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from the Google Print project.)
Transcriber's note:
1. The spelling, accents, and diacritical marks of Sanskrit words
was not consistent through the book. These have been made
consistent.
2. The corrections noted in the Corrigenda on page v have been
made in the text.
HINDU LAW AND JUDICATURE
FROM THE
DHARMA-SASTRA
of
YAJNAVALKYA
In English
WITH EXPLANATORY NOTES AND INTRODUCTION
BY
EDWARD ROeER, ph. D., M. D.
AND W. A. MONTRIOU, BARRISTER.
Calcutta:
R. C. LEPAGE & CO., BRITISH LIBRARY.
London:
R. C. LEPAGE & CO., 1, WHITEFRIAR'S STREET, FLEET STREET
1859.
* * * * *
PREFACE.
The immediate incentive to this undertaking was, a knowledge, or at
least a strong impression, that a connected and explanatory
translation of the rules of jurisprudence[1] in the Dharma Sastra
of Yajnavalkya was a practical want.
Such impression was coincided in, and therefore proved correct, by a
long list of local subscribers eminently qualified, by position and
experience, to decide.
Dr. Roeer is responsible for the fidelity of the rendering, so far as
depends on knowledge of the Sanscrit language and literature, of Hindu
mythology and philosophy. Mr. Montriou has aided, so far as enabled by
juridical acquirements and experience. The language of translation
has, therefore, been a joint labour, often the result of much and
anxious discussion, and, if not unfrequently but a choice of doubtful
alternatives, yet, always a choice made with pains and circumspection.
The text we have generally followed is Stenzler's[2] which is based on
and selected from two MSS. in the royal library at Berlin and two
editions published in Calcutta.[3]
We have not neglected constant comparison with Stenzler's German
translation as well as with the several detached passages as
translated by Colebrooke and W. Macnaghten.
Words within brackets ( [ ] ) are not in the original text.
References to, and extracts from, the standard commentary upon
Yajnavalkya, the Mitakshara, necessarily form the staple of our notes.
All such extracts are distinguished by the initial (_M._), and the
author of the commentary we invariably refer to as, the Commentator.
At the same time, we have not blindly or implicitly followed this
commentator. In some sense all Hindu glosses are untrustworthy guides.
They assume the text to be the language of inspiration; and, as the
several Dharma Sastras not merely differ, but often dispose of the
same subject in a contradictory manner, Pandits deem it their duty to
reconcile all discrepancies, how forced soever their interpretations
may be. In passages so dealt with, we have endeavoured to give the
plain meaning of the original text.
We gratefully acknowledge the obliging assistance, in research,
enquiry, and suggestion, occasionally afforded, in the progress of
our task, by Babus, Chandra Saikhur Dev[4] and Shyamacharana
Sircar.[5]
E. R.
W. A. M.
August 1858.
FOOTNOTES:
[Footnote 1: _vyavahara._]
[Footnote 2: Yajnavalkya's Gesetzbuch, Sanscrit and Deutsch, Berlin
and London, 1849.]
[Footnote 3: 1. Sanhita of Yajnavalkya, edited by Sri Bhavanicharana
Vandyopadhyaya: 2. The text published in the Mitakshara Dharma
Sastra, Calcutta, 1812.]
[Footnote 4: Formerly head superintendent of the legal and zemindarry
affairs of the maharajah of Burdwan.]
[Footnote 5: Joint chief translator and interpreter H. M. Supreme
Court.]
CORRIGENDA.
Page x, (Introd.) for "Swabhabha" read "Swabhava."
" xi, " " "sl. 241" read "sl. 240."
" 2, sl. 2, " "harken" read "hearken."
" 79, sl. 303, " "equipage," read "vehicle."
" " " " _gadee_" read "seat."
Transcriber's Note: These corrections have been made in the text
INTRODUCTION.
Professor Stenzler enumerates[6] forty-six distinct Dharma Sastras
or recognised codes of Hindu law and ritual, _scil._
[3 cross symbols] 1. Agni.
[1 cross symbol] 2. Angiras.
[1 cross symbol] 3. Atri.
[1 cross symbol] 4. Apastamba.
[1 cross symbol] 5. Usanas.
[2 cross symbols] 6. Rishyasringa.
[2 cross symbols] 7. Kasyapa.
[1 cross symbol] 8. Katyayana.
[2 cross symbols] 9. Kuthumi.
[2 cross symbols] 10. Gargya.
[1 cross symbol] 11. Gautama.
[3 cross symbols] 12. Chyavana.
[3 cross symbols] 13. Ch'hagaleya.
[3 cross symbols] 14. Jatukarna.
[2 cross symbols] 15. Jabali.
[1 cross symbol] 16. Daksha.
[2 cross symbols] 17. Devala.
[2 cross symbols] 18. Narada.
[1 cross symbol] 19. Parasara.
[2 cross symbols] 20. Paraskara.
[3 cross symbols] 21. Pitamaha.
[2 cross symbols] 22. Pulastya.
[2 cross symbols] 23. Paithinasi.
[2 cross symbols] 24. Prachetas.
[3 cross symbols] 25. Prajapati.
[3 cross symbols] 26. Budha.
[1 cross symbol] 27. Brihaspati.
[2 cross symbols] 28. Baudhayana.
[2 cross symbols] 29. Bhrigu.
[1 cross symbol] 30. Manu.
[2 cross symbols] 31. Marichi.
[1 cross symbol] 32. Yama.
[1 cross symbol] 33. Yajnavalkya.
[1 cross symbol] 34. Likhita.
[2 cross symbols] 35. Laugakshi.
[1 cross symbol] 36. Vasishtha.
[2 cross symbols] 37. Viswamittra.
[1 cross symbol] 38. Vishnu.
