truth, and dhd, to hold.
It signifies, accordingly, the holdinof of, or belief in, ^raddh*
60 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectuee truth. This is the Hteral signification of the word,
., , — and it is easy to perceive from this how it came
know- •' ■•â–
trufh,"^ to mean " veneration " for our superiors. Knowledge
real attri- of truth — kuowlcdgc of the real attributes of a
superiors supcTior pcrsou luspircs US With feelings of respect,
lowed' b^*'^' ^^^ ^^ ^^^ ^^ adoration to genuine worth becomes
adoration. ^^ imperative duty to society. The feeling of
respect we entertain towards the objects of devo-
tion leads us to perform acts which may give a visi-
ble expression to our emotions, and various expedi-
ents are resorted to for accomplishing the object
aimed at. Men in all ages have testified their deep
sense of respect for a holy man even at the cost
of their lives. Gratitude towards those by whom
we are benefited naturally disposes us to honor our
benefactors. The bond which unites us to our
fathers and grandfathers, gives rise to feelings of
affection, gratitude, and respect. In the case of our
immediate ancestors, gratitude and respect are second-
ary feelings, it is true; but when influenced by the
irresistible spell of love and affection, these feelings
prove an inexhaustible source of joy and happi-
ness. The love we feel for our father and grandfather,
the gratitude we owe them, and the respect we en-
tertain for them, prompt us to honor their memory
when dead; and the act of remembrance takes the
form of a solemn offering to the manes of our ancestors.
The idea that the spirits of our parents hover
round us, and are gratified by our acts of devotion,
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 61
takes strong possession of the human mind, when Lectuee
mienlightened by the spirit of divine philosophy. —
But love and devotion bear no analysis as to their
nature, and spurn at the hard realities which would
dissolve the charm. We lonsj to show to the spirits Embiema-
tic charac-
of our ancestors that they live in our memory; we 5%^?]^^^®
realize their embodied existence by the mind's eye, ^^'^emomes.
and forgetful of the surrounding world, we become
conscious for a moment of their actual presence, and
in the exuberance of our feelings we offer them food
and water to allay their hunger and thirst. This is
^rdddha, the tribute of respect paid to the memory
of our ancestors, the food offered to the manes, the
solemn feast of the dead.
I said before, that ancestor- worship had its orio^n worship of
' ^ " ancestors
in the wilds of Central Asia, .and that the Greeks J;,^i',y^„^f
and the Eomans and the Teutonic nations carried it gmirude.
with them to the countries towards the setting- sun,
and that the followers of Ormzad and the worship-
pers of Brahma brought it with them to Iran, and
the land of the five waters. But neither on the banks
of the cool Cephisus, the cerulean Tiber, or fabled
Rhine, nor on the golden plains of Iran, did this solemn
worship attain that stage of development, which it
reached on the flowery slopes of the Snowy Range.
Awed by the grandeur of the king of moimtains, and
captivated by the luxuriance of the surrounding plains,
the Aryan Hindus, in the enthusiasm of their hearts,
poured forth to the Supreme Being those eloquent
62 OEIGIN AND GROWTH OF ANCESTOR-WORSHIP.^
Lectuee prayers which are embalmed in the most ancient record
— of the Aryan family; and, in the warmth of their
gratitude, they did not forget that they owed it also to
their ancestors to honor and remember them. Call
it worship, or call it by any other name you please, it
was nothing but the warm and spontaneous offering
of love and gratitude to the authors of our being.
Patriarchal Abundant evidence can be given of the fact that
svatem the ... . . . t •
primitive thc primitive society in ancient India consisted of
state of •*■''
India ^^"^ patriarchal families. The story of Sunahsepha, re-
lated in the Aitareya Brahmana, and similar legends
supply the evidence in question. The father of Sunah-
sepha, in the exercise of his unquestioned parental
authority, sold his son for a hundred head of cattle,
to a prince, with the avowed object of his being
offered up as a human sacrifice. No power on earth
could rescue him from the grasp of the inhuman
father, till divine interference was prayed for, and
his life was at last saved by the united efforts of
the gods. It is clear from this that the power of the
father in his family was absolute, which is one of
the chief characteristics of a patriarchal family.
The most recent researches have shown that the
primitive society in all countries consisted of these
patriarchal families.
itspromi- The chief features of the patriarchal state of
tures. society are these : The eldest male parent — the eldest
ascendant — is absolutely supreme in his household.
His dominion extends to life and death, and is as
ORIGIN AND GTRO^WTH OF ANCESTOR-WORSHIP. '63
unqualified over his children and their property as lectcre
over his slaves.* This patriarchal group consists —
of animate and inanimate property, of wife, children,
slaves, land, and goods, all held together in sub-
jection to the despotic authority of the eldest male of
the eldest ascending line, the father, the grandfather,
or even more remote ancestor. The force which binds
the group together is power. Taking the conceptions
which have their root in the family relation — what we
call propert}', what we call marital right, what we
call parental authority, says Sir Henry Maine, were
all originally blended in the general conception of
patriarchal power. The authority of the patriarch,
or pater famiUas, is thus the element or germ out of
which all permanent power of man over man has been
gradually developed.'
The joint undivided family springs universally Joint nn-
y% T . . divided
out of the patriarchal family, a group of natural famiiv:
or adoptive descendants held together by their sub- ir^ha^''''
jection to the eldest living ascendant, father, grand- ^^^^^â„¢*
father, or great grandfather. Whatever may be
the formal prescriptions of law, the head of such a
group is always in practice despotic, and he is the
object of a respect, if not of an affection, which is
probably seated deeper than any positive institution.
But in the more extensive assemblage of kinsmen,
which constitutes the joint family, the eldest male of
• Maine's Ancient Law, 123.
* Maine'3 Early Institutions, 116, 310, 313, 379.
64 ORIGIN AND GROWTH OF ANCESTOR- WORSHIP.
lectuke the eldest line is never the parent of all the mem-
— bers, and not necessarily the first in age among
them. The sense of patriarchal right never dies out
in such groups/
nie'l-ged"in^ The S'rdddka rites originated in that state of so-
— die unit ciety, when all its different elements had coalesced,
organism, and had formed a hard compact mass. The different
social groups, called families, were sharply defined,
and stood out like solid rocks impervious to exter-
nal influences. They were the units of a social organ-
ism, which grew with their growth. Individuals
had no separate existence apart from their families.
They moved and had their being within their fami-
lies, but outside this charmed circle their existence
â– was not recognized by society. They were like the
•component parts of a chemical combination, which
by their intimate union produce the compound, but
which, when the combination is once formed, cannot
again be easily separated from each other. The family
was joint and undivided ; the joint and undivided
action of the individual members kept up its life,
and when its members ceased to work for the common
benefit, its corporate life became extinct ; but with its
extinction, the individuals also composing the family
lost their power and usefulness, and became mere nonen-
tities in the social organism. The Greek fable of " the
belly and the members of the body " points a moral of
no ordinary significance. The force of the solid truth
I Maine's Early Institutions, 116, 310, 313, 379.
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 65
that " Union is strength," was fully realized by the Lectobe
patriarchs of ancient society. The advantages of a —
joint family are fully appreciated to this day, and
seven generations of ascendants and descendants and
collaterals are not unfrequently found to live together,
within the same family abode, joint in food, worship,
and property.
The theory of the joint family system is, that all the Prmcipio
members must forget their individuality, and all their ^^^^^
exertions must be du'ected towards the common o;ood.
Personal comforts, personal inclinations, personal feel- Subordina-
ings, and personal hopes and aspirations must be sacri- ll^^'^l^^
ficed in the service of the joint family. Individual will, ^°^ ^°°^'
and individual freedom of action, must be curbed to pro-
mote the interest of the united body. All the members
of this corporate body must become like the inanimate
kings and queens on the chessboard, and be guided
in all their actions by one moving power.
The Hindu joint family, as it has always been con-
stituted, " is really a body of kinsmen, the natural and
adopted descendants of a known ancestor. Consan-
guinity knits all the members together. It is an
actual bond of union, and in no respect a sentimental
one.'- All the members are joint in food, in estate,
and in worship. " According to a true notion of a
joint undivided Hindu fanuly," said the Privy Coun-
cil, " no member of the family, while it remains un-
divided, can predicate of the joint undivided property
that he, that particular member, has a certain definite
9
66 OKIGIN AND GROWTH OF ANCESTOR- WORSHIP.
Lecture share. The proceeds of the undivided property must
— be brought into the common chest or purse, and then
dealt with according to the modes of enjoyment of
an undivided family,"^
Individual The ancicut organization of society reached its cul-
emancipa-
tion from minatino; point when it established within its bosom
the family '^ •«â–
S*th^ these social groups, capable of self-government, and
SL^atio*^n capable of withstanding, in time of need, all external
assfression. But as civilization advanced, and the
progress of the country was marked in different direc-
tions, the barriers between the different sections of the
community became gradually removed, and com-
munism began to lose ground. Individuality awoke
from its sleep of ages, and showed signs of renewed
life. There were strong symptoms of individuality
asserting its independence, and breaking away from
the bonds, which held it so long enthralled. Curses
and anathemas were of no avail, and the veteran
philosophers of Hindu society living upon the
traditions of the past, expended the fire of their
eloquence in vain to punish social recusancy, and to
bring back within the deserted fold those who had
already left their protection. The spirit of progress
was guiding men's thoughts and feelings with its
magic wand, and the sacred traditions all gave way
before the irresistible power of individuality. It.
was the eve of a great revolution, and Hindu society,
with all its compact social groups, which were so
' Appoovier v. Rama Subba Aiyan, Suth, 1 P. C. R., 657.
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 67
long thought impregnable, was threatened with des- Lecture
truction. —
The causes which led to the disengagement of the
individual from the compact group of his family are
not far to seek. Three powerful solvent influences D«e to
three
were at work, viz. : intercourse with people outside ^^^^ '•
the family group ; the growth of philosophical theo-
ries ; and last, but not least, religion.
Towards the end of the Brahmana period, civiliza- i. inter-
, •111 • course with
tion must have made considerable progress m ancient p««pie
beyond the
India. The whole system of social oro-anization was P'*'^..*'*
•^ ^ family
fully developed, and the distinction of caste was fully *^"^*^*^'
estabhshed. The Hindus of that age were a manu-
fecturing people, and, what is more remarkable, they
were a maritime and a mercantile people.^
A brisk trade was carried on not only between the For pur-
poses of
different provinces of India, but also with China and co«iin»erce.
the other neio;hbourino; countries. Even the Riof-Veda
Speaks of merchants, covetous of gain, crowding the
ocean on a voyage, ^ and gives a vivid description of a
naval expedition against a foreign island frustrated
by a shipwreck.' It is quite clear, therefore, that, Naviga-
even in that early age, the Hindus were quite familiar
with the ocean and the neighbouring countries which
could be reached only in vessels sailing over the
ocean. Distant expeditions on land were also under-
taken at this time. The essential condition of the Suprc-
macy.
' Wilsou's Rig- Veda, Pref . - Rig-Veda, I., 4. 6. 2.
» Jbid, I„ 8. 1, 4.
68 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP,
Lecture Rajasuya, or the royal sacrifice, was, that the performer
— must be acknowledged as the universal monarch.
There were princes and chiefs in different parts of
the continent who did not easily yield allegiance, and
it was necessary to send expeditions to force their
obedience. In horse-sacrifices, also, an army always
accompanied the horse, which roamed at will. Those
who opposed the progress of the animal must at once
be subdued.
Travel : its All thcsc facts show that the people were accustom-
usefulness
in fostering ^d to travcl and leave the conservative family associa-
indepen- J
spirit."^ tions behind. In distant journeys, in dwelling among
strange people, one is constantly thrown on his own
resources, and the idea that he is a free agent, that
he is independent of the compact assemblage known
as his family^ becomes deep-rooted in his mind. He
sees that, among other nations, persons living apart
from their families are happy and contented, and he
is naturally led to believe that he too, if he lived
separate, would be free from the despotism of his
chief, and would be able to gratify his desires and
fulfil his hopes and aspirations in a far greater degree
than if he dwelt with his family. Discontentment
has been said to be one of the chief instruments
of progress ; be that as it may, discontentment, no
doubt, was the first cause which led to the disinte-
gration of the joint family in India.
2. Growth The second cause was the ""rowth of certain philo-
of philoso- ^ ^
P''^' sophical theories, which attempted to prove the utter
ORIGIN AND GROWTH OF ANCESTOR- WORSHIP. 69
worthlessiiess of the trammels of existence in the lectube
shape of worldly connections. These theories must —
have come into existence when the first breach was
made in the compact family, when the individual
member of the family felt that a separate existence
was preferable to joint undivided existence. The
first step was the institution of the orders or stages
of life. This institution allowed an individual mem-
ber of the family, when he arrived at mature age, to
retire fi*om the world, abandoning active life, and Retirement
from secu-
ffivinsT up his cares and anxieties about the interest lar cares
O o JT and anxi-
of his family, which hitherto engrossed all his atten- ^^IH'^ ^f
tion. The idea of self, of aham or ego, as distinct °°'^™'
fi*om its surroundings, then gradually gained ground,
and it had its most distinct expression in the famous
proposition aham Bramha. I am a free agent, the
self in me is a spark of the divine essence. I am dis-
tinct fi^om those who surround me. The notion that
aham J or ego^ with all its accidents and limitations,
must be preferred to everything which interfered
in any way with the full development of indivi-
duahty, became in no long time an article of the
social creed. It is true that it is not exactly like
the well-known Roman maxim that " all men are
equal," but if its nature be closely examined, it will
be seen that it produces the same social results as
the other. Once the truth was estabhshed that aham,
or ego, or self, was distinct fi'om all its accidents, —
fi*om the family relations, — the awe and reverence for
70 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture the hallowed family associations would be weakened,
— and steps would soon be taken to ensure personal
happiness and personal comforts. This was the
second cause, therefore, which tended to disturb the
absolute power of the joint undivided family over
its individual members.
3. Religion. Xhc third cause, which operated in undermining
the family group, and asserted individual rights to be
distinct from those of the family, was far greater in
strength than any one of the forces mentioned above.
Conscious- Xhis was the influence of reliofion. The conviction
ness of o
hty^aftS^'' of responsibility after death, of direct rewards and
acfsdone punishmeiits in another world, "the conception of
the individual, who was to suffer separately, and
enjoy separately, was necessarily realized with ex-
treme distinctness ; " and it is not surprising to find
that, in the struggle between communism and indi-
viduality, with this religious conviction in the back-
ground, communism had to make considerable con-
cessions to individual rights.^
S'radtUia How to harmoiiize the corporate family existence
ceremonies
reconciiia- ^yith the hetcrogeueous phenomena of individuality
beuvS w^^ ^ problem which presented itself to the sages of
dull and'' antiquity for solution. The S'rMdha rites were
for supre- happily hit upon, and there was again harmony in
Hindu society.
By the institution of the S'raddha ceremonies, a
concession was made to the claims of individuality,
' Maine's Early Institutious.
macy.
ORIGIN AND GROWTH OF AKCESTOR-WORSHIR 71
and it had the effect of saving Hindu society from i^cjnrRa
threatened dissolution. By this compromise the dig-
nity of the iudividual was maiutained, and his griev-
ances, real or supposed, were removed without injury
to the corporate existence of the family. By the
institution of the S'raddha rites, the indubitable title of
the individual member to the love and gratitude of
his children received social sanction, individuality
was gratified, and Hindu society moved again in its-
usual course. Living in the midst of the joint family,
the individual member could not indulge in the
luxury of loving and being loved by his own
children. The love he bore towards them was
habitually controlled, and any outward expression of
the inner feelings was condemned as unworthy of a
member of the sacred institution of social commun-
ism. Fihal affection and parental love must be
totally eradicated, and all outward manifestations must
be entirely controlled and replaced by the tyrannous
regard for the all-absorbing interest of the joint
family. So long as a man was alive and his chil-
dren hved before his eyes, and he could watch over'
their welfare, if not outwardly, at least in his heart
of hearts, — this in itself was a source of happiness, and
it mattered not whether he gave outward expression
to his affection, or the children to their love, grati-
tude, and respect, during his lifetime. He was
conscious, at least so long as he lived, of loving and
of being loved, and it consoled him in a measure for
72 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture his Want of independence and liberty of action. But
— to be forgotten after death, to be denied the privilege
of living in the hearts of his descendants, was a real
hardship, and it was not unnatural that he should
rebel against social authority, and claim his right to
receive a tribute of respect from those he most loved —
from those whose expression of gratitude and respect
would gratify him most. When he left the world,
and was gathered to his fathers, his children should
perform his funeral obsequies, and mourn for their
irreparable loss. On the anniversary of his death,
again, every year, his children should pay a tribute
of respect to his memory, and give alms to the poor,.
and make offerings to the deserving. On occasions of
rejoicing, when every heart in the family was filled
with joy, it was not unnatural that the departed father
should claim a portion of the prevailing happiness, and
should be honored and remembered in the midst of the
All Souls' festivities. On the All Souls' day of the Hindus, when
day of the
Hindus, autumu put ou her gayest attire; " when the winds
blew sweet, and the rivers flowed sweet ; when the
night was sweet, and the mornings passed sweetly ;
when the heavens were sweet, and the lords of day
and night were sweet ; when the kine were sweet, and
the soil of the earth was sweet," ^ the children of
the deceased naturally longed to approach the spirit
of their beloved father, and their father's father, with
offerings which would be acceptable to them. This
' Rig-Veda, I, 90. 6—9.
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 73
is Parvana S'rdddha, the very cornerstone, as it were, lectube
of the Hindu Law of Inheritance. „ —
Parvana
The original motive and the social necessity which Sraddha.
Religious
dictated the S'raddha rites have all been forsfotten in sanction of
"-' sraddha
the course of ages, and we saw that even in the age "^"^^
of A'pastamba a supernatural origin was ascribed to
it. Social institutions never become deep-rooted in
India unless they receive religious sanction, and un-
less religion invests them with a divine halo.
The vocation of social philosophy is finished the
moment rehgion steps in, and human eyes dare not
pry into mysteries which have been declared by high
authorities to be " unknown and unknowable." That
social institutions are the products of social wants,
and that they grow and are not made, is seldom taken
into consideration ; they soon become petrified by the
irresistible action of religious influences, and acquire
the strensjth of an obdurate mass of solidified rocks.
The S'raddha rites have gone through this process,
and religious accretions have gathered round them,
and religious motives have been freely attributed
to them.
The popular notions concerning these ceremonies
are based upon religious teachings, and it can be
easily inferred that the obsequial rites are made
largely to partake of the supernatural element.
The spirits of departed ancestors will find no rest,
but will for ever roam in the region inhabited by the
ghosts of wicked men, unless S'raddha rites are per-
10
74 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lectube formed for them. They sometimes take up their
— abode on housetops and on the branches of tall trees,
and annoy their living kinsmen in every possible
way, till the sacred pindas, prescribed in the Sastras,
are offered to them in the holy shrine — in the pre-
sence of the great chastiser and saviour of wicked
spirits — Gadadhara at Gaya.
Obsequial Funcral rites are of three descriptions — the initi-
rites classi- '-
*®<^- atory, intermediate, and the final.
1. initia- The first are those which are observed from the
tory.
burning of the corpse to the touching of holy water,
Weapons, &c., and the cessation of impurity caused
by the death of a kinsman.
2. Inter- The intermediate ceremonies are the S'rdddhas
mediate.
which are performed during the first year after death,
including the Sapindikarana, or the rites on the first
anniversary of death.
3. Con- T\iQ^ final rites are those which follow the Sapindi-
clusive.
karana, when the deceased is admitted amongst the
ancestors of his race, and the ceremonies are thence-
forth general or ancestral.^
Their end The first sct of fuHcral ceremonies are performed to
and object ;
re-embodi- effect bv mcaus of oblations the re-embodyino; of the
ment of the '^ JO
^""^' soul of the deceased after burning his corpse. The in-
termediate rites are intended to raise his shade from
this world, where it would else continue to wander
Elevation ''^i^o^g dcmous and evil spirits, up to the " ancestral
region," and there deify him as it were among the
' Vishnu Purana, 318.
to heaven.
ORIGIN AND GROWTH OF ANCESTOR-WORSHIP. 75
manes of departed ancestors. For this end, a S'raddha Lecture
should be offered to the deceased on the day after , — .
*' Association
mourning expires ; twelve other S'raddhas singly to the ^^^^^^
deceased in twelve successive months ; similar obse-
quies should be performed at the end of the third
fortnight, and also before the expiration of the sixth
month, and the exequial rites called Sapindikarana, on
the first anniversary of death, complete the number
sixteen of the intermediate S'raddhas, whose apparent
scope is to raise the shade of the deceased to heaven.^
When the intermediate ceremonies are finished, the
deceased, as we observed before, takes his proper
place in the ancestral region of eternal bliss among his
ancestors, and is for ever fi^ee from the woe, misery,
and evils, incident to human nature. ' Those, however,
who sought in this world the path of " emancipation,"
called mciksha^ and were free from " the bondage of
works," attained " eternal beatitude," and were for Etemai
ever absorbed mto the essence of the Supreme boul.
The " ancestral region" was never meant for them ;
they attained a sphere of their own where there was
neither happiness nor woe, anxiety nor desires. The pweiiers
ances-
residents of the " ancestral region," unhke these *''*^''^f°""
~ ' dependent
blessed spirits, were constantly dependent upon the ^a^." ^*"'
pindas^ or balls of food, offered by their descendants,
and if the line of their issue failed, they had no longer
the power of enjoying happiness, but were woe-
stricken, and lost the happy abode. To guard against
* Nim^ya Sindhu, Luck. Ed., p. 511, Asiatic Researches, VoL VII,
76 ORIGIN AND GROWTH OF ANCESTOR-WORSHIP.
Lecture such disastrous results, men, when alive, adopt, on
— failure of issue of their own body, the sons of near
Necessity '' '
tion^'^"^" kinsmen, with the object of continuing their line of
progeny, so that there may be an interminable succes-
sion of pindas, which the ancestors may live upon,
till the time allotted to them in the " ancestral
region " is finished.
Period of The acts, good or bad, which the pitris performed
sojourn ia . ,
the "an- m this woi'ld, durinsr their lifetime, determine their
cestral re- "
miSd bT' P^^iod of sojourn in the ancestral seat, and at the end
deeds^on^*^ of this pcriod, they are bom again into this world,
and the circle of existence rolls on, till it can no
longer be followed by the eye of reason.
Popular The prevailing ideas regarding the " ancestral
notion re-
garding the region and the pitris, its residents, are worthy of
notice. The pitris, we repeat, are a race of divine
beings, inhabiting celestial regions of their own, and
receiving into their society the spirits of those mor-
tals for whom the rite of fellowship in obsequial
cakes has been duly performed. The pitris collec-
tively, therefore, include a man's ancestors ; but the
principal members of this order of beings are of a dif-
ferent nature and origin. According to Manu, they
were the sons of Marichi, Atri, Angiras, and the
other Rishis or saints produced by Manu, the son of
Brahma, and from them issued the gods, demons,
and men. The Puranas divide the pitris into seven
classes, three of these are without form, or are com-
posed of intellectual, not material substance, and
OBIGIN AND GROWTH OF ANCESTOR- WORSHIP. 77
are able to assume what forms they please. The other lecture
four classes are corporeal. The world in which the
pitris reside is called pitri-loha, or ancestral region, *".'^/y*,';
which is sometimes supposed to be the lunar sphere.
According to the Puranas, however, it is below the
heaven of Indra. The time at which the pitrns are
to be worshipped, the libations which they are
to receive, the benefit which they derive fi'om them,
and the boons which they confer on the worshipper,
are all minutely described in the Puranas, to which
the curious, and historical inquirers may be referred
for further information on these interesting points.^
It follows from all that we have said before that
the performance of the S'raddha rites is the bounden Sraddha
rites form
duty of the sons and kinsmen of the deceased. Reli- theessenti-
•' al elements
gion enjoins it, morality approves of it, and the '^ou^^nd^'
sacred laws of the country give their most solenmo^Lidia.^
sanction to it, and prescribe a severe penalty, in the
shape of loss of inheritance, in case of omission or
neglect. These S'raddha rites, accordingly, form an
essential part of the rehgious, moral, social, and legal
codes of India ; and a clear comprehension of them
is absolutely necessary, therefore, to every student
of law who would make a philosophical investigation
regarding the principles upon which that law is based.
» "Wilson's Vishim Parana, 320.
LECTDRE III.
^^ATUE,E OF SRADDHA RITES. PERSONS COMPETENT TO
PERFORM THESE RITES.
Times for worship — Yajnawalkya's opinion — Vishnupurana — Neglect to give
offerings to the manes an unpardonable sin— Sraddlias classified: 1. Nitya —
2. Kamj-a— 3. Gosthi — 4. Snddiii— 5. Karmanga— 6. Daiva — 7. Yatra—
8. Pushti — 9. Vriddhi — 10. Naimityika — 11. Sapindikarana — 12. Parvana —
Rites essentially the same — Difference in details of procedure — Not of im-
portance from a legal point of view — Vriddhi Sraddha described — Occa-
sions of its performance — Procedure — Its other names— Abhyudayika —
Nandimukha — Ekoddishta Sraddha — Described in the Vishnupurana — Its
historical interest — Sapindikarana — As described in the Vishnupurana — Its
effects: the union and fellowship of the deceased with his immediate ances-
tors — Prayers offered up at Sapindikarana — Parvana Sraddha — Procedure
described — Invocation of gods — Invitation of the manes — Welcome offer-
ings — Oblation to fire, and the Moon — Consecration of the residue —
Offering of funeral cakes to the three paternal and maternal ancestors —
Homage paid to remoter ancestors — Libations of water — Disposal of cakes
— Dismissal of the manes— Circumambulation — Songs of the pitris — Obla-
tions occasionally offered to the wives of the paternal and maternal ances-
tors — Competency of persons to offer oblations determined by fixed rules
— Inefficacy of offerings made by blood-relations in contravention of the
rules — Kules taken from Vishnupurana — Dictum as to competency of
daughter's grandson not followed — Paramount authority of the Mitak-
shara — Dharma Sindhu Sara on the order of succession of blood-relations
entitled to perform sraddha — Son — Eldest to the exclusion of others — Sons
separately — Younger sou— Adopted son— Grandson and great grandson-
Widow (in case of deceased being a male) — Co-wife's son, and then hus-
band (in case of deceased being a female) — Daughter — Daughter's son —
Uterine brother — Half-brother — Brother's son — Father, mother, daughter-
in-law, sister — Sister's son — Father's brother, his son, and other sapindas
—Samanodakas— Kinsmen of the same gotra — Maternal relatives— Father's
and mother's sister's son— Father's bandhus— Mother's bandhus— Disciple —
Son-in-law — Friend— Any person taking the property (in case of the
deceased being a Bramhin)— Natural father of an adopted sou entitled to
PERSOXS COMPETENT TO PERFORM SRADDHA RITES. 79
pinda— Rules for Sraddha of a deceased female — Initiatory funeral rites LECTURE
obligatory — Intermediate ones optional — Final ones compulsory on the HI-
inheritor of property — Final rites for a woman performed only on the
anniversary of her death — Rules for Mithila school — In case of females —
Bengal School — Rules for Bombay school taken from Nimaya Sindhu —
Persons entitled to pindas according to Nimaya Sindhu — Pindas offerable
by fejaales to certain specified persons only — Libations of water ofiFerable
promiscuously by kinsmen — Persons entitled to pindas have a right to
libations — Remote ancestors entitled to libations only — Rules regarding
impurity determine proximity of kinship — Effects of impurity — Importance
of the rules — Gautama — SuddhiTatwa (Mithila school)— Sraddha ceremonies
serve as a key to the Hindu Law of Inheritance — Spiritual benefit the
criterion of the right of inheritance — The principle strictly true in the
case of the Bengal school.
Let us examine to-day the nature of the Sraddha Times for
'' worship.
ceremonies, and enquire who are those privileged
persons that are competent to present the exequial
cakes to their deceased kinsmen.
You must know first of all that the manes cannot
be worshipped at all times of the year. There are
appointed periods during which alone offerings can be
presented to them. The seasons proper for such wor-
ship have been defined with a minuteness and precision,
which show the extreme soHcitude of the Hindus in
all matters relating to the last act of duty which they
owe to their ancestors. Yajnavalkya mentions the
following seasons as sacred to Sraddhas performed in
honor of ancestors collectively : —
1. The day of the new moon, when the sun and
moon are in conjunction.
2. The eighth lunar day of the dark half of a
month.
Accordinor to Rasrhunandana, the standard autho-
rity in all ceremonial matters in the Bengal school,
80 NATURE OF SRADDHA RITES.
Lectuee there are only three such sacred days in the calen-
— dar — in the months of Agrahayana, Magha, and
Phalguna. According to the Mitakshara, however,
there are four such days in the course of the year ;
there being one on the eighth of the moon's wane
in each of the four winter months.
3. Any auspicious occasion, as the birth of a
child, or the marriage of a daughter.
4. The dark fortnight of the month of Aswina,
thence called pitripaksha, or the fortnight especially
sacred to the manes.
5. The summer and winter solstices.
6. The day when the sun enters into a new
sign; or
7. When he reaches the equinoctial line.
8. When the moon reaches the seventeenth divi-
sion of her path, technically known as vyatipata.
9. When the moon is in magha, the 10th lunar
asterism, and the sun in hasta, the 13th lunar mansion.
With reference to this particular period, Manu says
" Whatever pure food, mixed, with honey, a man
offers to the manes on the thirteenth day of the
moon, in the season of rain, and under the lunar
asterism magha, has a ceaseless duration."^ The
offerings on this occasion must have been considered
to be particularly efficacious, for the oblations given
on this occasion sustained and refreshed the pitris
through the countless ages of eternity.
> Manu III, 273.
PERSONS COMPETENT TO PERFORM THESE RITES. 81
10. Eclipses of the sun and moon. Lectube
Yajnavalkya adds, that the ancestral offerings are —
not to be limited to these occasions alone, but when- kyi'L*^* "
. . , opinion,
ever the heart yearns for a meetmg with our ances-
tors, — whenever we feel prompted by gratitude and
affection to make offerings to the spirits of our parents
and kinsmen, — whenever good and wise men honor
our residence with a visit, and we have the means by
which we can accomplish our earnest desire, — Srad-
dhas should be performed without hesitation in honor
of those who were honored during life, and whose
shades ever look to us for spiritual food and nourish-
ment.
The following passages, quoted from Vishnu- vishnu-
purana,^ determining the proper seasons during which
ancestral Sraddhas should be performed, may be read
with interest. They embody the remarks made by
Yajnavalkya, and give additional information on
this subject.
" TVTienever a householder finds that any notable
circumstance has occurred, or a distinguished guest
has arrived, on which account ancestral ceremonies are
appropriate, he should celebrate them. He should
offer a voluntary sacrifice upon any atmospheric
portent, at the equinoctial and solstitial periods,
at eclipses of the sim and moon, on the sun's
entrance into a zodiacal sign, upon unpropitious
aspects of the planets and asterisms, on dreaming
• V. p., 322.
11
82 NATURE OF SRADDflA RITES.
Lectuue unlucky dreams, and on eating the grain of the year's
— harvest. The third lunar day of the month of
Vaisakha (April-May), and the ninth of Kartika
(October-November), in the light fortnight, the
13th of Nabha (July-August) and the 15th of
Magha (January-February) in the dark fortnight, are
called by ancient teachers the anniversaries of the
first day of a yuga, and are esteemed most sacred.
On these days water mixed with sesamum seeds
should be regularly presented to the progenitors of
mankind; as well as on every solar and lunar eclipse;
on the eighth lunations of the dark fortnights of
Agrahayna, Magha, and Phalguna (December — Febru-
ary); on the two days commencing the solstices,
when the nights and days alternately begin to dimi-
nish; on those days which are the anniversaries of
the beginning of the manvantaras (or reign of Manus) ;
when the sun is in the path of the goat; and on all
occurrences of meteoric phenomena."^
Neglect to There are thus, the wise have calculated, ninetii-
give orEer- ' 'J
manes'* an° ^z^^ different occasious in the course of the year,
unpardoii- _^ . .
able sin. ..,.,. ,^ . ,
' The Bemali (dipali — dipanvita). new moon, is known in common j?ar-
lance, in Bengal, as " mnchi amabasja." On this day, even the muchis,
the lowest of the low in the social scale, must, if he would claim the
name of a Hindu, celebrate the jyarvana rites in honor of his paternal
and maternal ancestors. Ninety-nine per cent of orthodox Hindus per-
form Parvana Sraddha on this occasion. The Deivali feast for the dead is
thus almost universally observed. Two in a hundred celebrate for fifteen
days the ])arvana rites in the dark fortnight of Asvina; thirty per cent.
for three days ; fifty for two days ; and sixty for one day only.
^ "^ « ^^ «â–
PERSONS COMPETENT TO PERFORM THESE RITES. 83
when the manes can be honored collectively, and i-EcrtiRE
when the debt of filial gratitude can be discharged —
by the children and the children's children. The
ancestral Sraddhas are held to be of such uncommon
solenmity, that they are considered to be, by the writers
on sacred law, of even greater importance than the
offerings due to the gods/ There is a common say-
ing among us that a man may be pardoned for neg-
lecting all his social duties, but he is for ever cursed
if he fails to perform the funeral obsequies of his
parents, and to present them with the offerings due
to them. This feeling may be condenmed by the
utilitarian matter-of-fact philosophers of the present
day, but it will ever continue to be honored by the
priests of "humanity " in all ages and countries.
There are twelve classes of Sraddhas? They are Sraddhas
'' classified.
as follows: —
1. The Nitya, or constant. These are daily offer- 1. Nitya.
ings of food or water to the manes in general. The
three immediate ancestors with their wives have also
a share in the offerinofs given. This is one of the
five great sacraments which must be performed day
by day.
2. The Kamya, or volimtary, performed for the 2. Kamya.
accomplishment of a special design.
3. The Goshthi, for the advantage of a number 3. CoshthL
• Manu, m, 203.
* Nirnaya Sindhu, 308 ; Vishnu Parana, 314 ; Cole. Mis, Essays, VoL II,
196.
84 NATURE OF SRADDHA RITES.
Lecture of learned persons, or of an assembly of Brahmans,
— invited for the purpose.
4. suddhi. 4. The Suddhi, or purificatory ; one performed to
purify a person from some defilement; — an expiatory
Sraddha.
5 Kar- 5. The Kavmanqa ; one formino^ part of the initia-
manga, ^ <-' ^
tory ceremonies, observed at conception, birth, ton-
sure, &c. This is preparatory to the celebration of
any solemn rite, and is considered as a part of such
rite.
6. Daiva. 6. The Daiva ; to which the gods are invited,
and which is held in honor of deities.
7. Yatra. 7, The Yatra Sraddha; held by a person previous
to the undertaking of a distant journey.
8. Pushti. 8. The Pushti Sraddha ; one performed to pro-
mote health and wealth.
9. Vriddhi, 9. The Vriddhi, or festive Sraddha, held on occa-
sions of rejoicing.
t^ik?''^"^^' 10. The Naimityika, or occasional; the ceremonies
in honor of a kinsman recently deceased. It is
known by the name of Ekoddishta, which term is
also applied to the Sraddha rites held on the anni-
versary of the death of a person.^
' The first sixteen funeral repasts taking place after the ten days
immediately succeeding the day of death (?), as well as that on the anni-
versary of such day, are Ekoddishta. On these occasions, the following
articles are first presented in honor of the deceased — raw rice, liquid
butter, honey, barley, soaked peas, fruit, water, frankincense, white
flowers, kiisa grass, a lamp, sandal-wood, betel, cloth, a thread, and water
for the feet. The oblation of the funeral cake then takes place. — Suth.
Dattaka Mimansa, Sec, IV, 74, note,
PERSONS COMPETENT TO PEEFORM THESE RITES. S>ij
11. The Sapindikarana^ or the first anniversary Lecture
Sraddha/ ,, -—
11. oapm-
12. The Parvana. or ancestral Sraddha.^ dikarana.
' 12. Par-
Tana.
' " The ceremony of Sapindikarana, or rite of associating the deceased
with the manes of departed ancestors. It should strictly take place on
the (first) anniversary of the day of death, but is more usually per-
formed at the funeral repast of the thirteenth day from the decease (?)
