CIVIL

Wagaru Dhammath of Burma-King Wareru of Pegu Dynasty-1300 CE

When this universe had reached the period of firmly established continuancy, the original inhabitants of this world conjointly entreated the great king Mahasammata to become their ruler; the pouring of water (abhisekam) which inaugurated his reign took place beneath the Udumbara tree. King Mahasammata gov­erned the world with righteousness. Now the king had a wise nobleman called Manu, who was well versed in the law. This nobleman Manu, desiring the good of all men, and being also opportuned by King Mahasammata, rose into the expanse of heaven, and having arrived at the boundary wall of the world, he there saw (this lawbook written in) letters of the size of a full-grown cow ; he committed them to memory and, having returned, com­municated the same to King Mahasammata“.

Wagaru Dhammath- By King Wareru of the Pegu dynasty(1287-1306)

Burmese versions of the Hindu law to the Buddhists

MANU DHAMMASATTHAM

RANGOON

PRINTED BY TUB SUPERINTENDENT, GOVERNMENT PRINTING, BURMA.1892

The palm-leaf manuscript of this code of law is dated 1707 A. D., but, as demonstrated by Dr. Forchhammer, the code is based on some ancient version of the Hindu code which was adopted by the Talain kings centuries ago. It presents great points of differ­ence from such ancient and modem writings on Hindu law as are known in India. It imputes many of its legal rules to the Rishi Manu: but makes no mention otherwise of Sutra, Smriti, or Commentator. It assumes that the doctrines of the Buddhist reli­gion are true; but when the reason of a rule of civil law is given, as often happens, we find it derived from equity or policy and not drawn directly from the religion nor as an inference from some reli­gious text.

The “ Wagaru Dhammathat ” is a book of civil not reli­gious law, thus herein it differs from the Sanskrit law-books of the Indian Brahmans who, as Sir Sumner Maine remarks of their law of parti­tion, find a secular custom and invent a religious reason to explain it. Whether the common origin of the Indian and Burmese Dharma- Shastras be Buddhist or Brahman, it is natural that the civil law should develop under Buddhist ethics in a Buddhist country. But, as we have already remarked in the “ Notes on Buddhist Law,” the “ Wagaru ” differs altogether from such more recent works as the “ Wonnana ” and “ Manu Kyay ” where secular customs and laws are avowedly justified out of Buddhist dogma and metaphysic.

This tendency to identify the native customary law with the reli­gion is not yet exhausted. It is a reaction from the ideas pro­duced by English laws and the many changes caused by the change of rulers. It is justified by the respect which the Burmese law pays to the Buddhist ethics and doctrines of equality; and it may, after all, be true that the Hindu codes originated under Buddhist kings, and that the Burmans are right in claiming a religious sanction for their civil law. What I wish here to emphasize is the fact that for a century and at the present time the process of basing civil law on the popular religion is perceptible in Burma. Eminent scholars suspect a similar combination of the Brahman religion with civil law in India in ages past in countries where that religion acquired ascendency.

The great interest of the “ Wagaru Dhammathat ” lies in its being substantially a law-book of what Sir Sumner Maine con­siders the modem type. Being based on justice and expediency, it resembles our own law of contract or tort in its easy applicabi­lity to all persons in the same civilization without reference to their creeds. This simplicity allows the courts in Burma almost the same scope for applying equity as exists in England. The Indian origin of the Dharma-Shastras had only been suspected but was not known till a few years ago. In strong contrast to the “ Vyavahara Mayukha ” they quote no ancient commentator, and no judge has yet treated the old Indian commentators as authori­ties in interpreting the law of the Burmese. I must add that the judges have never been assisted by Shastries as in India. But if, as appears to be the consent of such scholars as Professor Jolly, Mr. Justice West, Mr. G. M. Tagore, Dr. Fiihrer and Dr. Peterson, the Pali law of Burma and the Sanskrit law of India have the same source, it becomes a question of the highest practical importance whether the religious reasoning and other distinctly Brahminical part of the Indian law literature are or is not a comparatively recent addition to customary rules of civil law. If coeval with the civil law, then, on the assumption of a common origin, it might be argued that the courts in Burma would have the same justification for adopting Brahminical explanations of words and sentences in defining the law of the Buddhists in Burma as the high courts of India had when they administered the Brahman interpretations to non- Aryan nations as the national law.