[1 cross symbol] 39. Vyasa.
[1 cross symbol] 40. Sankha.
[1 cross symbol] 41. Satatapa.
[3 cross symbols] 42. Satyayana.
[1 cross symbol] 43. Samvartta.
[2 cross symbols] 44. Sumantu.
[3 cross symbols] 45. Soma.
[1 cross symbol] 46. Harita.
Of the above list, twenty (distinguished by one cross) are in
Yajnavalkya's list:[7] seventeen of these are named by Parasara,
_viz._ all except Yama, Brihaspati and Vyasa, instead of whom he gives
Kasyapa, Gargya and Prachetas: the _Padma Purana_ gives those
named by Yajnavalkya, with the exception of Atri, and seventeen
others, (distinguished by two crosses) three of whom, Prachetas,
Kasyapa and Gargya, are on Parasara's list, and the remaining
fourteen, not before mentioned: Madhusudana Saraswati names the same
nineteen of Yajnavalkya's list, also Devala, Narada, Paithinasi:
Rama Krishna, in his gloss to the _Grihya Sutras_ of Paraskara,
mentions thirty-nine, of whom nine (distinguished by three crosses)
are new ones. There is also a Dharma Sastra attributed to Sankha
and Likhita jointly, thus making forty-seven in the whole. The
professor considers all to be extant; and has himself met with
quotations from all, except Agni, Kuthumi, Budha, Satyayana, and
Soma.
To those may be added several recensions of the same Dharma
Sastras, of which professor Stenzler speaks to having read of
twenty-two.
The entire forty-seven are independent sources of and authorities upon
Hindu law.
The Digest of Jagannat'ha Tarcapanchanana, as translated by
Colebrooke, is a valuable repertory of texts; but, detached and
isolated as they necessarily are, those texts can with difficulty be
appreciated or applied.
Yajnavalkya is second in importance to Manu alone: and, with the
commentary, is the leading authority of the Mithila school.
The resident of British India needs not to be informed, that the
orthodox Hindu regards his Dharma Sastras as direct revelations of
the Divine will: still less need such an one be told, that, among this
people, law is entirely subservient to the mysterious despotism of
cast,[8] a religious, rather than a political ordinance.
With the Hindu, all religious tenets and aspirations are centred in
the idea of BRAHMA, the one, pervading, illimitable substance, without
multiple, division or repetition. This idea has two modes or phases,
1st. as representing the absolute, self-included Brahma; 2nd. as
representing Brahma in connection with, relative to, the world. In the
latter, Brahma is creator of the world, or, the very world, a
semblance or a development of the former, the absolute idea. Man's
highest aspiration and aim is, to know Brahma absolutely: to have
attained this knowledge implies a total renunciation of worldly
concerns, to coalesce with, to be ultimately absorbed in, reunited
with, Brahma. Brahmanas are held to possess, to represent, this
knowledge. Again, Brahma is the creator, the preserver, also, the
objects created and preserved. Kshattriyas represent Brahma, the
preserver: Vaisyas, Brahma the preserved. The dogma is otherwise
explained: in the secondary or relative notion, Brahma is _Sattwa_,
_Rajas_, _Tamas_, _i. e._ goodness, activity, darkness,--respectively
represented by the Brahmana, Kshattriya, and Vaisya casts.
When the Hindus dwelt in the country of the five rivers, and were
worshippers of the powers and phenomena of material Nature, as of
Indra, Vayu, Agni &c., cast was necessarily unknown, for the notion of
Brahma was undeveloped.
The divisions or classes among them were conventional; there were
princes, priests, and peasants or cultivators.
But class distinction had not then crystallized into cast, into
immiscible, uncongenial yet co-ordinate elements of a so called
revealed constitution.
So soon however as the idea of Brahma had attained fixity in the Hindu
mind, and simultaneously with it, cast was developed, as we find it
(but imperfectly) in the earliest records of Hindu philosophy, the
Upanishads.
Thus, cast governs and is antecedent to law, which must bend and adapt
itself to cast, as the overruling, intrinsic, unalterable condition of
Hinduism, of Hindu life. There is one law, one phase of obligation for
the twice-born, another for the Sudra. In Manu, cast is not so
fully and severely developed: Manu permits to the Brahmana four
wives, of whom one may be a Sudra, necessarily permitting,
therefore, a transition or quasi-amalgamation between the highest and
the lowest in the scale. Yajnavalkya permits this Brahmanical
communion with the Kshattriya and Vaisya, but not with the Sudra.
Later promulgators of law,[9] restrict the Brahmana to his own
class.
But although cast, once developed, admitted not of change, juridical
rules, subservient to cast, might and did progress: civil laws and
procedure became more comprehensive and exact, the criminal code more
regulated, lenient, and enlightened. And as universally, (for such is
human,) breaches and occasional disregard of rules have, silently
though surely, worked a change, or caused exceptional accessions to
the rules themselves.
The rule of the Sastras, that kingly power should belong to the
Kshattriya alone, was, even in the halcyon days of Hindu polity,
repeatedly set aside. Chandragupta, a Sudra, and his dynasty, held
sway over India from 315 to 173 B. C.: afterwards came Brahmanical
kings, the Kanwas, from 66 to 21 B. C.: whilst the mighty Gupta kings,
from 150 to 280 A. C., were Vaisyas.
The code of Manu presents a disarranged mass of regulations, in so
much that some have supposed the disorder to have been designed.
That conclusion, however, is repelled by the comparatively succinct
arrangement of Yajnavalkya and other sages. It is more consistent to
suppose, that Manu, as originally promulgated, was, from time to time,
added to, with an accidental disregard of method.
_Achara_, ritual, comprises the distinctive cast-ceremonies, domestic
and social usages, rites of purification, of sacrifice.