PrevioTis to its performance, the deceased is not denominated a pltri,
or departed ancestor. This rite consists in the following ceremonials :
Pour vessels called 'puti,^ each of two leaves, are prepared. These are
filled with water for the feet, scent-ed wood, flowers, sesamum seed, and
consecrated severally to the deceased and three nearest departed
ancestors on the father's side. The contents of that consecrated to the
deceased, with the exception of a small part, is poured out in equal
portions into the other three, with recitation of the two prayers com-
mencing "PI? samana," &c. Then the observances of the Ekodd'uhta and
Parr ana rit«s, with the variations necessary, take place, the same prayers
being recited ; — that is, those of the former rite are performed in honor of
the deceased, and those of the latter in honor of the three ancestors
abovementioned. Of the four funeral cakes which would be thus oifered
Severally to the deceased and the three ancestors in question, that con-
secrated to the deceased is divided into three parts, one of which is admixed
with each of the other three cakes. It is from this that the ceremony
takes its name. The portion of the contents of the 'jjuti ' consecrated
to the deceased, which is reserved, is for the purpose of being presented
to deceased, amongst the other articles, the oblation of which is part of
the Ekoddishta, rite, required to be performed in his honor.'" — Suth.
Dattaka Mimansa, Sec. VI, 35, note.
* " The Par-vana, or double rite, consists in the same oblations (as in
the Ekoddishta) and other ceremonials being celebrated on the death of
the father and other sire, in honor of the ancestors on the father's side,
as well as those on the mother's side. Thus, besides the articles men-
tioned above (in the description of Ekoddishta). a funeral cake is offered
to each of the three nearest deceased male ancestors on the father's side
and mother's side.
" The oblations in honor of the ancestors on either side are preceded
by a Visvadera offering. The term Jlsvadeva denotes a certain set of
divinities collectively, and the offering so called is in their honor, and
consists of the different articles above enumerated : these should also be
presented, both on the occasion of a Parvana and Ekoddishta rite, to the
lord of the soil.
" Rites in the form of Parvana are celebrated by a rigid Hindu on
the following occasions : — On the last day of every moon (^Avidbasyd)
on the eighth and ninth days of the dark fortnights of Pavsha, Magha,
86 NATURE OF SRADDHA RITES.
Lecture The last four classes are considered to be the most
III.
— solemn. All the others may be omitted, but these
four must on no account be neglected by a faithful
Hindu.
All these different descriptions of Sraddha may,
Plialguna, and A's'mina, when oblations are made in honor of the mother
and two nearest deceased female ancestors in the line of the father ; on
the full moon of MagTia; during the whole of the first fortnight of
A's'w'ma, which is denominated ' pitripaksha,' as peculiarly set apart for
the performance of rites in honor of ancestors ; and particularly on the
thirteenth of this month ; on any day of Agrahdyana, previous to using
the rice of the new crop ; in Vaisakha, at the time when the grain
ripens ; in A'shdra, for the rains : when the sun enters the constel-
lation A'rdrd ; on occasion of eclipses ; and visiting places of pilgrim-
age." — Siith. Dattaha Mimatisa, Sec. IV, 72, note.
" During the first half of the month of A's'wina, Parcana rites
are celebrated, whereat the solemnities observed in honor of pater-
nal ancestors are observed also in honor of maternal. But it is
ordained, that where the father may have died during this fortnight,
on the anniversary of the day of his death, instead of the usual Ekod-
dishta, or rite dedicated to him alone, the same ceremonials of a Parvana
rite shall be performed as would have been celebrated in honor of the
father and his two ancestors, had the anniversary of his decease not
fallen within this fortnight : but a Parvana rite shall not be commenced,
for the sake of the solemnities, which, on this supposition, would have
been observed in honor of the three maternal ancestors ; for, the com-
mencement of these is held to be subordinate to, and to depend on the
same solemnities in honor of the paternal ancestors, which would have
already been especially performed. The main object of performing a
real Parvana rite is the celebration of solemnities in honor of the
paternal ancestors." — Snth. Battaka Chandrika, Sec. I, 24, note.
" Parvana Sraddha : — This ceremony consists in the presentation of a
certain number of oblations, — namely, one to each of the first three
ancestors in the paternal line and maternal line respectively ; or, in
other words, to the father, the grandfather, and the great grandfather
in the one line, and the maternal grandfather, the maternal great grand-
father, and the maternal great great grandfather in the other." — 5 B. L.
R., 40.
" Parvana : — A S'raddha with a double set of funeral cakes : three
cakes are offered to the father, paternal grandfather, and great grand-
father ; and three to the maternal grandfather, • his father, and his
grandfather ; and the crumbs of each set to the remoter ancestors,
paternal (and maternal ?)." — 2 Cole. Dig., 331).
PERSONS COMPETENT TO PERFORM THESE RITES. 87
according to the Mitakshara, be reduced to hco lecture
classes: Parvana, or ancestral; Ekoddishta, or indivi- —
dual/ As all the exequial rites are intended either
for ancestors in general, or for a single individual
in particular, the classification of the Mitakshara is
philosophically correct. Yridhi S'raddha, for ex-
ample, is an ancestral or Parvana Sraddha; and
Sapindikarana is individual. The daily funeral re-
past, and the festive repast, etc., are merely varia-
tions of the Parvana rite.
We shall briefly describe the Sraddhas known as
Vriddhi, Ekoddishta, and Sapindikarana ; and give a
fuUer account of Parvana Sraddha, it being especially
important fi-om a legal point of view. In fact, a des-
cription of one class of Sraddhas will convey a clear
idea of the ceremonies observed in all the other
classes. The rites are essentially the same, and the Rites es-
sentially
prayers and hymns repeated from the Yedas are also ^^^ ^™«'
mostly the same. The difference in the procedure of Difference
*' •"• in details
the ceremonies is but slight, and to a general reader ^Jj*"^^"
is of no consequence. No legal importance, also, is
attached to the manner in which the ceremonies
are performed, and we will not, therefore, tax
your patience by giving a detailed description
of aU the ceremonies observed on these occasions.
Their name is legion, and a fiiU account of all of
them would fill a large volume. The Hindu cere-
monial writers have displayed such a vast amount of
1 Mitakshara, I., 216.
88 NATURE OF SRADDHA RITES.
Lecture erudition in the treatment of this subject, as clearly
— to show that the importance attached to it was
â– exceedingly great, and those who could throw any
additional light on such matters were held in univer-
sal respect. Fortunes are sometimes lavished away
in celebrating with pomp the Sraddha of an ancestor,
thousands of persons receive food and alms, and
learned Brahmans from all parts of the country are
invited and honored with liberal donations on these
occasions. It is not wonderful, therefore, that the
learned in India, to whom the Sraddha ceremonies
are a source of great profit and emolument, and to
whom the knowledge of their true nature is entrusted
as a sacred treasure, should guard them with jea-
lousy, and add on every possible occasion to the
stock of information which has already been collected.
Not of ira- There are differences in all the ceremonial schools in
from a*^re- thc modc of proccdurc, but they are not material, and
of view, need not, therefore, be noticed. The honouring of the
deceased ancestors is the chief object aimed at in these
ceremonies, and as soon as we gain a clear insight
into their general nature, our interest ceases, and we
leave the further treatment of the Sraddha ceremonies
to the ceremonial writers of India, who delight in
unravelling the mysteries attached to the ancestral
rites.
Vrkwiii Vriddhi, or festive Sraddha : — The ceremonies proper
Sraddlia ' ^ ^
describeii. ^qj. |^]^^jg gyaddka are to be performed on occasions of
rejoicing, or on an accession of good fortune. When
PERSONS COilPETENT TO PERFORM THESE RITES. 89
every heart in the family beats with joy, when all i-ectube
the descendants of a common ancestor are engaged in —
festivities, they naturally wish that their dead parents,
and others who, during life, were sharers in their
happiness, should partake in spirit of some portion
at least of the universal joy. Sacred ceremonies
are, therefore, held in their honor. They are generally
performed on the birth of a son, or the marriage of Occasions
a son or daughter; on entering a new dwelling, or ^'^'^'"''°<=^-
on tonsure of a youthful member of the family.
When the invited Brahmans are seated, and the
family priest has arranged in due order the necessary Procedure,
materials for the sacrifice, the sacrificer, clothed in
white garments, having put a ring of kusa grass
on his finojer, touches in humble obeisance his riojht
knee â €” which corresponds to kneeling in the west —
makes a solemn declaration that it is his duty that
day to honor his paternal father, grandfather, and
great grandfather, and the three maternal ancestors,
all with their wives ; and as soon as permission
is given to him by the assembled guests, he in-
vokes the presence of the deities and the spirits of the
ancestors. The Yriddhi Sraddha being essentially a
Parvana Sraddha, the prayers and hymns appropriate
to the occasion, and which, as we remarked before,
are almost the same word for word as in the other
Sraddhas, are repeated, and offerings made of curd,
honey, ghee, and barley, are duly presented to the
manes. The female ancestors do not in any manner
12
90 NATURE OF SRADDHA RITES.
Lectube play a secondary part in this ceremony; they share
— with their respective husbands the offerings of food,
and their names may also be separately mentioned in
J'ame^.^"' *^^ coursc of thc ceremonics.^ This Sraddha is also
known as Nandimukha or Abhyudayika.^ The word
Abhynda- Ahkyudaya has the same sio^nification a-s Vriddhi,
j'ika. ° . '
prosperity or festivity, and the two, therefore, are
Nandimu- identical. But the word Nandimukha is used in a
kba.
different sense. The term is applied to the rites
themselves, because a certain class of progenitors, the
residents of the " ancestral region," are especially in-
voked on this occasion. According to the authorities
quoted in the Nirnaya Sindhu, these beings are
addressed both as j?zVm and gods ; being in the former
case either the ancestors prior to the great grand-
father, ancestors collectively, or a certain class of
them ; and in the latter being identified with the
vishvadevas, or the assembled gods.
s''"dd/^'^'^ ^^oddishta : — The ceremonies performed for a person
recently deceased are called after this name. These
ceremonies are held in honor of a si7igle individual,
and are, therefore, known as ekoddishta : Eka, one,
and uddish, to refer to. All the Sraddha rites which
refer to one person only would be called by this
' The followers of the Yayur-Veda o^ily present separate parvana
pindas to paternal female ancestors.
^ Nandimnkha (a Parvana Sraddha) — a Sraddha on joyous occasions
in which nine balls of rice are offered to the father, paternal grand-
father, and great-grandfather; maternal grandfather, great-grandfather,
and great-great-grandfather ; and to the mother, paternal grandmother,
and paternal great-grandmother : " 2 Cole. Dig., 365.
PERSONS COMPETENT TO PERFORM THESE RITE& 91
name. All the sixteen Sraddhas mentioned before, liEcrmns
which are performed during the first year after death, —
and all the ceremonies which are performed on the
anniversary of a person's death, are classed under
this head. The first anniversary rites are not in-
eluded in this category; there is a different term for
those ceremonies, which we will presently describe.
With reference to the ekoddishta, or anniversary Described
' •' in the
rites, the Vishnupicrana says : — vishnupa-
' jr J rana.
''^The Sraddha enjoined for an individual is to be
repeated on the day of his death, but without the
prayers and rites performed on the first occasion, and
without offerings to the vishvadevas (or assembled
gods). A single ball of food is to be offered to the
deceased, intended for the purification of one person,
and Brahmans are to be entertained." ^
The sacrificer turning his face towards the south
presents offerings to the deceased, and repeats the
following prayer : — " Those of my ancestors and kins-
men who have been consecrated by the purifying
flames of fire, as well as those who have not been
able to enjoy this sacred rite, let all, all of them be
gratified by the offerings I present to them on the
ground, and attain the regions of eternal bliss." He
then offers a libation of water to the deceased. As
the water flows in a continuous stream, the sacrificer
goes on repeating the following mantra : — " Here is
food for you : you are not an isolated being, but
^ V. p., p. 517.
92 NATURE OF SRADDHA RITES.
lectuee are an intimate bond of union between me and my
III. -^
— ancestors who preceded you, and the descendants who
have followed you. Here is food for you."
itshistori- From a historical point of view, the Ekoddishta
cal interest. ^ '
Sraddhas are very important. These were probably
the Sraddhas which were first instituted, the others
being only subsequent improvements. The deceased
parents or dear kinsmen whose loss was deeply
deplored must have been the first objects of the Srad-
dha rites, and it must have been long after the insti-
tution of this ceremony that the Parvana Sraddha
was developed. If we are to believe the Pauranic
legend, the first Sraddha rites were performed for a
deceased son,^ and not for an ancestor. Be that
as it may, the individual Sraddha occupies an impor-
tant place as a social and religious institution, and
its celebration is attended with a solemnity and a
lavish expenditure of worldly substance which do
not belong to the other ceremonies.
sapindika- Saphidikavana : — This is the first anniversary
Sraddha, consisting of off'erings to an individual,
and intended to introduce the shade of a deceased kins-
man to the rest of the manes. This is an important
ceremony for the peace of the soul of the deceased.
So long as this rite is not performed, the spirit of the
departed ancestor is unable to find an entrance into
the " ancestral region," and take his proper place
among the manes of the other ancestors. It is abso-
* Varaha Parana, Cli. on Sraddha,
raua.
PERSONS COMPETENT TO PERFORM THESE RITES. 93
lutely necessary, tlierefore, to perform this ceremony. Lectube
After the Sapindana rites are performed, the deceased —
becomes in a way independent of the sacrificer, for even
if his immediate descendant fails afterwards to offer
him food and water, he may have his share in
the offerings given, by remote members of the family,
to ancestors and kinsmen in general.
We quote again from the Vishnupurana:^ Asdescrib-
. ed in the
" The practices of this rite are the same as those vishnu-
puraua.
of the monthly obsequies, but a lustration is to be
made with four vessels of water, perfumes, and sesa-
mum. One of these vessels is considered as dedicated
to the deceased, the other three to the progenitors in
general; and the contents of the former are to be
transferred to the other three, by which the deceased
becomes included in the class of ancestors to whom
worship is to be addressed with all the ceremonies of
the Sraddha."
The Sapindana is a process of combination. On it effects
. the union
the first anmversary of death, the balls of food offered ^'^^ feiiow-
•^ ^ ship of the
to the deceased individually and collectively are ^.^j";***^^
blended together, and thus the ancestor, in whose aaceitora?
honor the ceremony is specially held, is made to
form a link in the chain of other ancestors. This is
the rite of fellowship, the mysterious tie which binds
the deceased with all the other departed spirits. " Four
funeral cakes are offered to the deceased and his three
ancestors, that consecrated to the deceased beino- di-
' v. P., 318.
94 NATURE OF SRADDHA RITES.
Lecture vided into three portions and mixed with the other
— three cakes." The portion retained is then offered
to the deceased, and the act of union and fellowship
becomes complete.
Prayers As the sacrificcr arrano^es the four vessels mention-
offered lip
at sapindi- ed abovc, he must repeat the followino; prayers : —
karana. ' ^ or./
" Hail to the ' ancestral region' where my fathers
reside, who are of exalted minds, and who during
their lifetime were kind to every creature on earth.
Here is food for them. Adoration to them. Let this
sacrifice be offered to these divine beings."^
" Those who are dear to me, and are yet alive;
those who are kind-hearted, and are animated by kind
and exalted feelings, may they bless me for a hundred
years in this world with happiness and joy." ^
The other prayers and hymns are mostly the
same as in the Parvana Sraddha. At the conclusion
of the ceremony the Brahmans are prayed to bless
the sacrificer: " May generous givers abound in our
house; may the Scriptures be studied, and progeny
increase in it; may faith never depart from us; and
may we have much to bestow on the needy." ^
Parvana Sraddha.^
Parrana It will bc neccssarv now to describe the Sraddha
Sraddha. _ "^ _
which is performed in honor of progenitors in
general, and at which three funeral cakes are offered
» White Yaju, 19. 45.
2 Ibid, 19. 46.
3 Manu, III, 259 ; Yaj. I, 245.
* Colebrooke's Mis. Essays, Vol. II, p. 166.
PERSONS CX)MPETENT TO PERFORM THESE RITES. 95
to three paternal ancestors, as many to three mater- Lectijbk
nal ancestors, and two to the Yisvadeva or assem- —
bled gods.
The person who performs the ceremony, after Procednre
placing the implements and materials in regular order,
solemnly declares his intention of performing a Srad-
dha, and the motive for celebrating the rites. He
then proceeds to invite and to welcome the assembled
gods and the manes.
" First he places two little cushions of kusa grass
on one side of the altar for the Yisvadevas, and six in
fi-ont of it for the pitris.
" After strewing kusa grass on those cushions, he
asks, ' Shall I invoke the assembled gods ? '
" BeincT told, 'Do so,' he thus invokes themrinvocatioa
° ' •' of gods.
* Assembled gods! hear my invocation; come and sit
down on this holy grass.' After scattering barley on
the same spot, he meditates this prayer: " Assembled
gods ! listen to my invocations, ye who reside in the
sky; and ye who abide near us on earth, or far off in
heaven; ye whose tongues are fire; and ye who de-
fend the funeral sacrifice, sit on this grass and be
cheerful."
" He then invites the manes of ancestors with simi- invitation
of the
lar invocations : "Ofire! zealously we support thee ; ™*°^-
zealously we feed thee with fuel; eagerly do thou call
our willing ancestors to taste our oblations. May
our progenitors, who driak the juice of the moon-
plant, who are sanctified by holy fire, come by paths
96 NATURE OF SRADDHA RITES.
Lecture which ffods travel. Satisfied with ancestral food at
III. ^
— this solemn sacrifice, may they applaud and guard
us."
Welcome " He ncxt wclcomcs the gods and the manes with
oblations of water, &c., in vessels made of plantain
leaves. Two are presented to the Visvadeva, and
three to paternal ancestors, and as many to maternal
forefathers. The water of each vessel is successively
poured into a Brahman's hand, and the empty vessels
are piled up in three sets. The performer of the
Sraddha reverses them, saying, while he upsets the
first, "Thou art a mansion for ancestors."
Obiatioa <â– <â– jJe ucxt takcs up food smeared with clarified but-
ter, and makes two oblations to fire, reciting these
prayers : " May this oblation to fire, which conveys
offerings to the manes, be efficacious." " May this
oblation to the moon, wherein the progenitors of
mankind abide, be efficacious."
consecra- " Brahmaus should be fed with the residue of the
tion of the
residue, oblatiou ; it is accordingly consecrated for that pur-
pose by the following prayer : " The vessel that
holds thee is the earth ; its lid is the sky ; I offer
this residue of an oblation, like ambrosia, in
the undefiled mouth of a priest : may this oblation
be efficacious." The performer of the Sraddha then
points with his thumb towards the food, saying,
" Thrice did Vishnu step, and at three strides tra-
versed the universe ; happily was his food placed on
this dusty earth. Be this oblation efficacious." He
and the
moun.
PERSONS COMPETENT TO PERFORM THESE RITES. 97
adds, ' May the demons and giants that sit on this Lectube
consecrated spot be dispersed.' He meditates the —
Gayatri^ which has been thus paraphrased : ' Om !
Let us adore (not the visible material sun), but that
incomparably greater light, which illumines all,
delights all, from which all proceed, to which all must
return, and which alone can irradiate (not our visual
organs merely), but our souls and our intellects.' He
then sweetens the food with honey or sugar, saying,
' May the winds blow sweet, the rivers flow sweet, and
salutary herbs be sweet unto us ; may nights be sweet,
may the mornings pass sweetly ; may the soil of the
earth, and heaven, parent of all productions, be sweet
unto us ; may Soma, king of herbs and trees, be
sweet ; may the sun be sweet ; may the kine be sweet
unto us.' The food is then distributed among Brah-
mans.
" He now proceeds to oficr the funeral cakes, Offering
of funeral
consistinoj of balls or lumps of food mixed with^^^kesto
" ^ the three
clarified butter. He offers three to the paternal fore- amfmater-
fathers, as many to the maternal ancestors, and two ^la^i
to the Yisvadeva. The following prayers are
repeated : * May those in my family who have been
burnt by fire, or who are yet unbumt, be satisfied
with this food presented on the ground, and proceed
contented towards the path of eternal bliss. May
those who have no father, nor mother, nor kinsman,
nor food, nor supply of nourishment, be contented
with this food offered on the ground, and attain a
13
98
NATURE OF SRADDHA RITES.
Homage
paiil to
remoter
ancestors.
Libations of
water.
Disposal of
cakes.
Lectuee happy abode.' ' Ancestors, rejoice, take your respect-
— ive shares, and be strong as bulls.'
" He then wipes his hand with husa grass in honor
of remoter ancestors, who thus become partakers of
the oblations.^
" In the next place, he makes six libations of water
from the palms of his hands with salutations to the
gods of the six seasons.^
" The performer of the Sraddha then takes up the
cakes successively, smells them, throws them into a
vessel, and gives away the food to a mendicant priest
or to a cow, or else casts it into the waters.
" He then dismisses the manes, saying, ' Fathers,
to whom food belongs, guard our food and the other
things offered by us ; venerable and immortal as ye
are and conversant with holy truths, quaff the sweet
essence of it (Soma), be cheerful, and depart con-
tented by the paths which gods travel.'
" Lastly, he walks round the spot and leaves it, say-
ing, ' May the benefit of this oblation accrue to me
Dismissal
of the
manes.
Circum-
ambula-
tion.
' The wipinga or the crumbs of inndn.^ Hepa), are ofFered to the
-paternal ancestors alone. The maternal ancestors are not partakers of
these divided oblations. Eaghunandana says : —
(Ragh. S'ra. Tat. 113: see also Nirnaya Sindhu, 379 ; Manu, III, 216)
On the day of the full moon in the month of Bhadra, a separate S'raddha
is performed in honor of the 4th, 5th, and 6th paternal male ancestors.
This ia the only occasion on which their memory is honored separately by
their descendants. On all other occasions they only partake of divided
oblations in the Parvana Sraddhas. (Nir. Sindhu. 120.)
» Manu, 3, 217.
PERSONS COMPETENT TO PERFORM THESE RITES. 99
repeatedly ; may the goddess of the earth, and the Lectuub
goddess of the sky, whose form is the universe, visit —
me with present and future happiness. Father and
mother! revisit me (when I again celebrate such
rites). Soma, king of the manes ! visit me for the
sake of conferring immortality.' " ^
I will conclude this description of the Parvana Sonprs of
the pitris*
Sraddha by the following songs of the Pitris : " That
enliojhtened individual who beocrudo^es not his wealth,
who presents us with cakes, shall be born in a dis-
tinguished family. Prosperous and affluent shall that
man ever be, who in honor of us gives to the Brah-
mans, if he is wealthy, jewels, clothes, land, convey-
ances, wealth, or any valuable presents ; or who,
with faith and humihty, entertains them with food,
according to his means, at proper seasons. If he can-
not afford to give them dressed food, he must, in
proportion to his ability, present them with unboiled
grain, or such gifts, however trifliug, as he can bes-
tow. Should he be utterly unable even to do this,
he must give to some emiuent Brahman, bowing at
the same time before him, sesamum seeds adherino:
to the tips of his fingers, and sprinkle water to us
fi'om the palms of his hands upon the ground ; or
he must gather, as best he may, fodder for a day, and
give it to a cow ; by which he will, if firm in faith,
jrield us satisfaction. If nothing of this kind is practi-
cable, he must go to a forest, and lift up his arms to
' Asiatic Besearches. Vol. VII.
ancestors.
100 NATURE OF SRADDHA RITES.
lectuee the sun and other regents of the spheres, and say
— aloud — I have no money, property, grain, or any-
thing whatever fit for an ancestral offering. I bow,
therefore, to my ancestors, and hope the progenitors
will be satisfied with these arms tossed up in the air
in devotion."^
Oblations "A Sraddlia is thus performed, with an oblation of
occasion-
ally offered tlircc fuucral cakes only to three male paternal ances-
to the wives *' ■"•
terMUnd *^^^ ^^ some occasious ; or with as many funeral
maternal Qi^jr^i^JQj^g ^q three maternal ancestors also on others.^
Sometimes separate oblations are also presented to the
wives of the paternal ancestors ; at other times, simi-
lar offerings are likewise made to the wives of three
maternal ancestors. Thus, at the monthly Sraddhas
celebrated on the day of new moon, six funeral cakes
are offered to three paternal and as many maternal
male ancestors with their wives : on most other occa-
sions separate oblations are presented to the female
ancestors." ^
There is some difference of opinion as to whether
female maternal ancestors are entitled to separate
offerings. It is beyond question, however, that they
' Vishnupurana, 323.
^ On the first day of tlie light fortnight in the month of Asvina the
Bons of daughters are competent to celebrate Parvana solemnities in
honor of their maternal male ancestors, even in presence of their mater-
nal uncles. The sons of daughters perform this S'raddha on this occa-
sion in honor of their maternal ancestors only, as it is specially dedicated
to maternal ancestors alone. It is, therefore, . called, ^f^^^T^*
(^Nirnaya Slndhu, p. 134).
' Asiatic Researches, Vol. VII.
PEKSONS COMPETENT TO PERFORM THESE RITES. 101
are benefited by the pindas which are presented to lectube
then* husbands, and are joint partakers of the oblations —
which are offered to their husbands.^ The weisrht of
• (a) The Dharma Sindhu says : — " The Parvana S'raddha is of three
descriptions. It may be (1) â– with a single set of oblations in honor
of the three paternal ancestors only, as on the anniversary of their
death ; (2) with a double set of oblations in honor of the three immedi-
ate paternal, and the three immediate maternal ancestors, as the daily
S'raddhas, and the niriety-slx S'raddhas on the day of the new moon and
other similar occasions ; (3) with a triple set of oblations in honor of
the three paternal ancestors with their wives, and the three maternal
ancestors with their wives, as (^«c| J^«h \ ^ I j^) on the 9th lunar day in
the dark fortnight in the months of Pausha. Mdgha, Phalguna, and
A'swina. The S'raddhas performed in the dark fortnight in the month
of A'swina, as well as those celebrated in holy places, are of a mixed
character. The Parvana and the Ekoddishta rites are combined in them
— -parvana rites for male ancestors, and eTiodduhta for their wives.
Some say, parrana ceremonies should be performed on these occasions
for maternal male ancestors, and maternal female ancestors, separately,
and not jointly as at other times. They are of opinion that these
S'raddhas (Tm^T^nf^^rra ^.nd ci|^^[5) should be entitled Par.
vana with a quadruple set of oblations." {DJiarma Sindhu, Book III,
Ch. 2, p. 7).
(J) " In ordinai-y Parvana S'raddhas," says the Mitakshara, " no cere-
monies are separately performed for female ancestors." Mita. I, 2.52-253.
" But in Vriddhi S'raddhas, S'atatapa ordains that the first set of rites
should be in honor of female ancestors, the second set of ceremonies are
intended for the three immediate paternal male ancestors, and the third
set for the maternal malejancestors." Mita. I, 249.
(c) " There is some difference of opinion," says the Nimaya Sindhu,
" with regard to the separate celebration ot parvana solemnities in the case
of female ancestors. S'ankhyayana ordains iJhaX, pinda-<i should be offered
on these occasions first to the male ancestors (paternal and maternal),
then to the paternal female ancestors, then to the maternal female ances-
tors. According to some, then, in the Mahalaya S'raddha, and in S'raddhas
performed in holy places, only nine oblations should be offered {viz., three
to the three immediate paternal ancestors, three to the three maternal
ancestors, and three to the three paternal female ancestors) ; and accord-
ing to others, again, twelve such oblations should be offered. In this
case the three additional oblations are presented to the three immediate
maternal female ancestors. There are teachers also who maintain that
no separate oblations should be given to the female ancestors. In their
opinion, the wives of the ancestors are inseparably joined with their
102 NATURE OF SRADDHA RITES,
Lecture authority is against the claim of maternal female
— ancestors to separate presentation to them oi parvana
husbands in the solemnities, and the wives share the oblations with their
husbands, and are not entitled to oblations separate from those of their
husbands." Nirnaya Sindhu, 379.
{d) Speaking of the benefits conferred by the sons of daughters on
their maternal female ancestors, Jagannatha says : —
" S'atatapa. — After the first annual obsequies by the Sapindas, whatever
is given at the monthly rites to ancestors hy the son of the deceased,
his mother has a share of the benefit : this is a settled rule in all systems
of religious and civil duties.
" If it be argued from this text of law cited by Eaghunandana, that
a daughter's son also confers benefits on his maternal grandmother,
because she has a share of the funeral cake offered to his maternal
grandfather, since the word ' ancestors' (literally fathers) intends three
paternal and three maternal forefathers, namely, the father and the
rest, and the maternal grandfather and so forth ; and the word ' mother'
intends three female ancestors ascending from the mother, and three
other female ancestors ascending from the maternal grandmother;
these lawyers reply, the word ' ancestors' intending three persons ascend-
ing from the father, there are grounds for taking the word ' mother' in
the large sense of mother, paternal grandmother, and paternal great-
grandmother, namely, the coincidence of the text formerly cited
(' The mother shares with her husband obsequies solemnly performed
hy his son; the paternal grandmother, with her husband; and the
mother of the paternal grandfather, with her's ') and of the following
precept :
" At obsequies on the day following the eighth lunar day in certain
months (^»q ^^T) , at those with a triple set of oblations (Vriddhi)
at Gaya, and at the anniversary obsequies, the son should separately
perform a S'raddha to his mother ; in other cases he should perform
obsequies to her with her lord.
" For it is there shown that in other instances the S'raddha should be
performed to those women with their lords, for whom it is separately
performed by the followers of the Yajurveda at the obsequies mentioned.
But if this be taken as an indirect authority for considering the word
' mother' as bearing the secondary sense of maternal grandmother, then
she is in truth benefited by her daughter's son." 2 Cole Dig., 609.
(e) " Among the followers of the Sama-Veda," says Raghunandana, " *e-
parate S'raddhas in honor of women, even on festive (Vriddhi) occasions,
are strictly prohibited. They are gratified by the oblations presented to
their husbands, and do not require separate pindas." {Raghimandana's
S'raddha Tattma-Abhyudayiha S'raddha, p. 142). See also Dayabhaga,
XI, 6. 3.
PERSONS COMPETENT TO PERFORM THESE RITES. 103
offerings ; and it is for this reason apparently that lecture
they are denied the heritable right, in the Daya- —
bhaga, immediately after their husbands.
It is not every one who is entitled to present C"'np«-
-' A teiicy of
these offerings to the deceased. Even all his blood- J^geTobil*'-
1 .' 1 , • 1 ' jA ' ' •^ tionsileter-
relations do not promiscuously enjoy this privilege, mined by
There are certain rules, framed with great preci-
sion, which determine the order accordinor to which
persons are entitled to perform the Sraddha rites of ^"^®%
-T L cacy of
their deceased kinsmen. The least deviation from^a"e"by
the fixed order invalidates the ceremonies, and no tions in*^ '^'
.. ii«i/» 1 T« contraven-
spintual benefit can be derived from them. It is oft'on^f the
rules.
the utmost consequence, therefore, to fi'ame laws which
would regulate the order of succession of persons who
would spiritually benefit the deceased by performing
these ceremonies in their honor.
We will take our first extract on this point from
the Vishnupurana : ^
" The persons who are competent to perform the Rules taken
obsequies of relations connected by the offering of °"P"'"''°*'
the cake are the son, grandson, great grandson, the
brother, the descendants of a brother, or the posterity
of one allied by funeral offerings. In absence of all
these, the ceremony may be instituted by those related
by presentations of water only; or those connected
by offerings of cakes or water to maternal ancestors.
Should both families in the male line be extiuct, the
last obsequies may be performed by women, or by
' V. p., p. 318.
104 NATURE OP SRADDHA RITES.
Lecture the associates of tbe deceased in religious or social
HI. ^
— institutions, or by any one who becomes possessed of
the property of a deceased kinsman."
Again: " The first set of rites, being the most essen-
tial, are to be performed by the kindred of the father
or mother, whether connected by the offering of the
cake, or of water, by the associates of the deceased,
or by the prince who inherits his property. The
first and the last rites are both to be performed by
spns and other relations, and by daughter's sons, and
their sons ; and so are the sacrifices on the day of
the person's death. The last class or ancestral rites
are to be performed annually with the same cere-
monies as are enjoined for the monthly obsequies;
and they may be also performed by females."
Dictum as The dictum of the Vishnupurana that the grand-
to com-
petency of sons of daughters are competent to perform the Srad-
daughter's ./ «./ x x
not'fof-" dha rites of their grandmother's father is not obeyed
lowed. -j^ ^^^^ ^^y^ j^ ^^ School of Hindu law is he
recognised as an eligible person for the perform-
ance of the pdrvajia rites, and we will not, there-
fore, take any more notice of him at present. It
proves one thing, however, which deserves special
remark. At the time of the Vishnupurana, the
principle which determined the competency of kins-
men to present offerings to the deceased was not the
same as that followed in all the Schools of the pre-
sent day. We will touch upon this point again in
a future Lecture.
PERSONS COMPETENT TO PERFORM THESE RITES. 105
The Mitakshara speaks in this matter with an liEcruEK
authority which cannot be misunderstood. The p„~„„j
Mitakshara is the standard textbook of the Benares If^^"^^
School, but its paramount authority is acknowledged shara.
in all the Schools, even in matters relating to cere-
monial rites.
If the Mitakshara had dwelt at large on this
subject, much trouble would have been saved to the
lawyers of the present generation, and their ingenu-
ity would have been applied to some other branch
of law. Our author, however, though his voice is
clear, speaks with laconic brevity. Let us hear
what he says: —
" It must not be thought even for a moment that,
like libations of water, a pinda can be promiscuously
offered by aU the kinsmen of the deceased. The son
alone is entitled to present it to his deceased father.
On failure of sons, the nearest Sapinda has a right
to give it. K there are no Sapindas ex parte paterna,
the pinda can be offered by the Sapindas ex parte
materna, &c. According to Gautama, ' On failure
of sons, the Sapindas of the deceased, and then his
mother s Sapindas, and then his disciple are competent
to offer the pinda. On failure of all of them, the
priest and the preceptor claim the right.' Where there
are many sons, the eldest son has the right and prefer-
ential duty of presenting the pinda. We have the
authority of Marichi on this point: ' Whatever is
done by the eldest in this matter with the permis-
14
106 NATURE OF SRADDHA RITES.
Lecture sion of all his brothers, and with the proceeds of the
— undivided (family) property, should be considered
as done by all of them.' The law regulating the
number of pindas is this: ten for a Brahman, and
twelve only for a Kshatriya. Vishnu says: — The
number of pindas is to be fixed according to the num^
ber of days a person is affected with impurity by
the death of a kinsman. His words are: ' So lonsf
as impurity lasts, a libation of water and a pinda is
to be offered to the deceased (every day).' " ^
pharma This is all that the Mitakshara says on this sub-
Sindnii -^
onier^of^'^^j^^*- ^^^^ teaclicrs who have followed in his foot-
succession J.1 1 • llj.1 T
of blood- steps, however, have given elaborate rules regarding
entitled to this point. The Dharma Sinclhu Sara of Kasi-
perform
sraddha. natha is a work of wide celebrity in the Benares
School, and his authority in ceremonial matters is
held in very high respect. In fact, wherever there
is any difference of opinion on this subject between
the teachers of different Schools, the authority of
Dharma Sindhu is universally deferred to in all the
districts included in the Benares School. We will,
therefore, quote its authority in support of the follow-
ing rules, which are taken from the chapter treating
of persons competent to perform the Sraddha for the
. benefit of deceased kinsmen. The Dharma Sindhu
Scl\ s \
Son. " The son of one's own body has the preferential
' Mita., Ill, 16.
' Dharma Siudhu, Book III, Chap. II, p. 4.
PERSONS COMPETENT TO PERFORM THESE RITES. 107
duty and right to perform the annual and other Srad- lectcrb
dhas, and the funeral ceremonies which take place —
immediately after death. If there are several such
sons, the eldest has this duty and rio^ht ; on failure ^^^^^ |<»
' J o 7 the exclu-
of him, or if he is not present, or if his right has o^ill^'^l
lapsed through having become an outcast, or similar
disqualification, the eldest after him. The statement,
however, made (elsewhere) that in the absence of the
eldest, the youngest has always this right, and not the
sons between them, is without authority. Hence,
if sons hve in a state of division, the eldest, after
having received from the younger brothers the requi-
site funds, should perform all the funeral rites up
to that called Sapindana. But the annual and other
Sraddhas each of them must perform separately. If,
however, sons live in a state of union, even the
annual and other Sraddhas must be performed by
one of them only. Still, since what is done by one
member of an united family accrues to the benefit
of the rest, all the sons should keep such rules, as the
observance of chastity, the not-touching of another
person's food, and similar ones. If sons do not live
in the same place, whether they stay in different
countries, or in different houses, each of them should
perform the annual and other Sraddhas separately", gon,
even if they are members of an undivided family.^ ^^"* ^ â– ^*
"In absence of the eldest, the younger brother Yoanger
next in order should perform the cremation and other
• Goldstiicker's Lit. Rem., Vol. II, p. 195.
