The Gentoo Code

Submitted to: Dr. Piyadarshini

Submitted by: Utkarsh Shukla Roll no – 974 B.A.LL.B (Hons) Sem- 2nd CHANAKYA NATIONAL LAW UNIVERSITY

Acknowledgement :

Writing a project is one of the most significant academic challenges I have ever faced.

Though this project has been presented by me but there are many people who remained in

veil, who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr Priyadarshini ma’am, without the kind

support of whom and help the completion of the project was a herculean task for me. He

donated his valuable time from his busy schedule to help me to complete this project and

suggested me from where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which proved

beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very

useful and could not be ignored in writing the project. I also owe special thanks to my parents

for their selfless help which was very useful in preparing the project & without whose

support this project wouldn’t have been prepared.

Utkarsh Shukla

Roll No. 974

2nd semester

Table of Content

1. Introduction

2. ‘Gentoo’- Historical background of the term

3. Warren Hastings and Hindu Personal law

4. Halhead and The Code for Gentoo law

5. The Gentoo Code

6. Conclusion

Bibliography

Notes and References

CHAPTER 1

Introduction

The rise of Islam in the seventh century and a fear generated by its consequent expansion and

continued resurgence in the face of European aggression, exercised a strong hold on the

European imagination. The search for a sea route was not merely to seek alternative trade

routes to the 'Spice lands'; it was also an exercise, sponsored by the church and royalty to win

Christian allies in the hitherto unexplored world for the battle against Islam. Vasco da Gama

was followed by several other Europeans - yet the diversity and the rich complexity they

encountered gave rise to varying perceptions. It was the Portuguese who first labelled the

native inhabitants - the 'gentoos' or 'gentios' - a term that was used as late as 1774 by the

British, to denote this time, the religion of the natives.

One of the most efficient Governer General Lord Warren Hastings had introduced the system

of judicial administration based on the coded personal law so that the personal law attained

the consistency in its application under the Judicia plan of 1772. He introduced the principle

of judicial administration that matters relating to the marriage, inheritance and succession

were to be governed by the respective personal law of the parties. Unless the parties

submitted to the purview of English law their respective personal law was applicable to the

parties. The Judicial plan of 177 provided that in case of a Hindu and Mohammedan, Shastras

and Quran were to be applied respectively.

The Gentoo Code is a legal code translated from Sanskrit (in which it was known

as vivādārṇavasetu) into Persian by Brahmin scholars; and then from Persian into English

byNathaniel Brassey Halhed, a British grammarian working for the East India Company. The

translation was funded and encouraged by Warren Hastings as a method of increasing

colonial hold over the Indies. It was printed privately by the East India Company in London

in 1776 under the title A Code of Gentoo Laws, or, Ordinations of the Pundits. Copies were

not put on sale, but the Company did distribute them. In 1777 a pirate (and less luxurious

edition) was printed; and in 1781 a second edition appeared. Translations into French and

German were published in 1778.

The expression “Gentoo” includes four sections of Hindu, namely Brahmin, Khatriyas,

Vaishyas and Shudras. In Adaear vs Perozebage, Lord Ayrton has held that the expression

Parsi does not fall under the term “gentoo”.

The importance of native laws was realized by Lord Warren Hastings and consequently he

summoned a group of Pandits hailing from the Province of Bengal to compile th code of

native law, Under Lord Warren hastings’ direction the pundits who were all versed with

Shastra prepared the comprehensive code of Hindu law in Sanskrit. Later on it was translated

into Persian by one of the Pandits. After sometime the Code of Hindu law was also translated

into English so that the English judges could also aplly and understand the provisions of the

code. This coded form of Hindu law was termed as Helhad’s Code of Gentoo (native) laws.

This code of Gentoo laws consisted several topics on-

Lending and banking; Inheritance of property; Justice and Trust; Selling of Stranger’s

property; Shares; Gifts; Servitude; Wages Rents and Hire; Purchase and sale; Share in

cultivation of land; Adultery; Scandalous and bitter expressions; What concern womens;

Sundry articles; Violence etc.

Helhad highlighted the importance of Code of Gentoo law in following words

“ The code must be considered the only work of kind wherein the genuine principles of the

gentoo jurisprudence are made public with the sanction of their most respectable pundits. “

Aims and Objectives

The aims and objectives of researcher to do a project work on ‘The Gentoo Code’ were as

under ;

a) To analyse the very term ‘Gentoo’ in context with personal laws as made in early

british India.

b) To study about the changes and reforms brought by Lord Warren Hastings in respect

to personal laws for Hindus and Mahhamedan.

c) To study the relevancy and importance of ‘The Gentoo Code’ with respect to the

development of hindu personal law in India.

Hypothesis

Lord Warren Hastings had introduced the system of judicial administration based on the

coded personal law so that the personal law attained the consistency in its application under

the Judicia plan of 1772. The Judicial plan of 177 provided that in case of a Hindu and

Mohammedan, Shastras and Quran were to be applied respectively.

The expression “Gentoo” includes four sections of Hindu, namely Brahmin, Khatriyas,

Vaishyas and Shudras.

This code of Gentoo laws consisted several topics on-Lending and banking; Inheritance of

property; Justice and Trust; Selling of Stranger’s property; Shares etc.

Research Methodology

The research on the topic ‘The Gentoo Code’ would require doctrinal mode of research.

Doctrinal research or traditional research involves analysis of case laws, arranging, ordering

and systematizing legal prepositions and study of legal institutions, but it does more – it

creates law and its major tools through legal reasoning or rational deductions. In the opinion

of Boomin, this kind of research represents more a practical regulative ideal of how the

judicial process ought to be conceived by the judiciary than a theoretical analysis of its actual

structure and functioning.1

My doctrinal research included consulting various books related to The Gentoo Code

available at the library of Chanakya National Law University and Khuda Baksh Library,

Patna.

Non doctrinal research or empirical research is carried on by collecting or gathering of

imformation by first hand study of subjects. It relies on experience or observation without due

regard to any theory or system and hence it is also called as experimental type of research.