_Vyavahara_, may be called the juridical rules, embracing as well
substantive law as the procedure and practice of legal tribunals.
_Prayaschitta_, expiations, are the religious sanctions, or penalties
of sin; the divine visitation upon offenders, and the mode in which
the sinner may avert, by atonement, the consequences of divine
vengeance.
The date of Yajnavalkya's Dharma Sastra is not definitely or
satisfactorily fixed. From internal evidence, it is doubtless much
subsequent to Manu.
The data for conjecturing the period of Yajnavalkya are;
1. Reference is made to Buddhist habits and doctrines, _viz._ the
yellow garments, the baldhead, the Swabhava (B. I. sl. 271, 272, and
349).
Hence, this Dharma Sastra must have been promulgated later than B.
C. 500.
2. Reference is made to a previous Yoga Sastra promulgated by
Yajnavalkya (B. III, sl. 110). Now, the Yoga philosophy was first
shaped into a system by Patanjali who, according to Lassen, probably
flourished about 200 B. C.
3. Mention is made of coin as _nanaka_ (B. II, sl. 240). Now, the
word _nano_ occurs on the coins of the Indoscythian king, Kanerki,
who, according to Lassen, reigned until 40 A. C.
The result, though indefinite, places the earliest date of
Yajnavalkya's code towards the middle of the first century after
Christ.
FOOTNOTES:
[Footnote 6: See his paper _Zur Geschichte der Indischen Gesetzbucher_
(Contributions to the history of the Indian law-books) in Weber's
_Indische Studien_, vol. I, pp. 232 to 246.]
[Footnote 7: Yajnavalkya, ch. I, sl. 3 to 5.]
[Footnote 8: We have followed Mr. Elphinstone (Hist. ch. 1) in the
orthography of this word: it is from the Portuguese _casta_, breed,
race.]
[Footnote 9: See Lassen's _Indische Alterthumskunde_, vol. II, p.
510.]
SELECTED SLOKAS OF THE FIRST BOOK.
RITUAL AND MORAL CONDUCT.[10]
1. The Munis[11] after adoration to Yajnavalkya, lord of Yogis,[12]
thus addressed him:
Reveal to us the several duties of the casts, of the orders,[13] and
of the others![14]
2. The prince of the Yogis, who then abode in Mithila, meditating for
a moment, said to the Munis: Hearken to the rules of duty in the
country of the black antelope![15]
3. There are fourteen repositories[16] of the sciences and of law; the
four Vedas together with the Puranas, the Nyaya, the Mimansa, the
Dharma Sastras, and the six Angas.[17]
4. Manu, Atri, Vishnu, Harita, Yajnavalkya, Usanas, Angiras, Yama,
Apastamba, Sanvarta, Katyayana, Brihaspati,
5. Parasara, Vyasa, Sankha, Likhita, Daksha, Gautama,
Satatapa, and Vasishtha,[18] are they who have promulgated
Dharma Sastras.
6. When a gift is made, in due season, place and manner, in good faith
and to a fit person--all this gives the idea of Law.
7. The Sruti, the Smriti,[19] the practice of good men, what seems
good to one's self,[20] and a desire maturely considered--these are
declared to be the root[21] of Law.
9. Four learned in the Vedas and in the Law form a Court, or
Traividya.[22] Whatever is declared by this [Court], or by a single
person who has, in an eminent degree, knowledge of the soul in its
relations[23]--the same should be [held as] Law.
10. Brahmans, Kshattriyas, Vaisyas and Sudras are the casts: of
them the three first are twice-born; all their rites, commencing with
the procreative rites, and ending with those [which are gone through]
where the corpse is disposed of,[24] are with Mantras.[25]
14. In the eighth year from conception, or in the eighth [of
birth],[26] the investiture[27] of the Brahman [takes place]; of
Rajas[28] in the eleventh; of Vaisyas in the twelfth: some [have said,
this varies] in accordance with [the usage of] the family.
39. Brahmans, Kshattriyas, and Vaisyas are born, first, of their
mothers, and, a second time, by the girding on of the sacred
thread--therefore are they declared to be twice-born.
116. [Men] are to be honoured in the gradation following,--in respect
of learning, conduct, years, family, property. Even a Sudra, if he
excel in these respects, is in old age worthy of honour.
326. The monarch, at his rising [from the night's repose], having seen
to the [general] safety, shall himself inspect the [account of]
revenue and disbursements; he shall then adjudicate law-suits; after
which, having bathed,[29] he may, at his pleasure, take his meal.[30]
342. Of a newly subjugated territory, the monarch shall preserve the
social and religious usages, also the judicial system and the state of
classes as they already obtain.[31]
352. A ruler, a minister, people, a stronghold, treasure, [power of]
punishment, and allies--because these are its elements, a realm is
called seven-limbed.
353. When possessed of this, let a monarch cause punishment to fall on
the guilty; for, of old, justice was created by Brahma under the form
of punishment.[32]
357. A brother even, or a son, any one to whom respect is due, a
father-in-law or maternal uncle, if he transgress, is not to go
unpunished by the monarch.
358. The monarch who punishes such as deserve punishment, who slays
such as deserve death: he is as one who has made many sacrifices with
valuable offerings.[33]
359. Every day should the monarch, pondering on his reward (such as
sacrifices gain), himself investigate law-suits in their order with
the judges around him.
360. The monarch, always duly correcting [those among] the casts, the
mixed classes, the guilds, the schools[34] [of the learned], and the
people [in general], who have deviated from their duty, should set
them in the [right] path.