108 NATURE OF SEADDHA RITES.
Lecture initiatory ceremonies during the first twelve months ',
— but he should abstain from performing the Sapindi-
harana. He should wait for the eldest for full one
year. If the eldest comes home in the course of the
year, he should relieve the younger, and perform all
the ceremonies himself. If the year is over, and the
eldest brother is still absent, the younger brother
must perform the Sapindikarana, or the first annual
Sraddha. If the cremation, the monthly, the half-
yearly, and other ceremonies have been performed
by a person other than a son, all these rites, except
cremation, must be performed over again by the son.
The eldest must perform all of them over again, even
if they have been already performed by a younger
brother.
" Twelve classes of sons were recognised (by Hindu
society) in former days. But in the present (Kali)
age, they, with the exception of sons of the body, and
adopted sons, do not receive social recognition. On
Adopted failure of sons of the body, therefore, adopted sons
are entitled to perform the Sraddha rites of their
adoptive fathers. The adopted sou is one who has
been given, according to prescribed rules, to the
adoptive father of the same class by the boy's natural
father and mother, or by either of them. The hus-
band has a right to give away the son, with the
permission of his wife, in times of danger and distress.
If the danger be very great, however, and the
distress very severe, he may exercise his own right
son.
PERSONS COMPETENT TO PERFORM THESE RITES. 109
of giving away the son, even without the permission Lectubb
of the boy's mother. The mother can never give —
away her son without permission, previously
obtained, of her husband.
" On failure of an adopted son, the grandson and Grandson
and great
the o;reat o^randson claim the rio;ht. There are teachers, grandson,
however, who lay down a different rule. According
to them, the adopted son follows, and does not
precede, the grandson and the great grandson in
this matter.^ When there is a son not invested
with the sacred thread, and a grandson invested with
it, the former is preferred to the latter, if he is more
than one year old, and if he has gone through the
ceremony of tonsure. If the son is more than three
years old, he has the right of performing his father's
Sraddha, even if he has not gone through the cere-
mony of tonsure. The adopted son is then alone
entitled to the performance of the Sraddha rites,
when he is invested with the sacred thread.
" On failure of adopted sons, grandsons, and great widow
(in case
grandsons, the widow claims the right of performing f^ffieceased
the Sraddha of her late husband, — and the husband ™*'^^'
of his deceased wife. The husband is not competent
to perform the Sraddha rites of his wife in presence ^^ ^jj^,
of a son of a rival-^dfe ; or in other words, the theni-
son of a rival-wife is preferred to the husband, case of'"
. , . deceased
The wife is entitled to the performance of the ^'"f-' »
^ female).
*â– Nixnaja Sindhu, 315.
110 NATURE OF SRADDHA RITES.
Lecture Sraddlia rites of her husband, even if her hiis-
— band's brother, who lived joint in food, estate, and
worship with her late husband, takes his property
after his death. If the deceased lived separate from
his brother, the widow alone is entitled to his
property.
Daughter, " Qu failure of the widow, the daughter is entitled
to the performance of the Sraddha rites of her father,
if the latter lived separate from his brother in food,
estate, and worship. When there are both a married
and an unmarried daughter, the former alone is
entitled to perform the Sraddha rites, though the
latter (only) takes the property. On failure of
Daughter's a daughter, the daughter's son takes the property
and performs the Sraddha of his maternal grand-
father. On failure of a daughter's son, the brother
of the deceased claims this right. The nephew
follows the brother.
" On failure of the widow, the brother of the de-
ceased has this right, if the deceased lived joint in
food, estate, and worship with him.
Uterine " Whcrc thcrc are brothers by the same mother, and
brother.
brothers by different mothers, the former are pre-
ferred to the latter ; and in this case the younger bro-
ther is preferred to the elder. On failure of the for-
mer, however, the latter has this right. Where there
are more than one younger brother, the brother who
is immediately younger than the deceased is preferred,
and on failure of him, the brother next to him.
PERSONS COMPETENT TO PERFORM THESE RITES. Ill
Similar rules apply to elder brothers, where there are LEcrrBE
^^ -^ ' III.
more than one to claim the right. —
" On failure of brothers by the same mother, the H,iif-bro-
step-brothers are entitled to this right. The rules of
precedence among them are the same as those men-
tioned above.
" In the opinion of some teachers, the brother
performs the funeral rites, in presence of the daughter-
and the son, even if the deceased lived separate from
him, because, according to them, the daughter and
her son being of a different gotra (bearing a different
family name, and yielding allegiance to a different
patriarch) are not entitled to perform the Sraddha of
the deceased.
"On failure of the brother, the brother's son has this brother's
son.
right ; and where there are sons of uterine and step-
brothers, their precedence is regulated by the rules
laid down above — i.e., the sons of the uterine brothers
are preferred to those of step-brothers.
" On failure of the brother and the nephew, the Father,
, mother,
father, the mother, the dauojhter-in-law, and the sister ^au^hter-
' o ' in-law,
claim the right in succession. In case there are both ^'^'*'''
uterine and step-sisters, the same rules apply to them
as to uterine and step-brothers.
" On failure of sisters, their sons are entitled to Sister's son.
this right. The rules of precedence are the same as
those mentioned above.
" On failure of a sister's son, the father's brother Father's
brother, bis
(or paternal uncle), the uncle's son, and the other ^^^i^'^^^-^j^,
das.
112 NATURE OF SRADDHA RITES.
Lecture sapindas (according to tlieir degrees of proximity to
— tlie deceased),
samano- " Qn failure of the Sapindas, the Samanodahas, or
those connected by libations of water, take their
place."
Kinsmen of Qn failure of these relatives, kinsmen of the same
the same
gotra. ^^ gotra,^^ or those sprung from the same common an-
cestor, bearing the same family title, and claiming
allegiance to the same patriarch, are competent to
celebrate the sraddha rites.
Maternal After the paternal line is exhausted, the kinsmen
relatives. ••- '
through the mother make their appearance. They
must be always postponed to kinsmen bearing the
same family name, or gotra.
" On failure of gotrajas,^^ the Dharma Sindhu con-
tinues, " Mother's father, mother's brother, his son,
and the other Sapindas ex parte materna claim the
right of performing the Sraddha of the deceased, in
order.
Father's " On failuTC of them, the sons of the father's and
& mother's
sister's son. mothCT S SlStcrS.
Father's " Ou failure of them, the handhus of the father,
bandhus. i i > • ?
viz.^ grandfather s and grandmother s sister s sons,
and grandmother's brother's sons.
Mother's " In like manner, on failure of them, the mother'' s
bandhus. i > /> i i • > ^
handhus, viz., the mother s father s sister s son, the
mother's mother's sister's son, and mother's mother's
brother's son.
Disciple. " On failure of them, the disciple.
PERSONS COMPETENT TO PERFORM THESE RITES. 113
" On failure of him, the son-in-law is entitled to Lecttjbe
perform the Sraddha of his father-in-law, and the „ — ;
latter of the former.
" On failure of him, a friend. Friend.
" On failure of a friend, any one who takes the Any person
' •' taking the
property of a Brahman may perform his Sraddha. lln^aslot
" In the case of one who is not a Brahman, the e/befn^'
T7- n 1 1 ^ ^ Brahmin).
King takes the property of the deceased, and causes King.
some worthy person to perform his funeral cere-
monies ; or a Brahman, when at the point of death,
may adopt a son (dharmaputra) who may perform the
ceremonies beneficial to the deceased.
" On failure of a son and other issue of a natural ^'atnrai
father of an
father, the son of the latter (adopted by another per- gonemuied
son) may perform his Sraddha, and take his property. *° ^'° ^'
On the failure of issue of both natural and adoptive
fathers, the adopted son may take the property of
both, and perform their annual Sraddhas. On the
day of the new moon, as well as in pitripaksha, or the
dark fortnight especially dedicated to ancestors in the
month of Aswina, the adopted son should also per-
form the Sraddhas of the ancestors of both his na-
tural and adoptive fathers. The sons and grandsons
of an adopted son are entitled in hke manner to the
performance of the Sraddha, and to the property of
the adopted son's natural father and grandfather, in
case the latter have no issue of their own."
Here end the rules determinins; the order of sue- Rules for
'^ Sraddha of
cession of persons who are entitled to the perform- f^^^^l"^^*^
15
114 NATURE OF SRADDHA RITES.
Lecture ance of the Sraddlia rites of a male kinsman.
III.
— Let us now tabulate these results : —
BENARES SCHOOL.
Persons competent to celebrate Sraddlia rites.
1. Son.
a. Eldest son.
h. Second son, &c.
c. Adopted son.
2. Grandson.
3. Great grandson.
4. Widow.
5. Daughter.
a. Married.
h. Unmarried.
6. Daughter's son.
7. Brother.
a. Whole brother,
1. Younger.
2. Elder.
h. Half-brother.
1. Younger.
2. Elder.
8. Brother's son.
9. Father.
10. Mother,
11. Son's widow.
12. Sister.
13. Sister's son.
14. ^iv^mdifx^ ex parte paterna.
a. Uncle.
h. Uncle's son, &c.
PERSONS COMPETENT TO PERFORM THESE RITES. 115
15. Samanodakas. Lecture
16. Sagotras, or kinsmen —
bearing the same family name.
17. Sapindas ex parte materna.
a. Maternal grandfather.
h. Maternal uncle.
c. His sou, &c.
18. Bandhus.
a. Father's sister's son.
h. Mother's „ „
19. Father's Bandhus.
a. Father's father's sister's son.
h. „ mother's „ „
c. „ maternal uncle's son.
20. Mother's Bandhus.
a. Mother's father's sister's son.
h. „ mother's „ „
c. „ maternal uncle's son.
21. Stranijers.
a. Pupil.
h. Son-in-law.
c. Father-in-law.
d. Friend.
€. KiXG, except of a Brahmaua.
The rules in the case of female kinsmen are diiFerent.
We quote again from Dharma Sindhu:
" The father of an immarried dauorhter is entitled
to perform her Sraddha. On failure of him, her
brother, &c.
" In the case of a married woman who has no sons
of her own, the son of a rival wife.
116 NATURE OF SRADDHA RITES.
Lectube " On failure of him, the grandson, great grand-
— son, husband, daughter, daughter's son, husband's
brother, husband's brother's son, daughter-in-law,
father, and brother, in order.
" On failure of these, a brother's son and others
mentioned above.
" It should be always remembered that the persons
enumerated in the foregoing list, are entitled to per-
form the ceremonies of a deceased woman, only on
the failure, or absence, of her own sons.
" In the absence of sons, other persons may per-
form her funeral and other incidental rites, but sons
alone are entitled to her sapindikarana. On failure
of the latter, the former may perform this rite
also.
Initiatory " Hcrc it is ncccssary to bear in mind that all per-
funeral
rites obii- gQns fi'om the Sapindas to the Kina: must perform all the
gatory. -â– â– o l
diate^ones initiatory funeral rites. The intermediate set of rites
Fn'Tones ending with sapindikarana may or may not be per-
sory^oii the formcd by them. They need not perform the final
inheritor of , -y ' n i i • ^ • i
property, gg^ of ccremonics, also, if they do not inherit her
property. But they are bound to perform these
ceremonies, if they take her property.
" All the persons included in the list given above,
from the sons to brother's sons, must perform all
the ceremonies (initiatory, intermediate, and final)
beneficial to her soul, whether they take her pro-
perty or not. The daughter's son, and the latter's
son also, should follow the same rule.
PEKSONS COMPETENT TO PEKFORM THESE RITES. 117
" The final funeral rites of a woman are to be Lectube
rformed on the anniversary of her death only, and pj^^j^^^g
not on the day of the new moon, &c. They share J°^^jj„
on these occasions the benefit accruing fi'om these rites on[/o1J^he
With ihoiv husbands, and these ceremonies, therefore, of her death,
need not be separately repeated for them. But the
initiatory and the middle set of ceremonies must be
performed separately for the benefit of their souls."
The rules laid down by Rudradhara in his Sraddha ^}^}l^.}^^
-' Mithila
Vivelca are implicitly followed in the ^lithila school. ^^'*°*^'*
We will, therefore, follow his lead in treating of
this School. The Sraddha Viveka mentions the fol-
lowing persons as competent to present funeral offer-
ings to their deceased kindred : —
" Among thirteen classes of sons, the son born of
the body takes the first rank. The eldest is pre-
ferred to the younger sons.
2. Appointed daughter's son.
3. Then the other classes of sons in order, — the
son of his wife begotten by another; the son of a
young woman unmarried ; the son of a pregnant
bride ; a son of concealed birth, whose real father
cannot be known ; a son by a twice-married woman ;
a son rejected by his natural parents ; a son adoj^ted ;
a son bought ; a son made ; a son self-given ; a son
by a Sudra woman.
4. Grandson ; great grandson ; widow ; younger
brother ; elder brother ; father ; brother's son, in
order.
118 NATURE OF SRADDHA RITES.
Lecture In default of a brother's son, the Sapinda relations
— are competent to perform the initiatory and the inter-
mediate set of ceremonies.
5. Daughter; Sakulyas; Sapindas through mother;
Sakulyas through mother ; mothers.
6. Mistresses.
7. Any one who inherits the property of the
deceased. J
"The adopted grandson and the great grandson
are competent to perform the Parvana Sraddha of
their grandfather and great grandfather, even if the
latter have sons of their own. >
" If a boy dies before attaining the age of six years,
only the initiatory ceremonies should be performed
for him by his brother, father, &c., in order. If he
dies before attaining the age of two years, these cere-
monies should be omitted, and he should be buried
and not burnt. The same remark applies to a girl
who dies before completing the age of two years. •
In case of " With regard to a girl who dies after attaining the
age of two years, but before marriage, only the initia-
tory ceremonies are to be performed for her by her
father, brother, &c.
" In the case of married women, all the three
classes of rites are to be performed for them by the
following persons in order:
" Son; husband; son of rival wife; grandson; great
grandson; Sapindas ; Sakulyas ; Sapindas of father."^
' Sraddha Viveka, Benares Ed., p. 21.
females.
PERSONS COMPETENT TO PERFORM THESE RITES. 119
According to Sraddha Viveka, the Sapinda relation- Lectcbe
ship extends to the seventh degree, including the —
survivor, in the ascending and descending male lines ;
and the Sakulya relationship to the tenth. So that
seven generations of men, ascendants, descendants, and
collaterals, are bomid together by the tie of Sapinda
relationship. The Sakulyas are three generations of
persons beyond the Sapindas.
The rules determining the competency to perform the Bengal
obsequial rites in the Bengal school, are not materi-
ally different from those obtaining in the Benares
school. The following table compiled from Bhava-
deva's Treatise^ on Sraddha Rites, will give a clear
idea about them : —
BENGAL SCHOOL.
Sraddha.
1
a. — Parvana, or ancestral.
b. — Ekoddishta, or
individual.
a. — Parvana.
1.
Son.
2.
Grandson.
3.
Great grandson.
4.
Daughter's son.
5.
Son's daughter's son.
6.
Grandson's daughter's
son.
Bhava(Jeva, Cal. Ed., 348.
120 NATURE OF SRADDHA RITES.
Lecture ^.— EkODDISHTA.
— 1.
Son.
a. Eldest Son.
h. Youngest Sou.
2.
Grandson.
3.
Great grandson.
4.
Widow.
a. Having no son.
h. Mother of a disqualified son.
5.
Daughter.
a. Maiden.
b. Betrothed.
c. Married.
6.
Daughter's son.
7.
Brother.
a. Youngest uterine brother.
h. Eldest „ „
c. Youngest stepbrother.
d. Eldest
8.
Brother's son.
a. Son of youngest uterine brother.
h. „ „ eldest „ „
c. „ „ youngest stepbrother.
d. ., „ eldest „ „
9.
Father.
10.
Mother.
11.
Son's widoio.
12.
„ daughter.
13.
„ „ married.
14,
Grandsons ividow..
15.
„ daughtei\
PERSONS COMPETENT TO PERFORM THESE RITES. 121
16. Grandson^ s daughter maiTied. Lecture
17. Grandfather. —
18. Grandmother.
19. Sapindas ex parte paterna.
Uncles and others.
20. Saraanodakas ex parte paterna.
21. SagOtraS (or kinsmen of the same family name).
22. Maternal orandfatlier.
23. Maternal grand?jwther.
24. Maternal uncle.
25. Sister's son.
26. Sapindas ex parte materna.
27. Samanodakas „
28. Widow belonging to a different caste.
29. An unmarned woman living a-s wife.
30. Fattier -in-law.
31. Son-in-law.
32. Grandmother s brother.
33. Strangers.
a. Pupil.
h. Priest.
c. Spiritual preceptor.
d. Friend.
e. Father's friend.
/. Servants of the same caste living in the
same village.
The list given by Bhavadeva is essentially the
same as that given by Rughunandana. The two
authorities differ, however, with regard to the com-
petency of the maternal grandmother and great grand-
16
122 NATURE OF SRADDDHA RITES.
lectube so?i^s widow to perform these sacred rites. Ragliu-
— nandana denies this privilege to the former and
Bhavadeva to the latter.^
' The following persons are competent, according to Baghunandaua,
to offer the exequial cake in the Bengal School : —
1. Eldest son.
Youngest son.
Grandson.
Great grandson.
Widow having no son.
Widow, mother of a disqualified son.
Maiden daughter.
Betrothed daughter.
Married daughter.
10. Daughter's son.
Youngest uterine brother.
Eldest uterine brother.
Youngest stepbrother.
Eldest stepbrother.
Son of youngest uterine brother.
Son of eldest uterine brother.
Son of youngest stepbrother.
Son of eldest stepbrother.
Father.
20. Mother.
Daughter-in-law.
Son's unmarried daughter.
Son's daughter, married.
Grandson's widow.
Grandson's daughter.
Grandson's son's widow (?)
Grandfather.
Grandmother,
j Paternal uncle, and other
30. j Sapindas, ex ^^ar^e ^.(a!!erM«.
Samanodakas, ex jjai'tc jfatcrua.
Sagotras (kinsmen bearing the same family name).
Maternal grandfather.
Maternal uncle.
Sister's son.
Sapindas, c.v parte materna.
Samanodakas, ex parte materna.
Widow belonging to a difEerent caste.
An unmarried woman living as wife.
PERSONS COMPETENT TO PERFORM THESE RITES. 123
Nimaya Sindhu, the great Marhatta authority, Lectubb
whose opinion is highly respected also in the other —
Rirabay
school
40, Father-in-law.
Son-in-law.
Brother of grandmother.
PnpiL
Priest.
Spiritual preceptor.
Friend.
Father's friend.
48. Servants of the same caste living in the sane village.
These forty-eight persons are entitled to perform the exequial ceremo-
nies of a deceased kinsman.
The following persons are competent, in the Bengal School, to perform
the funeral ceremonies in honor of a deceased kinswoman : —
1. Eldest son.
Youngest son.
Grandson.
Great grandson.
Maiden daughter.
Betrothed daughter.
Married daughter.
Daughter's son.
Son of a rival wife.
10. Husband.
Daughter-in-law.
Husband's sapindas, ex parte paterna.
Samanodakas of the husband, ex parte paterna.
Sagotras, kinsmen bearing the family name of the husband.
Father.
Brother.
Sisters son.
Husband's sister's son.
Brother's son.
20. Son-in-law.
Husband's maternal unde.
Husband's pupiL
Father's samanodakas, kinsmen of the father's family ;
mother's samanodakas, kinsmen of the mother's family.
24. Learned Brahmins.
Twenty-four only.*
Baghunandana, Suddhi Tatwa. 494.
124 NATURE OF SRADDHA RITES.
Lecture schools, thus enumerates the persons competent to
— perform the Sraddha of a deceased kinsman :
taken from ^
sindilu^ " ^^^ begotten by the man himself, and born in
lawful wedlock ; grandson ; great grandson ; adopted
son ; then the other eleven classes of sons in order ;
widow.
Persons " (Husbaud, if not excluded by the son of a rival
entitled to ^ ''
pindas ^ife. )
according '
Sindhu!^''* " ^^ failure of the widow, the hr other is competent
to perform the ceremonies, if the deceased lived joint
with him.
" If he was separate, the daughter must perform
them, for she takes the heritao^e. Amonsc married and
unmarried daughters, the former exclude the latter.
On failure of the daughter, the daughter's son comes
next, as he inherits the property of the deceased.
" On failure of the brother, the brother's son ;
father ; mother ; daughter-in-law ; sister ; sister's
son, &c., for they receive the inheritance.
" On failure of all these, Sapindas, and then
Samanodakas, ex parte paterna.
" On failure of kinsmen ex parte paterna, Sapindas
and Samanodakas ex parte materna claim the right.
" On failure of all these, the disciple, the priest, the
spiritual preceptor, the son-in-law, nay even 2^ friend^
are competent to oifer the exequial J92?2c?a5.
" If the deceased has neither a relative nor a friend
to honor his memory by performing the obsequial
rites, the King, as the father of all his subjects, may
PERSONS COMPETENT TO PERFORM THESE RITES. 125
cause the final ceremonies to be celebrated by compe- Lectcbe
tent persons."^ —
We have been hitherto concerned with persons
who are competent to perform the obsequial rites. AVe
have said nothing about the persons to whom pindas
and Hbations of water are due from their kindred.
The Ximaya Sindhu, quoting from Smriti San-
graha, enumerates the following persons who are
honored in the pitripaksha, in holy places, and on all
occasions when libations of water are g-iven to ances-
tors. The Nimaya Sindhu, as I said before, is highly
esteemed in all the schools, and its dictum, therefore,
on this point is authoritative.
" The three immediate paternal ancestors with
their wives ; stepmother ; the three immediate ma-
ternal ancestors with their wives ; deceased wife ;
son and others (grandson and great grandson);
paternal and maternal uncles, and brothers — all with
their wives ; father's and mother's sisters with their
children and husbands ; sisters with their children
and husbands ; father-in-law (and mother-in-law) ;
preceptor ; disciple ; and friends."^
In like manner pindas are due from females to Pindas
offerable
by females
' Nirnava Sindhu. Lucknow Ed.. 317.
fnWHi: ftTfTTT T^^^f^"^ ^^ W^T ?r4^ II
Nimaya Siadhu, p. 124.
126 NATURE OF SRADDHA RITES.
Lectuee certain persons. So long as their husbands are alive,
to c^n ^^^y ^^^ ^^* competent to perform any religious cere-
^^llZlf mony whatever. "No sacrifice," says Manu, "is
allowed to women apart from their husbands, no
religious rite, no fasting ; as far only as a wife honors
her lord, so far she is exalted in heaven."^ But after
the death of their husbands they claim the right to
present obsequial offerings to the following persons:
We quote again from Nirnaya Sindhu, which is
supported by Smriti Sangraha :
" Deceased husband ; father-in-law and mother-
in-law ; grandfather and grandmother of husband ;
her three immediate paternal ancestors with their
wives ; and the three immediate maternal ancestors
Libations . , •, . . ,,
of water With thCir WlVCS.
offerable
promiscu- Like balls of funeral cake, libations of water are
ously by
kinsmen. ^^SQ duc to dcccased kinsmcn. The rules with
regard to these libations are not so strict as in the
case oipindas. Water may be presented promiscuously
by the kinsmen of the deceased. Degrees of prox-
imity need not be calculated in this case with exact
precision. It is enough to say that water may be
presented with or without pindas by the kinsmen of
the deceased. Gautama says :^
" The Sapindas shall offer libations of water for a
deceased relative whose tonsure has been performed ;
as well for the wives and daughters of such a person.
_ j
' Manu, v., 155.
â– ' Gautama, Ch. XIV.
PERSONS COSIPETENT TO PERFORM THESE RITES. 127
Some declare that it must be done in the case of lectube
married female relatives also." —
All the persons who are entitled to pindas, have l^^l^^^
also a right to libations of water. Besides these, f^^" ^^
there is another class of persons who are entitled ubadons.
only to Hbations of water, and nothino; more. These ancestors
•^ *^ _ entitled to
are remote ancestors, who cannot claim pindas. J^'^*''""^
These are seven generations of ancestors, according
to the Mitakshara, beyond the first seven. Manu says,
however, that the Samanodaka relationship ends only
when the names and births of the remote ancestors
can no lonsrer be distino-uished.^ Thus we find that
• Manu, V, 60.
In connection with this subject, the following extract from Steele's
valuable work on the Law and Customs of Hindu Castes in Bombay
may be read with great interest. The author is describing the exist-
ing customs with regard to funeral rites and annual oblations to
deceased kinsmen :
" On the death of a man, whether separate or in community, the duty
of performing his funeral, and subsequently the monthly and annual
ceremonies of purification for the dead, devolves on his heir. In default
of his eldest son, the youngest son should perform the funeral ; 3, bro-
ther ; 4, brother's son ; .5 any heir, as the sister's son, or a sagotra. Should
the son not be on the spot, the nearest relation present may perform
kriya, or ftmeral rites. The Sapindikarana should be performed within
the year, if possible, and on the spot where the father died, and only by
the son, or the relation who performed the kriya. Should the party be
disabled by sickness, he may appoint a sister's or daughter's son of the
deceased to perform the ceremonies in his stead. The eldest son defrays
the expenses of the kriya out of the common proi)erty, or if, after parti-
tion, he performs the ceremonies at his own charges, the others contri-
bute to the expense at his requisition. All might perform the monthly
and annual ceremonies at their separate charges, if after partition, as
other religious ceremonies.
" An heiress is subject to the same rules, but she appoints a relative as
dharmaj)utra to be the actual performer of the ceremonies,
" After paying the deceaseds debts, and providing for an entertain-
ment to the caste, the remainder is given away in charity in the event
of a man dying with distant relations only. In this case, or on refusal
128 NATURE OF SRADDHA EITES.
Lecture all our blood-relations, whatever degree of rela-
— tionship they may bear to us, nay even those with
whom we are connected by marriage, or by a tie of
friendship, claim a handful of water from us for
the benefit of their souls in the other world. They
claim a tear of remembrance from us, a memento
of our gratitude and affection, and it is freely given
to them by all true followers of the Sanatana (eternal )
faith.
Euiesre- In Calculating the degrees of proximity of a kins-
dTtermine â„¢^^ ^^ ^^ dcccascd, thc rulcs conccming impurity
ofklaship. ^rc of great assistance. On the death of a blood-
relation all his kindred are affected with impurity, but
Effects in. different deofrees of intensity. Their bodies be-
01 impu- ^ ''
^^^^' come impure, and they are not allowed to perform
religious ceremonies during the period of impurity.
They must allow their hair and nails to grow, and
abstain from animal food. Their food cannot, during
this time, be partaken of by others, and they cannot
partake of the food of others. They must remain
isolated, as it were, from society, during this period
of the next heir to perform a man's kriya, he may give his property to
another, on condition of his performing the ceremonies, and the survivor
cannot dispossess such a conditional heir. A mattan service is often I
given to a stranger, if there are no near heirs. The distant relations
then perform the rites for their own purification, and to insure the sup- |
posed happiness of the deceased in another state of existence. Hence, if
the individual whose duty it is to perform the rites refuse, he is subjected
to fine before readmittance to caste privileges without being precluded
from receiving the property. The kriya is, however, performed at hia
charges. His share may be given to his son. The Sirkar (Government)
may have the kriya performed out of the attached proceeds of the
deceased's estate." Pp. 225-227.
PERSONS COifPETENT TO PERFORM THESE RITES. 129
of mouming. The rules of impurity are rigidly Lecture
enforced in Hindu society, and no one is allowed —
to deviate from them, unless there are very exception-
able circumstances which justify such violation.
These rules of impurity are important, inasmuch ^""^^ru"^
as they enable us to find out in many cases the exact
position of a person in the scale of kinsmen having
heritable blood in his veins. In the lano^uao;e of an
eminent scholar, the nearer a person is related to
the deceased, the greater is the direct or indirect
benefit he is able to confer on the latter 's soul, the
nearer too are his claims to inheritance. Accordino-
to the degree a person owes the Sraddha to a relative,
in that proportion the purity of his body is also affected
by the death of that relative ; and the time within
which the impurity he suffers in consequence can be
removed by certain religious acts, depends, therefore,
on the degree of relationship in which he stood to the
deceased. This degree of relationship in its turn
can be determined if we know the term of impurity
which a person has to pass through on the death of
his kinsmen ; for the term is longer or shorter,
according as the degree of relationship is nearer or
more distant.
We will first of all quote from Gautama, the oldest Gautama.
lawgiver amonsc the Hindus : ^
" The Sapindas become impure by the death of a
relative during ten days and nights.
' Gautama, XIV, Ch.
17
130 NATURE OF SRADDHA RITES.
Lecture " The impurity for a Kshatriya lasts for eleven days
— and nights ; or, according to some, for half a month.
" That of a Sudra for a whole month.
"And if he hears of the death of a Sapinda after
the lapse of ten days and nights, the impurity
lasts for one night, together with the preceding and
following days.
" This is also the case when a relative, who is not
a Sapinda, a relative by marriage, or a fellow-student,
has died."
Suddiii We now come to Suddhi Tatwa of Rudradhara of
(Miti'iiia the Mithila school, whose authority on this point
school),
is universally respected. These rules are in force
at the present day :
" Impurity lasts for ten days on the death of a
Sapinda ; and three days only on the death of a
Sakulya.
" If the name, birth, and lineage of a deceased person
could be traced step by step to a common ancestor
beyond the Sakulya degree, or beyond ten genera-
tions, impurity would last on his death for a day and
two nights. But if these could not be traced, but
it was generally known that the deceased belonged
to the same stock, ablution alone would free a kinsman
from impurity.
" On the death of his maternal grandfather, the
daughter's son is affected with impurity for three days ;
but on the death of his maternal grandmother, only a
day and two nights.
I
'
PERSONS COMPETENT TO PERFORM THESE RITES. 131
" Impurity lasts for a day and two nights on the lectube
death of a maternal uncle ; mother's sister's son ; —
father's sister's son ; maternal uncle's son ; daugh-
ter's son ; and a sister's son.
" It also lasts for the same time on the death of
mother's stepsister ( ?) ; maternal uncle's wife ; and
father's sister.
" It lasts only for one night on the death of mother's
stepbrother ; mother's father's sister's son ; mother's
maternal uncle's son ; father-in-law ; mother-in-law ;
and brother-in-law."
The importance of the Sraddha ceremonies from a sraddha
ceremonies
leo^al point of view cannot be overrated. Ihe com- serve as a
*-" *â– key to the
petence of a person to offer these oblations forms Jl'iJ^eru-
the test of his title to the inheritance. It is a well- *'''*^^'
known saying, that " he alone is entitled to the
property of the deceased who is competent to present
exequial offerings to him," The principle that the
right of inheritance, according to Hindu law, is wholly
regulated with reference to the spiritual benefits to be spimuai
, . -, benelit the
conferred on the deceased proprietor, has been laid criterion of
r i. ^ the ridu of
down by the hio;hest judicial authority.^ It has been "ii'erit-
J o o J auce.
often remarked by the Judicial Committee of the
Privy Council, that '' there is, in the Hindu law, so
close a connection between their religion and their
succession to property, that the preferable right to
perform the Sraddha is commonly viewed as governing
• B. L. R. : Amrita Kumari, II, F.B., 28 ; Gurugovinda Mandal, V, F.B.,
15 ; Govinda Prasad, XV, 35, kc, kc.
132 NATURE OF SRADDHA RITES,
Lecture also the preferable right to succession to property."^
— In the lano-uao-e of an eminent scholar, " a kind
of spiritual bargain is at the root of the Hindu
law of inheritance. For the direct or indirect bene-
fit of his future life, a person requires after his death
certain religious ceremonies — the Sraddha — to be per-
formed for him ; and since these ceremonies entail
expense, his property is supposed to be the equivalent
for such expense."^ "Two motives," says the
Dayabhaga,^ " are indeed declared for the acquisition
of wealth ; — one, temporal enjoyment ; the other, the
spiritual benefit of alms, and so forth. Now, since
the acquirer is dead, and cannot have temporal enjoy-
ment, it is right that the wealth should be applied
for his spiritual benefit ;" and this spiritual benefit
can be conferred only by the performance of the
Sraddha ceremonies in honor of the deceased. " In-
heritance, accordingly," he goes on to say, " is in right
of benefits conferred, and the order of succession is
regulated by the degree of benefit."*
" With the notion of responsibility," says Sir Henry
Maine,^ " after death, the notion of expiation was al-
ways associated. Building upon this last notion (and
forgetting, apparently, the original motive of the
Sraddha ceremonies), the Brahmanical commentators
> 12 M. I. A., 96 ; 9 M. I. A., 610 ; 12 M. I. A., 541 ; 9 B. L. R., 394.
2 Goldstiicker, Vol. II, p. 169.
» XI, 6, 13.
' Dayabhaga, XI, 6, 29.
^ Maine's E. I., 331.
PERSONS COMPETENT TO PERFORM THESE RITES. !/)/>
gradually transformed the whole law, until it became Lecture
an exemplification of what Indian lawyers call the —
doctrine of spu-itual benefit. Inasmuch as the condi-
tion of the dead could be ameliorated by proper ex-
piatory rites, the property descending or devolvmg
on a man came to be regarded by these writers partly
as a fund for paying the expenses of the ceremonial by
which the soul of the person from whom the inherit-
ance came could be redeemed fi-om suiferino- or
degradation, and partly as a reward for tlie proper
performance of the sacrifice.
'• There ought to be nothing to surprise us," he
continues, " in the growth of such a doctrine, since it
is only distinguished by its logical completeness from
one which had influence on Western jurisprudence.
The interest which, from ver}' early times, the Church
claimed in the moveable or personal property of
deceased persons, is best explained by its teaching,
that the first and best destination of a dead man's
goods was to purchase masses for his soul, and out
of this view of the proper objects of wealth the
whole testamentary and intestate jurisdiction of
Ecclesiastical Courts appears to have grown."
It has been doubted, however, whether this prin- The princi-
ciple is universally true in all the schools of Hindu true'iu the
case of the
law. " It is strictly and absolutely true in Ben- ^^'^s-^^
gal," but it has been asserted that it is not so else-
where. The question whether the doctrine of spiritual
' Maynes HLudu Law, 9, 423.
134 NATURE OF SRADDHA RITES,
Lecture benefit is applicable to all the schools of Hindu law
— is extremely important, for if it can be proved that
the principle is universally true, the logical conse-
quences of the doctrine would easily determine the
order of succession, wherever there are disputed
points to be settled by British Courts of Justice.
We shall examine the question at length in a future
Lecture, and show the connection which exists
between the competence to present ancestral offerings
and the title to inherit the property of the deceased
proprietor.
LECTURE IV.
SOURCES OF HINDU LAW.
Ascendency of Law — Sources of law according to Mann : I. Revelation, 2. Insti-
tates of sages, 3. Usages — According to Tajnavalkya — Intention, test of
legality — Divine will, the origin of law — Custom: its validity — Bevealed
Law contained in the Vedas — Human Law in the Codes of sages — Superiority
of the former — The Tedas three in number, A fourth subsequently added —
Sanhita and Brahmana — Mantras — Found in the Sanhitas of the Ye^las,
Rig-Teda — Yajurveda — Brahmanas — Origin in Divine Will — Saahita and
Brahmanas of the Rik-Yeda, Sama-Yeda, Yajiirveda, Black and White
Yajus, Atbarva Ye<la, full of materials of historical interest — Descriptive
of society in the remote past — Rules of conduct sanctioned by revelation —
Eig Veda songs — Indicate advanced stage of civilization — Caste system
miknoTn in Yedic age — Ramifications of the Yedas — Sutras — Sruti — Smritis —
Served as memoria technica — Aphoristic school — Cultivation of memory —
Sutras classified — Dharma Sutras, or Maxims of Law — Fountain source of
the ancient Codes — History of Hindu jurisprudenca — Necessity for law not
felt in the patriarchal age — Felt with the extension of social relations —
Civil Law not continuously treated of in the Mantras and Brahmanas —
Sutra schools — Charanas — Spiritual fraternities — Their nudber same as
that of the Vedas — Decline of the influence of the fraternities — The cere-
monial branch of the aphurisms cultivatetl to the neglect of the study of
legal maxims — Establishment of Civil Government — Social progress des-
tructive of priestly ascendency — Buddha — His teachings — Equality — Sumnun
bonum of life — Effects of his teachings — Rules of Inherit. nee the same
with the Hindus and Buddhists — Neglect of the study of ancient dharma
Sutras — .Administration of Law in different periods — Gautama — Law — Judi-
ciary — C'>nstiiUtion of judicial assembly — Decision of a single man learned
in the Ye<las — Privileges of spiritual fraternities discontinued — Brahminic
influence in the legislative and judicial assemblies — Apastamba — On the
origin of Law — Law created by social wants — Yasistha — Decisions of
eminent lawyers — Manu — Yajnavalkya and Parasara — Yrihaspati — Law laid
down by Jurists — Chronological uncertainty of ancient Sanskrit works —
History of ancient civilization in India divisible into epochs — Possibility
of determining the relative ages of ancient lawgivers — Mantras older than
136
SOURCES OF HINDU LAW.