Here researcher attempts to investigate effect or impact by actual examination or observation

of the functioning of law and legal institutions in society.

1 Legal Research Methodology, Asia law house Hyderabad, Doctrinal research or traditional research, Dr T Padma and K P C Rao, pg 30.

CHAPTER 2

The term ‘Gentoo’

It was the Portuguese who first labelled the native inhabitants - the 'gentoos' or 'gentios' - a term

that was used as late as 1774 by the British, to denote this time, the religion of the natives. The rise

of Islam in the seventh century and a fear generated by its consequent expansion and continued

resurgence in the face of European aggression, exercised a strong hold on the European imagination.

The search for a sea route was not merely to seek alternative trade routes to the 'Spice lands'; it was

also an exercise, sponsored by the church and royalty to win Christian allies in the hitherto

unexplored world for the battle against Islam. Vasco da Gama was followed by several other

Europeans - yet the diversity and the rich complexity they encountered gave rise to varying

perceptions. It was the Portuguese who first labelled the native inhabitants - the 'gentoos' or

'gentios' - a term that was used as late as 1774 by the British, to denote this time, the religion of the

natives.

Vasco da Gama reached Calicut on May 20, 1498 and he immediately distinguished the merchants,

traders and sailors from the local inhabitants. He identified the 'outsiders', i e, those who were not

natives as 'Mouros' or 'Moors' (or Muslims) - a category that was already known to him. He treated

them with a contempt both because of the well-settled bias in the European mind against Muslifns

and also because he imagined that the so-called Mouros (or Muslims) wished him and his men out of

the Malabar coast. He distinguished the local inhabitants in a sepa rate category and called them

the 'Gentios' according to the 'Book of Genesis' . Like his contemporaries in Europe he too thought

that the people who lived in the Indies were not Muslims and that they practised a peculiar or a

primitive kind of Christianity. Although he imagined them to be some kind of Christians, he was

unable to come to terms with them as equals, He thought that as he was the representative of a

monarch in Europe who had re-conquered the Iberian peninsula from the Arabs, he deserved to be

treated with respect and awe - he failed to realise that the Zamorin's treatment of him was shabby

not because of the influence of the 'Mouros' at the local court but because of the poor gifts and

presents that he had brought for the Zamorin.

Europe continued to assume even after Vasco da Gama's return to Portugal in 1499 that the original

inhabitants of the Indian subcontinent were non-Muslims and that they were some kind of

Christians. It continued to do so because it perceived that there was a close agreement in some of

the religious beliefs and practices of the fion Muslim Indians with some principles of Christianity -

like the Christians, the 'Gentios' or 'Gentiles' or 'Gentoos' also believed in the concept of the trinity,

the holy mother and the theory of the incar- nation of god on earth. The Portuguese were hopeful

that it was possible to bring back the non-Muslim residents of the subcontinent back to the fold of

the Roman church, Although, it is true that they were critical of some of the religious practices of the

'Gentios' but then they thought that such ills had developed both because of the existing distance

between it and 'true' Christianity and the Brahmans (the priests) who encouraged and supported

these wrong practices. In the course of time they evolved a strategy to drawback the non-Muslim

Indians to the 'true' faith of Christ. It was argued that if somehow the local ruling families were lured

back to 'true' Christianity then the others would soon follow and accept the supervison of the

Roman church over their lives. After 1540 AD the programme to bring back the non-Muslim Indians

to the fold of the church became more intense and extensive in its scope, Courts of inquisition were

established in territories under Portuguese control and persecution of the 'Gentios' was followed

with a fanaticism to force them back to the fold of the Roman church. Other non-Portuguese

Europeans who followed in the wake of Vasco da Gama's voyage to India continued to distinguish

the local inhabitants in religious categories of Muslims and non-Muslims. Also, like the Portuguese,

the early English visitors to India adopted the Portuguese terms of reference for the different

categories of Indians although, with slight variations - the Portuguese 'Mouros' was repalced with

'Moors' for the Muslim inhabitants and instead of the Portuguese 'Gentios', the term 'Gentiles' or

'Gentew' or 'Gentues' or 'Gentoo' was substituted to distinguish the non- Muslims of the east Indies.

Again, like the Portuguese, the other early European merchants and adventurers were also

extremely critical of some of the customs of the 'Gentiles' and generally declared them inhuman and

uncivilised they too thought that the ills in the religious practices of the 'Gentiles' had been kept in

circulation by the Brahmans. Also, they were quite convinced that there were immense possibilities

to draw back the 'Gentiles' to the 'true' faith and therefore some of these European visitors even

evolved different ways to woo back the Indians to the religion assumed by them as true.

Growing Contacts

In the 17th century the influx of Europeans in India increased and extensive areas of the

subcontinent were traversed by them. As they travelled over vast areas of the subcontinent they

came in contact with a variety of Indians and this confused them further. They perceived a number

of complexities in local societies and concluded that Indian society was actually a conglomeration of

different classes of people. Now, they added and commented that distinctions among the local

people were to be determined not only in religious but also in economic, political and social terms.

As per their new understanding they retained the broader division of the local inhabitants in the two

religious categories of 'Moors' (Muslims) and 'Gentiles' or 'Gentues' or 'Gentoos' (non-Muslims) but

they further sub-divided the category of the non-Muslims into different tribes. The 'Gentiles' or

'Gentues' or 'Gentoos' were described as people divided in either three or four tribes - where the

brahmans and the rajpoots were placed in the higher social category and the lower or the third class

comprised of people who were gen- erally determined either by their occupation or their economic

situation. The sub-divisions among the non-Muslims, as suggested by the Europeans were often

flexible and vague - sometimes only the third category of the non-Muslims was distinguished as the

'Gentiles' or 'Gentues' and the higher division of the brahmans and rajpoots were treated as a

separate category. Again, there were occasions when only the local traders and merchants, who

were distinguished as the 'Baneanes' or the 'Jainas' and alleged to be cruel, ruthless and shrewd in

their dealings, were labelled as the 'Gentues'. Then again, there were some European observers who

distinguished a fourth 'tribe' of the untouchables among the non-Muslims and called them the

'Gentiles' or 'Gentues'. The other three 'tribes' of the non-Muslims were distinguished by their caste

names.