361. A particle of dust in the sunbeams, as they shine through a
window, is held to consist of three atoms; eight of those [particles]
are equal to a poppy seed, of which three are equal to a black mustard
seed;
362. Three of these to a white mustard seed, three of these to a
barley seed of middle size, three of these to a Krishnala
berry,[35] five of these to a Masha,[36] sixteen of these to a
Suvarna.[37]
363. A Pala is four or five[38] Suvarnas. Two Krishnalas are a
silver Masha; sixteen of the latter, a Dharana.
364. A Satamana and a Pala are each equal to ten Dharanas: a
Nishka is four Suvarnas: a copper Pana is of the weight of a
Karsha.[39]
365. One thousand and eighty Panas is declared the highest fine;
half of that amount the medium fine; and half of this the lowest fine.
366. Reproof, words of ignominy, fine, and death,[40] shall be
administered, singly or together, according to the crime.[41]
367. [The monarch] having informed himself of the crime, the place
where, and the time when [committed], the strength [of the criminal,
his] age, calling, and means, shall cause punishment to fall upon the
guilty.[42]
[Inverted "therefore" symbol] The foregoing extracts, it will have
been observed, are of general application, and do not refer to any
part of the law in detail. Several slokas in the first book, however,
and some in the third, do refer to and affect the details of law,
which are the proper subject of the second book, where therefore they
are inserted, according to their subject.
FOOTNOTES:
[Footnote 10: This is the general subject and title of the first book;
but the following slokas are selected as introductory of and with
reference to civil and municipal law.]
[Footnote 11: Pre-eminent, divine sages; probably the great Rishis,
the first-created of Brahma, mentioned in the opening verse of Manu.
In the third book (sl. 186--189) two classes of Munis are described,
of whom one, after blessed experience of Heaven, return to Earth, and
the other are to continue in the abodes of bliss until the destruction
of the universe. These latter are the publishers of the Vedas,
Upanishads, Sutras, Puranas, in fine of all records of knowledge
through the medium of language.]
[Footnote 12: These (according to Hindu notions) have withdrawn their
senses from external things by, as it were, mental concentration,
fixing the thoughts, without change or wavering, upon the soul in its
relations with the Supreme Being.]
[Footnote 13: _viz._--the _brahmachari_, the student of the Vedas,
the _grihastha_, the head of a family.
the _vanaprastha_, who has retired from active life, to the forest.
the _sanyasi_, whose duty it is to pass his time in meditating upon
Brahma, so as to attain to the state of a Yogi.]
[Footnote 14: _i. e._ the mixed casts. (_M._)]
[Footnote 15: Manu, ch. 2, sl. 23.]
[Footnote 16: The Commentator explains this by a word which signifies
cause or source.]
[Footnote 17: IV. _Vedas_, of which there are four, each being divided
into _sanhita_ and _brahmana._
V. _Puranas_, these (of which there are 18) treat of the origin and
destruction of the world, mythological stories and genealogies, and
the doings of the early Hindu monarchs.
VI. _Nyaya_, one of the six orthodox systems of Hindu philosophy,
treating especially of logic and dialectics.
VII. _Mimansa_, there are two Mimansas: the first (_purva_) treats
of the rules of duty, as derived from the Vedas, the second or
subsequent (_uttara_) treats of Brahma, the universal cause and soul.
VIII. _Dharma Sastras_, _viz._ Manu, Yajnavalkya, &c., the
subject being divided into, 1. Ritual and moral conduct (_achara_); 2.
Law and judicature (_vyavahara_); 3. Expiations (_prayaschitta_).
XIV. _Angas_, six treatises, _viz._, pronunciation, grammar,
prosody, explanation of obscure terms, religious rites, astronomy.
These are considered appendants of the Vedas. The word _angas_
signifies, limbs.]
[Footnote 18: To these twenty many others have to be added, Narada,
&c.: see Introduction.]
[Footnote 19: Sruti are the Vedas; Smriti, the Dharma Sastras:
such is the definition of Manu, ch. 2, sl. 10.]
[Footnote 20: The Commentator qualifies this indefinite source of law,
as applicable only where two or more lawful alternatives are
presented.]
[Footnote 21: Further explained by the Commentator, the evidence or
proofs of law; and he adds, the several proofs mentioned, where they
clash, are of weight and authority according to their precedence,
_e.g._ Sruti the highest, the mature desire the lowest, Manu, ch.
2, sl. 6, 12.]
[Footnote 22: Which means, having knowledge of the three Vedas. See
Manu, ch. 12, sl. 110 to 113.]
[Footnote 23: To explain or enlarge upon this metaphysical phrase
would be out of place in the present work. The curious student can
refer to the Upanishads and the Vedanta.]
[Footnote 24: Which, in the time of our author, meant, the place of
cremation. In the third book, sl. 1, 2, Yajnavalkya says:--A child
under two years of age is to be buried, nor shall water be offered;
every other deceased, being followed by his relatives to the place for
disposal of the dead, shall there be burned.
It was certainly otherwise at the period of the Vedas (vide _Die
Todtenbestattung im indischen Alterthum. German Oriental Society's
Journal, Vol. VIII. pp._ 467--475): the paraphrase in the text is the
meaning of the term used, _smasana._]
[Footnote 25: Texts of the Vedas to be recited on solemn occasions.
See analogous passage, Manu ch. 2, sl. 16.]
[Footnote 26: So we supply the hiatus in the text, in conformity with
the opinion of the Commentator. Manu makes no allusion to the
alternative, ch. 2, sl. 36.]
[Footnote 27: Induction into the character and privileges of his cast,
by means of the sacred thread.]
[Footnote 28: who, being Kshattriyas, here represent the cast.]
[Footnote 29: at mid-day. (_M._)]
[Footnote 30: Manu ch. 7, sl. 216.]
[Footnote 31: ibid, 201 et seq.]
[Footnote 32: ibid, 13, 41.]
[Footnote 33: Manu ch. 8, sl. 306.]