Lecture
IV.
Bralimanas, wliich again are anterior to Sutras — TMantra period— Sources
of Hindu law: 1. Veda; 2. Smritis — Old laiv-givers — Ynjnavalkj-a's list —
Padma Purana's addition — Four principal autliorities — Text-books com-
piled from oral instruction — Institutes of law classified — Relative ages of
four principal lawgivers — Gautama first in order — Baudliayana on Penance
and Expiation — Comparison with Gautama — Vasisbtha — His second-band
reproduction of Baiidhayana's aphorisms — Both Baudhayana and Vasishtha
posterior in date to Gautama — Similarity of Apastamba's and Baudbay-
ana's doctrine — Occasional conflict of their opinions — Apastamba's attempt
at overthrow of Baudhayana's conservatism — Dr. Biibler on the chrono-
logical precedence of the two sages — Apastamba's priority to Vasishtha-
Established by arguments — Tiieir views as to different kinds of sons —
Views of other legislators— Vehemence of Apastamba's language — Vasish-
tha's advocacy of ancient institutions — Baudhayana on illegitimate sons-
Confuted by Apastamba — Conclusion — But supported by Vasishtha — Apas-
tamba's native place — Sutra works — Sages of the aphoristic period —
Internal evidence as to their priority to Manu — Harita — Yama — Saw-
Ma — Current edition of his work written in prose not referable to Sutra
period — Probability of the name of its author being fictitious — Parasara^
Books on ritual and expiation bearing his name, are the metrical editions
of the original — The period in which he lived — Tiiird class of legal trea-
tises — Manu — Calculation of the period in which he lived — Results of
computation made by scholars — Their mode of calculation not satisfactory— ;
A Similar attempt at fixing the date of Narada — Manu older than Yajnaval-
kya, and Narada younger than the latter — Metrical composition character-
istic of this period — Manu of the ancient legislators not to be identified with;
tiie author of the Institutes — Tradition as to three redactions of Manu]
examined — Antiquity of Maim's Code— Narada's work a systematic treatisftj
on law — Weber on the posteriority of Yajnavalkya's Code to Manu's-
Chronological sequence of Manu, Yajnavalkj'a, and Narada — Vishnu-
Nature of aphorisms — Vishnu-Smriti is not the metrical version of what
are called the Vishnu-Sutras : fallacj' of the contrar}' proposition — Vishnu'lj
age subsequent to that of Manu and Yajnavalkya — His description of
social condition — '■'■Jangala''' — Vishnu's laws point to an advanced state o|
societv — Four later lawgivers — Devala first in the order of succession-
Briliaspati second — Katyayana — Vyasa — Not identical with the famou
author of the Mahabharata— He delivered his laws at Benares — Summary.
Asconden-
cv of law.
" Law," w^e read in the Yeda/ " is the king of
kino-s, far more powerful and rigid than they: nothing
can be mightier than Law, by whose aid, as by that
' Sa. Br., II. 4, 2, 23 ; Bri. Ar. Up., 1, I, 14.
SOURCES OF HINDU LAW. 137
r)f the Mghest monarch, even the weak may prevail lecture
over the strong."
The "roots," or sources of law, accorduioj to Sources of
° law accord -
Manu, are four in number: Revelation, or the uttered '^11^^
thoughts of inspired seers ; the Institutes of revered Jionr^^'"^
sages, handed down by word of mouth from genera- of sages.
tion to generation; the approved and immemorial
" usages " of the people ; and that which satisfies 3. Usages.
our sense of equity, and is acceptable to reason.^
Yajnavalkya improves upon the text of his pre- fj^yl'^^'"?
decessor, and adds that " an act proceeding from '''*"'-''•
good intention " should also be declared as a " source "
of law. Intention, according to modem Jurists, intention,
. test of
is the test of the legahty or illegahty of an action, legality.
Our motives declare whether our acts should be con-
sidered as offences punishable by law, or whether
they are such that the law can take no cognizance
of them even if the results are injurious to others.
If we now translate the words of Manu and Yajna- Divinewiu,
the origin
valkya into the language of the present day, they °^ ^=*^-
would mean that law is two-fold, — Divine and
Human. Law has its origin in divine wiU, and is
interpreted by eminent sages of antiquity, whose
writino-s are entitled to the hio-hest esteem. Custom, custonirits
^ o ' validity.
in course of time, superseded, in many instances, in
obedience to the law of progress, the written Insti-
tutes of the ancient sages, engraved though they had
been on the tablets of memory. But custom to have
' Mauu, II, 6.
18
138 SOURCES OF HINDU LAW.
Lecturk tlie force of law must be viewed by the liffht of
— reason, and the sense of equity must guide our judg-
ments. The motive of an action is the test of its
legahty, and all acts proceeding from bad motives,
and which are productive of harm or mischief to
others, must be condemned and punished as prejudi-
cial to the interests of society. " Equity and good
conscience," to use the common legal phraseology,
must prevail over all human sources of law. " A
decision must not be made," says Vrihaspati, " by
having recourse to the letter of written Codes, since,
if no decision were made according to the reason of.
the law, there might be a failure of justice."
Keveaied Thc Kevcalcd Law of the Hindus is contained in
tained in thc Vcdas ; and the Human Law, in the Codes of
the Vedas.
Manu, Yajnavalkya, Parasara, and other sages.
Human Thcsc Codcs, or Institutcs, are founded, it is be-
Law in the -r^ t . it. i • i •
Codes of lieved, on Revelation, and derive their authority
sages. '
from Divine Law. If, therefore, it be ever found
Superiority that the Revcalcd Law is at variance with the rules
mer. laid dowH iu human " Institutes," the latter should
be set aside at once, and the law of divine origin,
must assert its supremacy.^
TheVedas Thc Vcdas wcrc originally three in number: Rik,
mmiber. Yaju, aud Sama. At a more recent period, a fourth
A fourth T T 1 1 1
subse- Veda — Atharva — was added to them; but it never
qiiently
added. obtained that sanctity which was allowed to the
^^ ^Ifi ^^}W^ rf^Tlf^ ^ITrfa^I II
SOURCES OF HINDU LAW. 139
other Vedas. It should never be foro;otten, however, lecture
o J ' IV.
that all the four Vedas are considered to be of divine- —
ly inspired origin.
. Each of these four Vedas consists of two distinct sanhua
parts — a Sanhitd or collection of Mantras and a por- Braimana.
tipn called Brahmana.
The word manti^a is derived from the root man, to Mantras.
think; so that the word literally means " thoughts."
These were the inspired "thoughts" (of primeval
saints) centered upon that divine light which illu-
mines the darkest recesses of the human mind. They
were either invocations or prayers, hymns in praise
of the great Being who showered His choicest
blessings upon his chosen people, the Aryas of this
land of milk and honey. A mantra, says a German
savant, " is either a prayer, or else a thanksgiving,
or adoration addressed to a deity; it declares the
purpose of a pious act, or lauds or invokes the object ;
it asks a question, or returns an answer; either directs,
enquires, or deliberates; blesses or imprecates, exults
or laments, counts or narrates;" asks for food, or
longs to pay homage to the Great Benefactor of the
Universe. None but a believer can enter into the true
spirit of these hymns. Millions of men depend upon
them for salvation, and repeat them every day with
the firm belief that they will obtain divine mercy
through them. These mantras are the repositories
of all the sacred knowledge of the Hindus, and are
guarded as the most precious treasures which man
140 SOURCES OF HINDU LAW.
Lecture can possess. The solemn secrets they contain are
— known only to the initiated few, who with their
dying breath entrust them to their children, and
thus hand them down from generation to generation.
Found in Thcsc maiitras are to be found in the Sanhitas of
the Sanlii-
veV* *^ *^® Vedas. The Rig-Yeda is rich in these sacr^
Rig-Veda, sougs, and the Sama and the Yaju have freely
borrowed them from the oldest Veda. The Rik
is the parent tree, and the other two are only
its offshoots. The Sama and Yaju have been very
properly called the attendants of the Rik. There are
believers, however, who, forgetting the substance of
true religion in the forms it prescribes, have greater
veneration for Yaju than for the other Yedas.
Yajur- " The Yajur-Yeda," says Sayana in his introduction
Veda.
to the Taittiriya Sanhita, " is like a wall, and the
two other Yedas are like fresco paintings on it."
The Brahmans of India, though they hold all the
Yedas in the highest veneration, and believe them
to be of divine origin, owe allegiance, however,
only to one of them, to the exclusion of the other
three. There are some who claim the privilege of
studying two Yedas, some three, and others four. But,
as a general rule, they pay their homage only to one,
and guide their conduct by the laws laid down in
that particular Yeda.
Brahmanaa The Brahmanas are theological expositions of the
mantras. They are ritualistic treatises, which enjoin
sacrifices and explain their meaning. They are the
SOURCES OF HINDU LAW. 141
productions of a theological age, and are saturated Lecttjrb
with theological metaphysics. " They give injunctions —
as to the performance of sacrificial acts, explain their
origin, and the occasions on which the mantras are
to be used, by adding sometimes illustrations and
reasons, and sometimes also mystical and philosophi-
cal speculations." They contain citations of hymns
in fragments, and show that the Sanhitas of the Yedas
were widely studied and minutely remembered. They
must, therefore, be later in point of time than the
mantras. With respect to their age. Dr. Weber says :
" They all date from the period of the transition from
Vedic civilization and culture to the Brahmanic mode
of thought and social order. They originated in the
opinions of individual sages, and were imparted by
oral tradition, and preserved, as well as supplemented,
in their families, and also by their disciples. The
more numerous these separate traditions became, the
more urgent became the necessity for bringing them
into harmony with each other. To this end, as time
went on, compilations, comprising a variety of these
materials, and in which the different opinions on
each subject were uniformly traced to their original
representatives, were made in different districts, by
individuals peculiarly qualified for the task."^
The canons of the Brahmanas inspire the same
sacred awe as the mantras. Both have the same
source, according to Hindu belief, and are equally
' Weber's History of Sanscrit Literature.
142 SOURCES OF HINDU LAW.
Lecture the objects of veneration. Both have proceeded from
^ — Divine Will, and both are, therefore, the revealed
Origin in ' '
^•j^i"® Scriptures of the Hindus.
The Divine Law of the Hindus, therefore, is to be
sought for and found in the mantras and Brahmanas.
Sanhita The Sauhita of each Yeda has a set of Brahmanas
and Brah-
manas attached to it.
of the The Rik has Aitareya, Kaushitahi or Sankliayana
Kik-Veda, ^-v , i i •
Jorahmanas attached to it.
sama- Tlicrc are eisrht Brahmanas relatina; to the Sama-
Veda, ^ , ^
Veda. The Samavidhana and the Tandya Maha-
brahmana may be mentioned as representatives of
this class.
Yajur- The Yajur-Veda is divided into two schools, and
Veda.
the text-books of these schools are respectively call-
ed Black and White Yaju. There was a dissension
between the teachers of Yajur-Yeda, and the sage
Yajnavalkya led the dissenting party. The text-
Biack and book of Ms school is Called the White Yaiu. The
White ^ _ _ ^ '^
Yajus, Black Yaju is known as Taittiriya Sanhita, and the
White Yaju is called the Vajasaneya Sanhita.
The Taittiriya Brahmana is attached to the former,
and Satapatha Brahmana to the latter.
Atharva- Gopatha Brahmana relates to the Atharva-Yeda.
Veda. ^
Full of I shall have to make frequent references to these
materials -r-r.,. i«i n ^ iTi
of histori- Vedic works m the course of our lectures, and 1 deem
cal interest.
it proper, therefore, to mention the names of these
treatises in this place. These are valuable records
of Yedic antiquity, and the materials of historical
1
SOURCES OF HINDU LAW. 143
research are to be found only in these works, replete Lecture
as they are with Brahmanic wisdom. —
The state of society they depict is well worthy oescrip-
of notice. Hindu Law has its oricrin in \ edic society in
*^ the remote
manners and customs, and its spirit is derived from p'^^
the social organization of the Yedic age. It is a
trite saying, that Law is not the creature of a day,
but it grows from the customs of successive ages.
The Hindus universally and sincerely believe that Ruies of
all their ancient usages and established rules of con- sanctioned
by revela-
duct have the sanction of an actual revelation from ^^^
heaven ; and the modem jurists are of opinion that,
in order to trace the development of the legal insti-
tutions of a country, we ought to go to the fountain-
head, and there observe the germ of their growth.
The songs of the Rig-Yeda give us an insight into Rig-veda
songs.
the social order of the Yedic age:
" The social condition of the Hindus," says an
eminent scholar, "as reflected by the h3nnns of this
Veda, is not that of a pastoral or nomadic people, but,
on the contrar}^, betrays an advanced stage of civihza- indicate
advanced
tion. Frequent allusion is made in them to towns ^'^ge of
-â– - civuiza-
and cities, to mighty kings, and their prodigious '^°°'
wealth. Besides agriculture, they mention various
useful arts which were practised by the people, as the
art of weaving, of melting precious metals, of fabri-
cating cars, golden and iron mail, and golden orna-
ments. The employment of the needle, and the use
of musical instruments, were known to them. They
144 SOURCES OF HINDU LAW.
Lecture also prove that the Hindus of that period were not
— only familiar with the ocean, but sometimes must
have engaged in naval expeditions. They had some
knowledge of medicine, and must have made some
advance in astronomical computation, as mention is
made of the adoption of an intercalary month, for the
purpose of adjusting the solar and lunar years.
" Nor were they unacquainted with the vices of
civilization, for we read in these hymns, of common
women, of secret births, of gamblers and thieves.
" There is also a curious hymn, from which it
would appear that even the complicated law of in-
heritance, which is one of the peculiarities of the
existing Hindu Law, was to some extent already in
use at one of the periods of the Eig-Veda hymns.
Caste sys- " The institution of caste, however, seems at that
known in tiuic (thc Sauhita period) to have been unknown, for
Vedic age. . . .
there is no evidence to prove that the names which
at a later period were current for the distinction of
caste, were employed in the same sense by the poets
of these hymns. "^
Knmifica- I* is bcyoud our province to describe the different
tii"e Vedas. branches of the Vedas. Suffice it to say, however, that
each of the Vedas " branched off into various Sdkhas,
or, as we might say, into various editions, which,
though in the main concurring in their contents,
nevertheless contained verbal differences enough to
account for the divisions of their respective schools."
' Goldstiicker's Literary Remains, Vol. I, p. 27L
SOURCES OF HINDU LAW. 145
We shall have occasion to speak of the Yedic Schools lectubb
of Law, when we come to treat of the next division —
of Yedic Literature.
The mantras and the Brahmanas are collectively SruU.
known as Sruti, or revelation. With the ritualistic
canons of the Brahmanas ended the Yedic Literature
properly so called. These liturgic treatises had grown
unwieldy; the mass of theological matter collected in
the Brahmanas had become so large, the sacrificial
details, enjoined and illustrated, had become so vari-
ous and perplexing, that an imperative necessity was
felt for arranging and systematising the vast collec-
tion of materials of the Brahmanas. Concise col-
lective summaries of this great mass became absolutely
necessary, as it was impossible to follow the thread of
the diffuse discussion of sacrificial details and meta-
physical mysticism. " The utmost brevity was re-
quisite in condensing this great mass, in order to
avoid overburdeniag the memory ; and this brevity Sutra,
ultimately led to a remarkably compressed and enig-
matical style — known as Sutra or thread — which was
more and more cultivated as the Literature of the
Sutras became more independent, and in proportion as
the resulting advantages became apparent." Yarious
ingenious conjectures have been given as to the origin
of the word Sutra, a thread, a stiing, a clue. We
bdieve that the aphoristic rules were called by this
name, inasmuch as it was by means of these Sutras
that the bewildering maze of Yedic rituals- could
19
146 SOUECES OF HINDU LAW. ;
Lecture be threaded, and because they afforded a clue to
— the intricate labyrinth of the theological discussions
of the Brahmanas. The elaborate details were so
diffuse, that they became unmanageable, and could
not be grasped by the mind, unless the argu-
ments advanced were consecutively strung together
and shown as in a mirror. These Sutras might
be called Vedic Encyclopedias. They were a col-
lection of the principal facts, principles, and dis-
coveries in all branches of the Vedic Literature,
digested under proper titles and arranged under
proper heads. Extreme brevity was the great
object of the aphoristic style of composition, and it
became a common saying that " an author rejoiceth in
the economising of half a vowel as much as in the
birth of a son."
Smritis. Tlic aphoristic rules were called Smritis, or remem-
brance, as distinguished from Sruti, or audition.
The name of Smritis was appropriately given to
them. They were the Yedic formulce, which could
be easily remembered: " The dark, unfathomed caves
of the Vedic ocean contained innumerable gems of
purest ray serene," but few could dive deep, ^and
bring them to the light of the sun. When, how-
ever, they were brought to the surface and arranged
and classified under proper heads, their nature could
be minutely examined, and the mind could, at one
glance, grasp and remember their names. These
Served as aphorisms were intended as memorial sentences,
SOURCES OF HINDU LAW. 147
which were communicated to the pupils, which the Lecture
latter leamt by heart and remembered, and which ^^—
were supplemented by the oral explanations of the ^^^'''^'
teachers.
The founders of the aphoristic schools were con- Aphoristic
school.
sidered human authors, though entitled to the highest
veneration. Their works in time partly superseded
the study of the Yedas, and all the religious ceremo-
nies were performed by the aid of these concise
aphorisms. In progress of time the Yedic language
had become unintelligible ; but the aphorisms written
in comparatively modern style could be easily under-
stood and easily retained. A true believer, however,
though he is allowed all external aids in interpreting
and mastering the Yedic ritual, is enjoined to learn cuitivatioa
11 1 of memory.
the \ edas by heart ; and there are thousands of
Brahmans to this day who can repeat from memory
the branch of the Yeda to which he belongs, the Brah-
manas attached to it, and the Sutras relating to them.
It is not uncommon to meet with men who can repeat
from memory every word of the Sakala branch of the
Rig Yeda, the whole of Aitareya Brahmana from begin-
ning to end, and all the Srauta and Smarta Sutras of
As'valayana, and the other Yedangas or auxiliary
sciences. They might be called men of coHossal
memory; but in India, — where memory is cultivated to
an extraordinary degree, and where learned men are
esteemed in proportion as they remember and promptly
apply, from the capacious stores of their minds,
148 SOURCES OF HINDU LAW.
Lecture without referrino; to written books, all tlie Yedic and
IV. _ ^ . .
— philosophical truths, and all the ramifying details of
ceremonial and legal literature, — they excite neither
admiration nor wonder. Such feats of memory are
witnessed every day, and their absence alone is noticed
and severely censured.
Sutras The Sutras, or aphorisms, are divided into three
clasiilied.
classes. The first class are exclusively devoted to the
consideration of the ritual, and are entirely founded
upon the texts of the Yedas.
The second class of aphorisms treat of domestic
ceremonies, those celebrated at birth and before it, at
marriao-e, as well as at death and after it.
The third class deal with forensic law, properly so
called, and have a special interest for us. They form
the basis of the legal portions of the law-books, and
are the sources from which Manu and Yajnavalkya,
and the other compilers of Hindu law, have largely
borrowed their materials. m
Diinrma Thc tliii'd class of aphorisms are known as Dharma
'MMximsof Sutras. Dharma means Law or Justice. The Dharma
Law.
Sutras, therefore, were aphoristic rules relating to law.
They were legal maxims, which defined the functions
of government and the duties and obligations of the
difi'erent classes of society. These aphorisms were
also called Samaya-charika. Samaya means time or
aaTcement, and Achara means custom. These were
rules which could not be said to be founded upon
divine injunctions, but had grown out of the custo)ns
SOURCES OF HINDU LAW. 149
of the tiims for the better regulation of social affairs. Lecture
The lesral relation between man and man, it is some- —
times said, arises out of mutual agreement, or is
deduced from approved usages. The appropriateness
of the terms employed (samaya and achdra), therefore,
to designate the class of legal aphorisms under consi-
deration, will at once be noticed.
The Dharma Sutras treat principalh^ of the duties Fountain
Source of
and obho-ations of a householder, the functions of a tj»e ^ncieut
o â– * Codes.
settled government, the administration of justice, the
law of inheritance, and other matters bearing upon them.
It will be seen, therefore, that these aphorisms are the
foundation of Hindu law, and all the ancient Codes
of law, such as those of Manu and Yajnavalkya, have
not only drawn their inspiration from them, but are
largely indebted to them for the materials which have
been used by them.
It is true that, according to the Hindus, the fountain- Historr of
head of dharma, or law, is the Yeda, or revelation ; rispru-
deuce.
but there are no special chapters in the Yeda treating
of law. In the Sutra^s alone we find continuous trea-
tises devoted to this subject, and we must look to the
aphorisms, therefore, for the origin of Hindu Jurispru-
dence. In the Yedic times, when society was com-
posed of patriarchal families, the patriarchs adminis- Necessity
tered their own law, which differed in different years feu iTtill"
according to the individual circumstances to which it age.
was applied. AYhen the heads of the families had
supreme sway over the life and projDerty of the
150 SOURCES OF HINDU LAW.
Lecture individual members, their word was law, and there
— was none to whom an appeal could be made in case
of supposed injustice. Uniformity in the decisions
of the griha-pati, or lord of the family, was never
expected, nor aimed at. The disputes which arose
between the members of the family were settled
with a high hand by the head of the house, with
due regard to the promotion of the family in-
terest, before which all personal considerations had
Felt witii to give way. It was only when the limits of the
sionof family became enlarged, when foreign elements;
social rela-
tions. were introduced, and the rights of individuals were
recognised as distinct from those of the family, that
the need of a body of rules defining uniform conduct
in different social relations was created, and supplied
by the so-called legal aphorisms. It was only when
the social necessities outgrew the family wants, when
large classes of men transacted business with each
other, and Civil Government was established to pro-
tect public interests, that the desire was felt of defin-
ing accurately the social relations, and of laying down
rules for breaches of social agreement. Immemorial
and approved custom, prevailing at the time, was
the great guide of the Jurists who undertook the
task of creating a body of law, which should cement
the union of the different social elements, and pro-
mote the collective happiness of the different social
groups and of the mdividual members composing
them.
SOURCES OF HINDU LAW. 151
It is no wonder, therefore, that we do not find in LEcxtiBE
tlie Manb'cis and Brahmanas continuous treatises ^.^—^
treatmg of civil law and its different branches. nuon^iy'"
When the Sutra works were composed, schools S,nhe Man-
were founded which adopted them. These schools Bramha-
were called Charanas. Each school consisted ofg^ra
members who accepted the interpretation given in ^^j^-anat.
their Sutras of Yedic texts, followed the ceremonial
recommended, and guided their actions by the rules
laid down. They constituted a spiritual family
whose bond of union was a community of sacred
texts. They formed a body who were pledged to the
readins: of a certain Scihha or branch of the Yeda,
and who owed allegiance to one set of aphorisms,
ceremonial and leo'al. Each school was an ideal sue-
cession of teachers and pupils, who formed a compact
body, whose spiritual government was complete
within itself. They had their own Sanhita, then*
own Brahmana, and their own Sutras. " They were
ideal fellowships, held together by ties, more sacred
in the eyes of a Brahmin than the mere ties of blood.
They were the living depositories of the most sacred
heirlooms, and on the extinction of a Charana, the
words which were believed to be the breath of God
would have been lost without hope of recovery." ^
These schools were spiritual brotherhoods, whose ideas, spiritual
feelings, emotions, and prejudices moulded themselves
on the pattern of those which result nahirally from
' Max MuUer's Ancient Sanskrit Literature, p. 378.
152 SOURCES OF HINDU LAW.
Lecture Consanguinity. The spiritual relationsliip thus creat-
— ed was as strong as the affinity founded on the ties of
blood. Different patriarchal families belonged to the!
same spiritual brotherhood, and as a natural conse-j
quence the ideas of patriarchal power were relaxed,
and the spirit of opposition was replaced by bonds]
of affection and sympathy. Crude notions about]
individual and family relations were gradually!
smoothed down, and society entered on a new phasej
of progress.
Their num- Thcsc schools wcrc divided into four classes, acf
ber same as '
vSas! ^''^ cording to the four Yedas to which they belonged j
As the Yedas had numerous branches accordinor
their " varias lectiones,^' these schools also had corres-
ponding subdivisions. It is stated that, during th^
Sutra period, the Rik had five, Yaju eighty-sixj
Sama one thousand, and Atharva nme such schools.
The ceremonial and legal aphorisms were all culti-
vated by members of the Hindu community in their
respective schools, and we can easily imagine what
fresh life was imparted to the study of law in these
shrines of sacred knowledge.
Decline of Wc pointed out that there were two classes of
the influ-
ence of the aphorisms — those founded on the Yeda, and those
fraternities. ^
founded on tradition or custom. The second class
was subdivided into aphorisms relating to domestic
(grihya) sacraments, and those relating to law and
government. All these aphorisms were equally cul-
tivated at first in the different schools, and their
SOURCES OF HINDU LAW, 153
study was carried on with an earnestness and enthu- lecture
siasm peculiar to the Aryans of India. For a long —
time the study of ceremonial and legal aphorisms
was inseparable, and the dharma suti'os, or legal
maxims, held equal rank with the other aphorisms.
The ceremonial aphorisms, however, belonged to re-
liorion, and the dharma sutras treated of civil matters.
There was an essential diiFerence between the two.
The spiritual welfare of man was of greater impor-
tance than his temporal interests. It was not long,
therefore, before the study of dhamia was neglected The cere-
in the schools, and the spiritual brotherhoods were \''^°<='l«'*
' ^ the apho-
exclusively engaged in the cultivation of the cere- cuiTitated
monial branch of divine law. These brotherhoods lect of "hf
exist to this day, but they do not consider it their iegai
maxims.
duty to guard the dharma sutras with that jealous
care which they bestow on the religious law.
There was another cause which tended to the ex- Estabii^h-
f 1 ' 1 1 c 1 ' ^ • ment of
tmction of this branch of study m the various cidi Go-
vernraeut.
schools. Civil Government was firmly established,
and the power of the patriarchal families decayed in
proportion as ideas about ci\Tl rights were enlarged.
The administration of law and justice was taken out
of the hands of such exclusive bodies as the spiritual
brotherhoods, and entrusted to tribunals established
for enforcing civil obligations. With the progress of
kingly power, force introduced order, and these civil
tribunals monopolized the administration of law. The
domination of the sovereign, granting that it was con-
20
154 SOURCES OF HINDU LAW. ,
Lecture fined to a limited area, commanded the obedience of the
— people, and the development of Royal attributes dimi-
nished the influence of the spiritual brotherhoods.
Social pro- There was a third cause which powerfully operated,
gress des- -l J r '
pSly as, later on, in undermining the temporal power of these
cencency. jj^^^^^g ^^ mcn. The laws which were framed and
administered by them reserved to the priestly
caste rights and privileges which were denied to the
other classes of the social order. The reason is
plain enough. " The CAaraTzas were confined to the
priestly caste," and laws were made by the members
of the priestly caste. The lion's share, therefore,"
was taken by them, and the members of the other ,
castes were not treated on an equal footing. The
doctrine that all men are equal was repugnant to the
priestly instincts, and anything that encroached upon
the sacred majesty of the hereditary possessors of
divine knowledge was condemned with all the force
commanded by superior wisdom. With the advance- :
ment of society and the progress of civilization,
however, things could not long remain in this state.
" Buddhism, which originally sprung purely from
theoretical heterodoxy regarding the relation of matter
to spirit, addressed itself in course of time to practical
points of religion and worship, and imperilled the very
existence of Brahmanism. The people generally
availed themselves of its aid in order to throw off
the overwhelming yoke of priestly domination."^
' Weber's History of Sanscrit Literature, p. 20.
SOURCES OF HINDU LAW. 155
Buddha formed the grand conception of uniting the lectube
different classes of society in one common bond. —
He -went on preaching, and teaching: " All that is jjjg ^^^.1^.
born must die — the passions must be subdued, till "^^
a man is ready to give up everything, even his own
self." He gave up his exalted position, and mixed
with the lowest classes as his friends and equals. Equality.
" My law," says Buddha, "is a law of grace. There is
room for all without exception — learned or ignorant,
poor or rich." Many sections of the commimity
were excluded by the Brahmans from the communion
of religion. Buddha opened wide his arms and pro-
claimed equality. Individual happiness, he said, was
not the true object of life ; to improve society, and summun
to increase the sum total of human happiness should ufe.
be the aim of every man. You are all equals, but
you owe duties to each other. Thus taught Buddha,
and millions obeyed his call. The people came to
know their rights, and the Brahmanic influence was
greatly weakened.
The sovereioTi, who would maintain his power, Effects of
, _ ^ ' his teach-
must satisfy the feelings and wants of his subjects, '^s^-
When these revolutionary principles took a deep root
in the minds of the people, there was no alternative
but to march, however slowly, with the progress of
the times, and make concessions to the spirit of
advancement. In spiritual concerns the rigidity of the
former rules might be maintained, but in matters
relating to Civil Government and the laws of property,
156 SOURCES OF HINDU LAW.
Lecture the spiritual brotlierhoods must be deprived of legis-
— lative and executive powers. The danger was immi-
nent. Either the whole priestly order should be
annihilated, or the administration of temporal affairs
should be left in the hands of civil tribunals. The
latter alternative was wisely chosen, and Hindu
society exists to this day, unscathed by the flaming
arrows of Buddhistic logic. It is a significant fact,
however, that though the religious opinions of the
Buddhas and Jainas of India are diametrically opposite
to those of the Hindu faith, the law relating to pro-
perty, and its devolution, is the same in both sections
of the community. The law of inheritance, and the
Rules of law relating to the management of joint property, is
Inheritance . nxT' i it* • ^
the same the samc m the case or Hindus and J amas, in absence of
with the
and Bud- P^oof of special custom varying the original law;^ and
dhists. ^^ ^^^ -^^ clearly seen from this that when there was
a rupture between Buddhists and Hindus with regard
to religion and worship, the Civil Government, wrest-
ino" the administration of law from the hands of the
o
spiritual brotherhoods, impartially distributed justice
without the least consideration of conflicting reli-
gious tenets.
Neglect of Thcsc Spiritual brotherhoods exist to this day.
the study
of ancient 'j'j^g apliorlsms belono-iiio; to the Vedic ceremonial
dharma "^ ^ i o o
sutras. ^^^ ^i^g Domestic Sacraments are still their sacred
heirlooms. But the dharma sutras, the Legal
Aphorisms, have gone out of their possession. They
' 8 W. R., 116; 4 1. L. R., 744.
SOURCES OF HINDU LAW. 157
Still devote tlieir lives to the study and elaboration lectttbe
of the ceremonial canons, but it is not their province —
now to guard the Legal Maxims. The study of these
^laxims has been almost entirely neglected, and
their application in practice totally discontinued.
These schools are the guardians of all sacred works,
but since the separation of the temporal from, the
spiritual branch of study, the works on Law and
Government have not been preserved by them with
religious care. Most of the aphoristic works have been
destroyed by damp and whiteants, and the surviving
copies have become so rare that it is very difficult
to lay hands on one. If you ask a learned sastri
what has become of them, his invariable answer is that
the works are rare, and that they do not form now a
part of their sacred study. " We are enjoined to read
the Yeda and its auxiliary sciences, when we perform
daily the Yedic Sacrament. We read extracts from
them ; but when it comes to the reading of the dharma
sutras, the only words we repeat from memory are
' We will now explain the nature of Law.' This
shows that originally it was our duty to study every
day some portion at least of the Science of Law, but
now we are free from this obligation." The spfritual
brotherhoods, therefore, have now no concern what-
ver with the study or preservation of the ancient
dharma sutras.
We said that the founders of the Spiritual Brother- Adminis-
tration of
hoods framed originally Institutes of Law for their ^'^^ "^ ^"
158 SOURCES OF HINDU LAW.
Lecture special use, but that after a time these Institutes were not
ferJiu~~e- P^^-ctically enforced exclusively within the precincts of
""''^' the schools. Civil Tribunals administered law, and
different brotherhoods were obli2:ed to submit to an
uniform body of Law. The use of special Manuals
of Law for special schools was discontinued even
before the time of Gautama, the oldest of our present
legal authorities. We may gain a fair idea of how
law was framed and admininistered, and what autho-
rities were respected in ancient India, from the works
of Gautama and other Jurists who followed him.
The interval of time between Gautama and Yrihas-
pati must have been very great, and the circumstances
of the country which modified the primitive juridical
principles must have been of a varied character.
What was true at the time of Gautama could not
have been authoritative at the time of Yrihaspati. But
the quotations we are going to give from the different
legislators will mark the progressive changes of legis-
tion between the two periods.
Gautama, Gautama says (Ch. 28):
Law— ju- " With regard to any point of law which is not
^"^^^^^^ accurately known, that decision must be followed
which is pronounced by well-instructed men, who are
thoroughly conversant with approved custom, who
are skilled in reasoning, and who are free from
covetousness.
constitu- ' ' That decision must be taken as law which proceeds
tion of
judicial fj.Qjji i\^Q mature deliberation of an assembly of men,
assembly. "
SOURCES OF HINDU LAW. 159
composed of the following veterans of society: four lectcbe
men who have completely studied the four Yedas ; —
three men belonging to the first three orders, viz.,
student, a householder, and an ascetic; and three
men who know the different Institutes of Law.
" On failure of these, the decision of one learned man Decision of
who knows the Yeda, and is weU instructed, shall be man Team-
ed in the
followed in disputed cases. For such a man is in- Vedas.
capable of unjustly injurying or favoring created
beings."^
Here it will be observed that Gautama does not insist Privileges
of spiritual
upon the practical use of special institutes of special fraternities
r r r c discontinu-
schools. A court formed of veteran members, well- ^
skilled in reasoning, and well-versed in laws enacted
by different " Brotherhoods" — ^nay even one person
emuient in knowledge — is fully competent to lay down
the law. Special care should be taken in the cons-
titution of the legislative body whose decision should
be final. It must represent the different shades of
opinion of the different orders of Brahmanical society.
We observe in this that the special privileges of
Brotherhoods for enacting laws for their own body
were completely destroyed, and that a new order of
things was introduced at the time when Gautama
wrote his treatise on Law.
There are indications in Gautama that, in enacting Brahminic
laws, the Brahmans still held great influence in the J" t>e
legislative
councils of legislative bodies, and in the formation ^",*^A"?i^'^^
assemblies.
* Max Miilier's Sacred Book?, Vol. II. Laws of the Aryas, by BiiMer.
160 SOURCES OF HINDU LAW.
Lecture of Courts for the adjudication of suits; but we see that,
— in the time of Apastamba, the constitution of the legis-
lative assemblies had materially changed. The next
two classes of society were freely admitted into them.
Apastamba. " The civil couduct of a person is to be regulated
by the law laid down in all countries by men of the
three twice-born classes, who have been properly
obedient to their teachers, who are aged, of subdued
senses, neither given to avarice, nor hypocrites."^
He goes further and declares, that the opinions of
experienced ladies, nay even of Sudras, must be res-
pected in deciding disputed legal questions.^ M
On the \Ye may remark in passing that there is one pas-
origin of •' J- O
i-^w. gjj^gg [^ Apastamba in this chapter, which entirely clears
up the point as to whether forensic law was derived
from the Veda, or whether it was a creation of this
period. There can be no doubt that points of law
were incidently noticed iu. the hymns and the Brah-
manas, but their continuous and systematic discussion
was reserved for the Jurists of the next social period.
With regard to the origin of law during this period,
Apastamba says:
Law "It is difficult to learn the sacred law from the
socfai ^ letter of the Vedas only; but by following the indica-
tions (given in the Veda) it is easily accomplished."'
The source of forensic law, therefore, must be sought
for elsewhere than in the Veda. It was the result of
wants.
' Sacred Laws of the Aryas, Apastamba, II, 11, 29.
2 Ibid, II, 11, 29. 15. =" Ibid, II, 11, 29. 13.
SOURCES OF HIXDU LAW. 161
progress and the creature of circumstances. Social Lectubk
wants created it, and social advancement watched —
its formation and developed its proportions. Sta-
tionary it never has been, and never will be. It has
grown with Hindu society, and will share in the
vicissitudes of its growth.