Elements of Categorisation

In the latter half of the 17th century, Europeans added a few more elements to distinguish further

the two religious categories of the Muslims and the non- Muslims. Somehow, it was assumed that all

the 'Gentues' or 'Gentoos' were poor and weak and conversely all the 'Moors' were rich and

powerful - 'Moors' were described as people who led a more comfortable life and lived lavishly in

brick houses where they were served by a retinue of servants. The 'Moors' were also described as

properly attired, who always wore a turban on their head. In contrast 'Gentues' or 'Gentoos' were

said to live a hard life in thatched houses. They were described as poorly dressed and scantily

clothed for they were generally bare-bodied above the waist. Again, it was observed that the

'Moors' generally rode a horse or travelled in carts, the 'Gentoos' or 'Gentues' were described as

those who walked and toiled in the fields. The distinguishing features of the two religious categories

even included hygenic conditions of living and gender distinctions -the 'Gentoo' women were said to

be more free as they were allowed to come out of their houses to work in the fields; the 'Moor'

women were never allowed to step out of the house without an escort. Also, the 'Moor' woman

were kept well-hidden from the gaze of men and went from one place to another in palanquins.

In the late 17th and early 18th centuries the religious categories of the Muslim and non-Muslim

Indians were further distinguished in terms of race, language and habitation. Now, it was assumed

that only the 'Gentues' or 'Gentoos' were the original inhabitants and the others lived in India either

through conquest or by invitation. The inhabitants of the subcontinent were divided into five

categories where the 'Gentues' or 'Gentoos' were called the aborigines or natives of the land; the

'Moors' (or Moguls) and the Portuguese were the conquerers; the Dutch, English and others lived

there either because of conquest or trade; and lastly the Persians who lived there by permission. At

a later stage, i e, by the end of the 18th century the supposed racial division of the inhabitants was

also expressed in religious terms - the Idola- tors, the Mahometans, the Jews, the Indian Christians

and the Indian Nestorians, and the Catholics and the Protestants. As pointed above, linguistic

distinctions were marked between the Muslim and non- Muslim inhabitants. It was suggested that

the 'Moors' (or Muslims) communicated in a language that was spoken and under- stood all over the

subcontinent, but the 'Gentues' or 'Gentoos' spoke a different kind of a language determined and

limited by a locality.

The language spoken by the Muslims received a religious identity and was called the 'Moor'. Again,

as this language was said to be very similar to the language that was spoken and understood all over

the subcontinent it was also as- signed a geographical identity and termed the 'Indostan' or

'Hindoostan'. Similarly, the local languages spoken by the non-Muslims received both a religious and

a geographical identity. These several local languages were distinguished by the single religious term

the 'Gentu' or 'Gentoo'. However, as these several local language were determined by their peculiar

speech and script, therefore they were also vari- ously distinguished by their specific geo- graphical

area, i e, Deccany, Moratty, Conchany, Guzarate, Canatick, or Telinga, or Telugu, Tamul, or Malabar,

and Bengala. It was surprising that while it was assumed that these several local lan- guages (or

speeches) had been derived from the 'Indostan' or 'Hindoostan' lan- guage, it was somehow

suggested that these local languages had a script and the lan- guage 'Indostan' or 'Hindoostan'

lacked a known script. Also, during this period the distinctions between the 'Moors' and the

'Gentues' or 'Gentoos' were further extended to include even the cities. Seemingly, Europeans

distinguished cities into religious categories either on the basis of its economic prosperity or political

patronage. As they had already assuned that Muslims ruled over large areas of the subcontinent it

was obviously observed by them that most of the cities which were either the seats of government

or centres of administration were necessarily 'Moor' cities. Again, as there was a general impression

among them that the 'Moors' in India were rich and pow- erful therefore it was assumed that cities

which abounded in houses of stone and mortar were necessarily 'Moor' cities.

Histories as Commentaries

It appears that in the late 17th and early 18th centuries Euopeans were quite appalled by the great

variety in religious practices, social mores and customs of the Indians. This was natural for they had

by that time, come in contact with a larger number of Indians spread over extensive areas. It was

during this period that they gradually started realising that all 'Gentues' or 'Gentoos', were not 'any

sort of Christians'.

However, as they had already worked out differences between the two sets of peoples of the

subcontinent, seemingly it was inevitable for them to justify these supposed differences in terms of

opposition - the ruler and the ruled; the rich and the poor; the well-clothed and the ill-dressed; one

who jealously guarded their women and kept them indoors and the others whose women went out

freely to toil in the fields2. While they were still engaged in the process of discovering further

elements to divide the peoples of India in religious or other categories, they also attempted to place

the presupposed inherent contradictions between the 'Moors' and the 'Gentues' or 'Gentoo' in

history.

Histories that were compiled during this period were actually commentaries on political

development, social divisions of people and religious ideas and practices. It was assumed that the

original inhabit- ants of India were the 'Gentues' or 'Gentoos' and the 'Persians' lived there by

permission. The 'Moors' (or Muslims) were distinguished as the first invaders and conquerors who

came over-land and gradually subdued the whole subcontinent. They were followed by the

Portuguese who were called the first discoverers by sea and conquerers. The Dutch, English and

other Europeans followed the Portuguese in India and they were described partly as traders and

merchants and also as conquerors. It appears that in the later part of the 18th century Europeans

were quite convinced that not necessarily all 'Gentios' were any sort of Christians. As a result they

used this term only in the racial sense and observed that 'Gentues' or 'Gentoos' were actually the

original inhabitants of the Indian subcontinent. However, as they were quite obsessed with the idea

to distinguish people in religious categories, they distinguished the 'Gentoos' in three different

religious denominations -the 'Idolaters', the Indian Christians, and the Indian Nestorians.

