233. he who does harm to his neighbour, or to his kindred, and such

like[323]--each of these shall be fined fifty _panas_. So is it

enjoined.

234. He who, [on the impulse] of his own will [merely], goes to a

widow,[324] he who, when there is a cry for help, does not haste [to

render it], he who reviles without cause, a _chandala_[325] who

touches one of higher cast,

235. he who, when making an oblation to the gods or to ancestors,

feeds Sudras, or _pravrajikas_,[326] he who swears an improper

oath, or who does what he has no title to do,[327]

236. he who emasculates a bull or smaller animal, who embezzles common

property, who destroys the embryo of a female slave,

237. and, among fathers and sons, sisters and brothers, husbands and

wives, teachers and disciples, if either desert the other, [he or she]

not being an outcast--[in these several instances,] the fine is a

hundred _panas_.[328]

238. A washerman who wears another's dress shall be fined three

_panas_; if he sell, let out, pledge, or, when importuned [give it

away],[329] ten _panas._

239. If, when father and son quarrel, one volunteer to be a

witness,[330] the fine is three _panas_; but, if [on such an

occasion] one offer himself as surety,[331] he shall be fined

eight-fold.

240. Whoever falsifies scales, or a royal order, or a measure,[332] or

a coin,[333] likewise whoever [knowingly] uses them [so falsified],

shall be made to pay the highest fine.[334]

241. A tryer of coin who pronounces a false one to be genuine or a

genuine one to be false, shall be made to pay the highest fine.

242. One who falsely sets himself up as a physician,[335] shall, [for

his malpractice,] if brutes be concerned, pay the first fine--if

mankind, the middle fine--but, if royal officers, the highest fine.

243. Whoso imprisons one not deserving of imprisonment,[336] or

releases one found worthy of imprisonment or pending his trial,[337]

shall pay the highest fine.

244. He who, in measurement, or [use of] the scales, defrauds [to the

extent] of an eighth, shall be made to pay a fine of two hundred

_panas_, and thus proportionably for a more or less quantity.

245. He who adulterates[338] medicine, or oily commodities, or salt,

or perfumes, or corn, or sugar, or other saleable articles, shall be

fined sixteen _panas._

246. For making one sort of article to appear to be of another sort,

whether it be earthen goods, or skins, or precious stones, or threads,

or corn, or wood, or bark of trees, or clothes, a fine [is ordained

of] eight-fold the purchase money.

247. For him who changes a covered basket,[339] or who gives in pledge

or sells counterfeit drugs in a wrapper,[340] the fines prescribed

are,

248. where [the value is] below a _pana_ fifty _panas_, where

[it amounts to] a _pana_ one hundred _panas_, where to two

_panas_ two hundred _panas_: with increase of value the fine

increases.

249. The highest fine is imposed on those who, [although] aware of the

rise or fall in prices, combine, to the prejudice of labourers and

artists, to create a price [of their own].

250. For traders who combine, by [arbitrarily fixing] an improper

price, to impede [the traffic in] any commodity, or to make [an

injurious] sale of it,[341] the highest fine is ordained.

251. The price in [transactions of] sale and purchase, daily, is

regulated by the monarch;[342] the difference[343] is declared to be

the traders' profit.

252. On goods of his own country let a trader clear a profit of five

per cent., and ten per cent. on those of another country; provided he

make prompt sale of his purchase.

253. [The monarch] is to determine the price, in unison with the

wishes of both purchaser and seller; first adding to the cost of the

article the expense of bringing it to the market.[344]

254. He who, having received the price of any commodity, fails to

deliver it to the buyer, shall be compelled to deliver the article,

together with damages [for the detention]; and should the buyer be

from foreign parts, then, the foreign profit [shall be added].

255. There may be a re-sale of goods sold, if the original buyer will

not receive them. If loss arise from misconduct of the buyer, he shall

bear it.

256. Whatever damage may befal goods by [act of] the monarch, or by

accident, shall be the loss of the seller,[345] where he has failed to

make delivery on demand.

257. If a person re-sell that which has been sold to another, or sell,

as sound, a damaged article; [in either case] the fine shall be double

the value [of the article sold].

258. A trader who makes a purchase in ignorance of the rise and fall

of prices, must not recede from his bargain; if he do, he shall be

fined a sixth [of the price].