[Footnote 34: The Commentator explains the general expression here
used by the word _haituka_, of which one meaning is that given in the
text, but it also signifies, those who do not believe in the Vedas.]
[Footnote 35: _retti_ or _gunja_, a shrub bearing a small red and
black berry. Wilson.]
[Footnote 36: A sort of kidney bean, _phasealus radiatus._ Wilson.]
[Footnote 37: About 176 grains Troy weight. Wilson.]
[Footnote 38: Manu says four.]
[Footnote 39: These tables of weight, as further explained by the
Commentator, may be given thus:
3 Atoms = 1 Mote.
8 Motes = 1 Poppy seed or a nit.
3 Poppy seeds or 3 nits = 1 Black mustard seed.
3 Black mustard seeds = 1 White mustard seed.
3 White mustard seeds = 1 Barley corn.
3 Barley corns = 1 Krishnala.
_Gold._
5 Krishnalas = 1 Masha.
16 Mashas = 1 Suvarna.
4 Suvarnas = 1 Pala.
_Silver._
2 Krishnalas = 1 Masha.
16 Mashas = 1 Dharana.
10 Dharanas = 1 Pala or Satamana.
4 Suvarnas = 1 Nishka.
_Copper._
4 Karshas = 1 Pala.
1 Pana = 1 Karsha _i. e._ 1/4 Pala.
They by no means satisfactorily define the intrinsic weight and
signification of the Pana, which, as the measure of pecuniary
penalty, would seem to be the chief if not sole object of their
introduction.
In the corresponding slokas of Manu, ten Palas are said to be
equivalent to one Dharana. We can only reconcile this by supposing
Manu to refer to a gold Pala and Yajnavalkya to a silver Pala.]
[Footnote 40: The Commentator remarks, that this includes every kind
of corporal punishment.]
[Footnote 41: Manu, ch. 8, sl. 129, 130.]
[Footnote 42: ibid, sl. 126, also ch. 7, sl. 16. In the last passage,
Sir Wm. Jones has added to the term, strength, _his own_; this we
consider to be an error, at any rate it is not a mere translation, and
we have applied the term used, _viz._ _strength_ simpliciter,
differently.]
THE SECOND BOOK
LAW AND JUDICATURE.
1. Let the monarch,[43] free from anger or thought of gain, in
conjunction with learned brahmans, adjudicate law-suits, according
to the Dharma Sastras.
2. He shall appoint judges perfect in the Vedas and in science,[44]
versed in the Dharma Sastras, such as speak truth and bear
themselves alike to friend and foe.
3. If the monarch, from press of other business, cannot adjudicate, he
shall appoint a brahman versed in the whole law, [to preside] with
the judges.[45]
4. Should the judges, from partiality, from love of gain, or from
fear, act in anywise contrary to law or usage;[46] each one [so
acting] shall be amerced in double the value of the suit.
5. When one who is aggrieved by others, in any way contrary to law or
usage, makes a representation to the monarch; this is matter for a
law-suit.
6. The representation, as made by the plaintiff, is to be put in
writing, in presence of the defendant; the year, month, half-month,
day, names, cast, &c.,[47] being given.
7. The answer [of the defendant] to what he has heard [read] is then
to be put in writing, in presence of him who made the first
representation: and then the latter shall, at once, furnish a
statement in writing of the proof to support what he has asserted.
8. This being established, he succeeds in his suit; otherwise, the
reverse. Thus it appears, the procedure in law-suits has four steps.
9. Let not a counter-complaint be preferred until the [original]
complaint is disposed of, nor let a third person [sue] him against
whom a complaint is pending.[48] The statement of the cause of suit is
not to be varied.[49]
10. [The defendant] may bring a counter-plaint for abusive
language,[50] or personal trespass,[50] or for acts of atrocious
violence.[51] On behalf of each party, a surety, competent to meet the
result of the suit, shall be bound.
11. One against whom, after [a plea of] denial, judgment is given,
shall pay the amount [adjudged to the plaintiff] together with an
equal sum to the monarch.[52] One who has made a false complaint,
shall forfeit double the amount of his claim.
12. In a case of atrocious violence, of theft, of reviling or personal
trespass,[53] where a cow is the subject, or a [malicious] charge of
crime,[54] or an offence destructive of life or property[54] where a
female [of the household] is the subject--[in each of these cases] the
Court shall compel the parties to go to trial forthwith. In other
cases, a day may be appointed at pleasure.
13. One who moves from place to place,[55] who licks the corners of
his mouth, whose forehead sweats, and whose countenance changes
colour.
14. who with words from a dry throat, stammering, says much that is
contradictory, who makes no response to word or look, who contracts
the lips--
15. whosoever [in this wise] changes his natural manner, in the action
of his mind, of his speech, and of his person, is to be set down as
false in his complaint, or [if a witness] in his testimony.[56]
16. One who enforces by his own arbitrary act a claim which is denied,
who absconds, or who does not respond when called--[each of these] is
considered to have failed, and is amenable to punishment.[57]
17. Where there are [rival claims, and] witnesses on both sides, the
witnesses of him who asserts the elder title, are to be [first]
examined: if that title be admitted,[58] then the witnesses of him
who claims by subsequent title [shall be examined].[59]
18. Should the suit be accompanied by a wager, [the Court] shall
compel the losing party to pay the fine [prescribed],[60] as well as
his wager and his debt to the creditor.
19. Let the monarch, rejecting subtleties, conduct the trial of suits
upon the merits: even merits, in the absence of proof, must fail of
success in the suit.
20. If one plead a denial to a representation including several
matters,[61] and one part be proved against him, the monarch shall
compel him to pay the whole amount claimed: but what has not been
previously declared [by the plaintiff][62] is inadmissible.