The 'Idolaters' were further sub-divided into several sects but only two were considered significant -

one was distinguished as the 'bramins' (or brahmans or those who worshipped god and were

therefore good) and the other as the 'Benjans' (or probably the Jainas or the people of the lower

class who worshipped the devil and were therfore necessarily bad). It was during this time that the

religion of the brahmans came to be identified and termed as 'Hindu'. N B Halhead was probably the

first European who assumed that the religion of the brahmans was 'Hindu'. In 1773 the East India

2 Transactions (Jewish Historical Society of England), Vol. 16 (1945-1951), pp. 73-76, The Non-Christian Oath

in English Law by F. Ashe Lincoln.

Company's President and the Council at Fort William ordered the compilation of codes for 'Gentoo'

and 'Muhammadan' laws and in March 1774 N B Halhead was commis- sioned to compile a code of

laws for the 'Gentoos' or the non-Muslims. He completed the digest in 1776 and called it Code of

Gentoo Laws or Ordinances of the Pundits ,from a Persian Translation, made from the Original

written in the Shanscrit Language. In the book Halhead used the term 'Gentoo' for a class of people

who were said to know the laws and the ancient language in which these laws were expressed. In

that book he used the term 'Hindu' to express the religion of that people who were non-Muslims.

Again, Halhead does inform us that the term 'Gentues' or 'Gentile' or 'Gentoo' had been brought into

circulation by the Portuguese but he does not tell us that the use of the term had its antecedents in

the 'Book of Genesis'. In fact, he confuses the whole issue by adding that probably the term had

been used by the Portuguese because it denoted a living being in the local language. However, it is

clear that although Halhead knowingly or unknowingly tried to hide the antecedents of the term in

the 'Book of Genesis' but he did not shy to point out that there were some similarities in the

religious principles and beliefs of the brahmans and the Christians.

CHAPTER 3

Warren Hastings and Hindu Personal law

Warren Hastings (6 December 1732 – 22 August 1818) was the first Governor-General of

Bengal, from 1772 to 1785. He was famously accused of corruption and impeached in 1787,

but after a long trial he was acquitted in 1795. He was made a Privy Counsellor in 1814.

In 1773, he was appointed the first Governor-General of Bengal. The post was new, and

British mechanisms to administer the territory were not fully developed. Regardless of his

title, Hastings was only a member of a five man council so confusedly structured that it was

difficult to tell what constitutional position Hastings actually held.

In 1784, after ten years of service, during which he helped extend and regularise the

nascent Raj created by Clive of India, Hastings resigned. On his return to England he was

charged in Parliament with high crimes and misdemeanors by Edmund Burke, who was

encouraged by Sir Philip Francis, whom Hastings had wounded during a duel in India. He

was impeached in 1787, but the trial, which ran from 1788 to 1795, ended in acquittal.

Though Hastings spent most of his fortune on his defence, the East India Company provided

substantial financial support towards the end of the trial.

His supporters from the Edinburgh East India Club, as well as a number of other gentlemen

from India, gave a reportedly "elegant entertainment" for Hastings when he visited

Edinburgh. A toast on the occasion went to the "Prosperity to our settlements in India" and

wished that "the virtue and talents which preserved them be ever remembered with gratitude."

In 1788 he acquired the estate at Daylesford, Gloucestershire, including the site of the

medieval seat of the Hastings family. In the following years, he remodelled the mansion to

the designs of Samuel Pepys Cockerell, with classical and Indian decoration, and gardens

landscaped by John Davenport. He also rebuilt the Norman church in 1816, where he was

buried two years later.

Hastings’ admiminstrative structure and ethos

During the final quarter of the eighteenth century, many of the Company's senior

administrators realised that, in order to govern Indian society, it was essential that they learn

its various religious, social, and legal customs and precedents. The importance of such

knowledge to the colonial government was clearly in Hastings's mind when, in 1784, he

remarked:

"Every application of knowledge and especially such as is obtained in social communication

with people, over whom we exercise dominion, founded on the right of conquest, is useful to

the state … It attracts and conciliates distant affections, it lessens the weight of the chain by

which the natives are held in subjection and it imprints on the hearts of our countrymen the

sense of obligation and benevolence… Every instance which brings their real character will

impress us with more generous sense of feeling for their natural rights, and teach us to

estimate them by the measure of our own… But such instances can only be gained in their

writings; and these will survive when British domination in India shall have long ceased to

exist, and when the sources which once yielded of wealth and power are lost to

remembrance”

Under Hastings's term as Governor General, a great deal of administrative precedent was set

which profoundly shaped later attitudes towards the government of British India. Hastings

had a great respect for the ancient scripture of Hinduism and set the British position on

governance as one of looking back to the earliest precedents possible. This

allowed Brahmin advisors to mould the law, as no English person thoroughly

understood Sanskrit until Sir William Jones, and, even then, a literal translation was of little

use; it needed to be elucidated by religious commentators who were well-versed in the lore

and application. This approach accentuated the Hindu caste system and, to an extent, the

frameworks of other religions, which had, at least in recent centuries, been somewhat more

flexibly applied. Thus, British influence on the fluid social structure of India can in large part

be characterised as a solidification of the privileges of the Hindu caste system through the

influence of the exclusively high-caste scholars by whom the British were advised in the

formation of their laws.

In 1781, Hastings founded Madrasa 'Aliya; in 2007, it was transformed into Aliah

University by the Government of India, at Calcutta. In 1784, Hastings supported the

foundation of the Bengal Asiatic Society3, now the Asiatic Society of Bengal, by the oriental 3 Journal of the Royal Asiatic Society of Great Britain and Ireland, No. 1 (1985), pp. 99-100, Orientalism,

Poetry, and the Millennium: The Checkered Life of Nathaniel Brassey Halhed 1751-1830 by Rosane Rocher

scholar Sir William Jones; it became a storehouse for information and data pertaining to the

subcontinent, and existed in various institutional guises up to the present day.  Hastings'

legacy has been somewhat dualistic as an Indian administrator: he undoubtedly was able to

institute reforms during the time he spent as governor there that would change the path that

India would follow over the next several years. He did, however, retain the strange distinction

of being both the "architect of British India and the one ruler of British India to whom the

creation of such an entity was anathema."