259. Traders who carry on business jointly, for profit, shall share

the profits and losses, either in proportion to the capital [brought

in by each], or according to the contract between them.[346]

260. [A joint trader] who occasions loss [to the partnership] by

[engaging in] something which his partner has either prohibited or not

sanctioned, or by any negligence, shall make it good: if [on the other

hand by his personal exertion] he preserve anything [of the

partnership property] from loss, he shall have the tenth of it.[347]

261. The monarch, for fixing the prices, should receive a duty of a

twentieth.[348]

If an article of which the sale is prohibited, or one fitting for the

monarch[349] [to possess], be sold [without the royal license], it

shall be forfeited to the Crown.[350]

262. Whoever declares false weight, or avoids the place where custom

is levied, shall be made to pay eight-fold; so he who fraudulently

buys or sells.[351]

263. A ferryman levying [toll as though for] land-duties, shall be

made to pay a fine of ten _panas_.[352]

The same fine is ordained for omission to send invitations to

brahmans of the neighbourhood.[353]

264. On the death of one departed to a foreign country, his male

offspring, his maternal kindred, or those more remotely related, shall

take the property: in their default, the monarch [succeeds].

265. Let the partners of a man who acts dishonestly exclude him from

any share of the profits. Let him who is disabled [to act personally

in the partnership business] act by the agency of another. Thus too it

is enjoined for [associations of] priests[354] farmers, and craftsmen.

266. Capture of a thief by the officer is warranted by [his possession

of] the property stolen, or by traces of him, also by his having been

an offender previously, or his being an inmate of a house of ill

repute.

267. And others there are who may be arrested on suspicion, _viz._,

such as conceal their caste, name, &c., also those addicted to

gambling, to women, and to drinking, and such as have [betrayed

themselves by] a parched mouth in speaking, or a stammering voice;

268. those, moreover, who are inquisitive about others' goods and

houses, or who put on a disguise, or who expend [lavishly] although

they have no [ostensible] income, or who sell things that have been in

use.

269. If one arrested on suspicion of theft do not clear himself, he is

to be punished as a thief, being first compelled to make good the

property stolen.

270. [The monarch] should compel the thief to make restitution of the

stolen articles, and subject him to [such of] the different corporeal

inflictions [as may be proper]: a brahman [who is a thief] he shall

brand and banish the realm.

271. When a murder or theft has occurred, and [the criminal] is not

traced beyond the village, blame falls on the village governor; if [he

be traced] to the public road, blame falls on the governor of the

district; if traced out of the district, the officer charged with

pursuit of criminals shall be to blame.

272. The village within whose boundary [the crime is perpetrated]

shall pay; or [that village shall pay] to which track [of the

criminal] leads; so, if the track lead to a place within a

_krosh_[355] skirting five villages [all shall pay]; so of ten

villages.

273. House-breakers,[356] they who steal horses or elephants,

murderers by open violence--such shall be impaled.

274. He who purloins [apparel, &c.[357]] shall have a hand cut off;

cut-purses,[358] shall have the thumb and fore-finger cut off; for a

second offence, a hand and a foot shall be cut off.

275. For theft of goods of trifling, of medium, and of the highest

value,[359] the penalty to be inflicted is proportioned to the value

of what is stolen. In its determination, place, time, age, and

ability, are to be considered.[360]

276. One who knowingly supplies a thief or a murderer with food,

shelter, fire, water, counsel, implements, or money, incurs the

highest fine.[361]

277. For wounding with weapons, and for causing abortion, the highest

fine is ordained; the highest or the lowest for killing a man or a

woman.

278. A woman incorrigibly wicked, one who has slain a man, one who has

destroyed dams,[362] shall, unless she be in a state of pregnancy, be

thrown into [deep] water with a [heavy] stone tied to her.

279. A woman who is a poisoner, or an incendiary, one who has slain

her husband, her _guru_, or her child, shall be put to death by bulls,

her ears, hands, nose, and lips being cut off.[363]

280. If a man be slain, and it be not known who did the deed, his

sons, kindred, wives, also women who are in habits of illicit

intercourse, are to be separately and without delay questioned,--as

to, whether any quarrel has occurred,

281. whether the deceased was addicted to women, or fond of what is

costly, or seeking gain,[364] also with whom he had gone--or, the

people in the neighbourhood of the place where the murder occurred

shall be examined, by gentle means.

282. Incendiaries of fields, houses, forests, villages,

pasture-grounds or granaries, also one who has intercourse with the

wife of the king, are to be burned in a straw-fire.