We now come to Yas'ishtha. He is more explicit, Vasisutha.
and we shall be able to derive from him a great
deal of information on this subject :
" Law has been enacted for this world and the
next. If (divine or human law) is not available,
approved custom has the force of law. Laws and
customs which are in force in the country lying to
the south of the Snowy Range and to the north of the
Yindhya Mountains, should be respected and followed ;
but not other laws, which are fit only for the depraved
and the vile. The country indicated above is known
as Aryavarta. There are others, however, who say
that the provinces between the Ganges and Jamuna
are called Aryavarta. This is what they say: ' The
sacred majesty of Brahmins is respected in the pro-
vince where the black antelope roams at pleasure.'
The Bhallavins also quote the following gatha (song)
on this subject:
" 'The Sindhu (Indus) flows in the west, and the
sun rises (from the sea) in the east ; the sacred
majesty of the Brahmins is respected (in the country
between the Indus in the west and the sea in the
east), and where the black antelope roams at pleasure.'
21
162 SOURCES OF HINDU LAW.
Lecture There caii be no doubt that that is law which is laic
IV.
— down as such by veteran lawyers, versed in. theology,
philosophy, and forensic law.
" Where the Yeda is silent, Manu sanctioned the
laws regulating families, castes, and tribes."
Decisions Accordiuo; to Vaslshtha, therefore, the decision of
of eminent "
lawyers, eminent laiuyers has the force of law, and their
opinion on all disputed points is authoritative, and
cannot be gainsaid.
Manu. According to Manu, legislative assemblies consist-
ing of three persons learned in the Yedas, and
presided over by a competent person, " may remove
all doubts both in law and casuistry." " Even the
decision of one priest," he continues, " must be con-
sidered as law of the highest authority; not the opi-
nions of myriads, who have no sacred knowledge." ^
Yajnavai- Yajuavalkya and Parasara are of the same opinion.
VxA and
Parasara, Xhcy bclievc that any assembly consisting of three
or four or more persons well versed in philosophy,
theology, and law — nay even one person eminent in
knowledge — are fully competent to lay down the law.^
Vriiiaspati. Wc will closc our quotatious upon this subject with
the words of Yrihaspati : '•' Where seven, five, or
three Brahmins, who know the customs of the world,
and are well versed in theology, philosophy, and law,
have settled, that assembly is like a sacrifice." As
the performance of sacrifices leads to spiritual happi-
' Manu, XII, 112, 113. [ture, p. 130.
"^ Yajnavulkya I, 9 ; Parasara. Max Miiller's Ancient Sanskrit Litera-
SOURCES OF HINDU LAW. 163
ness, so the adoption of rules of conduct prescribed Lecture
by the legislative assemblies, indicated above, leads to —
worldly happiness and glory.
One thins: is quite clear from all the extracts odven. Law laid
° ^ _ ^ " down by
The legislative power of the Spuitual Brotherhoods ^^'^^^*-
was completely broken, and independent Jurists emi-
nent in knowledge were acknowledged as legal autho-
rities entitled to the highest respect. They laid
down the law which was followed in civil tribunals, and
which had the force of legislative enactments. All
classes of society, from the king to the most degraded
Sudra, submitted to their authority, and their dictum
had the same force as " the declared will of the
Supreme Legislature." They were the sovereigns of
ancient society entrusted wdth the power of making
laws for the country. They must have been in most
instances the presidents of legislative assembhes
{parshads) whose word was law. They must have
been, by the very constitution of these assemblies,
men eminent in learning, experienced in reasoning,
and well versed in prevailing customs — grey-headed
seers whose word commanded respect, and who were
incapable of unjustly favoring or injuring the meanest
creature of the earth.
We will now attempt a classification of the works Chronolo-
gical uncer-
of the ancient legislators of India. In doing so, we ancTent*^*
must give a caution. Sanskrit philology has not work*."'
yet arrived at that state of perfection, that correct
dates can be assigned to ancient literary works. A
164 SOURCES OF HINDU LAW.
Lecture time may come when these dates will be found, and
— a chronological history of India will be written.
But as yet we see no signs of the approach of such
a bright future. Eminent scholars, it is true, have
attempted the task. But we are bound to say that
their warm imagination has often supplied them with
data which scientific research has not yet yielded.
History of Though we have no chronological charts and
civilization mauuals of ancient history in the literature of the
ill India
divisiiiie Hindus, there are rich materials scattered in the
into epochs. '
ancient works from which there could be written a
clear and accurate history of the development of the
Hindu mind. Indian history can be written in
epochs. There are layers of fossil thoughts which,
when dug up and carefully examined, would, like
the petrified organic remains of the geologists, pour
a flood of light on many dark portions of Indian
history. The different stages of growth of the Hindu
social organization and of Hindu law could be cor-
rectly indicated, and a broad and full impression
given of ancient Hindu civilization.
Possibility We must not, however, try at present to find
mining the accuratc datcs — ^-which cannot be checked by scientific
relative _ ^
ages of analysis — for the works under consideration. Our
ancient law- •'
'^'^^'â– ^' task will be fairly done if we restrict ourselves
to the determination of the i^elative ages of the
ancient legislators. There were legislators more
ancient, and less ancient, and if we can find the
relative order in which they promulgated their laws,
manas,
which
again are
anterior to
SOURCES OF HINDU LAW. 165
sufficient data will be collected to enable us to des- Lecture
tribe the gradual development of the Law of Inherit- —
ance, the subject of the present course of lectures.
The materials in hand are meagre, but they will help
us to fix approximately the relative ages of the Jurists.
The Sutras presuppose the existence of the Brah- Mantras
, . older than
manas, which have been mentioned by name in the ^''^^-
I •' Tnnna.s
aphoristic works.
The Brahmanas again presuppose the existence suu^"
of the mantras of the Sanhitas of the Yedas.
The mantras, therefore, are anterior to the Brah-
manas, and the Sutras are younger than the Brah-
manas.
The chronological limits assigned by Professor Max Mantra
period.
Mullerare 400 years— fi-om 800 to 1200 (B.C.)—
to the mantra period; and in his opinion it would
be impossible to bring the whole Brahmana period
within a shorter space than 200 years. He has given
400 years to the Sutra period, extending from 200 to
600 (B.C.)
We must take these dates with a large amount of
reservation. The great scholar himself, to whom
Sanskrit philology is eternally indebted, does not
seem to be very sanguine about the accuracy of the
chronological limits assigned by himself. They will
serv^e, however, one good purpose. AYe shall know
by means of them how to rein in our imagiuation,
when — seeing before us the vast densely populous
tract, where an infinite number of distinguished
1G6
SOURCES OF HINDU LAW.
Lecture
IV.
Sources of
Hindu law
1. Veda.
2. Smritis.
Old law-
givers.
men of all ages mix promiscuously together — we try
to assign relative positions to them in our table of
precedence.
The Veda then is the primary source of Hindu law.
Next to the Veda, the second great source of Hindu
forensic law are the Institutes, or Manuals known
by the collective name of Smritis. The authors of these
Smritis are the great mediaeval authorities on Hindu
law. These authors are known as EisJus, or sages.
Yajnavalkya and Parasara mention the names of
twenty such sages.
Padma Purana gives the names of thirty-six.
Modern research has found fragments or complete
copies of upwards of one hundred legal works which
are ascribed to ancient legislators. The quotations
from most of these authorities are met with in com-
mentaries and di2:ests.^
Yajnaval-
kj-a's list.
X ajnavaikya gives tne ic
1. Manu.
2. Atri.
3. Vishnu.
(iiowmg list : —
11. Katyayana.
12. Vrihaspati.
13. Parasara. ;
4. Harita.
14. Vyasa.
5. Yajnavalkya.
6. Us'ana.
15. Sankha, Likhita.
16. Daksha,
7. Angira.
17. Gautama.
8. Yama.
9. Apastamba.
10. Samvarfca.
18. Satatapa.
19. Vasishtha.
' In the Nirnaya Sindhu alone, Kamalakararefers to 131 Smritis ; and
Ananta Deva, in the Sanskara Kaustubha, quotes 104. Besides these, other
Smriti passages arc given, but their authors are not named. — V. Mandalilf
SOURCES OF HINDU LAW. 167
Parasara omits the names of Yama, Vrihaspati, Lecture
and Vyasa from the above list; and adds the names —
of Kasyapa, Gargya, and Pracheta.
The Padma Parana, l«^vinoj out the name of Atri Padma
*-' I'urana 3
in Yajnavalkya's list, completes the number thirty- »<i^"»o°-
six abovementioned by adding
29. Gargya.
30. Baudliayana.
31. Paithinasi.
32. Jabali.
33. Sumantii.
34. Paraskara.
35. Laugakshi.
36. Kuthumi.
20. Marichi.
21. Piilastya.
22. Pracheta.
23. Bhrigii.
24. Narada.
25. Kas'yapa.
26. Visvamitra.
27. Devala.
28. Rishyasringa.
It may be mentioned here, for convenience of refer-
ence, that, in the modem Digests of Hindu Law — viz.,
Dayabhaga, Mitakshara, and the other text-books of
the different schools — extracts are met with from all the
authorities mentioned by Yajnavalkya ; and in the list
given by the Padma Purana, quotations frequently
occur from Baudhayana, Paithinasi, Xarada, and De-
vala. The name of Laugakshi also is not uncommon.
Of all the legislators mentioned above four of them Four prin-
cipal
have been considered as principal authorities each in authorities.
one of the four ao-es of the world — viz. :
1. Manu in the Krita, or first age.
2. Gautama in the Treta. or second a^e.
3. Sankha in the Dvapara, or third age.
4. Parasara in the Kali, or the present age.
168 SOURCES OF HINDU LAW,
Lecture This distinction, however, is not observed in prac-
— tice.
Several treatises are sometimes ascribed to the
same author. His greater or lesser (Vrihat or
Laghu) Institutes ; or a later work of the same author
when old (Yriddha)/
• In noticing Mr. V. N. Mandalik's valuable work on Hindu Law,
Dr. Rajendralala Mitra, whose ripe Sanskrit Scholarship ia held in
universal esteem, remarks :
" The Hindu belief is that, like those of everything else, the sources
of Hindu civil law are the Vedas ; but for all practical purposes they
may be altogether kept out of sight. They do not treat of law. Next
to them the Sutras, — the Grihya, the Dharma, and the Samayacharika
texts,— are the most important. Each master of a Sakha prepared a set
of rules for the guidance of the followers of his school, and these codes
are always referred to as the primary sources of law and custom. Next
came the Smritis, of which the most approved are 20 in number ; but
many more are still extant, and medieeval writers quote even a greater
number. Dr. Stenzler enumerated 46 of these. Dr. Biihler prepared a
list which included 78 names ; but Mr. Mandalik shows that Nilakantha,
in his 12 Mayukhas, has quoted from no less than 97 authors of Smritis.
Some of these texts have the epithets Vriddha ' old,' others JBrihat
'large' added to them, and Mr. Mandalik discusses at length the ques"
tions as to — 1st, whether the two words are synonymous ; and 2nd,
whether the works so named have a common basis. The first he decides
in the affirmative, ' because the use of Brihat by some treatise- writers
and of Vriddha by others, in citing one and the same text, is a proof that
they were used synonymously.' This, we think, is not conclusive. As
different recensions of one author, it is by no means extraordinary that
all or some of the recensions should include the same verse. Take for
instance Manu. The Bhrigu text, the Brihat text, and the Vriddha text,
are all presumed to contain the same matter with additions or alteration
in some parts, and in quoting from one recension an author by no means
implies that the excerpt does not occur in others, and to assume that it
does, is to assume more than the premiss would justify us to do. With
reference to the second question, Sulapani and Viramitrodaya hold that
the epithets imply different periods in the lives of the same authors.
Mr. Mandalik demurs to this. He says :
" ' This theory, plausible as it does look, does not commend itself to my
judgment: (1), because it leaves out of account the names which have
Brihat prefixed to them ; (2), because it is inconsistent with the special
mention of Vriddha Satatapa in the opening verse of the Smriti found
under that name in the University Collection, and of Vriddha Gargya ia
SOURCES OF HINDU LAW. 169
It is singular that Yajnavalkya and Parasara LEcnrRE
mention their own names as authorities on law. It ^ — — ,
Text- books
may be mentioned once for all that the Smritis have fro'lSfo^i
been frequently recast, and the probable explanation "^^'™*'"'*°*
of this singular practice is, that the text-books, like
the dialogues of Plato, were compiled by pupils from
the oral instructions of their masters/
All the Institutes of law may be classified as fol- institutes
of law
lows : classilied.
I. — a. Dharma Sutras, or Aphorisms of law.
h. Fragments of Aphoristic treatises.
11. — Metrical Redactions of Dharma Sutras.
the Mahabharata Anusasanika Parva (1. 165, p. 1, line 15), where the
whole name appears clearly as the designation of one individual;
(3). the indiscriminate use of Brihat for Vriddha would be unaccountable
if Vriddha is interpreted as signifying ' old,' as Messrs. West and Biihler
have done (see their Introduction, p. 16, note a, to the Hindu Law, second
edition). For these reasons I am inclined to hold that such works are
productions of different individuals, and that their being named after
the same author is due to the one being an expansion or an epitome of
the other. I am confirmed in this opinion by a likelihood of the terms
Brihat and Vriddah being epithets more of the works than of the
authors, just as a similar prefix sloka (metrical) in words like sloka-
Gautama and sloka-Vasishtha undoubtedly is.'
" To us the solution appears to lie in a different direction. It is certain
that the texts of Manu and Yajnavalkya, as we now have them, are
metrical redactions from ancient and now lost texts, probably the
Grihya and the Dharma Sutras ; and in the Introduction to Bhrigu's
edition of Manu it is distinctly mentioned that before it there existed
other and more exfcensive recensions. The same fact is also indicated in
the introductory portions of some of the other Smritis, and the obvious
conclusion is that the principles inculcated by Manu and others in their
Grihya, Dharma, and Samayachara Sutras (mostly now lost) were put in
digests (mostly metrical), and of these the oldest got the name of Vrid-
dha. and the largest Brihat, while the smallest got currency under the
name of the author without any distinctive epithet." — Hindoo Patriot,
Auguit 9, 1880.
' Mitakshara, I, 1.
22
170 ' SOUKCES OF HINDU LAW.
Lectuee III. — a.
IV
Independent Metrical or Prose treatises.
— h.
Fragments of Metrical treatises.
In the first class may be mentioned the Dharma
Sutras of
{a) 1.
Gautama.
2.
Baudhayana.
3.
Apastamba.
4.
Vaslshtha. _
{h) 5.
Harita. 9
6.
Yama. fl
7.
Sankha. |
8.
Parasara (and perhaps). fl
9.
Us'ana.
10.
Paithinasi.
In the second class
Manu
stands pre-eminent. There must have
been others, but it is difficult to find them.
In the third class, we may mention
{a) 1.
Yajnavalkya.
2.
Narada.
3.
Vishnu, in prose and verse intermingled.
{h) 1.
Devala.
2.
Yrihaspati.
3.
Katyayana.
4.
Yyasa.
"VYe make no mention of Satatapa, The quotations
from Satatapa we meet with are in verse. He must
have belonged to a period posterior to Manu. His
place would, probably, be before that of Devala.
i
SOURCES OP HINDU LAW. 171
We do not include in this classification works i^ectube
known as Smritis, but which do not contain chapters —
on civil law.
There is a consensus of opinion among Sanskrit
philologists that works written in the Sutra style are
anterior in origin to the treatises written in verse. In
the opinion of Dr. Max Miiller, metrical treatises on law
belonged to the age which followed the last period of
the Vedic age: "We never find," says Dr. Biihler.
" a poetical work at the head of a series of scientific
works, but always a Sutra, though at the same time
the introduction of metrical handbooks did not put
a stop to the composition of Sutras." There is thus
a natural division between two classes of lesral trea-
tises which belong to two difierent periods.
The Sutra works will first of all form the subject
of our consideration.
Let us first try to find out the relative ages of the Keiative
four legislators — Gautama, Baudhayana, Apastamba, folir prin-
-r-r*^ ^ _ cipal law-
and \ as ishtha, — complete copies of whose works givers.
are now extant.
Both Baudhayana and Vas'ishtha quote Gautama
as an authority on law, and the passages quoted by
them are found in the copy of Gautama we pos-
sess.* This affords a stronof ijresumption that Gau-
"^ Gantama
tama was older in point of time than either of the 5er' '" """
others.
'' Baudhayana I. 1, 17—24 ; Gautama, XI. 20 ; Vas'ishtha. IV; Gautama,
XIV, 14.
172 SOURCES OF HINDU LAW.
Lecture The chapter on Penances and Expiation^ is comraoii|
— to all the three lawerivers. Gautama's treatment of
Baudhaya- "
ancrand"'*^® subjcct Is mcthodical, ' and the logical sequence o:
Expiation. ^-^^ aphorisms is clearly established, while Baudhayana '
discusses the subject in an offhand manner, and the
connection between the aphorisms is anything but,
apparent. He does not bestow the same care and!
attention upon this matter, as he does upon the other
portions of his work. He evidently believes that he
is not responsible for the logical accuracy of the pro-
positions advanced, that it is not his duty to see that
all the different parts of the arguments closely fit in
with each other, and that the line of reasoning is
compact and unassailable. Gautama's authority on
penances and expiation, he probably thought, was
universally acknowledged, and in whatever way the
arguments might be presented to the audience, their
force, he believed, would at once be seen, and their
soundness admitted.
Comparison Baudhavaua introduces some new readino^s in these
with Gau- "^ .
tania. passagcs. Thcsc vaiice lectiones are in no way better
than those found in Gautama. They are corrupt,
and are evidently the result of carelessness and in-
attention. Gautama's aphorisms give a better sense
than those of Baudhayana with these new readings.
Var/ishtha. Vas'ishtha also, as we said before, contains the same
aphorisms on penance and expiation. The remarks
we made with reference to Baudhayana apply equally
' Gautama, XIX ; Baudhayana, III ; Vas'ishtha, XXII.
SOURCES OF HrS'DU LAW. 173
to him. In the case of Yas'ishtha the charge assumes Lectcre
11 much more aoisrravated form. He omits the con-
iiecting links between the different aphorisms, and
thus the character of the whole subject is entirely
changed. The arguments present a sort of shadowy
appearance, and a casual observer would not take
them to be the creations of the mind which had pro-
«luced the rest of the work.
Yas'ishtha could not have borrowed his aphorisms nis second-
y~~, T • • 1 TT- hand repro-
directly from Gautama — the oriodnal source. His was duction of
^ ^ Baudliaya-
evidently a second-hand reproduction. He has co- "J^^p"'""
pied the corrupt readings of Baudhayana, and in
several cases has made them worse. As a report
passing through different channels gradually changes
its character till its paternity can be distinguished
with difficulty, so Yaslshtha's aphorisms on penances
and expiation, though they have not passed through
many hands, exhibit all the traces of a boiTowed
production. The errors of Baudhayana appear in a
much more glaring form, and the conclusion is irre-
sistible that Vas'ishtha is indebted to the latter for
his disquisition on penances and expiation.
K this fact be taken in connection with the state- Both Bau-
dliayana
ment that both Baudhayana and Vas'ishtha recoo-nize *'"^
Gautama as an authorit}^ on law, it will rebut the dat^tl"' '°
argument that all the three legislators might have ^''^^^^'
borrowed from a common source, and would also
strengthen the proof of Gautama's priority to both
these lawgivers.
174 SOURCES OF HINDU LAW.
Lecture This question will gain additional support if wc
— consider the relation of Apastamba's aphorisms to
Similarity '- ^
t*amb!vs nnd ^^osc of Baudhayaua and Vas'ishtha. Apastamba does
aim'f '"^" not mention any of these Jurists by name. But any
one reading his work will be struck with its resem-
blance on some points to that of Baudhayana. The
controversial spirit of some of the aphorisms is very
remarkable ; and this spirit of controversy can be
explained and understood only by a reference to the
writings of Baudhayana. The fact that they belong-
ed to the same Yedic school, Black Yajur Yeda,
mio-ht in some measure account for the resemblance
of the doctrines advocated, but could not explain
all their characteristic differences.
Occasional Tlicrc are many subjects on which their opinions
tiieir are conflicting. The views of Baudhayana are liberal,
and are conformable to those of Gautama and the
teachers who preceded him. Apastamba controverts
those doctrines with all the rancour of a puritan.
Society had advanced a step further, and with the
advancement of the social organization, thought Apas-
tamba, the latitude of the old social customs should
be restricted. Primogeniture, in his opinion, was
a relic of the old constitution. With the disinte-
gration of the individual from the corj)orate family,
the equality of the right of sons of the same father
to the paternal inheritance must be acknowledged.
The ancients recognized twelve classes of sons. So-
cial necessity, argued Apastamba, might have excused
opinions.
SOURCES OF HINDU LAW. 175
the admission of such a doctrine. It might have Lectcre
been necessary at a time when there was a scarcity —
of fighting men for the support of the State ; when
numerical strength was a sine qua non of the inde-
}K'ndent existence of a joint undivided family. The
fiction of consanguinity as a bond of union of all
the members of the joint family might have tied
toorether in a remote ao^e the difi'erent elements com-
posing such a social group ; but the time had come,
he beUeved, when such a fiction should not be taken
as the basis of society. Polyandry, in the disguise of
niyoga, or raising issue by a sister-in-law, for the sake
of alleged spiritual benefit, and the custom of selling
and deserting one's lawful issue, is revolting to
human reason, and should be strongly condemned.
The Vedic texts, he said, are wrongly cited in sup-
port of these barbarous customs ; the breath of God
could never have permitted these atrocious insti-
tutions. The Yedic texts have been wilfiilly mis-
interpreted to suit interested views.^
It will be seen that Apastamba was a revolutionist Apastam-
^ _ ba's
to the backljone, and was determined to replace the ""empt at
' i overturow
old order of things by more refined and civHized ^* ^"'
institutions. If we read his aphorisms side by side 'i.ism.
with those of Baudhayana, the warmth of his lan-
guage becomes at once intelligible. It was Baudhay-
ana who, deriving his princii)les fi'om Gautama, sup-
ix)rted them with fresh arguments, and estabUshed
' Apastamba, II.
dhayana's
conserva-
176 SOURCES OF HINDU LAW.
Lecture them as rules of social conduct. It was against Bau-
— dhayana then, the famous teacher of the old school, that
this volley was directed. The very language of Bau-
dhayana is quoted to controvert his views and to show
his fallacy. He defers to his opinion where it is con-
sonant to reason and morality, but strongly differs
from him when Baudhayana's views seem to be
repulsive to advanced ideas regarding the social organi-
zation. Aphorism after aphorism is taken word
for word from Baudhayana, thus showing that the
authority of Baudhayana was respected in all matters
where Apastamba's views coincided with those of the
older teacher. But where they were repugnant, ac-
cording to Apastamba, to the spirit of progress, they
should be mercilessly exposed. There can be no doubt,
therefore, that the principles of morality taught by
Baudhayana belonged to an older order of ideas than
the stricter views of Apastamba. " If Apastamba,"
says Dr. Biihler — who has with remarkable ability
discussed the question of the relative ages of the four
legislators mentioned above, and whose lead we have
followed — " does not mention Baudhayana by name,
the reason probably is that, in olden times, just as in
the present day, the Biahmanical etiquette forbade
a direct opposition against doctrines propounded by
an older teacher who belongs to the same spiritual
family as himself."
Dr. Biihler " Three points," says the learned Doctor, " m.,
chroiio- the identity of a number of Sutras in the works of
SOURCES OF HINDU LAW. 177
tlie two authors, the fact that Apastamba advocates on lecture
.... ^^•
ne points more refined or puritanical opinions, and — —
that he labours to controvert doctrines contained in Jlf^^'tfie^two
Baudhayana's Sutras, give a powerful support to the *^°*^*
traditional statement that he is younger than that
teacher. It is, however, difficult to say how great
the distance between the two really is. Mahadeva
places between them only Bharadvaja, the author of
a set of Sutras, which as yet have not been com-
pletely recovered. But it seems to me not likely
that the latter was his immediate predecessor in the
Vidyavansa, or spiritual family, to which both be-
longed. For it cannot be expected that two succes-
sive heads of the school should each have composed
a Sutra and thus founded a new branch school. It
is more probable that Baudhayana and Bharadvaja.
as well as the latter and Apastamba, were separated
by several intervening generations of teachers who
contented themselves with explaining the works of
their predecessors. The distance in years between
the first and the last of the three Sutrakaras must
therefore, I think, be measm-ed rather by centuries
than by decades."
Of Apastamba and Yas'ishtha, we believe the latter Apastam-
^ . ba'.< priiir-
was younger than the former. \> e will state the
ity to
Vaslslitha.
grounds of our belief. We will again appeal to
internal evidence to support our position.
By a careful examination of Yaslshtha's Institutes, EstabUsh-
it is quite clear that Yas'ishtha was a representative mem^'^"'
23
178 SOURCES OF HINDU LAW.
Lecture of the old school, and the main object of his treatise
— was to defend the doctrines of Baudhayana and the
other old teachers against the attacks of Apastamba.
Vas'ishtha was a conservative, and an advocate of
the good old times. He would not disturb the institu-
tions hallowed by time, and scout the idea of intro-
ducing reforms. Apastamba was a revolutionist, and
his views about the existing social customs were
opposed to the teachings of ancient Jurists, whose laws
in these matters were implicitly obeyed. Vas'ishtha
was a staunch supporter of the ancient doctrines, and
laboured to controvert the arguments of Apastamba.
Theirviews First, as reg;ards the twelve kinds of sons. Gau-
asto differ- ' o
soiis'!"^'^^ "^ tama and Baudhayana allowed "the affiliation of
eleven kinds of substitutes for a legitimate son.
Illegitimate sons, the illegitimate sons of wiv'CS, the
legitimate and illegitimate offspring of daughters,
and the children of relatives, or even of strangers,
who may be solemnly adopted, or received as mem- j
bers of the family without any ceremony, or be |
acquired by purchase, were all allowed to take the \
place of legitimate sons. Apastamba declares his
dissent from this doctrine, he allows legitimate sons
alone to inherit their father's estate and to follow the j
occupations of his caste, and he explicitly forbids the '
sale and gift of children." ^
Views of Now let us scc how the subject is treated by the
' Max Miiller's Sacred Books, Vol. II, Sacred Laws of the Aryas_
Apastamba, II, w, 13.
SOURCES OF HINDU LAW. 179
other three legislators. Gautama simply enumerates Lectube
the twelve classes of sons, and assims them shares ^—- .
' O other legis-
in the paternal inheritance. He does not define the ^^"'
nature and position of each of these classes, nor does
he determine the relation which each class bears to
the other.^ Baudhayana enters more fully into the
subject,' and defines with precision the rights and
the nature and character of each class of sons. It
was the law of Baudhayana firom which Apastamba
expressed his dissent. The legitimate son alone,
accordincf to him, is entitled to social recoomition. He
alludes to the UleoHtimate sons of wives, but makes
a reference to them simply to condemn the practice.
The adoption and gift of children is strictly prohi-
bited. The selling and buying of children should,
on no account, he savs, be recoo-nized or encourao:ed
as an approved practice.^
His language on all these points is very strong : vei,emence
" Transgression of the law and violence are found umba's
amongst the ancient sages. 1 hey committed no sm
on account of the greatness of their lustre. A man
of the later times who seeing their deeds follows
them, /a/is."
" You tell me," he says, " that the practices I con-
demn were followed by ancient sages. They might have
been so. These sa2:es were the o-iants of a former gfener-
ation, who were privileged to do things which men
of the present times, weak and imbecile as they are.
' Gautama, XIX. = Baudhayana, II, 2. ' Apastamba, II, 6, 13.
180 SOURCES OF HINDU LAW.
Lecture must not for a moment attempt. We do not possess
— their superhuman powers, why should we then appeal
to them and take them as standards of our actions.
A pigmy cannot be compared to a giant. If you;
follow them, you are sure to fall into the regions of j
eternal torments. Their laws were not meant for]
you ; you are inferior to them in every respect ; you '
must have a separate set of laws for your guidance."
Thus Apastamba must have argued, and society was
in a state of ferment on account of the revolutionary
doctrines of this great teacher.
Vas'ish- Yas'ishtha furbishes the old weapons, and comes for-
cac.vor°' ward with a large array of Vedic texts and approved
iustitu- legal precedents. He appeals to immemorial customs
and to the antiquity of the institutions of his time.
The affiliation of eleven kinds of substitutes, men-
tioned by Gautama and Baudhayana, is condemned.
Such condemnation, he believes, is unreasonable, and
disrespectful to the ancient sages. " There are cer-
tainly twelve kinds of sons, he says ; there cannot he
the least doubt about it. They are approved by ancient
sau'es."^ In ancient times such sons were recoar-
nized; the ancients were certainly wiser than the
modems ; and the institution has their approval.
Apastamba is wrong, all the twelve classes of sons
must receive social recognition. This is the substance
of Vas'ishtha's remarks. Now, no one would ever
say with regard to an undisputed proposition, whose
' Vas'ishtha. XVII.
tions.
SOURCES OF mNDU LAW. 181
truth is universally acknowledged, '"it is certainly LErrrRK
true, there can be no doubt about it." It is only —
when the truth of the proposition is called in
question, that a man would lay stress upon the
proposition he enunciates, and would use two deter-
minative particles (era and hi) to strengthen his
position. Gautama laid down the law, Baudhayana
supported him ; Apastamba attacked their arguments,
expressed his dissent, and laid down a different law.
Vas'ishtha comes in as an advocate of the former legis-
lators, demolishes the arguments of the latter, and
says, that what the former laid down was certainly
true, there could he no doubt about it.
With regard to the much vexed question of the Baudhar-
, . , . , . , ana on iile-
propriety of givmg social recognition to illegitimate iiitimate
sons of wives, we hear Baudhayana say •} "He who
is begotten by another person on the wife of a
deceased man, or on the wives of an eunuch, or
of one incurably diseased, is called ' the son be-
gotten on a wife.' Such a son has two fathers, and
belongs to two families ; he has a right to present
the funeral oblations, and to inherit the property of
his two fathers." According to Baudhayana then
society is bound to recognize the illegitimate sons of
wives, and to give them the same rank as the sons
of the body bom in lawful wedlock. He sees no
impropriety in the usage, and attaches no stigma to
such offsprincr.
' Baudhayana, IV, 2.
182 SOURCES OF HINDU LAW,
Lecture Apastamba sets his face against such an immoral
^ - — , practice. »
Confuted ^
tamtar^" " ^^ ^ man," says he, " approaches a woman who
has been married before, or has not been legally married
to him, they both commit a sin. A son also who
is begotten of such a woman is exceedingly sinful.
The Brahmanas say : ' the son belongs to him who
begot him,' " Language cannot be more explicit
than this in condemning the practice of polyandry,
and no arguments are required to show that Apas-
tamba's point of view was more advanced than that of
Baudhayana,
Vaslshtha sides with Baudhayana, and introduces
the subject by asserting^ that " there is a dispute
among the wise. Some say ' the son belongs to
the husband of the wife,' and some say that ' the
son belongs to the begetter.' " Baudhayana has made
a compromise, and given the son so begotten both to
the begetter and the husband of the wife. Baudhay-
ana is quite right, he says, and quotes a Yedic text,
the same which is quoted by Baudhayana and alluded
to by Apastamba in support of the argument. He
draws also upon the animal kingdom for a precedent
and an illustration. He brings again the Veda to
his aid, and adds the following text in confirmation
of his views :
" If amongst many brothers, who are begotten by
one father, one has a son, they all have offspring
' Vas'ishtha, XVII.
SOURCES OF HINDU LAW. 183
through the son; thus says the Yeda." What pos- lectire
!^ible connection this has with the subject of recog- —
nizino- the illecritimate sons of wives, we are unable
to perceive. But this much is quite clear, that
Vas'ishtha labours hard to controvert by arguments,
relevant and irrelevant, the puritanic ^dews of Apas-
tamba, and to uphold the old laws on this subject
laid down by Gautama and Baudhayana.
We come now to the principles enunciated by these c .nciusion.
l^^gislators with regard to '' sons adopted," •• sons
bought," and " sons self-given."
Baudhayana recommends the practice, and gives his
sanction to it.^ Apastamba dismisses the discussion
of the subject by the following curt and laconic
sentence : *' The gift or acceptance of a son, and the
right to buy and sell a child, is jiot recognized.'"^
Vas'ishtha grows wroth at this language, so disres- But sop-
pectful to Baudhayana and the other teachers ; and Vas'ilhtba.
devotes a whole chapter to the establishment of the
legahty of the custom of adopting the children of
strangers. He appeals also to divine revelation to
hold up to ridicule and abhorrence the silent contempt
shown by Apastamba to eminent teachers.
The prohibition of Apastamba, he must have urged,
to adopt, buy, or sell a child is not entitled to respect.
" A son is born of the flesh and blood of his parents,
and his parents are the cause of his very existence.
' Baadhayana, IV, 12. - Apastamba, III, 4.
184 SOURCES OF HINDU LAW. , j^
Lecture His parents, therefore, have every right, either to
— give him away, to sell him, or abandon him."^
This, thought Yas'ishtha and all his followers, was
an unanswerable argument. The absolute power of
the father in a patriarchal family could not be called
into question, and this line of reasoning had a powerful
effect in stopping the current of revolutionary ideas
of the Apastamba school of law. With reference to
" sons bought " and " sons self-given " he invokes
the authority of the Yeda. The validity of the law
in this respect has been declared by the story of
Sunahsepha: " Harischandra, in truth, was a king.
He bought the son of Ajigarta, who sold his son ! "
" Sunahsepha, in truth, when tied to the sacrificial
stake, praised the gods; the gods loosened his bonds.
To him spoke each of the officiating priests : ' He
shall be my son.' Yisvamitra was the hotri-priest at
that sacrifice, he became his son." Thus the law
as to the validity of self-given sons is solemnly
declared by divine revelation itself.
It will be evident from all that we have said above,
that Gautama was the oldest of these four legislators.
Baudhayana was younger than Gautama ;
Apastamba followed Baudhayana; and
Yas'ishtha was the youngest of them all.
Apnstam- It will not bc out of placc here to say that, in the
l)a's naiive
place. opinion of Dr. Biililer, to whom we are largely
indebted for our fiicts and arguments, Apastamba was
' Vab'ishtha, XV.
SOURCES OF HINDU LAW. 185
a native of the Andhra country in the Deccan, and Lecture
that he probably flourished in the third century be- —
fore Christ. We will not make any suggestions of our
own, beyond stating that, if the accuracy of the date
be established beyond question, it will be a material
help in finding out the time when the other legis-
lators published their works.
We now come to Sutra works, which exist only in Sntra
works.
fragments. They have no independent existence of
their own. They have only a sort of shadowy exist-
ence. We do not see them in flesh and blood. They
exist in the mouths of others. We find them only
in quotations. But their existence cannot be ignored.
They are quoted as great authorities on law, and
supply important links in a historical investigation.
Let us first of all consider the claims of Harita. Sajpsofthe
. . aphi>ristio
Yama, Sankha, and Parasara as lesfislators belono'ino; pe"o<i-
to the aphoristic period of the legal literature.
Harita is quoted by Apastamba and Yas'ishtha. We internal
evidence aa
have no means of verifviQoc these quotations. But the *» ^^^if
•' " ■•■priority
extracts fi-om Harita, which we find in the Mitakshara, *** ^*'"*-
Dayabhaga, and other modern Digests, are all in apho-
ristic form. They possess all the characteristics of the
aphoristic style, and lead us to the conclusion that they
must have formed portions of a larger work written
originally in Sutras.^ Judging by internal evidence
also, we find that the ideas expressed belong to an
order of society anterior to that of Manu.
' Dajabhaga, I, 42, 57.
24
186 SOURCES OF HINDU LAW.
Lecture We find Harita sometimes quoted in the singu-
,. — lar, and sometimes in the plural number.^ Thia
shows that Harita was the founder or a teacher
of a school, and his work was used as a manual of
law by the members of his school. This assertion is
supported also by the fact that a Harita school is
mentioned as belonging to the Black Yaju, and ancient
works belonging to this Veda mention him repeatedly
as a great authority on theological and other subjects.
Yama. Yama is quoted by Vas'ishtha, but the remarks we
made about the outward aphoristic form of Harita
do not exactly apply to him. We generally find
Yama in a metrical dress. The reason can be ex-
plained. He did not write his treatise in aphoristic
prose, but in aphoristic verses. Vas'ishtha quotes him
as a versifier, and says, that he will quote his ' gathas '
or ' slokas.' Vas'ishtha, therefore, was perfectly aware
that Yama's work was in verse. It need not, there-
fore, excite any wonder, that although Yama's trea-
tise was in a metrical dress, we still rank him as a
legislator who flourished before our present Manu.
We may remark by the way that, in the original Manu
also, quoted by Gautama and others, there must have
been verses mixed with aphoristic prose, for Yas'ishtha
quotes ' verses ' from him.^
Sankha. j^ ig difficult to determine the exact position of
Sankha in our table of precedence. Judging from the:
outward form of the quotations we meet with, Sankha'S'
' Vaslshtha, II. ' Ibid, III, XII, XIX.