He was impeached for crimes and misdemeanors during his time in India in the House of

Commons upon his return to England. At first deemed unlikely to succeed, the prosecution

was managed by MPs including Edmund Burke, Charles James Fox and Richard Brinsley

Sheridan. When the charges of his indictment were read, the twenty counts took Edmund

Burke two full days to read.

The house sat for a total of 148 days over a period of seven years during the

investigation. The investigation was pursued at great cost to Hastings personally, and he

complained constantly that the cost of defending himself from the prosecution was

bankrupting him. He is rumoured to have once stated that the punishment given him would

have been less extreme had he pleaded guilty. The House of Lords finally made its decision

on April 1795 acquitting him on all charges.

Throughout the long years of the trial, Hastings lived in considerable style at his town

house, Somerset House, Park Lane. Among the many who supported him in print was the

pamphleteer and versifier Ralph Broome. Others disturbed by the perceived injustice of the

proceedings included Fanny Burney.

The letters and journals of Jane Austen and her family, who knew Hastings, show that they

followed the trial closel.

CHAPTER 4

Nathaniel Brassey Halhed and the Code for Gentoo law

Nathaniel Brassey Halhed (25 May 1751–18 February 1830) was an

English Orientalist and philologist. Halhed was born at Westminster. He was educated

at Harrow, where he began his intimacy with Richard Brinsley Sheridan, which continued

after he entered Christ Church, Oxford. At Oxford he also made the acquaintance of William

Jones, the famous Orientalist, who induced him to study Arabic. Accepting a writership in the

service of the East India Company, Halhed went out to India, and here, at the suggestion

of Warren Hastings, by whose orders it had been compiled, translated the Hindu legal code

from a Persian version of the original Sanskrit. This translation was published in 1776 under

the title A Code of Gentoo Laws.In 1778 he published a Bengali grammar, to print which he

set up, at Hugli, the first Bengali press in India. It is claimed that he was the first writer to call

attention to the philological connection of Sanskrit with Persian, Arabic, Greek and Latin.In

1785 he returned to England, and from 1790–1795 was Member of Parliament forLymington,

Hants. For some time he was a disciple of Richard Brothers, and his unwise speech in

parliament in defence of Brothers made it impossible for him to remain in theHouse of

Commons, from which he resigned in 1795. He subsequently obtained a home appointment

under the East India Company. He died in London on 18 February 1830. His collection of

Oriental manuscripts was purchased by the British Museum, and there is an unfinished

translation by him of the Mahabharata in the library of the Asiatic Society of Bengal4.

Literary ambitions

Halhed also had a literary ambition to which end he corresponded with Sheridan and worked

together to bring their ventures to reality. Their projects were not successful although they

worked laboriously on several works like the Crazy Tales and the more important farce

called Ixiom which was later referred to as Jupiter. The latter did not make it to the stage and

Halhed left for India even before it was absolute that their venture had failed. One work, The

Love Epistles of Aristaenetus. Translated from the Greek into English Metre, was a success

of sorts which was written by Halhed and revised by Sheridan and published anonymously.

4 Journal of the Royal Asiatic Society of Great Britain and Ireland, No. 1 (1985), pp. 99-100, Orientalism,

Poetry, and the Millennium: The Checkered Life of Nathaniel Brassey Halhed 1751-1830 by Rosane Rocher

Although it did make a stir, yet, two years after its publication the book was harshly criticised

and stamped as a failure5.

There has been considerable debate over the authorship of the Epistles. It was widely thought

that Sheridan had written the piece while Halhed had merely laid its foundations. This has

been proven as false but it did, even if in a slight manner, ignite what would become a bitter

rivalry between the two friends over an Elizabeth Linley who was liked by both the young

men and who chose Sheridan over Halhed. Their friendship came to an end when Halhed

sailed for Calcutta and returned to sit on the opposite side in the parliament being allied to

bitter enemies.

The Code for gentoo laws

A few months before Halhed's appointment as writer, the court of directors notified the

President and council at Fort William College of their determination to take over the

administration of civil justice and the execution of the policy to be left with the newly

appointed Governor, Warren Hastings. Hastings assumed governorship in April, 1772 and by

August submitted what was to become the Judicial Plan of 1772. The plan provided among

other things that "all suits regarding the inheritance, marriage, caste and other religious

usages, or institutions, the laws of the Koran with respect to Mohametans and those of the

Shaster with respect to Gentoos shall be invariably adhered to."

Although the plan was simple it was beset with difficulties since there was no Englishman

who could read Sanskrit and very few Indians who could6. The prospect of employing the

scholars or pundits as judges was also ruled out since the pundits were interpreters of the

Sanskrit texts and, therefore, were not aided by any particular code to provide sound justice.

Thus, the cumbersome job of translation was undertaken and ten pundits were hired to which

an eleventh was added. Hastings was particularly diligent about it since he envisaged making

a text in English that contained the native laws to prove that India was not in a savage state as

5 Transactions of the Grotius Society, Vol. 25, No., Problems of Peace and War, Papers Read before the Society

in the Year 1939 (1939), pp. 89-118, Custom and the Muslim Law in British India by George Rankin.

6 Modern Asian Studies, Vol. 44, No. 6 (NOVEMBER 2010), pp. 1147-1195, Religious change, social conflict

and legal competition: the emergence of Christian personal law in colonial India by NANDINI CHATTERJEE.

was mistakenly believed and that its laws, though not as sophisticated as English laws, were

able enough in their native region of enforcement. Hastings could not trust the authorities in

England, not even the well-wishers, since they had not set foot in India and had no idea of the

ways of the country. He found it necessary to show the authorities that it was far prudent to

apply the native laws on their subjects rather than laws that would be alien to them.

To this effect the pundits began to assimilate a text from various sources which they

named Vivadarnavasetu or the sea of litigations7. The subsequent translation to Persian, a

language Halhed and Hastings was well acquainted with, was done via a Bengali oral version

by Zaid ud-Din 'Ali Rasa'i. Halhed translated the Persian text to English closely attended by

Hastings himself. The complete translation was in Hastings' hands on 27 March 1775. At his

request the East India Company had it printed in London in 1776 in a handsome quarto under

the title of A Code of Gentoo Laws, or, Ordinations of the Pundits. This was a private edition,

copies of which were not for sale, but was distributed by the East India Company. A pirated

and less luxurious edition in octavo was printed by Donaldson the following year followed by

a second edition in 1781 and translations in French and German appeared as early as 1778.