283. A man is to be apprehended for adultery, if [found] with another

man's wife in mutual grasping of hair or with recent love-marks, or

when both admit [their fault],

284. or [if the man be found] toying with her girdle, with her

breasts, her upper garment, her thigh, or her hair, or conversing with

her at an unfitting place or hour, or on the same spot with her.[365]

285. The wife, if [so acting] after express prohibition, shall pay one

hundred _panas_ fine; the man, two hundred _panas_: if both have

been expressly prohibited [so demeaning themselves], their punishment

shall be the same as for adultery.[366]

286. For adultery with a woman of equal cast, a man incurs the highest

fine; with a woman of lower cast, the middle fine; with a woman of

higher cast, [the penalty is] death,[367] and the woman is to have her

ears, &c.[368] cut off.

287. If one make off with a virgin decked out [for the bridal], he

shall pay the highest fine; if she be not so circumstanced, then the

lowest fine. Thus it is, if the virgin be of equal cast: if she be of

higher cast, [the penalty of] death is ordained.

288. In the case of a virgin consenting and of inferior cast, no

offence [is committed]; otherwise, there is a fine.[369] For ravishing

her, the man's hand shall be cut off: if the virgin be of the highest

cast, [the penalty is] death.

289. Whoso speaks disparagingly of a woman shall forfeit one hundred

_panas_; but, two hundred, one who brings a false charge against [a

woman]. Whoso has carnal knowledge of a brute animal shall forfeit one

hundred _panas_; if of a lowest cast woman[370] or of a cow, the

middle fine.

290. If a man[371] have carnal intercourse with female slaves or

servants, or even with common women, [such slaves, &c.] being kept [by

those to whom they belong] secluded,[372] he shall pay a fine of fifty

_panas._

291. For forcing a female slave,[373] it is written, there shall be a

fine of ten _panas_; if many [men so] attack one slave, each one

shall pay twenty-four _panas._

292. A public woman who refuses after taking her hire, shall forfeit

twice the amount; so, if the man [decline after contracting, yet] he

shall pay.

293. Whoso knows a woman unnaturally, or voids his water upon a man,

also one who has carnal knowledge of a female mendicant, shall be

fined twenty-four _panas._

294. [The monarch] shall banish him who goes to a woman of the lowest

grade, having branded him with dishonoring emblems: if a Sudra so

act, he shall be [classed among] the lowest. Death shall be to the man

of lowest grade who goes to a respectable woman.

295. Whoso fabricates a royal grant,[374] be it for much or little, or

sets free one who has kidnapped a woman, shall pay the highest fine.

296. One who brings dishonor to a brahman by giving as food what is

unfit to be eaten, is amenable to the highest fine; if to a

kshattriya, the medium fine; if to a vaisya, the lowest fine; if to

Sudra, half the lowest.

297. If one trade with counterfeit gold, or sell tainted meat; three

of his members[375] shall be amputated, and he shall pay the highest

fine.

298. Damage caused by four-footed animals shall not be borne by their

owner, if he have given warning to clear the way: so, with regard to

wood, earth, arrows, stones, a man's arm, or any yoked animals.

299. If death be caused by a vehicle through the breaking of the

[animal's] nose-bridle, or through breaking of the yoke, or the like,

or from its running backwards, the owner is [to be held]

blameless.[376]

300. If the owner of biting or horned animals do not, although able,

rescue [a person attacked], he shall pay the lowest fine: but, if

there was a cry for help, then, double that fine.

301. He who calls an adulterer, 'thief,' shall be made to pay a fine

of five hundred _panas_: whoever releases such an one, being bribed

thereto,[377] shall be made to pay eight-fold the amount [of the

bribe].[378]

302. Whoso speaks what is offensive to the monarch, or reproaches the

monarch, or divulges the monarch's counsel, shall have his tongue

excised and be banished.

303. Whoso makes sale of garments [used to wrap] the dead, or strikes

his _guru_, or seats himself on the vehicle or on the seat of the

monarch, shall pay the highest fine.

304. Whoso beats out both [a person's] eyes, a bearer of odious

tidings to the monarch, also a Sudra holding himself out as a

brahman,--[each of these] shall be fined eight hundred _panas_.

305. Such law suits as have been decided unrighteously shall be

re-investigated by the monarch: [in case of reversal of the judgment]

the judges and the winning party shall be amerced in double the amount

of the fine decreed in the suit.