21. If two texts of the Law be opposed to each other, an argument
founded on usage is of force; but the Dharma Sastra is of greater
force than the Artha Sastra.[63] This is a settled rule.
22. Legal proofs are described as, writing, possession, and witnesses.
In the absence of either of those, it is ordained, that some one of
the ordeals is [to be resorted to.]
23. In all disputes where property is concerned, the last act is of
greater force;[64] except in [cases of] pledge, gift,[65] and sale,
when the first act is of greater force.[66]
24. If one see[67] his land in the possession of another[68] and say
nothing, it is lost after twenty years; moveables after ten years:[69]
25. excepting pledges, boundary-limits, deposits with
specification,[70] property of idiots and children, deposits without
specification,[71] property of the monarch, of women, and of those
learned in the Vedas.
26. One who appropriates[72] a pledge, &c., shall be compelled to
restore to the owner his property, and to pay a fine of equal value,
or according to his means,[73] to the monarch.
27. Acquisition by title[74] is stronger[75] than possession, unless
this has come down from ancestors;[76] but acquisition by title is of
no avail without possession for a short time.[77]
28. If one holding by title have it questioned [in a Court of
justice], he must establish it by proof: but not so his son, nor his
son's son; in their case, possession is of greater weight.
29. If one whose title is questioned die [pending the suit[78]], his
heir must establish it by proof; in such case possession without title
will not avail.[79]
30. Those appointed by the monarch,[80] communities,[81] guilds,[82]
and families, have authority, one after the other,[83] to investigate
law-suits among men.
31. The monarch shall annul decisions of suits which have been brought
about by force or fraud; also those made by women, those made at
night, those made in private chambers, those made in a place beyond
the limits,[84] and those made by enemies.
32. A suit instituted by one intoxicated, or insane, or stricken with
disease,[85] or given up to vice,[86] or a minor, or one under the
influence of fear, &c.,[87] or one having no interest, is invalid.
33. When lost property is found,[88] it shall be restored by the
monarch to the owner: if the claimant fail to identify by some sign,
he shall pay an equivalent fine.
34. If the monarch find a treasure,[89] he shall give half of it to
the twice-born.[90] If, on the other hand, a twice-born [find a
treasure], he shall, if learned, take the whole, for he is lord of
all.[91]
35. Of treasure found by any one else,[92] the monarch shall take a
sixth.[93] If the finder do not make report, but [his discovery] comes
to light, he shall surrender [what he has found], and shall, besides,
be punished.
36. Stolen property, however, is to be given up by the monarch to the
subject; seeing that, if he do not give it, he shall bear all the sin
of that person from whom [it is stolen].[94]
37. Where there is a pledge, the interest, month by month, shall be an
eightieth part; otherwise, two, three, four or five parts, in a
hundred, according to the order of cast.[95]
38. They however who travel in forests[96] give ten parts; they who
go to sea, twenty parts, in a hundred. Or, all[97] must render to all,
of whatever cast, the rate of interest settled amongst themselves.[98]
39. But for cattle and women lent [the return] is, their offspring:
the highest encrease demandable for use of liquids[99] is eight-fold;
for wearing apparel, for corn, and for gold, four-fold, three-fold and
two-fold respectively.
40. The monarch should not blame one who enforces a recognised
debt.[100] If he, against whom the debt is enforced, complain to the
monarch, he may be punished, besides being compelled to pay the debt.
41. The debtor [as a general rule] shall be made to pay his creditors
in the order in which he has received from them; but a brahman he
is to pay [first], and, after him, the monarch.
42. The debtor shall be made to pay to the monarch ten parts in a
hundred of the sum proved against him;[101] and the creditor, when he
has recovered his property, five parts.[102]
43. One of inferior cast,[103] who is without means, may be compelled
to labour[104] in discharge of his debt; but a brahman,[105]
wanting means [to discharge his debt at once], shall pay gradually in
proportion to what may come to him.
44. If one do not accept restitution of his property on loan when
offered, it is to be delivered to some third party; from which time it
ceases to carry interest.
45. A debt incurred by undivided kinsmen on account of the family
shall be discharged by the heirs of the head of the family, should the
latter die or leave the country.[106]
46. A woman has not to pay a debt incurred by her husband or by her
son, nor a father the debt of his son; except such debts be incurred
on account of the family: and it is the same with a husband [in
respect of a debt] incurred by his wife.
47. A son has not to pay, in this world, his father's debt incurred
for spirituous liquor,[107] or, for gratification of lust, or in
gambling, nor a fine, nor what remains unpaid of a toll; nor [shall
he make good] idle gifts.[108]
48. As to debts of wives of herdsmen, distillers, players, washermen
and hunters, the husbands have to pay; because their maintenance
depends upon their wives.
49. A debt acknowledged,[109] one incurred by her jointly with her
husband, one incurred by herself [solely][110]--these must be paid by
the wife; none other need be paid by her.
50. If a father have gone abroad, or died, or been subdued by
calamity,[111] his debt shall be paid by his sons and grandsons;[112]
on their denial,[113] the debt must be proved by witnesses.
51. He who takes the property of one who leaves no [capable][114] son,
shall pay the debts; so, he who takes[115] the widow; also that son
whose paternal estate no other has appropriated, [and who in such
case shall always be deemed] fit to inherit property;[116] and if one
die without any son, then, whosoever succeeds to the property.
52. To become surety, to be indebted, and to give evidence, is
unlawful between brothers, between husband and wife, or between father
and son; except, where they are separated in property.
53. Giving surety is enjoined for appearance, for confidence,[117] and
for payment.[118] If there be a failure of either of the first two,
the surety [himself] in each case shall pay; of the third, his sons
[also] must pay.