The book sold successfully and made Halhed famous. However, the publication of the book

brought not just praise but also strong criticism against the native laws and more importantly

the authenticity of the text since it was generally agreed that a translation of the third degree

would be highly erroneous and misleading from the original8. The code, however, failed to

become the authoritative text of the Anglo-Indian judicial system. Its impact was greater

in Europe and the Continent than in India and a literary success more due to Halhed's preface

and the introduction to Sanskrit than the laws themselves9. A review in the London

based Critical Review on September 1777 stated:

7 The Yearbook of English Studies, Vol. 32, No., Children in Literature (2002), pp. 1-18, Cultural Possession,

Imperial Control, and Comparative Religion: The Calcutta Perspectives of Sir William Jones and Nathaniel

Brassey Halhed by Michael J. Franklin.

8 The Library Quarterly, Vol. 32, No. 1 (Jan., 1962), pp. 51-61, The Early History of Bengali Printing.

9 Transactions (Jewish Historical Society of England), Vol. 16 (1945-1951), pp. 73-76, The Non-Christian Oath

in English Law by F. Ashe Lincoln.

"This is a most sublime performance ... we are persuaded that even this enlightened quarter of

the globe cannot boast anything which soars so completely above the narrow, vulgar sphere

of prejudice and priestcraft. The most amiable part of modern philosophy is hardly upon a

level with the extensive charity, the comprehensive benevolence, of a few rude

untutored Hindoo Bramins ... Mr. Halhed has rendered more real service to this country, to

the world in general, by this performance, than ever flowed from all the wealth of all

the nabobs by whom the country of these poor people has been plundered ... Wealth is not the

only, nor the most valuable commodity, which Britain might import from India."

CHAPTER 5

The Gentoo CodeOne of the most efficient Governer General Lord Warren Hastings had introduced the system

of judicial administration based on the coded personal law so that the personal law attained

the consistency in its application under the Judicia plan of 1772. He introduced the principle

of judicial administration that matters relating to the marriage, inheritance and succession

were to be governed by the respective personal law of the parties. Unless the parties

submitted to the purview of English law their respective personal law was applicable to the

parties10. The Judicial plan of 177 provided that in case of a Hindu and Mohammedan,

Shastras and Quran were to be applied respectively.

The expression “Gentoo” includes four sections of Hindu, namely Brahmin, Khatriyas,

Vaishyas and Shudras. In Adaear vs Perozebage, Lord Ayrton has held that the expression

Parsi does not fall under the term “gentoo”.

The importance of native laws was realized by Lord Warren Hastings and consequently he

summoned a group of Pandits hailing from the Province of Bengal to compile th code of

native law, Under Lord Warren hastings’ direction the pundits who were all versed with

Shastra prepared the comprehensive code of Hindu law in Sanskrit. Later on it was translated

into Persian by one of the Pandits. After sometime the Code of Hindu law was also translated

into English so that the English judges could also aplly and understand the provisions of the

code. This coded form of Hindu law was termed as Helhad’s Code of Gentoo (native) laws.

This code of Gentoo laws consisted several topics on-

a) Lending and banking

b) Inheritance of property

c) Justice and Trust

d) Selling of Stranger’s property

e) Shares

f) Gifts

g) Servitude

h) Wages Rents and Hire

i) Purchase and sale

j) Share in cultivation of land

k) Adultery

l) Scandalous and bitter expressions

m) What concern womens

10 Modern Asian Studies, Vol. 44, No. 6 (NOVEMBER 2010), pp. 1147-1195, Religious change, social conflict

and legal competition: the emergence of Christian personal law in colonial India by NANDINI CHATTERJEE.

n) Sundry articles

o) Violence

Helhad highlighted the importance of Code of Gentoo law in following words

“ The code must be considered the only work of kind wherein the genuine principles of the

gentoo jurisprudence are made public with the sanction of their most respectable pundits. “

Under Hastings's term as Governor General, a great deal of administrative precedent was set

which profoundly shaped later attitudes towards the government of British India. Hastings

had a great respect for the ancient scripture of Hinduism and set the British position on

governance as one of looking back to the earliest precedents possible. This

allowed Brahmin advisors to mould the law, as no English person thoroughly

understood Sanskrit until Sir William Jones, and, even then, a literal translation was of little

use; it needed to be elucidated by religious commentators who were well-versed in the lore

and application. This approach accentuated the Hindu caste system and, to an extent, the

frameworks of other religions, which had, at least in recent centuries, been somewhat more

flexibly applied11. Thus, British influence on the fluid social structure of India can in large

part be characterised as a solidification of the privileges of the Hindu caste system through

the influence of the exclusively high-caste scholars by whom the British were advised in the

formation of their laws.

In 1781, Hastings founded Madrasa 'Aliya; in 2007, it was transformed into Aliah

University by the Government of India, at Calcutta. In 1784, Hastings supported the

foundation of the Bengal Asiatic Society, now the Asiatic Society of Bengal, by the oriental

scholar Sir William Jones; it became a storehouse for information and data pertaining to the

subcontinent, and existed in various institutional guises up to the present day.  Hastings'

legacy has been somewhat dualistic as an Indian administrator: he undoubtedly was able to

institute reforms during the time he spent as governor there that would change the path that

India would follow over the next several years. He did, however, retain the strange distinction

11 The Library Quarterly, Vol. 32, No. 1 (Jan., 1962), pp. 51-61, The Early History of Bengali Printing.

of being both the "architect of British India and the one ruler of British India to whom the

creation of such an entity was anathema."

Hastings assumed governorship in April, 1772 and by August submitted what was to become

the Judicial Plan of 1772. The plan provided among other things that "all suits regarding the

inheritance, marriage, caste and other religious usages, or institutions, the laws of

the Koran with respect to Mohametans and those of the Shaster with respect to Gentoos shall

be invariably adhered to."