306. Should one defeated on the contest of his suit represent as

though he were not defeated, he shall, when he comes [again to urge

his suit, besides] being re-defeated, be fined double.

307. Should the monarch have inflicted any fine unjustly, he shall

himself, after making invocation to Varuna,[379] present thirty

times the amount [of the fine] to brahmans.

FOOTNOTES:

[Footnote 43: Various terms are used by our author to denote the head

of the State (_e.g._ Raja, Protector of men, Lord of men, &c.) to suit

the metre or fancifully. In translation we have thought it better to

be uniform.]

[Footnote 44: What is understood by science is explained in the first

book sl. 3.]

[Footnote 45: Manu, ch. 8, sl. 9.]

[Footnote 46: The original is, _smriti adi_ (the second word being

equivalent to &c.), which the Commentator explains, as translated, law

and usage, or custom.]

[Footnote 47: The &c. signifies, description of chattels, with their

number, also particulars of place and time. (_M._)]

[Footnote 48: The Commentator has enabled us to supply the ellipsis,

but he does not fully explain the author's meaning. It would seem,

that in those primitive times, it was considered harsh or inexpedient

to harass a defendant, or accused person with two legal proceedings,

of any sort, at the same time. The sentence will, however, bear the

sense, that no stranger or intervener shall be permitted to come in

and interrupt the progress of a pending suit.]

[Footnote 49: The Commentator, observing that this prohibition would

seem to be implied in the terms of the sixth sloka, explains (on the

authority of Narada) that the latter refers only to the general object

of the suit, _e.g._, that if his verbal complaint be of a loan of

money, his recorded complaint shall not be of a loan of apparel--but

that this clause, in the ninth sloka, ensures further uniformity in

the description of the grievance and character of the suit, _e.g._,

where one has originally complained of retention of 100 pieces of

money lent, he shall not vary his complaint to a forcible taking of

100 pieces.]

[Footnote 50: These are expressed by one word, _kalaha_: but the

Commentator notes its comprehensive character, as we have translated

it. See the analogous passage in Manu, ch. 8, sl. 6, where an equally

ambiguous word _parushya_ is similarly explained in the text itself.

The term rendered "slander" by Sir Wm. Jones is simply, reviling or

verbal abuse.]

[Footnote 51: _sahasa_, explained by the Commentator, assault by means

of poison, or any instrument destructive of life. The word has another

and more particular signification, as infra sl. 230.]

[Footnote 52: Manu (ch. 8, sl. 59) inflicts a fine of double the debt

upon the mendacious debtor.]

[Footnote 53: _parushya_, explained by the Commentator _kalaha_: see

note [50].]

[Footnote 54: We have followed the Commentator in rendering these

terms, which are very general and indefinite.]

[Footnote 55: _i. e._ restlessly before the Court.]

[Footnote 56: Manu ch. 8, sl. 25, 26.]

[Footnote 57: ibid, sl. 55, 56.]

[Footnote 58: Literally "put down," _i. e._ taken for granted, all

question of it disposed of. See next note.]

[Footnote 59: This sloka is by no means unambiguous: but it is

satisfactorily explained by the Commentator, who says: "What course is

to be adopted where two parties simultaneously present themselves to

the Court and tender proofs? _e.g._ A man acquired a field by gift,

and, having for some time possessed it, departed with his family to

another country: then, another person obtained a gift of the same

field, and, having possessed it awhile, was likewise obliged to go to

another country. Both parties return at the same time, claim the same

field, and resort to a Court of law. Then arises the question,--whose

proofs shall be taken? Yajnavalkya says (ut supra sl. 17); that is to

say, where one sets up an older title, saying--I was possessed of this

field at such a date--his witnesses are the first to be examined; but

should the other party urge--True, the field was acquired and enjoyed

by him at the first, but the king bought it of him and granted it to

me--or--Another got the field and gave it to me; in that case, as the

proofs of him who has the older title are of no consequence, and thus

he is disposed of, the witnesses of the other claimant are to be

examined. It is incorrect [to read the sloka as asserting] that, where

there is a denial [of a claim] the witnesses of the plaintiff shall be

examined, and where a former judgment or something as a ground of

defence is set up, in [either of] which cases the original claim is

met, then the witnesses of the defendant shall be heard; inasmuch as

all this is included in the rule,--(here the Commentator quotes the

7th sloka of the text). This view is clearly supported by Narada,

_viz._ On a denial, proof is upon the plaintiff; where some ground of

defence is stated, upon the defendant; upon an allegation of prior

decree, the decree shall be the proof.--After this Narada

proceeds:--When there are two claimants, if there be witnesses, the

witnesses of the prior claimant shall be [first examined]--So we

perceive, this [description of] law-suit is distinguished from all

others." These quotations favor the supposition, that the science of

special-pleading is not of European origin, and is traceable to a

remote antiquity.]