54. If surety for appearance or for confidence die, the sons have not
to pay; of a surety for payment, the sons have to pay.[119]
55. If there are several sureties, they shall pay the debt according
to their respective liabilities: if all have undertaken for the entire
debt,[120] they shall [severally be made to] pay at the option of the
creditor.
56. If a surety be compelled by process of law[121] to discharge the
debt, the [principal] debtors shall reimburse him double the amount
paid.
57. For [use of] women and cattle, the offspring shall be given: for
corn, [a return of] three fold; for apparel, four fold; for liquids,
eight fold.
58. [The owner's property in] a pledge is forfeited if it be not
redeemed when the debt is doubled; of one made for a definite period,
it is forfeited at the specified date. [The property in] a pledge with
usufruct[122] does not become forfeit.
59. If a [simple] pledge be put to use, no interest is [demandable]:
so it is if a pledge with usufruct be damaged. If the pledge be wholly
spoiled or be destroyed, it must be replaced; except where caused by
accident,[123] or by the monarch.[124]
60. A pledge is complete upon acceptance.[125] If the thing pledged
have become worthless, although [duly] cared for, either another shall
be given [in its place], or the creditor shall receive back his money.
61. If a pledge be [given or taken, in reliance] upon character,[126]
the debtor shall be made to pay with interest: the debtor shall be
made to repay two-fold, if he received on his plighted word.[127]
62. If one come [and pay his debt], the pledge shall be released;
otherwise he [who has the pledge] is a thief:[128] should the creditor
be absent, the debtor is to receive back his pledge upon paying the
debt to the family;[129]
63. Or it may remain where it was, without interest [on the debt], the
value at that date [of the thing pledged] being ascertained. If the
debtor fail to come, the creditor may sell [the pledge] before
witnesses.
64. If the debt secured by pledge have become doubled, the pledge
shall be released; provided, the [value of the] usufruct of the thing
pledged be double [the amount of] the loan.[130]
65. _Upanidhi_ is something in a box delivered to the hands of
another, without a declaration. This shall be restored in the same
manner [as it was given].[131]
66. But one shall not be compelled to make good that of which he has
been deprived by the monarch, by accident, or by thieves.[132] When
the loss occurs after demand has been made, and the deposit not
returned, the depositee is to make it good and to pay a fine of equal
value.
67. Whoever of his own accord uses [this description of deposit] shall
be fined, and must restore it, together with the profit made.
The same rule applies to things borrowed[133] [for a special
occasion], also to what is delivered for the purpose of being restored
to the owner,[134] also to what is deposited [in the absence of the
head, with the other members of the family],[135] also to the deposits
called _nikshepa_,[136] and the like.[137]
68. Those proper to be witnesses are, religious devotees,[138] they
who bestow liberally, the wellborn, they who speak truth, they whose
chief aim it is to be virtuous,[139] they who are strait in their
conduct, they who have sons, and the wealthy.[140]
69. There should be at least three witnesses, such as observe the
rites prescribed by the Sruti and the Smriti, and are of a class,
whether mixed or unmixed,[141] corresponding [with that of the person
who produces them]: otherwise,[142] any person may be a witness for
any person.
70. Women, minors, aged men,[143] gamblers, persons intoxicated,
madmen,[144] persons under suspicion of crime, stageplayers,
infidels,[145] forgers, persons who are deprived of any sense,
71. heinous offenders,[146] intimate friends,[147] parties interested
[in the suit], confederates, enemies [to either party], thieves,
violent characters, the openly wicked,[148] persons cast off [by their
friends and kin], and such like,[149] are inadmissible as witnesses.
72. Even one person,[150] being an intelligent follower of ritual
duties,[151] may, with the consent of both parties, be witness
[sufficient].
All are admissible[152] as witnesses in cases of rape, theft[153]
defamation and personal trespass.[154]
73. The judge shall thus address the witnesses, as they come up to
the plaintiff and defendant:
The worlds appointed for criminals, for atrocious criminals;[155]
74. the worlds appointed for incendiaries, for murderers of women and
children--all these shall be the portion of him who gives false
testimony!
75. Know, that whatever good has been done by thee in a hundred
former births, all shall become his whom thou defeatest by
falsehood![156]
76. That man who withholds his testimony, the monarch shall compel to
pay, on the forty-sixth day, the entire debt, as well as a fine
equivalent to a tenth of the amount.
77. The lowminded man who, although he has knowledge (of the facts),
declines to give his testimony, is, in sin, on a par with false
witnesses; so is he, in his punishment.
78. In case of conflicting testimony, what is stated by the majority
(of the witnesses) must be credited; if the numbers be equal, then
those of the witnesses who are of distinguished qualities[157] must be
credited; if again, these are in contradiction, then the most
distinguished shall be credited.[158]
79. That party (to the suit) whose assertion the witnesses have
verified, succeeds; that one whose assertion the witnesses have
disproved, is defeated.
80. Although proof has been given by witnesses, yet, if others of more
distinguished qualities or in number twice as many give opposite
testimony, the first witnesses should be held as false ones.
81. As well they who suborn as they who give false testimony are to
be severally fined in double the value of the suit:[159] a brahman,
in such case, shall be banished.[160]
82. [The witness] who, after he has been addressed[161] [by the judge,
yet] being blinded by passion, withholds his testimony,--he shall pay
eight times the [ordinary] fine: in case of a brahman, he shall
suffer banishment.[162]
83. Should it happen that the testimony of a witness must occasion the
death of a person, whatever the cast of the latter,--the witness
shall, in such case, speak untruth.[163] For their purification [after
giving such false testimony] the twice-born must make oblation to
SARASWATI.[164]
84. If any settlement have been mutually come to [between debtor and
creditor], a written instrument should be drawn up before witnesses,
the first mention being of the creditor.