Although the plan was simple it was beset with difficulties since there was no Englishman

who could read Sanskrit and very few Indians who could. The prospect of employing the

scholars or pundits as judges was also ruled out since the pundits were interpreters of the

Sanskrit texts and, therefore, were not aided by any particular code to provide sound justice.

Thus, the cumbersome job of translation was undertaken and ten pundits were hired to which

an eleventh was added. Hastings was particularly diligent about it since he envisaged making

a text in English that contained the native laws to prove that India was not in a savage state as

was mistakenly believed and that its laws, though not as sophisticated as English laws, were

able enough in their native region of enforcement. Hastings could not trust the authorities in

England, not even the well-wishers, since they had not set foot in India and had no idea of the

ways of the country. He found it necessary to show the authorities that it was far prudent to

apply the native laws on their subjects rather than laws that would be alien to them.

To this effect the pundits began to assimilate a text from various sources which they

named Vivadarnavasetu or the sea of litigations. The subsequent translation to Persian, a

language Halhed and Hastings was well acquainted with, was done via a Bengali oral version

by Zaid ud-Din 'Ali Rasa'i. Halhed translated the Persian text to English closely attended by

Hastings himself. The complete translation was in Hastings' hands on 27 March 1775. At his

request the East India Company had it printed in London in 1776 in a handsome quarto under

the title of A Code of Gentoo Laws, or, Ordinations of the Pundits. This was a private edition,

copies of which were not for sale, but was distributed by the East India Company. A pirated

and less luxurious edition in octavo was printed by Donaldson the following year followed by

a second edition in 1781 and translations in French and German appeared as early as 1778.

The book sold successfully and made Halhed famous. However, the publication of the book

brought not just praise but also strong criticism against the native laws and more importantly

the authenticity of the text since it was generally agreed that a translation of the third degree

would be highly erroneous and misleading from the original. The code, however, failed to

become the authoritative text of the Anglo-Indian judicial system. Its impact was greater

in Europe and the Continent than in India and a literary success more due to Halhed's preface

and the introduction to Sanskrit than the laws themselves. A review in the London

based Critical Review on September 1777 stated:

"This is a most sublime performance ... we are persuaded that even this enlightened quarter of

the globe cannot boast anything which soars so completely above the narrow, vulgar sphere

of prejudice and priestcraft. The most amiable part of modern philosophy is hardly upon a

level with the extensive charity, the comprehensive benevolence, of a few rude

untutored Hindoo Bramins ... Mr. Halhed has rendered more real service to this country, to

the world in general, by this performance, than ever flowed from all the wealth of all

the nabobs by whom the country of these poor people has been plundered ... Wealth is not the

only, nor the most valuable commodity, which Britain might import from India."

-

CHAPTER 6

ConclusionIt was the Portuguese who first labelled the native inhabitants - the 'gentoos' or 'gentios' - a

term that was used as late as 1774 by the British, to denote this time, the religion of the

natives. The rise of Islam in the seventh century and a fear generated by its consequent

expansion and continued resurgence in the face of European aggression, exercised a strong

hold on the European imagination. The search for a sea route was not merely to seek

alternative trade routes to the 'Spice lands'; it was also an exercise, sponsored by the church

and royalty to win Christian allies in the hitherto unexplored world for the battle against

Islam. Vasco da Gama was followed by several other Europeans - yet the diversity and the

rich complexity they encountered gave rise to varying perceptions. It was the Portuguese who

first labelled the native inhabitants - the 'gentoos' or 'gentios' - a term that was used as late as

1774 by the British, to denote this time, the religion of the natives.

Under Hastings's term as Governor General, a great deal of administrative precedent was set

which profoundly shaped later attitudes towards the government of British India. Hastings

had a great respect for the ancient scripture of Hinduism and set the British position on

governance as one of looking back to the earliest precedents possible. This

allowed Brahmin advisors to mould the law, as no English person thoroughly

understood Sanskrit until Sir William Jones, and, even then, a literal translation was of little

use; it needed to be elucidated by religious commentators who were well-versed in the lore

and application. This approach accentuated the Hindu caste system and, to an extent, the

frameworks of other religions, which had, at least in recent centuries, been somewhat more

flexibly applied. Thus, British influence on the fluid social structure of India can in large part

be characterised as a solidification of the privileges of the Hindu caste system through the

influence of the exclusively high-caste scholars by whom the British were advised in the

formation of their laws.

A few months before Halhed's appointment as writer, the court of directors notified the

President and council at Fort William College of their determination to take over the

administration of civil justice and the execution of the policy to be left with the newly

appointed Governor, Warren Hastings. Hastings assumed governorship in April, 1772 and by

August submitted what was to become the Judicial Plan of 1772. The plan provided among

other things that "all suits regarding the inheritance, marriage, caste and other religious

usages, or institutions, the laws of the Koran with respect to Mohametans and those of the

Shaster with respect to Gentoos shall be invariably adhered to."

Although the plan was simple it was beset with difficulties since there was no Englishman

who could read Sanskrit and very few Indians who could. The prospect of employing the

scholars or pundits as judges was also ruled out since the pundits were interpreters of the

Sanskrit texts and, therefore, were not aided by any particular code to provide sound justice.

Thus, the cumbersome job of translation was undertaken and ten pundits were hired to which

an eleventh was added. Hastings was particularly diligent about it since he envisaged making

a text in English that contained the native laws to prove that India was not in a savage state as

was mistakenly believed and that its laws, though not as sophisticated as English laws, were

able enough in their native region of enforcement. Hastings could not trust the authorities in

England, not even the well-wishers, since they had not set foot in India and had no idea of the

ways of the country. He found it necessary to show the authorities that it was far prudent to

apply the native laws on their subjects rather than laws that would be alien to them.