The writings of Mr. Nelson and Mr. J. D. Mayne have brought into full relief the overwhelming gravity of this subject. I would refer to Mr. Mayne’s re­marks in section 11 of  “ Hindu Law and Usage ” where he instances a judge of the High Court of Madras who unwillingly applied to the tribe of Tamils called Maravers the most technical principles of Sanskrit law, and notices that the High Court of Bengal have assumed as a matter of course that the natives of Assam, the rudest of our provinces, are governed by the Hindu law as modified by Jimuta Vahana. The same writer shows, how­ever, that the brahmanizing process may have produced results long before they are examined and approved by our courts. “ A very little law satisfies the wants of a rude community. As they advance in civilization and new causes of dispute arise, they feel the necessity for new rules. If they have none of their own, they naturally borrow from their neighbours. Where evidence of custom is being given, it is not uncommon to find a native saying— We observe our own rules; in a case where there is no rule, we ask the pundits.’ Of course the pundit, with much complacency, pro­duces from his Shastras an answer which solves the difficulty. This is first adopted on his authority and then becomes an accre­tion to the body of village usage. This process would of course be aided by the influence which the Brahmans always carry with them by means of their intellectual superiority.”

Mr. Mayne adds:— “ It must have gone on with great rapidity during the last “ century, when so many disputes were referred to the decision of “ our courts, and settled in those courts solely in accordance with “ the opinions of the pundits.” In Burma these influences have hardly been felt; we have never sat with pundits as assessors. But it is fortunate that the danger of superseding custom by anti­quated rules in the palm-leaf manuscripts has been noticed. I have often had the following dialogue with Burmese judges:

Q.—What is the custom of the Burmans in the present times about such and such a matter (of inheritance or marriage law) ?

A.—It is such and such.

Q.—How do you know that such a custom exists ? Did you ever hear of an instance ?

A.—No; but I say it is the present custom because it is stated as the rule of law in a Dhammathat of the last century.

To my mind it is inconceivable that judges would adopt the Brahman authorities in administering the Burmese versions of the Hindu law to the Buddhists. But both Mr. Nelson and Mr. Mayne complain that the Madras High Court insists on treat­ing the Dravidian nations as subject to the Sanskrit law in such family concerns as partition of property. There has been some inclination to apply the Brahman measure to the Jains. But the Jains are a wealthy community with a literature and some asser­tion of a law of their own, which will probably be found in writing. More is known about them and, as Mr. Mayne states, “ research has “ established that their usages, while closely resembling those of “ orthodox Hinduism, diverge exactly where they may be expected “ to do from being based on secular and not on religious principles.”

They do not practise the sraddh or ceremony for the dead, which is the religious element in Sanskrit law. Consequently the prin­ciples which arise out of this element do not bind them. Mr. Mayne thinks the same caution ought to have been applied when the Dravidian nations were concerned. But leaving them out of present consideration, the findings of the courts on the law of the Jains raise exactly the same question as the study of the “ Wagaru Dhammathat.’ The identity of many of the Jain and Buddhist rules of law with those in the Sanskrit books cannot be explained by assuming that the latter are the common original, in the absence of any evidence of systematic excision by the Jains in India and the Buddhists in India or Burma of the distinctively Brahminical portion. All three sects must have wanted a civil law: and if, as is fair to suppose, their habits and ideas in secular matters were as similar as those of Roman Catho­lics and Protestants, the same civil law, hardly modified for a long time by religion, would have done for all.