SOURCES OF HES'DU LAW. 187
work must have belonged to the Sutra period of legal Lectcre
literature. All the distinctive marks of the aphoris-
tic style are visible here, and the social customs des-
cribed do not differ much from those mentioned by
Yas'ishtha. We should be justified, therefore, on the
strength of these external and internal criteria in
placing him immediately after Yas'ishtha.
Our difficulty, however, arises from the fact that ^^^^°*^j
the treatise, which is ascribed to Sankha, and is stiU ^'^^^,^^\,
extant, contains many passages which are found ref^aWe to
extracted in the Mitakshara and other Digests. There ^io<L
are again other passages — included among quotations
from Sankha — which are not found in our edition.
The question is, how should we explain the occur-
rence of these former extracts in a work which is
evidently the production of a stranger hand. The
present treatise again is in verse. But there are two
chapters, the eleventh aud the twelfth, which are
partly in prose and partly in verse. Dr. Biihler sup-
poses that the prose portion consists of genuine Sutras
taken from the orio:inal edition of Sankha, the whole
of which must have been written in aphorisms. We
do not agree with the learned Doctor in his estimate
of the present edition of Sankha. A Httle critical exa-
mination will show that the prose portions he speaks
of are not written in the Sutra style at all. They
read like the easy flowing classical prose of Vishnu
Sarma's Hitopodesa, and can by no means be digni-
fied by the name of Sutras. The prose portion of the
188 SOURCES OF HINDU LAW. -
t
Lecture eleventh chapter sings the praises of gayatri, the
— well-known hymn to the holy light, " the offspring
of heaven first born." The prose portion of the
twelfth chapter enjoins funeral oblations to paternal
and maternal ancestors.^ The mere fact of its men-
tioning maternal ancestors as persons entitled to
funeral cakes would be fatal to its claim as part of a
Sutra work. It may be remembered that, previous
to the age of Yajnavalkya, not one of the legislators
ever mentioned maternal ancestors in connection with
the Sraddha ceremonies. Had any mention been
made before the time of Manu of these ancestors as
persons to whom pindas were due, surely Manu, the
father of modern lawgivers, would have alluded to
the circumstance, and would have enjoined upon
daughter's children the duty of celebrating the names
of their maternal grandfather and maternal uncles at
the anniversaries of their death.
Probability It is difl&cult, wc admit, to account for the appear-
oftiieiiiinie ' ' '' ^ ^
thor'b^.'in" ^11^6 of ^ f^^ prose sentences in a legal work which
tictitious. ^^ y^rritten in verse from beginning to end. Ac-
count for it in any way we can, it is impos-
sible, from the considerations mentioned above,
to ascribe the present work to the Sankha of the
pre- Manu age. Some of his aphorisms, it is very
probable, have been versified, and sanctified by
the name of the great sage, but the greater por-
tion of the present edition bears a fictitious name,
» Jivananda Vidyasagara Ed., Vol. II, p. 359.
1^'
SOURCES OF HINDU LAW. 189
which does not bear the remotest resemblance to Lecture
IV.
the Sankha of the Sutra period, one of the mem- —
bers of the sacred brotherhood of Gautama and
Vaslshtha.
The age of Parasara also puts the critical acumen Parasara.
of the Sanskrit philologists to the test. The vexed
question of the period in which the sage flourished
cannot be satisfactorily settled. Parasara is ac-
knowledged as the highest authority iu the fourth
asce on all matters relatinsj to ritual, relio^ious wor-
ship, domestic sacraments, and civil law. His work,
it is beheved, is specially composed for the require-
ments of the kalii/uga, the present mundane age.
The treatise on law, however, is lost, and the few
extracts we find from him in the modem Dio;ests and
Conunentaries, are all that remain behind to remind Books on
ritual and
US of his o-reat work. Two books in verse treatino- expiation
<-> <-j bearing hi3
of achai-a, or ritual, and prayaschitta, or rules re- "hrmetrt
garding penance and expiation, are still extant ; but of the' **""*
there is every reason to suppose that the original
work was written in SutraSj and that the two books
now extant are only metrical editions of the origi-
nal treatise. This supposition gains strength from
the fact that the rules relating to Inheritance, which
bear the name of Parasara, and which are extracted
in the Digests and Commentaries, are in aphoristic
style. We would specially refer you to the maxims
quoted by Jimutabahana in determining the right
of an unmarried daughter to the paternal inherit-
190 SOURCES OF HINDU LAW.
Lecture ance/ That this maxim is written in the Sutra stvlt
IV. ''
— cannot for a moment be doubted.
h'wiikhhe There is a well-known tradition that Sankhj
promulgated his laws for the third {dwapara) age
and Parasara was the lawgiver of the fourth {hali^
age. In other words, Parasara flourished during {
period which was subsequent to that of Sankha.'
This tradition, coupled with the facts mentioned
before, give a strong probability to the supposition
that Parasara, like Sankha, flourished before Manu
and Yajnavalkya.
of''i?'?^^ Let us now examine the third class of legal
tieatises. j^j,gr^^[ggg — ^\^q metrical redactions of Sutra works.
Manu is the great representative of this class of
works :
Manu. "The Code of Manu," says Max Muller, "is
almost the only work in Sanskrit literature which, as
yet, has not been assailed by those who doubt the
antiquity of everything Indian. No historian has
disproved its claim to that early date which had,
from the first, been assigned to it by Sir William
Jones. It must be confessed, however, that Sir
William Jones's proofs of the antiquity of this Code
cannot be considered as conclusive, and no suflicient
aro:uments have been brouo-ht forward to substan-
tiate any of the difl*erent dates ascribed to Manu,
as the author of our law-book, which vary accord-
ing to different writers, from 880 to 1280 (B.C.) "
Dayabhaga, XI, 2, 3.
SOURCES OF HINDU LAW. 191
As we said before, the attempt to fix clironolo- lecture
frical dates cannot, in the present state of Sanskrit ^ ,— — .
& ' L Calculation
philology, lead to any satisfactory result. These dates °*/j|;fj j^
become an ignis fatuus to Sanskritists, which, by its Hved*
illusory hght, leads on to bogs and marshes from
which they find it difficult to extricate themselves.
We may apply the remarks of Max Miiller as to Results of
computa-
the accuracy of Manu's date to the calculations oftionma.ie
•' by scuo-
Stenzler and Lassen, with regard to the date of Yajna- ^^"^s-
valkya. According to them, Yajnavalkya flourished
in the period between Buddha and Yikramaditya.
We will state the results of their calculations:
" 1. Reference is made in Yajnavalkya's Code to
Buddhist habits and doctrines, viz., the yellow gar-
ments, the bald head, and the abstraction of mind
peculiar to the Buddhists.'^ Hence this Dharma Sastra
must have been promulgated later than 500 (B. C.)
" Reference is made to a previous Yoga Sastra
promulgated by Yajnavalkya.^ Now, the Yoga phi-
losophy was first shaped into a system by Patanjali,
who probably flourished about 200 (B. C.)
" Mention is made of coin as nanaka.^ Now the
word nano occurs on the coins of the Indo- Scythian
king, Kanerki, who reigned until 40 (A. C.)
" This result, though indefinite, places the earli-
est date of Yajnavalkya's Code towards the middle
of the first century after Christ."^
' Yajnavalkya, I, 271, 272, 349. - III, 110. ' II, 241.
* Koer and Montriou, Pref. tx) Yajnavalkja.
<)f cal
tion 110
siitisfaC'
torv.
192 SOURCES OF HINDU LAW.
Lecture The bases on which these calculations and hypo-
— theses, says Dr. Biihler, " are 2:rounded, are too
Their mode ^ J :> o ?
cuiii- slender to afford reliable results, and it would seem
that we can hardly be justified in following the
method adopted by Lassen and others. The ancient
history of India is enveloped in so deep a darkness,
and the indications that the Smritis have frequently
been remodelled and altered, are so numerous, that it
is impossible to deduce the time of their composition
from internal or even circumstantial evidence." fl
A similar Au attempt has been made to fix also the date of
attempt at
J^^'jis^the Narada's law-book by Professor Jolly of the Wiirz-
Narada. burgle Univcrsity. We will give his exact words.
This law-book, he says, " must have been composed
or brought into its present shape at a time when
the faith of Buddha had not merely begun to succumb
to the victorious assaults of the Brahmins, but
when it had been completely replaced by the old
Brahmanical system. It may be added, that the
opinion here expressed as to the relative antiquity
of Yajnavalkya and Xarada is not only confirmed
by Mayr's investigations on the law of Inheritance, j
but also by the authority of Stenzler, who takes
none of the other lawgivers except Manu to have
been prior to Yajnavalkya. The two facts that the
Institutes of Narada must be of later date than those
of Manu and Yajnavalkya, and that they must have
been composed decidedly after the beginning of the
Brahmanical reaction against Buddhism, help us to
SOURCES OF HINDU LAW. 193
fix their earliest possible date at about 400 or 500 Lkctuue
^A.D.)" —
We have expressed our doubts as to the accuracy Mana older
of the dates assifirned to Manu, Yajnavalkya, andnavaikva,
° ^ 7 J J ■> andNarada
Narada : but we entertain no doubts whatever as yoanger
' than the
to their relative ages. Manu, we believe, preceded ^^"*'''
Yajnavalkya, and the latter, there is every reason
for makinsT the assertion, was older than Xarada.
All these works are written in continuous anu- Metrical
composi-
stubh-sloka, and there can be no doubt now, as we "on cha-
racteristic
said before, that the uniform employment of this ^^^^^
metre characterises a new period of literature subse-
quent to that in which the works composed in aphor-
istic style were produced.^ There is thus a wide
gulf between the aphorisms of Gautama, Baudha-
yana, Apastamba, and Yas'ishtha ; and the metrical
law-treatises of Manu, Yajnavalkya, and Xarada, in
which the anustubh metre is continuously and
uniformly employed for the discussion of all theolo-
gical, metaphysical, and legal questions. This natural
division of two classes of legal works is very impor-
tant in determining the relative ages of the ancient
l^al institutes.
It would follow from this that Manu flourished Manu of
, , p -1-- /• 1 1 T • ^^^ ancient
m an age subsequent to that oi V as isntha. It is true legislators
not to be
that Gautama, Baudhayana, and Yas'ishtha mention i'^emified
' •' ' with the
Manu by name. But the maxims they quote are ^^^^"^ "^
not to be found in our Code of Manu. Xay more. "'"'^
' Max Miillers-Aucient Sanscrit Literature, p. 6S.
25
194 SOURCES OF HINDU LAW.
Lecture Our Code of Manu enjoins precepts directly contrary
— to those quoted by Baudhayana. Vas'ishtha also
quotes Manu as an authority on law. Two of these
quotations are found in our Institutes; but one of
the verses quoted occurs in a metre which is never
employed in our Code.^ These facts show that the
Manu of the ancient legislators was not the same
Manu whose Institutes have been handed down to us.
Tradition Thcrc is a tradition that Manu has undergone
as to three , , _ _
redactions thrcc succcssivc rcdactious. The tradition does not
of INIaiui
examined, gecm to be entirely without foundation. In leo-al
commentaries two other Manus are frequently quoted —
a Vriddha (old) Manu, and a Brihat (greater) Manu.
The verses quoted from these Manus are not to be
met with in our Code. The fact is, there must have
been a Manu, whose treatise on law was originally
written in aphorisms, like those of Gautama, Bau-
dhayana, Apastamba, and Yas'ishtha. A Manava
school of law is mentioned among the schools of the
Black Yajurveda. Their aphorisms on Yedic ritual
and domestic sacraments still exist; but the aphorisms
on law have been lost. These aphorisms must have I
been the foundation of the successive metrical redac-
tions ; and it is quite possible that the author of 1
the original aphorisms was the first of lawgivers, and
the fountain-head of Hindu Jurisprudence.
Antiquity The prcscut Codc of Manu is, without doubt, the
> Vas'ishtha, XIX.
SOURCES OF HmDU LAW. 195
most ancient of all the metrical Smritis. A mere ^en- lecttoe
^ ° IV.
! eral survey of the Institutes of Manu, Yajnavalkya, — ,
and Xarada would show that they must have pro- ^^^
mulgated their works in different ages, and that
Manu was the oldest member of the triad, and
Narada was the youngest. They depict different states
of society, and enjoin rules of conduct suited to
different circumstances. The growth of the social
organization is distinctly marked, and development
of legislation is clearly characterized.
If method, classification, and generalization be Xarada's
work a
accepted as indubitable tests of scientific prooress, systematic
^ X o ' treatise oa
Narada shows a oreater decree of advancement than ^^-
Yajnavalkya, and the latter than Manu. Manu's
work is a collection of current laws and creeds,
rather than a systematic digest. Theological and
metaphysical speculations are all mixed up together
with moral precepts and legal maxims. He enumer-
ates eighteen titles of law, it is true, but he does
not, in their treatment, strictly confine himself to
the order he has himself prescribed. Directions as to
diet are given side by side with the rules concerning
Royal prerogatives ; and " the law concerning games
of chance " ^ are discussed with the rules of inherit-
ance. The systematizing spirit, which is a charac-
teristic feature of Hindu legislation, is only seen in
its germs in Manu. Yajnavalkya, however, sepa-
rates legal matters fi-om theological and metaphysical
• JX, 220.
196 SOURCES OF HINDU LAW.
Lecture theories, and treats of domestic and civil duties, of
IV. ..... .
— the administration of justice, and of the regulations
as to purification and penance, in three separate booksi
The work of Narada is expressly a law-treatise, and
the sage expends all his ingenuity and skill upon the
systematic arrangement of all matters relating to the
administration of law. Dogmatical theology and
metaphysical paradoxes do not find a place in his
ideal of a treatise on law. Any one who would com-
pare the law of ordeals, the rules of judicial procedure,
the regulations relating to gambling, and the maxims
on the law of property, as they are treated in these
Institutes, would at once perceive clear and distinctive
traces of growth in the works of the sages mentioned
above. The signs of advancement are unmistak-
able. The law of commerce is fully developed in
Yajnavalkya and Narada, while Manu's law on this
subject was yet in a crude state. The reason is
apparent, and needs no exposition.
Weber on " With regard to the Code of Yajnavalkya," says
Jiolity^of Dr. Weber, " its posteriority to Manu follows plainly
Yajiiaval- in i ititm'
kya's Code cuough, uot ouiy irom the methodical distribution of
to Manu's.
its contents, but also from the circumstance that it
teaches the worship of Ganesa and the planets, the
execution upon metal plates of deeds relating to
grants of land, and the organization of monasteries,
subjects which do not occur in Manu ; while pole-
mical references to the Buddhists, which in Manu are
at least doubtful, are here unmistakable. In the
SOURCES OF HINDU LAW. 197
subjects, too, which are common to both, we note in Lectuee
Yajnavalkya an advance towards greater precision —
and stringency, and in individual instances, where J^^fJ^^J ^l]
the two present a substantial divergence, Yajnaval- nava'Jkyai'
kya's standpoint is distinctly the later one." ^ da. ^
" Buddhism is nowhere mentioned in Xarada, but
^uite distinctly alluded to in Yajnavalkya ; and if
this important argumentiim a silentio,^ says Professor
-Jolly, " has been deservedly used by some as a proof
of antiquity in the case of Manu, it may be used with
at least the same force in the case of Xarada, so that
it can at no rate be fixed at an earlier time than the
rise of Buddhism." Hinduism must have re-estab-
lished its lost influence, and Buddhism must have
*' begun to succumb to the victorious assaults of the
Brahmins," when Xarada gave his laws to the world.
From the considerations set forth above, we are of
opinion that Manu, Yajnavalkya, and Xarada must
have followed each other in order in point of time.
" Vishnu, not the Indian divinity, but an ancient vistnu.
philosopher who bore this name, is the reputed author
of an excellent law- treatise in rers^," thus said Cole-
brooke eighty years ago. The law-treatise he speaks
of, is neither in verse nor in prose, but it is in both.
Some portions of the work are written in verse, but
the most important parts of it are generally composed
in prose. This has led some scholars to believe that
the work may be classed as a Sutra work, and that it
' Weber's History of Sanscrit Literatore, p. 281.
198 SOURCES OF HINDU LAW.
Lecture belongs to an age previous to that of Manu. It is
- — written in prose, it is true, but the style is not the
aphoristic style, which can be distinguished at a
Nature of glance froHi ordinary prose. Aphorisms are short,
aphorisms.
pithy sentences, conveying a world of meaning within
a short compass ; they are the concentrated essences
of distilled thoughts, and are as different from ordinary
prose as solid rocks from loose molehills. There
might have been a previous Sutra work of which the
present Vishnu Smriti is but a redaction, but to call
the treatise we possess by the name of Yishnu-
Sutra, would be falsifying the name of Sutra, and
depriving aphorisms of their most distinctive features.
Vishnu- Visuhu-^Sw^ra^, we are told, are quoted in commen-
iiottheme- tarics, audthcrc must have been, therefore, it is argued,
trical ver- ' _ _ _ / _ ' b »
^^'^cliTec^^ treatise written by Vishnu in aphorisms, of which
sutJas!""^" Vishnu ->S'mrz7z now extant is only a metrical version.
tife contra- Wc cauuot by any means agree to the proposition
rv proposi- •iir^i
ti'on. thus laid down, it starts with the false premiss that
all our Smritis were originally written in aphorisms,
and that these aphoristic works were manuals of law
used in different Charanas or Vedic schools. We do not
think, in the first place, that all aphoristic treatises on
law were employed as handbooks by these schools.
There were some, no doubt, which were so used ; but
most of these, at any rate, had no connection, as we
showed before, with the Vedic schools. They were
independent treatises on law, whose authority was
binding upon the whole community. Manu may be a
SOURCES OF HINDU LAW. 199
metrical redaction of an original Sutra work, used by lectcbe
the Manavas of the Black Yaju school ; but there is —
no evidence to show that Yajnavalkya's Code partook
of the same character. For all that we know to the
contrary, Yajnavalkya's law-treatise was originally
written in verse, and had not the remotest connection
with any aphoristic work or any Vedic school. The
same remark may be made with regard to Vishnu. It
is an original work, independent of any aphoristic trea-
tise on law. As to the quotations which are said to
be Yishnu-iS'i^^'a.s, we strongly suspect that when they
are properly analyzed, they will be seen to be plain
prose, perhaps in borrowed feathers. We are not dis-
posed on these considerations to ascribe to A ishnu's vishnn's
Code an age which cannot possibly belong to it. It is Jent "o^^"
utterly impossible for him to claim brotherhood with Jiana «nd
Taj naval-
Gautama or Yas'ishtha ; he must be given his proper ^y^-
position as a follower of Manu and Yajnavalkya.
Yishnu describes a state of society much akin to jjjg f^^_
that of the present age. Manu, Yajnavalkya, and socmrcon-
Narada never dreamt of the minute subdivisions of
castes which distract the present Hindu society.
Some of these are defined with great precision by
Yishnu. It would seem as if he were a resident of
some populous village in Bengal or Oudh, who was
bent upon collecting all available information con-
cerning Hindu castes and tribes of the present day.
We meet all these castes and tribes in his book from
the sweeper to the barber, from the carpenter to the
200 SOURCES OF HINDU LAW.
Lecture Brahmin. The semblance of the four orio-inal castes
IV. ^ .
— is kept up, but the mixed castes enumerated there
are so many, and so varied in their occupations, that
one cannot but be led to the belief that Vishnu is
laying down law for a state of society which has
very few points in common with that with which
Manu and Yajnavalkya are concerned.
''janr/aia." Thcrc is a word used in the treatise to which I
would draw your attention. The word I mean is
jangala. I know that a Sanskrit derivation is given
to it. It is, however, a foreign word, and does not
seem to be indigenous to the soil of India. Would
not the employment of such a word be a presumptive
proof that, at the time of Vishnu, Hindu society
had abandoned its primitive divisions, and was com-
posed of mixed castes, who followed the thousand
and one hereditary occupations of a more civilized
Vishnu's state of society ; and that, without confining them-
laws point
to an ad- sclvcs to poDulous citics and towns, Hindus of that
vanceii
state of ^^„ cultivated desert tracts, and fixed their abodes
society. J '
in jungles ? The laws laid down by Vishnu speak of
improvement and civilizing influences in diff*erent
social relations ; and we should be justified, therefore,
in assigning him a place posterior to that of Manu,
Yajnavalkya, and Narada.
Four later ^^ ^hc ucxt four tcachcrs, the order of precedence
awgivers. ^^^.^^ ^^ |^g ^^ folloWS :
1. Devala. 3. Katyayana.
2. Vrihaspati. 4. Vyasa.
succession.
SOURCES OF HINDU LAW. 201
Their entire works are lost. We possess only lecttrk
metrical fragments. These fragments, we believe, —
are extracts from larger works, which were originally
written in verse, and were not founded upon any
Suira treatises on law.
Devala appears to be the oldest of the sToup. The Devaia
, . first in the
lanoruaofe used by him has more archaic forms than ^^'^^^ "^
that of any of the other three. The verses are of
the same jagged and artificial character as in Manu
and Yajnavalkya. And if we look to internal evi-
dence, we find that the opinions expressed by Vrihas-
pati and Katyayana spring from a more advanced
standpoint than those of Devala. Devala still clings
to the old classifications of sons in twelve divisions,
though a faint trace of change of opinion is percep-
tible.^ Vrihaspati wavers in his opinion, rejects alto-
gether five classes of sons, and thinks that four
other classes are held " in a middle degree of estima-
tion." Further on, he is evidently dissatisfied with
himself for still holding ideas which were old-fashion-
ed, and not suited to the social conditions of his day.
He forgets himself for a time, and after premising
the Kali age, he boldly puts forth the following
dictum: " Sons of many different sorts, who were
made by ancient sages, cannot now be adopted by
modem men."^ There is a tradition also that Vri-
haspati was a son of Devala, and if the tradition
• Dayabhaga, X, 7.
' Colebrookes Digest, II, 406.
26
Vrihaspati
second.
202 SOURCES OF HINDU LAW.
Lectuke does not err, it gives a coloring to the suppositioi
— that Vrihaspati followed Devala in point of time.
Katyayana Katyayana repeatedly quotes Vrihaspati as an|
authority on law.^ In the absence of any other testi-
mony, this may justify us in placing this legislator
immediately after Vrihaspati. We can see no con-
nection between this Katyayana and his great name-
sake, the celebrated author of the Sutras attached
to the White Yajur Veda, and the great critic of
Panini. Max Mliller places the theologist and the
grammarian in the second-half of the fourth century
(B. C); Goldstucker in the first-half of the second
century (B. C); and Weber about twenty-five years
later. The learned discussions on this subject ofi
eminent Sanskrit philologists are of no avail to us.
They give no clue to the identification of Katyayna,
the theologist, with Katyayana the lawgiver. Ifl
the theory, that all the metrical lawbooks we possess-?
are founded upon Sutra treatises, which were origin-
ally used as manuals of law in different schools,
be correct, the two names might be inseparably con-
nected with each other. It would then follow that |
some remote disciple of the great teacher versified
his Sutras, and the present law-treatise is a secondary j
redaction of the original Code. If this unknown dis- j
ciple, who assumed the name of Katyayana, really j
undertook this task of versification, he must have j
taken unwarrantable liberties with his great master, '
' Dayabhaga, YI, 2. 1, 27 : Colebrooke's Digest, II, 148.
I
SOURCES OF HINDU LAW, 203
and must have made many interpolations, which were lecture
not found in the original. The social conditions —
mirrored forth in the metrical treatise could not have
existed in India at such an early date as two thousand
two hundred years before the present generation. We
notice many facts in the metrical quotations which
could be assimilated ^th the social phenomena wit-
nessed in our time. There are comparatively fewer
archaic social forms in Katyayana's treatise than in
other codes of law. The strict rules of induction,
then, would prohibit us from making the inference
(from the mere fact of similarity of names) that the
two Katyayanas were identical.
It is with great hesitation that we place Vyasa vyasa
immediately after Katyayana. Our only ground for
doing so is internal evidence, which seldom, in these
cases, leads to wrong conclusions. But the difficulty
of finding the exact position which Yyasa the
lawgiver should occupy in the table of precedence
is almost insurmountable. The name belongs to an
immortal theologian, the arranger of the Vedas, the
founder of the Yedanta philosophy, the author of the
Poranas, and the compiler of the Mahabharata. All
that is imperishable in Sanskrit literature, all that
commands love and respect, and all that treats of the
most solemn subjects having deep human interest, is
comprehended under the name of Yyasa. Legends
are told of his superhuman powers which could not
be vouchsafed to an ordinary mortal. To him we pay
Benares.
204 SOURCES OF HINDU LAW.
Lecture our obeisance from a distance, and do not venture tc
— associate his name with that of the humbler indivi*
dual, who could not, without presumption, claim the
Not identi- exaltcd positiou held by the divine associate of the gods^
cal with the r J ^ ;
famous Yyasa, the author of our code of laws, was a distinct^
author of •/ ' '
bharS^' person, and however great his merits, must not be
identified with the august personage whose immortal
name figures in every era and in every page of Sans-
krit literature. The name is a mere coincidence, and
He deli- uothiug morc. The holy city of Benares was the
vered his
laws at place where, we are told, Vvasa delivered his laws
to an audience of learned men who were solicitous
to learn from him the nature of the duties and re-
lations of the different sections of society towards
each other. He is nearer our time, and we can almost
fancy him seated on the marble steps of Maniharnihay
the sacred resort of pious men from all parts of the
country. Surrounding him is a large group of devout
persons, while he expatiates upon the rules of conduct
which all must obey if they expect freedom from
cares in this, and eternal beatitude in the life to come.
" He who regulates his conduct according to the laws
approved by Yyasa, shall never /a//," so said Vyasa
at the end of his lectures, and thousands, who,
inspired with awe and respect, had listened to him
with rapt attention, now dispersed to their different
homes, openly acknowledging the gravity of the
theme, and the imperative necessity of following the
rules laid down by this great lawyer and theologian.
SOURCES OF HINDU LAW.
205
Our table of precedence
then would stand thus :
Sutra
Works.
Grautama.
Harita.
Baudhayana.
Yama.
Apastamba.
Sankha.
Yas'ishtha.
Parasara.
Metrical
Works.
Manu.
Devala.
Yajnavalkya.
Yrihaspati.
Narada.
Katj'ayna.
Vishnu.
Yyasa.
Lectcrk
IV.
Summary.
This closes our inquiry into the relative ages of the
ancient leodslators. We will in our future Lectures
o
attempt to trace the course of development of the
principles of inheritance during the middle ages, as
well as in the modem schools of Hindu law.
LECTURE V.
PRINCIPLES OF SUCQESSION IN THE MIDDLE AGES.
Knowledge of early forms of juridical ideas — Its importance — Determination
of primitive social institutions of the Hindus not impracticable — Progressive
character of Hindu societj' — Stability of law — Social condition of the Hindus
in the Vedic times was not of a primitive character — Reference to the rich
and poor ia the hymns — Laws of property — Inheritance and contract-
Difficulty of exactly determining the state of law in the Vedic period-
Due to absence of continuous treatises on law — A formal Code of rules f«
social conduct unnecessary in the patriarchal age — Constitution of Hindu
society in that age — Grihapati,'' or pater familias' — His authority supreme
in the family — Elasticity of family law — Political aspect of the family-
Necessity for increasing its members —Slaves — Adoption — Fictitious son—
Sacredness of matrimonial connection — Sons of women marrying a second
time — Rights of different classes of sons as recognized by the Vedas not
the same — Why was a son longed for in the primitive age — Religious aspecti, ,
of the question in later times — Narada on the benefits of a son — Immo#|
tality — Enjoyment of life — Salvation through son a later idea — Benefits
desirable from a son, grandson, and great grandson enumerated — Putra—
A sonless man is doomed to eternal torments — On account of his failure
to pay the debt due to his ancestors — Twelve kinds of sons substituted
for son of the body — Hints as to devolution of property taken from the
Veda — Primogeniture — Twelve-day sacrifice right of the first-born— Vish-
wamitra's adoption of Sunahsepha as the eldest of his sons — Division of
property in equal shares — Development of the law coeval with the eman-
cipation of the individual from the family thraldom — Hostile doctrine in the
Taittiriya-Sanhita and the Brahmana — Possibilitj' of their co-existence —
Manu the first exponent of the doctrine of individual rights — Changes in the
law of division of property — Gautama — Baudhaj-ana — Apastamba — Vas'ish-
tha — Manu — Narada — Vishnu — Vrihaspati — Katyayana — Struggle between
the rival doctrine of primogeniture and equal distribution of property at last
ended in the ascendency of the latter — Polygamy ; its effect on the law
of division — Exclusive right of the eldest son to inherit the paternal pro-
perty not favored by legislators since the time of Gautama — His right
to an additional share or to some special present recognized in certain
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 207
families by custom — But denied by Apastamba and Yajnavalkya — Power LECTtTBB
to dispose of property by will — Testamentary power not co-extensire with V.
that of making partition or disposition inler rites — Principle of graduating
social position of different kinds of sons— Blood relations preferred to
strangers — Sons classified into 'heirs' and 'kinsmen' — Each including
six different kinds — Enumeration of various classes of sons by Harita —
Vaslshtha — The two enumerations are not wholly in accord as regards order —
' Puirika-pntra,' or appoiuted daughter's son, explained — By Hemadri —
In the Rig-Veda — Gautama places him in the category of kinsmen —
Baudharana assigns his place next to the son born in wedlock — Harita
and others rank him as kinsman and heir capable of inheriting in default
of superior claimant — Appointed danghter's son and wife's illegitimate son
both discarded by Yrihaspati — Legitimacy the principle of classification with
Gautama, Baudhayana. and Manu — Blood relationship with Harita and
others — Sons other than those born in wedlock are now extinct, except
the son giren and the son made — Son given — The practice of adoption
a very ancient one — How it originated — Adopted son how treated at first —
Kales as to the class of persons from which adoption is allowable — Adopted
son's position in the list of sons — Tabular view of the position of different
kinds of sons according to different legislators.
" If by any means," says Sir Henry Maine, " we Knowledge
• 1 IP r • 1 .of earlv
can determine the early forms of mral conceptions, forms 6f
•^ "^ . juridical
they will be invaluable to us. These rudimentary i*^^^-
ideas are to the jurist what the primary crusts of
the earth are to the geologist. They contain,
potentially, all the forms in which law has subse-
quently exhibited itself."^ An earnest research,
therefore, into the primitive history of society and
law is sure to be productive of the very best results.
" It is almost impossible to grasp clearly," we quote
the words of Justice Markby, " many of the con-
ceptions with which the lawyer has to deal without
having traced their history. Many of the terms
in which they are expressed are very ancient. The
conceptions themselves are neither new nor old.
* Maine's Ancient Law, p. 3.
208 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture They came long ago into existence, but have beer
— brought under the influence of a long succession of
antagonistic philosophies and conflicting creeds.
By these tliey have been, very often at the tiin(
imperceptibly, but upon the whole greatly, modifiedJ
So that whilst the name has remained the same, the^
ideas comprised under it have greatly varied." Any
researches, therefore, " in which the connection is
traced between modern legal ideas and the rudi-
mentary institutions of early social life, have a
great value in assisting the student of law to grasp
these ideas, quite apart from their value to the
philosopher and historian."^
Its import- The phenomena which we witness in early societies,
aiice, '^ "^ '
however, are not easy at first to understand, but
the difficulty of grappling with them bears no pro-
portion to the perplexities which beset us in consi-
dering the baffling entanglements of modern social
oro;anizations. Grantins; that thev srave more trouble
than they do, no pains would be wasted in ascer-
taining the germs out of which has assuredly been
unfolded every form of moral restraint which controls
our actions and shapes our conduct at the present
moment.^
Determina- Thcsc words uccd uo commcut from us. The
tion of pri-
mitive so- historical method of enquiry, recommended by one
cialinstitu- L •/ ' ^
Hindus not of thc grcatcst of modern jurists, will enable us to
mpractica- ^^^ ^^^ ^^^ ^^^^ naturc of tliosc complcx institu-
' Markby'a Elements of Law, p. -10. * Maine's Ancient Law, p. 120.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 209
tions of modern Hindu society, wbicb at first siglit Lectube
seem to be inexplicable. Tbese institutions did not —
exist in tbeir present sbape wlien tbey were first
formed. We see tbem in tbeir rudimentary state
during tbe Vedic period, and tben gradually assum-
ing consistency and stability in tbe long succession
of ages wbicb followed tbat period. Tbe germs are
all tbere; and if we wisb to examine critically tbe
social pbenomeua of tbe present day, we must pene-
trate as far up as we can into tbe bistory of primi-
tive Indian society.
We are tbe very last persons to admit tbat Hindu ProErressive
character
law is not proo-ressive. Wbat was true tbree *'^ "'"*^'^
^ '-' society.
thousand years ago is not true at tbe present time.
Tbe principles of legislation sanctioned by Gautama
are different from tbose accepted by tbe founders of
tbe present scbools of Hindu law. Law, certainly,
is ever cbauo-ino; witb tbe cbano-e of social necessities stability
and social opinion. But tbe foundations of society
remain uncbauged ; and law, tberefore, bowever
much it may be influenced by surrounding circum-
stances, cannot entire^ cbange its original nature.
Tbe importance of tbe stability of buman nature
cannot be overrated ; and no true explanation can be
given of our existing laws if we pay no regard " to tbe
I inberited qualities of tbe race, tbose qualities wbicb
I eacb generation receives from its predecessors, and
i transmits but slio:btly altered to tbe oreneratiou
wbicb follows it." It would be wrong to suppose
210 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee that laws are creatures of climate, local situation,
V. ^ .
— or accident alone. These are only its modifying
causes, and nothing more. These should certainly
be allowed due weight in accounting for the growth
and formation of law, but should never be accepted
as the only causes in which law has its origin.
" The truth is, that the stable part of our mental,
moral, and physical constitution is the largest part
of it, and the resistance it opposes to change" is
markedly stubborn in all variations of human so-
ciety. Law changes, it is true, but the new product
is a chip of the old block, and its original character
is easily perceptible in all its vicissitudes. The
law of inheritance has been greatly modified, we
admit, as it passed through various social phases in
different ages in the history of the nation ; but the
impulse which was first given to it is still influencing
the course of its action. This much is certain at least,
therefore, that our inquiries into the primitive state
of the law of inheritance cannot be entirely fruit-
less. They will enable us to understand clearly
many of the conceptions which underlie the law of
succession, if they do nothing more. The task is
worth attempting, and the ])resent lecture will be
devoted to an exposition of the law of inheritance
in its various stages of progress during what may
be called the ancient and the medieval ages of the
legal history of India.
Social con- Wc must remark at the outset that, it would be
PRINCIPLES OF SUCCESSION IN THE mDDLE AGES. 211
erroneous to believe that the condition of society lectuke
during the Vedic period was of a very primitive ^.^.—^
description.^ All the facts which have been brought Jnth?Yedic
together by modern research render it undisputable S o^i"!^
f, , -^j- ,. , , . , - primitive
that the Hindus of the Vedic era bad attained to an character,
advanced state of civilization.^ All the require-
ments of a civilized life are mentioned in the hymns„
The arts and sciences of civilized society were
cultivated; trade and agriculture were practised;
religion and morality had made considerable pro-
gress. Large and populous cities are repeatedly
described, and various intimations are given that
wars were carried on in a large scale. The ocean
and its phenomena were familiar to the Yedic
Aryans, and expeditions by land must have been
frequently undertaken. All the virtues and vices
of civilization were present in the Vedic society,
and there was also a certain sort of refinement
inseparable from an advanced state of the social
organism.
Domestic relations in all their various phases were
fully developed, and morals are inculcated which
would do credit to any civilized nation of the nine-
teenth centurv. Untruth is condemned in the
strongest language, and the virtues of friendship are
extolled with all the earnestness of sincerity.
We Hud in the hymns a distinct reference to the Reference
.•.,, ..., .to the rich
rich and the poor as existing in the communitv. andpoorin
"^ the hymns.
' Muix's Sanskrit Texts, Vol. V, p. 473. - Wilson's Eig-Yeda, Pref.
I
212 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuke The existence of both classes is distinctly recoo--
— nized, and liberality on the part of the wealthy is
recommended. The house of the donor of larsfesses
is compared to a lotus pond, and is said to be
embellished like a palace of the gods.^ The man
who is a friend of Indra is said to have horses,
chariots, cows ; " to be handsome, to enjoy vigor-
ous vitality, and to come resplendent into the as-
sembly."