To this effect the pundits began to assimilate a text from various sources which they

named Vivadarnavasetu or the sea of litigations. The subsequent translation to Persian, a

language Halhed and Hastings was well acquainted with, was done via a Bengali oral version

by Zaid ud-Din 'Ali Rasa'i. Halhed translated the Persian text to English closely attended by

Hastings himself. The complete translation was in Hastings' hands on 27 March 1775. At his

request the East India Company had it printed in London in 1776 in a handsome quarto under

the title of A Code of Gentoo Laws, or, Ordinations of the Pundits. This was a private edition,

copies of which were not for sale, but was distributed by the East India Company. A pirated

and less luxurious edition in octavo was printed by Donaldson the following year followed by

a second edition in 1781 and translations in French and German appeared as early as 1778.

The book sold successfully and made Halhed famous. However, the publication of the book

brought not just praise but also strong criticism against the native laws and more importantly

the authenticity of the text since it was generally agreed that a translation of the third degree

would be highly erroneous and misleading from the original. The code, however, failed to

become the authoritative text of the Anglo-Indian judicial system. Its impact was greater

in Europe and the Continent than in India and a literary success more due to Halhed's preface

and the introduction to Sanskrit than the laws themselves. A review in the London

based Critical Review on September 1777 stated:

"This is a most sublime performance ... we are persuaded that even this enlightened quarter of

the globe cannot boast anything which soars so completely above the narrow, vulgar sphere

of prejudice and priestcraft. The most amiable part of modern philosophy is hardly upon a

level with the extensive charity, the comprehensive benevolence, of a few rude

untutored Hindoo Bramins ... Mr. Halhed has rendered more real service to this country, to

the world in general, by this performance, than ever flowed from all the wealth of all

the nabobs by whom the country of these poor people has been plundered ... Wealth is not the

only, nor the most valuable commodity, which Britain might import from India."

One of the most efficient Governer General Lord Warren Hastings had introduced the system

of judicial administration based on the coded personal law so that the personal law attained

the consistency in its application under the Judicia plan of 1772. He introduced the principle

of judicial administration that matters relating to the marriage, inheritance and succession

were to be governed by the respective personal law of the parties. Unless the parties

submitted to the purview of English law their respective personal law was applicable to the

parties. The Judicial plan of 177 provided that in case of a Hindu and Mohammedan, Shastras

and Quran were to be applied respectively.

The expression “Gentoo” includes four sections of Hindu, namely Brahmin, Khatriyas,

Vaishyas and Shudras. In Adaear vs Perozebage, Lord Ayrton has held that the expression

Parsi does not fall under the term “gentoo”.

The importance of native laws was realized by Lord Warren Hastings and consequently he

summoned a group of Pandits hailing from the Province of Bengal to compile th code of

native law, Under Lord Warren hastings’ direction the pundits who were all versed with

Shastra prepared the comprehensive code of Hindu law in Sanskrit. Later on it was translated

into Persian by one of the Pandits. After sometime the Code of Hindu law was also translated

into English so that the English judges could also aplly and understand the provisions of the

code. This coded form of Hindu law was termed as Helhad’s Code of Gentoo (native) laws.

This code of Gentoo laws consisted several topics on-

a) Lending and banking

b) Inheritance of property

c) Justice and Trust

d) Selling of Stranger’s property

e) Shares

f) Gifts

g) Servitude

h) Wages Rents and Hire

i) Purchase and sale

j) Share in cultivation of land

k) Adultery

l) Scandalous and bitter expressions

m) What concern womens

n) Sundry articles

o) Violence

Helhad highlighted the importance of Code of Gentoo law in following words

“ The code must be considered the only work of kind wherein the genuine principles of the

gentoo jurisprudence are made public with the sanction of their most respectable pundits. “

Bibliography

1. Orientalism, Poetry, and the Millennium: The Checkered Life of

Nathaniel Brassey Halhed 1751-1830 by Rosane Rocher

2. The Early History of Bengali Printing by M. Siddiq Khan

3. Religious change, social conflict and legal competition: the emergence of

Christian personal law in colonial India by NANDINI CHATTERJEE

4. THE PERSONAL LAW IN BRITISH INDIA by George C. Rankin

5. Life and times of Warren Hastings : maker of British India by A mervyn

Davies, Gian Publishing house, Delhi.

6. Warren Hastings in Bengal by H Beveridge edited with an introduction by

Ramakant Chakraborty, A Sanskrit Pustak Bhandan Publication, Calcutta.

7. Indian Legal and Constitutional history by V D Kulshreshtha.

Notes and References1. Journal of the Royal Asiatic Society of Great Britain and Ireland, No. 1 (1985), pp.

99-100, Orientalism, Poetry, and the Millennium: The Checkered Life of Nathaniel

Brassey Halhed 1751-1830 by Rosane Rocher

2. The Library Quarterly, Vol. 32, No. 1 (Jan., 1962), pp. 51-61, The Early History of

Bengali Printing.

3. Modern Asian Studies, Vol. 44, No. 6 (NOVEMBER 2010), pp. 1147-1195, Religious

change, social conflict and legal competition: the emergence of Christian personal law

in colonial India by NANDINI CHATTERJEE.

4. Journal of the Royal Society of Arts, Vol. 89, No. 4588 (MAY 30th, 1941), pp. 426-

442, THE PERSONAL LAW IN BRITISH INDIA by George C. Rankin.

5. Annals of the Bhandarkar Oriental Research Institute, Vol. 11, No. 3 (1930), pp. 235-

258, BENGAL'S CONTRIBUTION TO SANSKRIT LITERATURE (A

chronological frame-work) by CHINTAHARAN CHAKRAVARTI.

6. Transactions of the Grotius Society, Vol. 25, No., Problems of Peace and War, Papers

Read before the Society in the Year 1939 (1939), pp. 89-118, Custom and the Muslim

Law in British India by George Rankin.

7. The Yearbook of English Studies, Vol. 32, No., Children in Literature (2002), pp. 1-

18, Cultural Possession, Imperial Control, and Comparative Religion: The Calcutta

Perspectives of Sir William Jones and Nathaniel Brassey Halhed by Michael J.

Franklin.

8. Transactions (Jewish Historical Society of England), Vol. 16 (1945-1951), pp. 73-76,

The Non-Christian Oath in English Law by F. Ashe Lincoln.