The Brahmans may have invented new reasons or added new rules suitable to their own circumstances, just as ecclesiastics may feel themselves bound by a canon law and adopt as “ God’s law ” a set of religious books, where the laity wait for statutes incorporating parts, from time to time, as, e.g. about prohibited degrees. My impression is that the necessity of accounting for the similarities of Brahman, Jain and Buddhist law adds weight to Mr. Mayne’s view that “ Hindu law” is based upon immemorial customs which existed prior to, and “ independent of, Brahminism,” and that  those parts of the Sanskrit law which are of any practical importance are mainly based “ upon usage, which in substance, though not in detail, is common “ to both Aryan and non-Aryan tribes.” The discovery of codes of Hindu law without the Brahman element adds weight to Mr. Mayne’s view that it is a later accretion. The impossibility of applying the Brahman element to most classes of the people and even the Brah­man acknowledgment of custom as worthy of priority to their religi­ous law points to the same inference. We are able now to compare the customary law of the Punjab which Sir Sumner Maine believes to be a very old form Hindu law with the older law of the Tamils as displayed in the “ Thesawaleme.’’ This last is the compilation of Tamil customs made in 1707 A. D. by the Dutch government of Ceylon. It appears to Mr. J. D. Mayne to represent the law of the Dravidian races of Madras before the English courts with their Brahman pundits imported the Sanskrit law. Both this work and Mr. Tupper’s Punjab law may well be compared with the customary laws of the Chins—a wild tribe of Burma—as collected by Maung Tet Pyo in the book now about to issue under our editing from the Government Press at Rangoon. There are most striking resemblan­ces between the “ Thesawaleme ” and the Burmese law. In both the important act of marriage makes the division of property into husband’s property and stridhan important. There is a jealousy of a second wife; hence the need to see that the children by the first. wife gets what she brought into the family.

Divested of all Brah­minical ideas, partition naturally begins when a grown-up son marries and takes part of the goods to the house he builds for his wife. The younger son who stays at home naturally succeeds to what is left, unless some special arrangement is made, as often happens where affection exists. In many respects the Burmese law-books seem to me better guides to the existing customs of the lower classes in India than any of the Sanskrit law-books.I had intended in this preface to have instituted comparisons of the “ Wagaru” with other codes. From the catalogs of the 18 titles and the 12 sorts of sons, inferences about the rela­tive ages of these codes, whether Hindu or Burmese, can be drawn; and although textual comparison is impossible, some light might be gathered from comparison of the Hindu part of the “ Wagaru ” with the Hindu codes. I would have liked to have done thoroughly what we have done imperfectly in the translations from the “ Wonnana ” published in “ Notes on Buddhist Law.” But since those “ notes ” were published, they have been men­tioned with approval by the Judicial Committee of the Privy Coun­cil and are receiving great attention from the most learned scholars of the Hindu law in England, Germany, and India. The real interests of learning will in the end be better served by leaving this important work to men far better able to do it than I am. Any such criticism must be aided and tested by philology: and my own want of that acquirement would reduce the value of any inferences I might make.In dealing effectively with the problems which I think arise as soon an unreligious edition of Hindu law sees the light, the scholar requires the aid of the literature which explains the period under discussion. On such a matter of erudite and wide knowledge I have no pretensions to be heard. But the difficulties which my learned friend Dr. Forchhammer and myself have experienced do, I hope, justify me in pressing the matter on the attention of the learned. I have inquired but vainly for any full account of the condition of the people of India during the long centuries when Buddhism was the professed religion of the rulers of India, and not only widely diffused over whole kingdoms, but so rich and active as to be able to send out missions to distant regions like Thibet and Ceylon.

We hear plenty about the edicts of Asoka, but little about the ordinary customary law of the people in his day in matters not religious. It is inconceivable that the rich provin­ces of India could have remained for eight or nine centuries with­out civil law: but it appears utterly absurd to suppose that the general law was that of the Brahmans, or that Buddhist rulers or peoples could ever have submitted to the sectarian part of the Sans­krit code. It is more reasonable to assume that what law the Buddhist kings promulgated would, like Asoka’s laws or this very “ Wagaru,” be law consistent with the Buddhist doctrines and practices. But all this ought to be matter of history; and here I seek light. The logical necessity of finding a cause for the similarity of Buddhist, Jain and Brahman civil law was apparent to Professor Bajkumar Sarvadhikari. (See the passage from his Tagore Law Lectures, 1882, quoted in IV. “ Notes on Buddhist Law.”) He affirms that when the religious encounters became serious, the civil government wrested the administration of law from the spiritual brotherhoods and impartially distributed justice to Jains, Buddhists, and Brahmans alike. But he does not give his authori­ties for this matter of history, nor explain what the law was which was administered to all as the lex loci.