[Footnote 60: Supra sl. 11.]

[Footnote 61: _e.g._ that the defendant has got possession of gold and

silver and apparel, &c. (_M._)]

[Footnote 62: Supra, sl. 6. The Commentator excludes from the

operation of the harsh rule in this 20th sloka, an heir, who is

supposed to deny his ancestor's debt or liability through ignorance;

but he attempts to justify the rule itself by experience of human

conduct.]

[Footnote 63: This Sastra teaches a system or science of ethics

such as moralists now-a-days designate as Machiavellian or jesuitical;

in which right or wrong have a relative but little intrinsic meaning.

The Artha Sastra is to be found in the writings of Usanas, of

Brihaspati and others.]

[Footnote 64: A special-pleading signification is given to this dogma

by the Commentator: _viz._

"In questions of debt, &c., though the prior act have been proved, yet

a second act may be more important; _e.g._ if one prove that another

by borrowing has incurred debt, and the other prove that the money

borrowed has been repaid." (_M._)]

[Footnote 65: The word in the original is, acceptance: but this is

evidently used as the concluding act of the transaction referred to,

_scil._ gift.]

[Footnote 66: _e.g._ if one, for a consideration, pledge a field to

another, and then pledge the same field to some one else, also for a

consideration--the first act is the valid one. (_M._)]

[Footnote 67: Sir Wm. Jones and other learned persons would seem to

have restricted the term here used (_pashyati_) to personal knowledge

by sight; but it comprehends every mode of personal and actual

observation or discovery.]

[Footnote 68: who has no legal connection with it. (_M._)]

[Footnote 69: The Commentator quotes Narada, _scil._ "The guilty one

who holds possession without title, for even many hundred years,

should be punished by the monarch as a thief"--and he endeavours to

reconcile with this the law of Yajnavalkya, by confining the latter to

the fruits or profits of the land withheld. But this construction

cannot be admitted. There is a curious document germane to the subject

of this sloka copied in the official notes of Sir Robert Chambers

(Chief Justice of the Calcutta Supreme Court) in July 1791. It is a

letter from Sir William Jones to the Governor of Bombay upon the Hindu

title by adverse possession or prescription. Sir William writes, that

the doctrine of the Mitakshara is; "An absolute property may be

acquired in land by continued and undisputed possession for twenty

years, in the presence of the owner, provided that the possessor came

in by a fair title, either by descent or purchase; if he had no fair

title, the intermediate profits only are irrecoverable, but the

property is not lost." And he concludes; "I only add for your further

satisfaction, that, if three descents have happened since the first

possession, without a fair title, property is lost, even though the

owner was absent; but if three descents have not been cast, an adverse

possession for a hundred years gives an absolute property in the land

to the possessor, unless the owner was under some legal disability."

These may have been the modifications of a later age: they are not to

be found in Manu or in Yajnavalkya. Manu ch. 8, sl. 147, &c.]

[Footnote 70: any thing delivered for safe-keeping, its quality and

quantity being made known. (_M._)]

[Footnote 71: explained infra, sloka 65.]

[Footnote 72: The word literally or usually means "takes away"; and

the Commentator explains--where a pledgee retains and refuses to give

back the pledge, relying upon his long possession. The &c. refers to

the other exceptions in sloka 25.]

[Footnote 73: The Commentator considers the force and intent of this

qualification to be, to make the fine commensurate with the usurper's

means, with a view rather of enhancing it to the wealthy than of

moderating it to the poor, who are perhaps less likely to offend in

this wise.]

[Footnote 74: gift, sale, &c. (_M._)]

[Footnote 75: as proof of ownership, (_M._) Manu, ch. 8, sl. 200.]

[Footnote 76: for three generations. (_M._)]

[Footnote 77: Possession is proof when attended with five incidents; a

title, length of time, continuance, absence of counter-claim,

knowledge of the adverse party. (_M._)]

[Footnote 78: This qualification is the Commentator's.]

Hindu Law and Judicature from the Dharma-Sástra of Yájnavalkya · 第 3 / 6 段