Laws of When the social relations were so complex and
property. *•
SO varied, it would be absurd to suppose that the
laws of property were extremely simple in their
character. There can be no doubt that social
necessities and social opinion are always in advance
of law, but still the gulf between them can never be
very wide. The happiness of a people can never
be secured, so long as laws are not adapted to the
existing social conditions ; and the greater or less
happiness of a people de{)ends on the degree of
promptitude with which the gulf between law and
social necessities is narrowed.^
Inheritance There are some curious passages, says Dr. Wilson,
ami coti- . P . , .
tract, in the Vedic h3^mns relating to the laws of inherit-
ance and of simple contract. They may not be
precise or altogether intelligible, yet they are suffi-
ciently so to show that legislative enactments were
in existence, and that, with respect to these two
subjects, the law was essentially the same as that
* K,., X, 1U7, 10. - Maine's Aacient Law, p. 24.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 213
which is laid dowQ in the reputed writings of Lecture
ancient legislators, and to a certain extent is still in —
force/
We demur to this. If crude legislative enactments DifficnUy
of exactly
were in existence, we have no means of kuowino- detenmn-
' "^ iiig the
what these were. There are no continuous treatises -"/iieyid!^
on law, as we said before, in the Vedic writings. ^^"°
Legal maxims are only incidentally noticed by way of
comparison or illustration. These notices are so
brief and so obscure, that it is difficult to make out
from them the real state of law during the Vedic
period. But brief and obscure as they are, they
afford us a glimpse of the social condition of India
at that remote age, and we can distinctly perceive
the orerms out of which Hindu law has been deve-
loped.
Sayana, in his commentary on the Parasara Code, Due m
says : — " As to finding the authority for these laws continuous
'' treatises on
in direct precepts of the Sruti (revelation), this is •'*'^-
out of the question, because such precepts are not
to be found there." Haradatta, the learned com-
mentator of Apastamba, puts forth a theory of his
own, and remarks: " Although we have not before
our eyes a Veda^ which is the source of these laws,
we must still conclude that Mauu and the rest
had." Even so old a writer as Apastamba believed
" that certain rules must be considered as iriveu in
Brahmanas of which the tradition or readins: has
' AViLion's Pref., Vol. UI, Kig-Veda.
214 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee been destroyed. Their former existence must be
V. . .
— inferred from the simple fact, that these rules are
still followed by men."
A formal Thc abseuce of continuous Ieo:al treatises, we
Code of ^ ° '
rules for ^|^^g ggg ^r^g deplored in all ao-es. The exact con-
social con- ' i o
ces'sal'y'in' ncctiou bctweeu the Veda and the professed legal
chaiage!"^ wovks could uot bc tracod, and recourse was had to
the theory that there were Vedic works in which
legal maxims were explained and illustrated, but
that these works have now been lost. Can these
connecting links be ever recovered? Vain hope.
They never existed, and cannot, therefore, ever
come to lio-lit. There are no continuous treatises
on law in the Vedic works, because there was no
necessity for them during the Vedic period. The
constitution of society was such that it was not
necessary to embody the laws of property in a
formal code. If they existed at all, they existed in
the archives of the patriarchal families, and these
archives were nothing more than family traditions
en2:raved on the tablets of their memories.
consiitu- We will explain what we mean.
tion of ^ ^ ^
Hindu Hindu society durino; the Vedic period was an
tiociety in J o l
that age. aggregation of patriarchal families. Each family
was complete in itself, and its government was
vested in the eldest living ascendant. He was
Grihnpnii, callcd gHhapati, or master of the household.-^ He
or ' ])ater
famiiias.' was tlic patriarch of the family, and his autho-
' Haug's Aitareya Brahmana, p. 363,
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 215
rity was absolute. He was the ruler, the legislator, Lectcre
the judge, the counsellor, and the spiritual guide of —
the family. All the individual members blindly
followed his behests. His commands constituted
the laws of the family. He exercised supreme His autho-
ritr su-
authoritv over the person and the property of all preme in
who were immediately under his control. His
dominion extended to life and death, and was as
unqualified over the members of the fjimily as
over his slaves. For all practical purposes he was
the absolute master of the family property, and
the rules he laid down for the management of the
family estate could on no account be interfered
with. Law was the master's word, and there was no
appeal against it.
The traditions of the family must have formed Elasticity
I'l of family
the basis of the family law. But the law which ia\s.
was administered at any specified time could not
have been entirely dependent upon these traditions.
Law varied with the particular circumstances at a
given time, and the despotic ruler of the family
could bend it to his will. Law lacked that uni-
formity and invariability which are its chief charac-
teristics. The idea of immufabilUj/ was entirely
foreign to the ancient conception of law. It was
like the leaflet of a tree, which every passing
breeze could plav with. It was not like the livins:
rocks of bygone ages, which admitted of growth,
but whose foundations could be shaken by no sub-
216 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture teiTuiieiiii coiivulsion. The law of person and of
— property was vet in its infancy, and its basis was not
firmly established. It was subservient to the interests
of the corporate faniilj^, and if it in the least inter-
fered with the welfare of the familj'^ group, it was
ruthlessly trampled under foot, and a new law better
suited to the circumstances of the family was adopt-
ed without the slightest hesitation. The law of
property, therefore, in our sense of the word, was
utterly unknown, and it would be vain to search for
a code of laws which prevailed during the Vedic
period of Indian history.
Political The family was the unit of society, and its inde-
aspect, of . - . 1 • /> 1
the family, peudcut and corporate existence was an object or the
highest ambition with the patriarch of each family.
Each family was like an independent State, and its
relations with other families were conducted on the
principles of international law. All persons and all
property lying outside the family limits were con-
sidered as belonging to a foreign government, and
every dispute concerning such persons and property
was decided by an appeal to the principles of inter-
national law. To increase the power of the family,
and to make it unassailable by foreign enemies, was
the principal aim of the patriarch. Numerical
strength was the first necessarj^ condition by which
power could be secured ; and all the efforts of the
patriarch were directed towards making the family
Necessity numerically strong. Where the offspring born of
PRINCIPLES OF SUCCESSIOX IN THE MIDDLE AGES. 217
lawful wedlock were numerous and able-bodied, Lectuee
numerical stieno-tli was secured, and there was no ^ : —
^ ' for increas-
necessity for resorting to other expedients to gain the J^f^'^„
desired end. But where such was not the case, the
introduction into the family of foreign elements was
a sine qua non of the independent existence of the
family in its full power. Slaves could be bought slaves.
in abundance, but they could never supply the
place of blood relations. They could never be
made to feel that interest in the promotion of
fomily welfare as members of the family knitted
together by ties of blood. Where the natural ties
were wanting, artificial relations were created, which
simulated in every respect the bonds of consangui-
nity. Strangers were adopted into the family
group, and " the expedient which in those times
commanded favor was that the incoming population
should yeio-72 themselves to be descended from the
same stock as the people on whom they were en-
grafted."
This was the origin of adoption — which was Adoption,
nothing more or less than a fictitious creation of
blood relationship. The family was constantly
enlarged by the absorption of strangers within its
circle, and the fiction of adoption so closely simul-
ated the reality of kinship, that neither law nor public
opinion made the slightest difference between a real
and an adoptive connection. . The persons who were
thus theoretically amalgamated with the family by
28
218 PRINCIPLES OF Sl^CCESSION IN THE MIDDLE AGES.
Leotuke their commou descent were practically held to-
— gether by their common obedience to their highest
living ascendant — the father, grandfather, or the
great grandfather.^
Fictitious Various expedients were resorted to for this arti-
ficial creation of blood relationship. The strangers
introduced into the family were called sons, and
enjoyed in some measure the privileges of sons born
in lawful wedlock. If the strangers thus adopted
had the least agnatic blood in them, the}' were
unhesitatingly brought into the family circle. If
no blood relationship could be traced, the exigencies
of the family permitted the absorption into the
family of utter strangers, who. though they bad not
the remotest connection by blood, were treated as
kinsmen entitled to filial rights.
Saciedness Xhe tie of matrimony was held sacred durins; the
of matri- -^ ~
conneaion ^^dic period. The sons born of lawful wedlock,
therefore, held the first rank. With him might be
associated the son of an appointed daughter, who,
in the absence of a legitimate son, was treated
in all respects as such, and was entitled to all the
privileges of a son born in lawful wedlock.^
The son of a widow also by her husband's bro-
ther received the name of a son, and was considered
as a member of the family.^
Sons of Women appear to have been permitted to marry
women •*■•*•
' Maine's Ancieut Law, p. IHB. " Rig-Veda, I, 31.
3 Eig-Veda, X, 40.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 219
a second time/ Their sons, therefore, must have LEcnruRs
had social recognition. We have numerous allusions ~
•-^ . marrying
in the Vedic writings to sons given bv the parents, fj.ne!''"'^
to sons bought, and sons self-given.^
We thus find that the Vedas recognized seven Rishtsof
different
classes of sons. It must be remarked at the outset, d'^-esof
sons ;vs re-
co^iized
i»v the
Te'ias not
sons ;vs re-
that all these sons did not acquire the same rights ^."^ ^^^
and privileges as legitimate sons of the body. A the same
distinction was made, and this distinction was strict-
ly maintained. In default of a sou born in lawful
wedlock, the son of an appointed daughter was
entitled to the rank, station, and rights of the legi-
timate son. But we do not find that the adopted
son was so entirely affiliated to the family as to
acquire all the rights of a genuine member of the
family. There can be no doubt, however, that
during the Vedic period strangers were freely amal-
gamated with the family, and that their social posi-
tion was recoo:nized bv the Vedic sas-es. Their exact
position in the social scale was not determined,
simply because in a corporate family all the mem-
bers formed the inseparable parts of a compact
body, and their separate existence was not recoo--
nized by society. They were maintained, and they
were all engaged in the service of the family. There
must have been a distinction, but it could not have
been so marked as to be galling to any adopted
' Atharva Veda, IX. 5. 27, Taittiriya Aranyaka Pref.
- Taittiriya. San. 3, 5, 2, Aitariya Brahmana. Story of Sunahsepha
220 . PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee member of the family. No scientific classification
of the different kinds of sons could have been made
till the disintegration of the individual from the
family group was complete. The inspired sages of
the Vedic period did not attempt any legal classi-
fication of sons, simply because there was no neces-
sity for such an elaboration in the state of society
in which they lived. When the individual mem-
bers of the family partly extricated themselves from
the trammels of the corporate association, the want
of such a classification was keenly felt, and the
medieval le2:islators of India determined the exact
position which each class of sons should occupy in
the social hierarchy.
Why was a The natural craving to have a son, in whom our
for in the affcctious could be centered, and who would bear our
primitive
"s<^- name and perpetuate our memory, was carried to its
utmost length by the Aryan settlers of Hindustan.
It is instructive to observe the feelings with which
a son was reo:arded both in ancient and in medieval
India. In the hymns of the Rig- Veda a son was
the delight of his father, and his birth was earnestly
desired to continue the line of his progenitors. The
religious element had not yet entered into the con-
ception of a son. The family would be destroyed,
and the mundane existence of a long continued line
of ancestors would be obliterated, if no son were
born in the family. Religion, in the Vedic age,
concerned itself with liiglier things, and not with
PRDfCIPLES OF SUCCESSION IX THE MIDDLE AGES. 221
the birth and death of a male representative of the Lectcre
f\imily. The theory of a region of eternal torments —
which a sonless man would inhabit, was not vet
invented. But there is ample evidence to show that
the primitive sages of India most solemnly enjoined
upon all their faithful followers the duty of beget-
ting a son, and thus maintaining the power and the
honor of the family in which they were bonr.
In the later stao^es of the social proo-ress, the Keiigious
° r n 7 aspect of
birth of a son was felt as an absolute necessity — not jl],^,*^^"^*'
only in this world, but also in the life to come. ^'"'^ ^'""^
Religion had sanctified the natural craving, and the
unfortunate man who was not blessed with a son in
this world was doomed to a dark and fathomless
abyss of eternal horrors. " Since a sou," says Manu,
"delivers his father from the hell called put ; there-
fore he is named putra by the self-existent him-
self."^ The language of Harita is stronger than that
of Manu : *' A certain hell," says this sage hoary
with the wisdom of ages, " is named put ; and he
who is destitute of offspring is tormented in hell.
A son is, therefore, called putra^ because he deli-
vers his father from that resrion of horror."^ Thousrh
the full extent of this medieval conception was
not realized in the Yedic period, we find suflScient
indications in the Bralimanas to justify us in sup-
posing that the pious Hindu, who would devoutly
follow the tenets of the revealed religion, was bound
• Manu, IX. 13S. Dayabhaga, XI, 1, 31.
222 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture in duty to have {1 son who was his " light in the
— highest world." We will quote from the Aitareya
Brahman a :
Naradaon " Hanschundi'a, the son of Vedhas, of the family
the beiieflts ' 'J
of a so... ^£ ^i^g Ikshwaku, was a king without a son. He
had a hundred wives, hut had no son by them. In
his house lived Parvata and Narada. He asked
Narada : ' Tell me, Narada ! what do people gain
by a son, whom they all wish for, as well those who
reason as those who do not reason? ' "
Narada replied :
immorta- " I^ the father sees the face of a son born alive,
he paj's a debt in him, and goes to immortality.
The [)leasure which a fatlier has in his son is greater
than all the pleasures that can be obtained from
the earth, from the fire, and from the waters.
Always have the fathers overcome the great dark-
ness by son; for a self is born from himself; it (the
new-born self, the son) is like a ship, full of food,
to carry him over.
"What is flesh? What is the skin? What are
the hairs? What is heat? Try to get a son, you
Brahmans; he is undoubtedly the world.
Enjovment " Thcrc is uo Hfc for him who has no son; this the
animals also know. The path which those follow
who have sons and no sorrows, is greatly praised.
Beasts and birds know it, and they have young ones
everywhere."
Salvation It is clcar from the passage quoted above that the
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 223
birtb of a son was earnestly longed for. But we Lecture
find no bint in it tbat tbe son was a means of salva- . — -
through son
tion in tbe otber world. Tbis was a later idea, and ai'^te^idea.
Manu gives full expression to it:
" Bv a son a man obtains victory over all people; Benefits
•' _ _ _ •' r I ' desirable
I by a son's son be enjoys immortality ; and afterwards, |f'^â„¢,^^,^"'
by tbe son of tbat grandson, be reacbes tbe solar g"fnS"'
abode." " Since tbe son delivers bis fatber from tbe ^!^^'' "
bell named put, be was, tberefore, called puira by ^"fr«-
Brabma bimself." ^
Tbe passao-e is sbort but sio^nificant. A sou a soniess
* ° ° man is
must be beo-otten, or tbe man would be doomed ''O^m^^ *<»
O ' eternal tor-
to eternal misery in tbe otber world. His puritv ™^°"
and irreproacbable conduct in tbis life would avail
bim notbiuo^. Tbe debt wliicli be owes to society
and to bis progenitors, could not be repaid except
by begetting a son. " It is mentioned in tbe Maha-
bharata, tbat tbe ingress of tbe sage Mandapala into
a region of purity was prevented by tbe want of
male issue ; for tbe same poem sbows tbat tbe debt O" accoant
of his fai-
to bis proo;enitors undiscbarired is tbe around on 'l"^^'*', P'^y
1 "-5 '-' <- the debt
wbicb a man is excluded from tbe blissful reo^ion, an,V"^n^'/
even tbougb bis conduct bas been virtuous." "^
Tbe debt to progenitors is discbarged tben only
wben a son is begotten. A social curse ban^s upon
tbe man wbo would not try every means in bis
power to pay off tbe debt be incurs from tbe mo-
ment of bis birtb. Solemn sacrifices were performed,
" ilanu, IX, 137; 138. - CoIebrooke"s Digest, II, p. 201.
224 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuke when all other means failed. If neither sacrifices
— nor virtuous acts were sufficient to give a son,
recourse must be had to adoption, and the adopted
son must perform all the family rites which a na-
tural son, if born, would have performed.
Twelve A son, wc thus fiud, was the means of the father's
kinds of ' '
u/teTfof '' salvation in the other world. It is no wonder, there-
body. ^^^^ fore, that a Hindu would sacrifice everything in
this world in order to have a son. In default of a
son of the body, twelve other kinds of substitutes
were recognized ; so that " the cake, the water, and
the sacrifice " might be continued from generation
to generation.
It is not improbable that we have here the key
to the prevalent belief in the need of off'spring. The
preservation of society would be the paramount
need in an early epoch, hence we may conceive
the duty of maintaining the family as receiving the
sanction of religion in order to act as an incentive
to its performance.
Apart from religious considerations, the existence
of a son was a social necessity for perpetuating the
line, for guarding the ffxmily property, and for
maintaining the honor and prestige of the united
group.
To return from this digression.
Hints as Lct US HOW cxamiuc the hints, which are given
to devolu-
tion of pro- jji the Veda, as to the devolution of property after
pertv takea ' i t. j
vedi'^'' the death of the owner.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 225
So long as the corporate existence of tlie family Lectcee
is strictly maintained, there is no room for anv other —
•' '' Pnmoge-
mode of succession than that b\'^ primogeniture. "'"^^
The eldest living ascendant succeeds to the family
estate, and manages its affiiirs, to the exclusion of all
the other members of the family. He is their
leader, lord, and master, and they must live in abso-
lute subjection to him. It is only when the family
group is in the first stages of disintegration, that
the practice of equal division of property among
the male children after the death of the last owner
is usuallv followed. Individuality then orains the
upper hand, and communism loses its former power
and prestige.
The ri2:lits of the first-born were fully acknow-
ledged during the Yedic period. His claims as a
leader could not be disputed, and his succession to
the heritage was universally admitted. We quote
from the Aitareva Brahmaua in support of our
position : ^
" The twelve-dav sacrifice is for the first-born. t. ,
He who first performed it, became the first-born ficeSr
among the gods. It is the sacrifice for a leader, bom.
He who first |>erformed it became the leader amono-
the gods. The first-born, the leader of his family,
ought to perform it alone, then happiness lasts all
tlie year where it is performed.
" The gods once upon a time did not acknowledge
• IV, 25.
29
226 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES,
Lecture tliat Iiidra had the right of primogeniture and leader-
— ship. He said to Vriliaspati ' perform for me tlie
twelve-dav sacrifice.' He comi)lied with his wish.
Thereupon the gods acknowledged Indra's right of
primogeniture and leadership.
" He who has such a knowledoe is acknowledired
as the first-born and leader. All his relations
agree as to his right to the leadership." ^
We will take our next quotation from another
portion of tlie same work:^
Vishwami- Visliwaiiiitra wished to adopt Sunahsepha as his
tbn'of°'''son. He said to him, — " Enter my family as my
as the^efd-* SOU." Sunahscj^ha replied, " O prince, let us know,
est of his
sons. tell us how I, a descendant of Angira's, can enter th}''
family as thy adopted son." Vishwamitra answered,
" Tliou shalt be t\\Q first-born of my sons, and th}^
children the best. Thou shalt now enter on the
possession of my divine heritage. I solemnly in-
stal thee to it." Sunahsepha then said, " When
thy sons all agree to thy wish that I should
enter thy fiimily, O thou best of the Bharatas, then
tell them, for the sake of my own happiness, to
receive me friendly." Vishwamitra then addressed
his sons as follows : " Hear ye now, all ye brothers,
do not think yourselves entitled to the right of
primogeniture, which is his (Sunahsepha's)."
"The Rishi Vishw^amitra had a hundred sons, fifty
of them were older than Madhuchandas, and fifty
> IV, 25. '^ VII, 17, 18.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 227
were younger than be. The older ones were not Lecture
pleased (with the installation of Sunahsepha to the —
primogeniture).
" Vishwamitra then pronounced against them the
curse, " You shall have the lowest castes for your
descendants." But Madhucliaudas with the fifty
younger sons said, " What our father approves of,
by that we abide; we shall accord to thee (Sunali-
sepha) the first rank, and we will come after thee ! "
Vishwamitra, delighted (with this answer), then
praised these sons with the following verses :
" You my sons will have abundance of cattle and
children, for you have made me rich in children in
consenting to my wish.
" Ye sons of Gadhi blessed with children, you all
will be successful when headed by Devarata (Sunah-
sepha); he will always lead you on the path of truth.
" This Devarata is your master ; follow him, ye
Kusikas ! He will exercise the paternal rights over
you as his heritage from rae, and take possession of
the sacred knowledge that we have,
" Devarata is called the Eishi who entered on two
heritages, the royal dignity of Jahnu's house, and
the divine knowledge of Gadhi's stem."
It is clear from the passages quoted above that
the first-born was the leader of his family, and was
entitled to the famih' property as his birth-right; or,
in other words, primogeniture was the settled law
of succession in ancient India.
228 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture Side by side with the rule of primogeniture ano-
^.~T^ ther institution was srrowino; up, which ultimately
Division of O O I ' J
emiaf^'^ "^ Superseded this mode of succession altogether. We
refer to the law of equal distribution of property
amono' all the sons of the deceased owner. It
made its appearance during the later stages of
social development in the Vedic age. Primogeni-
ture represented the claims of communism, and the
principle of equal distribution represented those of
individuality. Tlie struggle between the two prin-
ciples was long and arduous, and it has been conti-
nued to tiie present daj^ The principle of equal
distrbiution triumphed at last, but the victory was
not easily gained. There is no trace of the struggle
in the Kig-Veda, because the doctrine of indivi-
dual rights had not yet come into existence. We
Develop- find tlio first mention of the law of equal distri-
meiitof the . . rn • j • -r* i i • i •
law coeval bution HI tlio 1 aittiriya i3rahmana, which is
•with the
emaucipa- postcrior lu date to the hymns of the Rior-Veda.
tioii of the ^ J n
from tt^ It would be a great mistake to suppose that in-
t'hraidom. dividuality at once became a power the moment
the roots of communism were loosened. They
existed as hostile principles in the same community
for a long time together. We cannot suppose
that the individual awoke from his sleep one fine
morning and found himself emancipated from the
thraldom of the family. Those who watch the
progress of new ideas, can easily conceive what a
long time must have elapsed befoi'e the individual
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 229
gained his rights. The conservative party — the lectcbe
representatives of the old regime — must have stre- —
nuously exerted their influence to support the claims
of the corporate family, and maintain the rule of
primogeniture, as the only legitimate mode of suc-
cession. The disintegration of the individual from
the family, however, must have necessitated the
other mode of succession, and the strife hetween
the advocates of primogeniture and the founders
of the new doctrine of equal distribution must have
long divided Hindu society into hostile parties.
We accordingly find both the principles enunciated
in the Veda — one in the Taittiriya Sauhita, better
known as the Black Yajur Veda, and the other in the
Tattiriva Brahraana. These were works of two sue-
cessive ages of Vedic literature.
We will sive the exact words of the inspired Hostile
"^ di>ctriiie ia
writer of the Taittiriva Sanhita : *!'®Tait-
•' tiriva San-
" They distiuguisli the eldest son by the heri- BrtX^^
tage."
Ao;ain we find in the Brahmana :
" Manu divided his wealth among his sous."
These are two hostile principles, but we have Possibi-
litv of their
shown above that it was not unnatural for both prin- co-exist-
'â– ence.
ciples to exist at the same time in the same com-
munity together. Where the family feelino- -yvas
strong, the rule of primogeniture was honored, and
the first-born inherited the ftimily property, and
became the leader, the master, and the ruler of his
230 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee brethren. Where the family ties had slackened,
— and the doctrine of individual rio-hts had attained
strength and supremacy, the law of equal distri-
bution prevailed to the total exclusion of the rule of
primogeniture. Thus among two hostile sections
of the Hindu society both the principles governed
the law of succession.
lll^^^^^ Manu then was the first representative of the new
exponent gQ^^j.j refomiers, who applied in practice the prin-
individuai ciple of individual riglits. The Aitareya Brah-
rights.
mana refers to the circumstance, and we extract the
passage in which allusion is made to it in elucida-
tion of the subject:
" Nabhanedishta was a son of Manu, who was
given to the sacred study (after investiture in the
house of his guru) ; his brothers deprived him of
his share in the paternal property. He went to
them and said, ' What portion is left to me ? ' They
answered, ' Go to the adjudicator and arbitrator.'
By 'adjudicator and arbitrator' they meant their
father. He went to his father and said, ' They
have divided the property, including ray share, among
themselves.' The father answered, ' My dear son,
do not mind that.' Manu then communicated to
him certain scientific secrets, by which his son gained
a thousand (pieces of gold !)"
Changes in The law of divisiou of property after death under-
the h.w of _ .
divisiou of went many important chaus^es before the heritao;e was
property. ^ i. o <~>
equally/ divided among the male issue of the deceased
PRINCTPLES OF SUCCESSION IN THE MIDDLE AGES. 231
owner. The eldest son had at first the exclusive lecture
right to the paternal inheritance. When the rule
of primogeniture was disturbed, equal division of
I property did not take its place at once, but a long
time elapsed before the principle was fully acknow-
led2:ed. Manv concessions were made at first, in
order to restore peace and harmony to Hindu
society. The compromise suggested at first was,
that the proportions of the respective shares should
be regulated by the seniority of the sons of the
deceased owner ; or, in other words, that the paternal
estate should be divided into a certain number of
shares ; that of these the eldest should receive the
largest number, the second son a few shares less,
and so on, the shares decreasins; accordins^ as the
sons were more or less remote from the first-born.
We will not, however, anticipate, but allow the
ancient legislators to speak for themselves.
We will first come to Gautama, the oldest law-
giver, and conclude our extracts by citing texts
from Katyaj'ana, who, as we have seen before, is a
comparatively modern legislator. .
Gautama, Chap. XXVIII •}— Gaatama.
'•After the father's death, let the sous divide his
estate,
"Or, during his lifetime, when the mother is past
child-bearing, if he desires it ;
Max Miiiiers Sacred Books, VoL II.
232 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture " Qr the wliole (estate may go) to the first-born;
— (and lie shall support the rest) as a father.
" But iu partition there is an increase of spiritual
merit.
" (The additional share) of the eldest (son consists
of) a twentieth (part of the estate), a male and a
female (of animals with one row of front teeth,
such as cows), a carriage yoked with animals that
have two rows of front teeth, (and) a bull.
" (The additional share) of the middlemost (shall
consist of) the one-eyed, old, hornless, and tailless
animals, if there are several.
"(The additional share) of the youngest (shall
consist of) vslieep, grain, iron (utensils), a house, a
cart yoked (with oxen), and one of each kind of
(other) animals.
" All the remaining (property shall be divided)
equally ;
" Or let the eldest have two shares,
" And the rest one each ;
" Or let them each take one kind of property,
(selecting), according to seniority, what they desire,
" Ten head of cattle.
"(But) no (one brother shall) take ten one-hoofed
beasts or (ten) slaves.
(If a man has several wives) the additional share
of the eldest son is one bull (in case he be born of
a later-married wife).
" (But) the eldest sou being born of the first-
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 233
married wife (shall have fifteen cows and one lecture
bull) ; —
" Or (let the eldest son), who is born of a later-
married wife, (share the estate) equally with his
younger (brethren, born of the first-married wife) ;
" Or let the special shares (be adjusted) in each
class (of sons) according to their mothers."
Baudhavana, prasna II, kanda 2 :^ — nandha-
"1. A man may divide his ancestral property
equally amongst all his sons without difference ;
" 2. Or he may reserve for the eldest the best
part ;
" 3. Or the eldest may receive (in excess) one
part out of ten, and the rest may divide equally.
" 5. If the partition takes place during the life-
time of the father, the cows, horses, goats, and
sheep are the share of the eldest."
1 Tx /» •< J 9 Apastam-
Apastamba, li, 6, 14 : — ba.
" 1. After bavins: o^laddened the eldest son bv
some (choice portions of his) wealth, a man should,
during his lifetime, divide his wealth equally
amongst his sons, excepting the eunuch, the mad
man, and the outcast.
" 6. Some declare that the eldest alone inherits.
" 7. In some countries gold, (or) black cattle, (or)
black produce of the earth is the share of the eldest.
' West and Biihlers Digest. ^ 3Iax Miillers Sacred Books. VoL II,
30
234 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture " 10. The preference of the eldest son is for-
— bidden by the Sdstras.
" 14. Therefore all (sons) who are virtuous in'
herit."
Vas'ishtha. Vas'ishtha, Chap, XVII: —
" 23. The eldest receives two shares, and the
best of the kine and horses. The goats, sheep, and
the house belong to the youngest ; black iron, the
utensils, and furniture, to the second."
Manu Manu, Chap. IX: —
"a. 112-113. The portion deducted for the
eldest is a twentieth part (q/' the heritage)^ with the
best of all the chattels ; for the middlemost, half of
that (or a fortieth) ; for the youngest, a quarter of
it (or an eightieth). The eldest and the youngest
respectively take their just mentioned portions ;
and if there be more than one between them, each
of the intermediate sons has the mean portion (or
the fortieth).
"&. 114. Of all the goods collected, let the first-
born (if he be transcendantly learned and virtuous)
take the best cattle, whatever is most excellent in
its kind, and the best of ten (cows), or the like.
" c. 115. But among brothers equally skilled in
performing their several duties, there is no deduc-
tion of the best in ten (or the most excellent chat-
tel) ; though some trifle, as a mark of greater
veneration, should be given to the first-born.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 235
" 116. If a deduction be thus made, let equal lecture
shares of the residue be ascertained (aud received); —
but if there be no deduction, the shares must be
distributed in this manner :
" d. 117. Let the eldest have a double share, aud
the next born a share and-a-half (if thev clearly
surpass the rest in virtue and learning) ; the younger
sons must each have a share : (if all equal in good
qualities, they must all take share aud share alike)."
Yajnavalkya, II: —
" 114. When the father makes a partition, lethira
separate his sohs (from himself) at his pleasure,
and either dismiss the eldest with the best share, or
if he choose, all may be equal sharers.
" 117. Let sons divide equally both the effects
and the debts, after (the demise of) their two
parents."
Narada ■} —
Nara<U.
" Whether the father distribute equal shares to his
sons, or give more wealth to some and less to others,
such shall be their shares ; for the father is lord of
all.
" 2. Let sons divide, after the father's death, his
wealth according to the order (of their seniority).
" 13. It should be known that the eldest receives
a larger share (upon partition after the father's
Colebrooke's Digest. V. 32.
236 PllINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee deatli), and it is recorded that the youngest receives
— a smaller one. The rest should take equal shares,
and so should an unmarried sister."
Vishnu. Vishnu : —
"Let sons produced hy wives of equal class re-
ceive equal shares, but give the best chattel vs'ith a
deducted allotment to the first-born." ^
vrihaspati. Vrihaspati : —
" Two modes of partition among heirs (during the
lifetime of the father) are expressly mentioned ; one
with attention to })riority of birth, and the other with
equality of allotment.
•' The eldest, (or he who is pre-eminent) by birth,
science, and virtuous cjualities, shall receive (after
the death of the father) two shares of the heritage,
and the rest shall share alike ; but he is (venerable)
like their father."^
Katyayana. Katyayaua : —
" If a father, during his life, divide the property, lie
shall not prefer one of his sons, nor exclude one of
them from a share, without a sufficient cause." ^
Struggle â– \Y(3 have quoted the ancient leo;islators in the
between the -â– â– '-'
nines 0*!°*^ order of time in which they are supposed to have
fure'and"' flourislicd. Tlic cxtracts are given in full in order
tribution of to mark distinctly the gradual decline of the rule
property at
]astended of urimoo^eniture, and the rise and pro2;ress of the
jn the as- i "^ ' i O
cendency of ~
the latter, ' Colebrooke's Digest, 5i, - Ibid, 45. ' Ibid, 37.
PRINCIPLES OF SUCCESSION IN THE MIDDLK AGES. 237
priucij)le of equal distribution. It will be seen tbat Lecture
the struggle between tbe two principles was very
severe. The rule of primogeniture did not collapse
all at once, nor did the principle of equal distribu-
tion establish its supremacy without great difficulty.
The two principles were at first associated together.
The family ties slackened, and the individual gained
his rights. The rights of the first-born were no
longer considered to be of divine origin, and the
separation of the individual members from the family
gradually became complete. The strife between the
representatives of the two parties was so bitter that
no slight concession would satisfy any of them.
Gautama proposed six modes of distribution ; Bau-
dhayana and Manu four. The very fact of so many
principles of distribution being discussed shows that
ancient society had ranged itself into many hostile
sections, each clamouring to have the largest share
in the division of the heritage. The principle of
equal distribution must have made considerable
progress before the time of Gautama. He, in
fact, does not seem to favor the rule of primogeni-
ture at all. In his opinion, " there is an increase
of spiritual merit" in partition. This in substance
is a strono; recommendation to divide the heritao-e
among the sous of the deceased, and is a clear indi-
cation of the inevitable decay of the principle of
primogeniture. Let the eldest son, says Gautama,
receive the whole estate, if the honor and prestige of
238 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture tlie family uiust be maintained, and if" its corporate
— character cannot be destroyed. There is, however, a
strong party in his time, who are staunch supporters
of individual rights, and who would on uo account
suffer the first-born to monopolize the paternal pro-
perty and tyrannize over his brethren. The spirit
of liberty is abroad, and the reign of iron despo-
tism is over. All the brothers, the sons of the same
fatlier, must be treated as equals^ and the first-
born must not be distins^uished from his brethren-
Public opinion was not yet, however, in such an
advanced state as to give unqualified support to the
principle of equal distribution. " As soon as the
eldest son is born, the father owes uo debt to
his progenitors ; " the eldest son, therefore, must be
honored and respected before the rest. A distinc-
tion must be made. Well, let him receive an addi-
tional share of the " twentieth " part of the estate;
and if this will not satisfy the advocates of equal
" distribution," let him get " two shares, and the
rest one each." There still seems to be a difference
of opinion on this point, and there are people who
are not satisfied with even the " twentieth," or the
" double " shares given to the eldest. They would
divide the property in different proportions, and
give the choice of the best portions to the sons
according to their seniority. All this shows that
the law of inheritance was not uniformly fixed.
Different groups of families adopted different laws
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 239
of inheritance, and followed different rules of pro- lectlbe
cedure. The rule of primogeniture having lost its —
bindins: force, no other uniform law was substituted
in its place ; and the law of succession continued
in this unsettled state for a verv long time. The
corporate rights of the family and the independent
rights of the individual members would not coalesce.
They were blended, and modified, and at last, long
after Gautama published his laws, the principle of
primogeniture had to give up the struggle, and
yield its place entirely to its rival principle.
At the time when Gautama was promulo^atins; his Poiysnny
* ^ ^ its effect on
rules of inheritance, a great evil, which is insepar-^'.'^A|*J^j^*
able from a polygamous state of society, had become
manifest. As soon as the old restraints were loos-
ened, as soon as the family ceased to hold together,
and the individual members freed themselves from
the salutary subjection of the patriarch, the evils of
polygamy showed themselves. All the wives of the
husband strove to secure his property for their own
issue. The rule of primogeniture would have con-
tinued in full force for a very long time in India,
had polv2:amv not existed in the countrv. Polvo-amv
is adverse to the rule of hereditary succession. It
requires no explanation to make it clear to you
that, in polygamous societies, the form of primo-
geniture will always tend to vary. Many considera-
tions may come into play in constituting a claim
on the succession, the rank of the mother, for
240 PRIXCIPLES OF SUCCESSION IN THE MIDDLE AGES.
lectcre example, or her degree in "tlie affections of the
— father." That the evil we speak of was creating
important changes in the laws of the country, is
sufficiently apparent from the language of the oldest
legislator. The rivalry between the first-married
and tlie later-married wives was growing intense,
and our legislator had no alternative but to soothe
the irritated feelings of termagant wives, and to
lay down that the shares of the paternal estate
among tlie sons might be adjusted according to their
different mothers. This is a new principle of divi-
sion, and would not have been tolerated in the
patriarchal state of society. The good sense of the
veterans of Hindu society, however, soon per-
ceived the evils of such a system, and discarded it
altoe^ether in later times from their codes of law.