The theory appears to me contrary to those propounded in another book, to which in the absence of other authorities I have given some study : I allude to the “ Notes on the Beligious, Moral, and Political State of India before the Mahomedan Invasion. By Lieutenant-Colonel W. H. Sykes, F.B.S., 1841. It is beyond my province to even mention all the opinions and proofs given by the learned author. He drew on Fah Hian and other Chinese travellers, and believed that our information about the Buddhist period from B.C. 600 to A.D. 700 must be got out of Chinese and Pali literatures. He notices the statement of Fah Hian, who visited India about A.D. 400, that every king to the east and south of the Jumna was a Buddhist: and that in Khotan, Sravasti in Oudh—the royal city of Prosena —a Buddhist king, Patna, Benares and Tumlook, Buddhism was in full pomp and power. No mention is made of the worship of the Linga. Colonel Sykes goes on to quote the later Chinese pil­grim Hiuan Lang who was in India in the seventh century and found Buddhism established in Malwa, Ujein and elsewhere, un persecuted although decaying. The Buddhists and Hindus are mentioned as living together in harmony at Patna.

Before the time of Fah Hian no coins have, says Colonel Sykes, been dis­covered with Brahman inscriptions, whereas there remains abun­dant evidence of the great spread of Buddhism in coins and inscrip­tions of all Forts. Colonel Sykes brings forward a variety of facts to prove that the Samanas or Semnoi mentioned by Arrian and other Greek writers were Buddhists and not Brahmans (pp. 15, 97, 126, 141) nor Sanyayies (p. 152). The institution of caste in those centu­ries was civil rather than religious: and there were Jain Brah-mans just as among the native Christians of the Bombay Presidency some are distinguished as Brahmans. In the early centuries the Brahmans lived in a very circumscribed tract or in hamlets of their own like the present Agraharas; they are described by an old Chinese traveller as strangers and are not even mentioned by Arrian in his list of castes. Bishop Musceus, the friend of St. Ambrose, did not see any of them. Sykes quotes Buddha as deriving the name from a word meaning eradicator of vice and holds that Asoka’s edicts and Arrian confirm this view, the Brahmans having been employed as censors or overseers to see that the laws were duly obeyed. I need not go on to these long and interesting discus­sions, but may here notice what I have mentioned. in the Note to my edition of “ Sangermano’s Burman Empire,” that the Italian missionaries in Burma in the last century conjectured that the phungyis or Buddhist monks are the representatives of the Sramanas of the Greek writers.

In conclusion, I would point out that in the preparation of this work Dr. Forchhammer has laboured under peculiar difficul­ties. Higher education has made little progress in Burma: no youth has yet graduated in the Indian universities: learned assis­tance it is almost impossible to get. But for the Educational Syndi­cate—the present imperfect substitute for a local university—the work would never have been undertaken. If that learned body had not established library, we would have had difficulty in getting works of reference. In conclusion I remark that the greater credit is due to Dr. Forchhammer for having in the midst of such difficulties given up his spare time to the preparation of an accurate text and translation of the Wagaru: the value of the work being greatly increased by his learned annotations which I doubt not will give a great impetus to these studies.

JOHN JARDINE.


Note

The  Pegu Hanthawaddy (Hongsawatoi) Kingdom was the dominant kingdom that ruled lower Burma (Myanmar) from 1287 to 1539.

Hongsawatoi ( Hamsha Joti in Sanskrit)

Kings of Pegu
Hongsawatoi Dynasty
# Reign King
1 1287-1306 Wa re ru or Wagaru-FOUNDER
2 1306-1310
3 1310-1323 Dzau au, or Then mhaing
4 1323-1330 Dzau dzip, or Binga ran da
5 1330-1348 Binya e lau
6 1348-1385 Binya u, or Tsheng phyu sheng
7 1385-1423 Binya nwe, or Ra dza di rit
8 1423-1426 Biny Dham ma Ra dza
9 1426-1446 Binya Ran kit
10 1446-1450 Binya Wa ru
11 1450-1453 Binya Keng
12 1453-1453 Mhau dau
13 1453-1460 Shen tsau bu, Binya dau
14 1460-1491 Dham ma Dedi
15 1491-1526 Binya Ran
16 1526-1540 Ta ka rwut bi

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