85. In it should be written the date, _viz._ year, month, half month,
day, also the name, cast, family, the Veda-school, and father's name,
of each party, &c.[165]
86. This being completed, the debtor shall subscribe with his
signature [a declaration, as follows]:--"What is written above, I, the
son of such an one, agree to."
87. Then the witnesses, all being equal in grade, shall, after their
fathers' names, write, with their own hands respectively: "I, such an
one, am a witness."
88. And the writer shall subscribe at the foot, as follows:--"This has
been written, at the request of both parties, by me, such an one, the
son of such an one."
89. An instrument, entirely in the handwriting of the party, is to be
received as proof, although it be not witnessed, unless procured by
violence or by fraud.[166]
90. Payment of a debt incurred upon a writing, is obligatory only upon
the debtor, his son, and grand-son;[167] but a pledge shall remain in
use so long as the debt is unpaid.
91. If the instrument be in a foreign country, be illegibly written,
be destroyed, faded, stolen, mutilated, burned, or torn, [the Court]
shall direct a new one to be made.
92. The authenticity of a written instrument which is doubtful, is to
be ascertained by [comparison with other] documents in the handwriting
of the party &c.,[168] by [enquiry into] the probability of its having
been obtained,[169] and [the mode of] its preparation, by [observation
of] any marks, by [enquiry of] the relation [in which the parties
stand to each other], and how the matter came about.
93. As often as the debtor makes a payment, either he shall write an
indorsement to that effect on the document, or the creditor shall give
a receipt under his hand.
94. When the debt is paid, [the debtor] shall cause the document to be
torn up, or shall have another prepared, _viz._ of discharge. If the
debt was incurred before witnesses, its payment should also be before
witnesses.[170]
95. The scales, fire, water, poison, the sacred draught--these are
the ordeals for exculpation,[171] in case of grave accusations, if the
accuser be prepared to pay a fine.
96. When it is agreed on; one of the parties shall perform [the
ordeal], the other be in readiness to pay the fine. Even without a
fine, there shall be trial by ordeal in case of treason or great
crime.
97. [The accused,] being summoned, shall, after bathing at sunrise and
fasting, be made to go through the several ordeals, in presence of the
monarch and the brahmans.
98. The scales are [the ordeal] for women, children, aged men, the
blind, the lame, brahmans, and those afflicted with disease. Fire
or water, or the seven barleycorns' weight of poison are [the ordeal]
for a Sudra.
99. For a less value than a thousand _panas_, one shall not go
through the ordeal of the [heated] iron plough-share, of poison, or of
the scales: but in case of offence against the monarch or great crime,
purifications[172] shall always be gone through.
100. When the accused has been placed in the scales by those who
understand the art of weighing, a counter-weight adjusted, and a line
drawn, he is then to be taken out [of the scales.]
101. "O scales! made by the gods, of old, the abode of truth:
therefore do ye, propitious ones, declare the truth and liberate me
from suspicion!
102. If I be an evil-doer, then bear me down, oh mother! If I be pure,
carry me upwards!" Thus shall he [who is to go through the ordeal]
invoke the scales.
103. The hands [of the accused] shall be inspected when rice has been
rubbed in them; after which, seven leaves of the Indian fig tree are
to be placed therein [_scil._ in his hands] and fastened round
successively with a thread.
104. "Thou, O fire, dwellest in all created things! O purifier, in
testimony of innocence and guilt, do thou, in my hand, make known the
truth!"
105. When he [who suffers the ordeal] has thus spoken, let a smooth
red hot iron ball, of fifty _palas_ weight, be placed upon both his
hands.
106. Carrying this, let him slowly walk across seven circles, of
sixteen fingers breadth diameter each, with an interval of the same
measure between each.
107. If, having thrown down the fireball, and being [again] rubbed
with rice, he [the accused] is unburnt, his purification is
accomplished. Should the ball during [the trial] fall down, or should
there be any doubt, he is to take [it] again.
108. "By the power of truth, O Varuna,[173] save me!" Thus invoking
the water, and grasping the thighs of a man standing in water up to
his navel, let him [who goes through this ordeal] submerge himself.
109. An arrow at the same instant shot [from the bow] a swift
footed-man shall [run and] fetch: should he, upon his return, see that
the body [of the accused] is still submerged, the latter is to be
exculpated.
110. "Thou, O poison, Brahma's[174] son, art ordained for truth and
right; free me from the accusation, and be to me, by the power of
truth, a draught of immortality!"
111. Thus speaking, he shall eat of poison produced by the Sringa
tree, of the Himalaya. Whoever is able to digest this without evil
effect, shall be declared innocent.
112. Let the judge, adoring terrible deities, and taking of the water
in which [their images] have been bathed, adjure it, and cause [the
accused] to drink off three times the contents of his palms.
113. He to whom, within fourteen days from this [ordeal], no great
calamity happens, either from the monarch or by act of God, shall
without doubt be [held] guiltless.
114. A father when making partition [of his property], can divide it
among his sons as he pleases; either giving to the eldest the best
share or in such wise that all share equally.[175]
115. If he give equal shares, such of his wives as have not received
_stridhana_ from their husband or father-in-law shall also equally
share.[176]
116. If one have means, and do not desire [to share in the paternal
estate], he shall be separated, something trifling being given to
him.[177] A distribution by a father in smaller or larger shares, if
in accordance with the Sastras, is lawful.[178]
117. After decease of the parents, let the sons make equal division
of the property and of the debts.[179] And so the daughters, of what
is left of the mother's [_stridhana_], after [paying] her debts; and,
if there be no daughters, the sons or others of the family [being
heirs, take it].
118. What has been self-acquired by any one, as an increment, without
diminishing the paternal estate, likewise a gift from a friend or a
marriage-gift, does not belong to the coheirs.[180]