Even in the time of Manu the state of opinion on
this point was divided, and the great legislator was
doubtful what principle of division should be adopt-
ed in case " a younger son was born of a first-
married wife, after an elder son was born of a wife
last married." He at first gives w\ay to popular
prejudices, but having at last made up his mind
says, that " there can be no seniority in right of the
mother; but the seniority ordained by law, is accord-
incr to the birth." ^
Exclusive No legislator after Gautama shows the slightest
tite 'eldest incliuatiou to allow the eldest son to take exclusive
Manu, IX, 122, 125.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 241
possession of the paternal property. Almost all of hiEcrv&E
them are of opinion that either an additional share, g„jj"^~^_
or a choice portion of the wealth, should be given ^Zern^
to him as a mark of respect to his prior birth, and notSJr-
6d by
that is all. Manu thinks that even this mark of legislators
since the
respect mav be omitted, if the eldest is not distin- ^'^^ ^^
I - ' Gautama.
guished from the other sons by pre-eminent learn-
ing or scientific skill. All of them are decidedly
of opinion that an equal share should be given to
each son. They are not, however, yet prepared to
make an unqualified assertion. They are obliged
to point out that some diflference in the treatment of
the eldest son is prescribed by popular usage, ^jg^crht
There are groups of families they say in which the uonaisiiare
eldest receives the best part of the wealth, or a special pre-
sent recog-
double share, or a preferential share, of one-tenth D'zedin
' *• ' certain
or one-twentieth of the property. Apastamba, how- c^tom^ ^^
ever, and after him Yajnavalkya, would not yield an
inch of ground to popular prejudice. They advo-
cated thorough reforms. Apastamba was for giv- Bat denied
ing to the eldest son a present of some value, though, tambaaud
Yajna-
according to him, it should not be so valuable ^a'^ya.
as materially to affect the equality of the shares.
Yajnavalkya would make no distinction whatever.
" Let the sons," he says, " divide the wealth of
their deceased father equally amongst themselves."
If the father, however, makes any unequal distribu-
tion of his property during his lifetime, such unequal
division is binding upon all the sons.
31
242 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture u j^ ]gg,^j distribution," according to liim, " made
by the father among bis sous separately with greater
or less shares is pronounced valid. "^ In other
words, the father may, during his lifetime, dis-
pose of his property among his sons in any way
he thinks proper; but if he dies without effecting
any partition, the law of the country will recognize
only one mode of division. All the sons will be
equal in the eye of the law, and all of them will
equally share " both the effects and the debts " of
the fiither. Katyayana will not even allow this
privilege to the father, the privilege we mean, of
unrestrained exercise of choice or will with regard
to the distribution of property among the sons of
the same father. If any unequal distribution is
made, good and sufficient cause for such unusual
departure from the prescribed rule must be shown,
or such unequal distribution will not be held valid
by law.
Power to If we carcfully analyze the extracts given above,
dispose of , , • ,
propertyby ^ffQ caunot avoid noticiuo; a sin2:ular fact with
will. ^ '-'
regard to the disposition of property. The ques-
tion, whether the Hindus possessed testamentary
powers, has often been discussed. It is not our
province to enter into the question; but we may
be allowed to remark in passing that there is
abundant evidence to show that, from the earliest
Yajnavalkya, II, 116.
PRINCIPLES OF SUCCESSION IN THE mDDLE AGES. 243
times, tbe Hindus exercised the power of volun- lecture
tary disposition within a narrow sphere. In a —
patriarchal state of society the exercise of such a
power is unnatural and impossible, but as soon as
there was the slightest sign of the segregation of
the individual from the family, voluntary disposi-
tion of property became a recognized institution.
" Manu," we read in the Tattiriya Brahmana, "divided
his wealth among his sons," and the rule of primo-
geniture was violated. The medieval legislators all
recognized this method of distribution, and social
sanction must have been s-iven to such a mode of
procedure. But it should be distinctly borne in
mind that voluntary disposition of property was
allowed only to a certain extent. A father might
make any distribution he thought proper among his
sons, but he could not give away his property to a
stranger; and it is very doubtful if he could deprive
any of his children of their legitimate share.
A will, however, takes effect after the death of xestamen-
the person making it. It is the legal declaration of not co-ex-
teusivewith
a person's mind as to the manner in which he would ^^^ «*
'• making
have his property or estate disposed of after his fuf oidoa"^
death. All the evidence we have in ancient records ""^'^ ''*'^°*'
points to the conclusion that the father possessed
the power of making a partition of his self-acquired
property during his lifetime, but it does not appear
that he possessed testamentary powers, properly so
called. He could divide his property among his
244 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture sons during liis lifetime, and sucli division was lield
— to be valid; but we do not see that tlie law gave
him any power to make a will or declaration as to
the manner in which he would have his property
disposed of after his death. We will not give our
reasons for this opinion. We leave the elucida-
tion of this subject to future inquirers.
Principle Ou failure of sons of the body born in lawful wed-
of graduat-
ing social Jock, the other classes of sons inherited tlie paternal
position of ^
kimirof estate. All these groups of sons were classified,
sons.
and their exact position in the social scale was
strictly defined. The principle which guided the
legislators in their classification is not easy to dis-
cover. But it should be remembered once for all
that the real object of admitting strangers within
the family circle, and amalgamating them with the
brotherhood, was the recruiting of the family by
Blood factitious extensions of consanguinity. Real bonds of
relations . . , n ^ -p • i
preferred to consangumit}', howcvcr, were preferred to artmcial
strangers.
ties of blood. Wherever, therefore, there was the
least trace of blood connection between the strangers
and the members of the original brotherhood,
it was eagerly seized upon to enlarge the limits
of the family. Blood relationship, tainted or
unalloyed, had greater claims than any other
relations artificially created. Even the illegiti-
mate sons of a family would have greater attach-
ment for it than strangers, however kindly treated.
The illegitimate sous were descended from a com-
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 245
mon ancestor, and they had no necessity to ''''feign LEcruBE
themselves " descended from the same stock as the —
people on whom they were engrafted. They came
of the same stock, and it was no wonder, therefore,
that they warmly engaged themselves in the service
of the family. Their interests were in every respect
identical with those of the original brotherhood.
They were, for this reason, treated with greater
consideration than other persons adopted into the
family group. We shall expect to find, therefore,
that a sharp line of demarcation was made by
lesfislators between the leo-itimate and the illesiiti-
o o o
mate children of the family, and other strangers
who were admitted into the group and bore the
family appellation.
The ancient legislators divided the different sons
rr>, r» classified
classes of sons into two groups. The first were >nto
" ^ '' heirs "
called " heirs and kinsmen," and the members of the *"n'i.'^"^"
men.
second group were dignified with the name of
" kinsmen," but were not heirs}
Both the groups contained six classes of sons Each in-
each. The members of the second eroup were <'ifferent
â– ^ kinds.
considered inferior in social status to those of
the first group. There were thus twelve classes
of sons, who formed a part of the family.
Let us see who these were, and what were their
rights and privileges.
• Mann, IX, 158.
246 miNCiPLEs OF succession in the middle ages.
Lecture Harita enumerates the sons in the followino;
^ — order: —
Enumera-
oHarious " ^- ^ ^'^^ begottcu of .1 faithful wife by the
sonsTy*' husband himself, the son of his wife begotten
Harita. 77. i • • ^
by a kinsman^ a son by a twice-married woman,
the son of an unmarried girl, the son of an
appointed daughter, and a son of concealed birth,
are heirs to kinsmen.
"2. A son given mj his parents^ a son bought,
a son rejected, the son of a pregnant bride, a son
self-given, and a son made by adoption^ are not
heirs to kinsmen."
Vas'ishtha thus defines them : —
Vas'ishtha. " The first among these is the son l)egotten of his
legally married wife by the husband himself.
" The second is the son lawfully begotten of a
man's wife or widow by a kinsman.
" The third is an appointed daughter. It is known
that the ' o^irl who has no brother comes back to
the males of her own fjxmily, to her father, and the
rest, and returning she becomes their son.' Here
follows the verse to be spoken by the father when
appointing a daughter, ' I shall give thee to the
husband, a brotherless damsel decked with orna-
ments; the son whom she may bear, be he my son.',
" The fourth is the son of a remarried woman.
She is called remarried who, leaving the husband
of her youth, and having Hved with others, re-enters
his family. She is also called remarried who
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 247
leaves an impotent, outcast, or mad husband, or wbo I-^ctuur
f after bis deatb takes auotber lord. '
" Tbe fiftb is tbe son of an unmarried girl. Tbey
I declare tbat tbe son wbom an unmarried damsel
produces, tbougb best in ber father's bouse, be-
i longs to bis maternal grandfather. Now in regard
to this matter they quote also the following verse :
* If an unmarried daughter bear a sou, begotten by a
man of equal caste, tbe maternal grandfather has
a son through him ; be shall offer tbe funeral cake,
and take the wealth (of tbe grandfather).'
" The son of concealed birth is tbe sixth. They
declare that these six are heirs and kinsmen, and
|: preservers from a great danger.
"Now follow those sons who are not heirs.
Amono;st these tbe first is he who is received with a
pregnant bride. The son of a damsel who is mar-
ried pregnant is called a son received with the
bride.
" The adopted son whom bis father and mother
give, is the second.
Tbe third is tbe sou bought. That is declared
[ by tbe story of Sunahsepha — ' Harishchandra, in
truth, was a king. He bought tbe son of Ajigarta,
who sold bis son.'
The fourth is the son self-given. That is also
declared in the story of Sunahsepha: Sunahsepha,
j in truth, when tied to the sacrificial stake, praised
tbe gods; tbe gods loosened his bonds. To him
248 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee Spoke each of the officiating priests, ' He shall be
— mj son.' Viswamitra was the hotri priest at that
sacrifice; he became his son.
" The son rejected (or cast off) is the fifth. He is
called so, who, cast off by his father and mother,
is received as a child.
" They declare that the son of a woman of the
Sudra caste is the sixth. These are the sons who,
though kinsmen, do not inherit.
Now they quote also the following rule. ' These
last mentioned six sons take the wealth of him who
has no heir belonging to the first mentioned six
kinds,
J )j
The two It will be observed that Vas'ishtha's order of
eniiinera-
tions are not enumeration or sons or the hrst group is slightly
wholly ill
accord as different from that of Harita. The disturbinii; ele-
refrards '-'
order. nient was the " appointed daughter's son."
"Putrika- It is ucccssary to explain the term putrika-putra,
appointed or "appointed daughter's son," before the exact
daughter's
son, ex- position wliich was assigned to him could be under-
plaiued. ^ '-'
stood. The term was taken in several senses.
By Hema- HemadH^ an eminent commentator and writer on
ceremonial usages, thus explains it: "Putrika-
putra is of four descriptions. The first is the
daughter aj^pointed to be a son. She is so by a
stipulation to that eff'ect. The next is her sou.
He obtains of course the name of ' son of an ap-
pointed daughter,' without any special compact.
This distinction, however, occurs; he is not iu the
dri
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 249
place of a son, but in place of son's son, and is a lecture
daughter's son. The third description of son of an
appointed daughter is the child born of a daughter
who was given in marriage with an express stipula-
tion in this form, ' The child, who shall be born of
her, shall be mine for the purpose of performing
my obsequies.' He appertains to his maternal
grandfather as an adopted son. The fourth is a
child born of a daughter who was given in mar-
riage with a stipulation in this form, ' The child,
who shall be born of her, shall perform the obse-
quies of both.' He belongs as a son, both to his
natural grandfather and to his maternal grandfather.
But, in the case where she was in thought selected
for an appointed daughter, she is so witliout a com-
pact, and merely by an act of the mind."^
Now we read in the Risr-Veda :^
"1. The sonless father reofulatino^ the contract in the Rig-
^ ° Veda.
refers to his grandson, the son of his daughter, and
relying on the efficiency of the rite, honors his (son-
in-law) with valuable gifts: the father trusting to
the impregnation of the daughter, supports himself
with a tranquil mind.
" 2. A son, born of the body, does not transfer
paternal wealth to a sister : he has made her the
receptacle of the embryo of the husband; if the
parents procreate children, one is the performer of
holy acts, and the other is to be enriched with mfts."
Mitakshara, I., 11 note. - Rig- Veda, III, 31. 1—2.
32
250 PTUNCTPLES OF SUCCESSION IN THE MIDDLE AGES.
I ECTUEE These two verses are very obscure in the original.
— They may be interpreted, however, in the following
manner. We quote from Dr. Wilson : —
" A son, by virtue of holy acts, — that is, it may
be inferred, the worship of manes, although not so
specified, — is the heir to the exclusion of a daughter,
as she by marriage conveys the property to a differ-
ent family: she is, however, to be enriched with
gifts, upon her marriage, it may be supposed by
way of dower. In default of a direct male heir
the son of a daughter is to perform the rites, and
consequently inherit the property : but this applies
only to the son of an appointed daughter, who,
according to all the oldest authorities, was considered
equal to a son ; and the term used in the passage
quoted above, evidently comprehended this stipu-
lation or appointment."^
Gaufnma Wo thus find that the Veda gives to the " ap-
jn the cate- pointed dau2:hter and her son " a position second
gor_v of '^ ^ '^
kinsmen. onJy to that of tho body born in lawful wedlock.
Gautama, however, would not place them in the
first, he placed them in the second group. They
were thus acknowledged to be " kiusmeu," but not
unqualijied " heirs." According to Gautama, " they
might claim the family-name of their adoptive
fathers, and a fourth part of the paternal estate, if
there were no sons begotten in lawful wedlock, nor
other superior claimants." Their position, therefore,
' Wilson's Rig- Veda, Pref. to Vol. III.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 251
:,'TUKK
was, ill every respect, inferior to that of members of ^^^
the first group. The reason which probably in-
duced Gautama to give them a secondary position
was, that the daughter, appointed or not, was
transferred bv marriasfe to another familv, and
was entirely cut off from her father's family.
Her sympathies and those of her son would be
more with her husband's relatives than with her
paternal kinsmen. There was blood relationship,
it is true, between them and the family of her
father, but the tie of kinship in this instance count-
ed as nothing, when opposed to the stronger influ-
ences emanatinoj from the brotherhood to which
the husband belono;ed. Persons identified with
other corporations could not be expected to serve
the brotherhood with that earnestness and zeal
which were absolutely required by the presiding
genius of the family. Gautama must have reason-
ed in this way when he ignored the superior claims
of the appointed daughter and her son. Baudha-
yana, who followed Gautama, dissented from his „ ^^
*' ' ' Baudhaya-
predecessor, and believing that the real ties of blood hfs pS^
I are always stronger than artificial bonds, transferred son born lu
* 1 '111 11 r 1 wedlock.
J the appomted daugliter and her son from the second
I group, and placed them without any hesitation next
to the son of the body, born of a wedded wife.
Harita was not so bold ; he could not place them Harita
so high in the scale. The other legislators who fol- rank^wm"
lowed Harita, however, gave them the position which man and
252 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture naturally belonged to them, and thus the appointed
, . — daughter and her son were recoo-nized as kinsmen
lieir cap- '^ O
hSwng"in ^^^ heirs who succeeded to the paternal property
default of • -i r ^, n • i*
superior m cierault or superior claimants.
claimant. _ , . ,. ,
Appointed Ji we pass ovcr this disturbing element, we shall
son and find that tlic main features of the classification of the
wife's ille-
gitimate different le2:islators corresponded with each other.
SOD both ^ 'â–
by vdhi- '^^^^ appointed daughter and her son and the son of
^^'^'" a wife begotten by an appointed kinsman, long con-
tended, with varied success, for the second place in
the first group, and the contest was undecided, till,
after the time of Apastamba, the deathblow was
given by Vrihaspati to the claims of the illegitimate
son of a wife; and the appointed daughter and her
son remained victorious in the field.
Legitimacy It sliould bc uoticcd that Gautama, Baudhayana,
pie of cias- and Manu adopted a principle of classification dif-
sification
with Gau- ferent from that mentioned above. They placed the
tama, mu- '' ^
Manu!"**' * son givcu, the son made, the son of concealed birth,
and the son cast off" in the first group. The prin-
ciple of legitimacy, the holy tie of marriage, must
have outweighed every other consideration with
them. The son given, the sou made, and the son
cast ofl^" by their natural parents must have been
born in lawful wedlock, and should, therefore, rank
above illegitimate sons, whose parentage is at the
best doubtful. It may be objected that though the
stigma of illegitimacy attaches to the son of con-
cealed birth, yet he is classed as a member of the
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. ZOO
favored group. A little consideration will show lectubb
that the objection is unfounded. Baudhavana thus —
defines a son of concealed birth : " He is called
' a son of concealed birth' who is secretly born in
the house, and whose existence is afterwards recog-
nized." He may be born secretly in the house, but
when he is acknowledged as a son, — as a son born of
wedlock, — the stigma of illegitimacy is removed from
him, and he takes his legitimate place as a kinsman
and an heir. The fact of his birth beino; " conceal-
CD
ed," however, carries its own penalty with it. He
is reduced to the lowest grade in the scale.
While this was the reasoning of Gautama, Bau- Biood rela-
tionship
dhaya, and Manu, — Harita, Yainavalkva, and their ^iti> Hari-
•^ ' 'J ./ : ta Mothers.
followers argued that the son of a wife, the son of
an unmarried girl, of a widow remarried, and of
concealed birth, belong by the female side at least
to the family of the deceased, and are possibly the
sons of some member of the family. Their affinity,
therefore, was stronger than that of a stranger, —
such as the son given, the son made, the son bought,
and the son cast off, the son self-given, — affiliated
with the family. In the ordinary affairs of life, and
in time of need, those connected by ties of blood
would be of far greater service to the family than
those whose relationship was artificially created.
The history of the son given and adopted, and sons other
. . . . than those
the son made, is instructive and interestino;. While ^o""" '^i
^ wedlock
all other classes of sons have disappeared, the sou ^'^ '''''^
254 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture given and the son made still hold their own, and are
—7 recognized by society. The son made is received in
extinct, u ./ ^
s^'sivelr Mithila in the place of the son begotten of the
nlade."^^''" wedded wife, while in Bengal and most other pro-
vinces, the son given and adopted occupies a rank
next only to the son of the body. It may be remark-
ed by the way, that some suppose that the practice
of appointing brothers to raise up male issue to
diseased, impotent, or even absent husbands, is
recognized in Orissa only, and in no other province
in India. Among the higher classes in Orissa, even
this practice, we understand, is greatly reprobated.
We were speaking of the history of " the son
given." You remember Vas'ishtha's definition of this
Son given. " SOU." Let US hear what Baudhayana says about
him : " He is called a son given (or an adopted
son) who, being given by his father and mother,
or by either of the two, is received in the place of
the child." It will be remarked tliat there is no
. material difference between the two definitions.
Vas*ishtha in another place enjoins and explains the
ceremonies which should be observed when a son
is adopted. With the ceremonies themselves we have
nothing to do at present. Suffice it to say, that
the greatest precautions were taken to give legality
to the proceedings observed at the time of adoption.
" He who means to adopt a son," says Vas'ishtha,
"must assemble his kinsmen, give humble notice to
the king, and then, having made an oblation to fire
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 2oO
with words from the Veda, in the interior of bis Lectube
dwellinghouse, be may receive, as bis son by adop-
tion, a boy nearly allied to him, or on failure of
such., even one remotely allied : but if doubt arise,
let bim treat the remote kinsman as a Sudra."
The practice of giving away children for adop- The prac-
tice of
tion must, as we have remarked before, be of very adoption
' ' -^ a very
ancient date. We read in the Taittiriya Sauhita Hf^"^
(7, 1. 8), that " Atri gave bis children to the son
of Uxva. who lono:ed for a son. Then be felt lonelv,
' => ^ " ' How it
and saw that he was without power, weak, and or««''"ate«i-
decrepit." Atri gave away his children for adoption
into another familv, and seeins; that bis own familv
was weakened by this inconsiderate act, must have
greatly repented of what he had done. But there was
no help, the thing was done, and could not be un-
done. The worst of it was that his act established a
precedent, and other persons followed bis example,
and thus the practice of adoption became deep-rooted
in the community. This was the origin of adoption.
The adopted son, however, was not treated kiudlv. Adopted
*■' ' •' ' son liow
for a long time, by the ancient legislators. Gau-
tama, Baudhayana, and Manu placed him in the
favored group, it is true, but the other legislators
showed very little favor to him. They sent him
down to the second group, to rank with the son
bought, the son cast off, nay even with the son of
a Sudra, who was denounced in the strongest
lano^uasre as a " li'
son
treated at
firsu
256 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture Atri declared that an adopted son might be taken
— from " any one whatever," whether he belono;ed to
Rules as '^ ' °
of persons^ ^^^ saiiie cLass as the adoptive father, or to a differ-
adoptToris eot tribe.^ Learned commentators believe that Manu
was of opinion that " even a Kshtriya^ or a person
of any other inferior class, might be the adopted son
of a Brahmana.^ Yajnavalkya laid it down, "one
of the same class presents the funeral cake, and
participates in a share, but the filial relation of one of
a different class is not denied." Even so late a writer
as Katjayana declared, that " if they (adopted sons)
be of a different class, they are entitled to food and
raiment." We thus see that the ancient leoislators
did not absolutely prohibit adoption from a different
class. Any child that was offered by his parents was
gratefully accepted by the adopter, and affiliated
with the family. It is true that Vas'ishtha suggested
that a kinsman alone should be adopted, but his rule
was more honored in the breach than in the observ-
ance. Ages after Vas'ishtha laid down this rule
his law was strictly enforced, and Sankha ordained
that " the adoption of a son by Brahmana must be
made from amongst sapindas or kinsmen connected
by an oblation of food ; or on failure of these,
asapinda^ or one not so connected ; otherwise let
him not adopt." ^ " If one of a different class," he
says in another place,^ "should however, in any
' Dattaka Mimansa, Sec. 1. ^ Dattaka Chandrika, I, 10.
- Dattaka Chandrika, I, H. ' Ibid, VI, 4.
PRINCIPLES OF SUCCESSION IN THE JnDDLE AGES. 257
instance, have been adopted, as a son, he sliould lectcbe
make him tlie participator of a sliare." The rule —
of Vas'isbtha has been made absolute at the present
day, but great latitude was allowed in the interpre-
tation of it in earlv ao^es.
We have said before that the son given or adopt- Adopted
1 1 • 1 • • son's
ed did not occupv, in remote aires, the hio-h position position in
^ -^ ' ^ ' ^ ^ the list of
which he fills at the present day. Gautama, Ban- ^°°^
dhayana, and Manu showed great consideration for
him, but the other legislators rio-idiv excluded him
from the first group of heirs. It was only when
Vrihaspati, following the example of Apastamba,
waged a war of extermination against all illegi-
timate sons, and dethroned them from the high posi-
tion which they had obtained as a prescriptive right,
that the adopted son regained the place assigned to
him by Gautama, but subsequently denied to him by
Harita and his followers. The meanino- of Vri-
haspati's words cannot be mistaken : "A son given,
a son rejected, a son bought, a son made, and a
son by a Sudra, — these, if pure by class and irre-
proachable in conduct, are held in a moderate degree
of estimation. The son begotten of a wife is con-
temned by good men; and so is the son of a twice-
married woman, the sou of a young woman un-
married, the son of a pregnant bride, and a son of
concealed birth." From the time of Vrihaspati the
corporate systems which prevailed in ancient times
were completely shattered, and the reign of blood"
33
258
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture
V.
Tabular
view of the
position of
different
kinds of
sons
according
to different
legisla-
tors.
affinity in family organizations was utterly destroy-
ed. Other principles of conduct came into force,
and society began a new career of progress in
obedience to the laws of advancing civilization.
A glance at the following table will show the
different positions which were given to different
classes of sons by the ancient legislators of India.
•BUT3^Bi(!;'B5[
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aQ
LECTDRE VI.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGE&—{Contd.^
Principles of the law of succession on failure of sons — Gautama — Bandhayana —
Apastamba — Vas'ishtha — Sankha — Parasara — Mann — Briddha Manu — Tajna-
Yalkya — Vishnu — Vrihaspati — Katyayana — Examination of Gautama's rule —
Its want of precision accounted for — Baudhayana's rule more precise —
By specifying the heirs — Grandsons and great grandsons — Distinctly made
mention of in consequence of their helpless condition — Collaterals — Included
in the genus Sapindas — Rules of Apastamba and Vas'ishtha compared —
Women ; their claims not recognized by these legislators — Exception in
favor of an appointed daughter — Gautama's caution against marrying a
brotherless woman — Baudhayana on the dependence of women — His view
upheld by Vas'ishtha — Exclusion of women from inheritance — Due to their
incompetence to govern the family as its head — Widow, mother, and
daughter placed on the list of heirs by some legislators — With no practical
result — Widow mentioned with reservation by Gautama — Daughter — Men-
tioned by Apastamba in the sense of appointed daughter — Mother and
widow : their rights first recognized by Sankha — Daughter : her position
on the list of heirs assigned by Parasara — Manu's futile attempts at harmo-
nizing traditional laws with the state of things in his own time — Illustrated
by extracts from his work — His recognition of women's status — Daughter —
Widow — Sister — Manu's principle of the law of inheritance is wanting in
perspicuity — Spiritual benefit — His indecesion has given rise to various
schools of Hindu law — Yajnavalkya's enumeration of heirs — Nephew men-
tioned for the first time — And Bandhus — Etymological sense of the term —
Persons connected together by ties of afiFection— Limitation of the term to
agnatic kinsmen — By Vas'ishtha — Yajnavalkya restricts its meaning to blood
relations of the mother — He did not widen its sense to kinsmen related
through a female — His omission of the word Sapinda — Maternal relatives
reckoned among the heirs — Order of succession determined for the first
time — This was rendered necessary by the decay of communism — Which
excluded widow and daughter from the inheritance of joint propertv
The effect of which still lingers over the greater portion of India-
Daughter's son passed over by Yajnavalkya in his enumeration of heirs
Though his rights have been acknowledged in other places— Narada's rules
of succession, in undivided families— In divided families— His enumeration
260 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
LectubE of heirs defective — His rules were framed after older legislators without
VI. reference to the spirit of his times — His position among the legislators
explained — Vishnu — Developed the scheme of Yajnavalkya's order of
succession — On the doctrine of spiritual benefit — He gave the daughter's
son his present place among the heirs, and excluded sons of tainted blood
from inheritance — Vrihaspati carried the development further than Vishnu —
His enumeration of heirs includes maternal kinsmen — He recognizes father's
rights — The doctrine of spiritual benefit upheld by him — His law of suc-
cession as applicable to undivided families — Katyayana's rules the same
as those of Vrihaspati — But he has reluctantly admitted the daughter's
son as an heir — Summary — Equality of son's right — Adopted son — Son
made (Behar) ; wife's son (Orissa) — Heirs per representationis — Son's son
and son's grandson — They take per stirpes— Widow — Daughter — Daughter's
sons, when many in number they take per capita — Father, mother —
Brother — Brother's son — Paternal and maternal kinsmen — Preceptor, pupil^
fellow-student, and lastly the king — Grandmother's position discussed —
Theory of spiritual benefit — In the medieval period of Hindu law — Per-
formance of spiritual rites obligatory on the nearest relations — Necessity
for connecting inheritance with pinda — Doctrine made applicable to cases
of disputed succession — The doctrine is not a later innovation on the part
of Bengal Brahmins — But is trac'eable to medieval legislators.
Principles Let US continuG oui* examiiiatioii of the prin-
of the law . .
ofsucces- ciples or succession in tlie micidle ages. We will
failure of £j,g^ ^f r^\\ q^ote froiii tlie medieval legislators in
sons. • "^
the order of time in which they flourished. The
extracts will give us a fair idea of the gradual
development of tlie laws of inheritance.
Gautama. Gautama, XXVIII: —
" After the father's death let the sons divide Lis
estate .
" Persons allied by funeral oblations, bearing the
same family name, and connected with the same
Rishi, shall share the estate of a childless owner ;
or his widow shall take the heritaoje.^
' Mitakshara, II, 1, 18; Dayabhaga, XI, 6, 25; Colebrooke's Digest,
Vol. II, p. 570.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 261
" Persons learned in the Vedas shall divide the lecture
F wealth of a childless Brahmana.
"The king shall take the property of other
castes."
Baudhayana •} — fa^"''*'
" Male issue of the body being left, the property
surely must go to them.
" On failure of Sapindas, or near kindred, Saku-
Ij/as, or remote kinsmen, are heirs. If there be
none, the spiritual preceptor, the pupil, or the
priest takes the inheritance. In default of all
these, the king."
Apastamba :^ — Apastam-
" If there be no male issue, the nearest kinsman
(Sapinda) inherits ; or, in defoult of kindred, the
preceptor ; or failing him, the disciple ;
" Or the daughter may take the inheritance.
" On failure of all relations, let the king take the
inheritance."
Vas'ishtha, 17: — Vas'khtha.
" Let the Sapiudas or the subsidiary sons divide
the herita2:e of him who has no heir of the first
mentioned six kinds {viz., the son of the body, son of
a wife, an appointed daughter, son of a remarried
widow, son of an unmarried girl, son of unknown
parentage.)
' Dayabhaga, XI, 1, 37. - II, 6, 14.
I'arasara.
2G2 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
lectuee " Oil failure of them, the spiritual teacher and a
VI. ' ^
— pupil take the inheritance.
" On failure of these two, the king inherits."
Sankha. Sankha •} —
" The wealth of a man who departs for heaven,
having no male issue, goes to his brothers. If
there is none, his father and mother take it; or the
eldest wife, or a kinsman, a pupil, or a fellow-stu-
dent."
Parasara :^ —
" Let a maiden daughter take the heritage of one
who dies leaving no male issue ; or, if there be no
such daughter, a married one shall inherit."
Mann :'—
" 185. Not brothers, nor parents, but sons are
heirs to the deceased; but of him who leaves no
son, the father shall take the inheritance, and the
brothers.
" 187. To the nearest Sapinda the inheritance
next belongs. Then, on failure of him, a kinsman
belonging to the same family shall be the heir; or
the preceptor, or the pupil.
" 189. The property of a Brahman shall never
be taken as an escheat by the king; this is the
fixed law ; but the wealth of the other classes, on
failure of all heirs, the king may take."^
• Mitakshara, Ch. II, 7. - Dayabhaga, XI, 2, 4. ^ jx.
* For mother's, sister's, and grandmother's share, see Manu, IX, 212, 21 7.
See also Jolly's Narada, p. DC ; Vrihaspati, Colebrooke's Digest, Vol. II,
p. 531.
Blaiiii.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
263
Briddba Manu i^— ^^"'^^
Mann.
VI.
" The widow of a childless man, keeping unsullied ^^j—
lier husband's bed, and persevering in religious
observances, shall present his funeral oblation and
obtain (his) entire share."
Yajnavalkya :^ — vajnavai-
" The wife, and the daughters also, both parents,
])rothers likewise, and their sons, kinsmen born
of the same family, bandhus (cognates), a pupil,
and a fellow-student are the heirs of a person who
dies without male issue."
Vishnu, 17: — visimu.
" The wealth of him who leaves no male issue
goes to his wife ; on failure of her, it devolves on
his daughter; if she be dead, to the son of a
daughter; if there be no such grandson, it belongs
to the father ; if he be dead, it appertains to the
mother ; on failure of her, it goes] to the brothers ;
after them, it descends to the brothers' sons ; if none
exist, it passes to the kinsmen (bandhu); in de-
fault of them, it devolves on relations called saku-
lyas ; on failure of these, it comes to the fellow-
student; and failing all those heirs, the property
escheats to the king, excepting the wealth of a
Brahman."^
' Dayabhaga, XI, 1, 7. = II, 135, » Cclebrookes Digest, Vol. II. 542.
264 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lecture Vriliaspati : —
VI. ^
Vrihiispati
" Let the wife of a deceased man, who left no male
issue, take his share, although kinsmen, a father,
a mother, or uterine brethren be present.^
" As a son, so does the daugliter of a man proceed
from his several limbs. How then should any
other person take her father's wealth ? ^
" As the ownership of her father's wealth devolves
on her, although kindred exist; so her son likewise
is acknowledged to be heir to his mother's and
maternal grandfather's estate.^
" The mother must be considered as heiress of her
son who dies leaving neither wife nor male issue ;
or with her consent, the brother may be heir.*
" On failure of them, uterine brothers, or bro-
thers' sons, paternal and maternal kinsmen, pupils,
or learned priests, are entitled to the wealth of the
deceased.
" If a man die leaving no issue, nor wife, nor
brother, nor father, nor mother, let all kinsmen
related by the funeral cake i7i equal degree divide
his inheritance in due proportions.
" But half the collected wealth should be first
set apart for the benefit of the deceased, and care-
fully appropriated to his monthly, six-monthly, or
yearly obsequies.
" Where many claim the inheritance of a child-
less man, either paternal or maternal, or more distant
' Dayabhaga, XI, 1, 54. - 2hid, 2, 14. ' jy^j^ 2, 17.
â– * 2 Colebrooke's Digest. 550.
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 265
kinsmeu, be who is the nearest of them shall take lectuee
the estate." ' —
Katvavana :^ — Katvaya-
" ^ na.
" Let the widow succeed to her husband's wealth,
provided she be chaste; and in default of her, the
daughter inherits, if unmarried.
" The widow, beiug a woman of honest family, or
the daughters, or on failure of them the father, or
the mother, or the brother, or his sons, are pro-
nounced to be the heirs of one who leaves no male
issue.
" If a man die separate from his co-heirs, let his
father take the property on failure of male issue;
or successively the brother, or the mother, or the
father's mother."
By a careful analysis of the extracts given above, Examin-
ation of
we find that, accordino- to Gautama, the inheritance Gautama's
' o ' rule.
passes, in default of the different classes of sons, to
persons " connected by funeral oblations.'" With
regard to the kinsmen who are competent to present
these oblations, he says in another place :^ —
" On failure of sons, the deceased person's Sapindas,
the Sapindas of his mother, or a pupil shall offer the
funeral oblations. On failure of these, an ofiiciating
priest, or the teacher." Sapinda relationship, again,
in his opinion ceases with the fifth or the seventh
ancestor.^
' 2 Colebrooke"3 Digest. 569. ^ Ch. XV.
- Mitakshara, II, 1, 6, 7. Ch. XIV.
34
266 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lkctube It may be remarked that, at first sio-ht, the ideas
VI. " ' n '
— of Gautama with regard to succession to property
would appear to be very vague. Stripping his phrase-
olgy of its ecclesiastical technicalities, it would
mean that sons inherit the property of their deceased
father in the first instance; on fiiilure of them, the
inheritance passes to five or seven generations of
ancestors; and in default of them, to kinsmen in
general — persons bearing the same family name. If
there be no kinsmen, the property may be claimed
by any member of the Spiritual Brotherhood to
which the deceased belono;ed.
Its want Gautama was the oldest leoislator, and if we ex-
cf precision O '
accounted j^j^^jj^g i\^q general rule of succession laid down by
him bi/ the light of modern science^ we at once see that
his rule of succession, instead of being vague and
indefinite, is full of meaning. The preservation of
the family was the great object of the age in which
the legislator flourished. The property must be con-
fined to the corporate group to which the deceased
belonged. The son would naturally succeed to the
leadership held by the father, and maintain the
family prestige. In default of sons, who but near
kinsmen living within the same family circle, and
identifying themselves entirely with the corporation,
would be able to promote the best interests of the
family? It was not necessary to be very precise as to
the exact persons who should succeed to the privileges
enjoyed hy the deceased owner; because, it was a
PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES. 267
well-understood fact that the person who was most lectubb
worthy would assume the leadership of the family, and —
maintain the honor and influence of the association.
It would rarely happen that any ancestor beyond the
fifth would remain alive, when the person who found-
ed the family, collected the family property, and
made a name and status for himself, departed this
life. If such a contingency did happen, the legisla-
tor wisely laid down that the inheritance would ascend
to the seventh sjeneration. If the remote ancestors
were all dead, which was most likely, at the time the
inheritance opened, the ablest and the worthiest kins-
man took up the reins dropped by the deceased. In
case there was no one who was allied by ties of blood,
or in other words, by the bonds of common funeral
oblations, the property should justly belong to the
Spiritual Brotherhood, of which the deceased owner
was a member during his lifetime. The Spiritual
Brotherhood we refer to exercised in those times the
same functions which belong to the State at the pre-^
sent day, and was, therefore, entitled to be acknow-
ledged as the ultimus hderes of the Hindus.
Baudhayana was more precise than Gautama. Sons Bandha-
Tana'3 rule
are the natural heirs ; on failure of them the Sapindas "^o^e pre-
succeeded. Thus far the two rules ao-ree. But Bau-
o
dhayana defines the >S'Gr/?f72^a kinsmen with greater pre-
cision. Immediately before lav ins; down the s-eneral
rule of succession, he says: "The paternal great
grandfather and grandfather, the father, the man
268 PRINCIPLES OF SUCCESSION IN THE MIDDLE AGES.
Lectuee himself, Lis uterine brother by a woman of equal
— class, his son, his son's son, and the son of that grand-
son, — all these partaking of undivided oblations, sages
pronounce Sapindas, or near kinsmen allied by fu-
neral cakes ; those who share divided oblations, they
call Sakulyas^ or distant kinsmen allied by family."
Byspe- Here we see Baudhayana has improved upon his
the heirs, predccessor. Three generations in descent, three in
ascent, and his uterine brother^ are all recognized as
heirs. The distant kinsmen belonQ-ino- to the same
family come in next. They administer to the spiri-
tual welfare of the deceased. There is no mention of
the S 
