[Footnote 79: Between this and the succeeding sloka another is

introduced in the text of the Calcutta edition; _viz._ Possession

accompanied by a clear title is proof; possession unaccompanied by a

clear title is no proof.--We have omitted this, because the

Commentator quotes it as a saying of Narada, and because it is not

found (as vouched by professor Stenzler) in either of the M.S.S. in

the Berlin Royal Library.]

[Footnote 80: _scil._ as directed in sloka 2.]

[Footnote 81: By a community (_puga_) is meant, the body of

inhabitants of any village or place, without reference to cast or

occupation. (_M._)]

[Footnote 82: A guild (_sreni_) signifies those of one calling,

whether of the same cast or not. (_M._)]

[Footnote 83: Literally "before, before," which implies their

successive rank and importance, _i. e._ that an appeal lies from the

family to the guild, and so on.]

[Footnote 84: Literally "outside." The Commentator explains

it--outside of the town, &c.]

[Footnote 85: _artta_ out of health; evidently meaning here, the

victim of disease so as to be unfit for the business of life.]

[Footnote 86: The word (_vyasani_) may also be rendered, suffering

calamity; and the Commentator explains the use made of it in the text

to be, a person who is unhappy either by reason of the absence of the

object of his desire or by reason of the presence of what is

disagreeable to him. We have however preferred the alternative meaning

which the word admits of.]

[Footnote 87: &c., _i. e._ paralysed by any cause or emotion whatever.

See Manu, ch. 8, sl. 163.]

[Footnote 88: by public officers and delivered to the king. (_M._)]

[Footnote 89: The Commentator considers the treasure-trove here

alluded to, to be buried wealth, of which there is no claimant.]

[Footnote 90: Manu, ch. 8, sl. 37, 38.]

[Footnote 91: The Commentator explains--of the whole world!]

[Footnote 92: _i. e._ by any other than the monarch or a _learned_

brahman. (_M._)]

[Footnote 93: The Commentator (referring to Vasishtha and Gautama)

reads this,--the finder shall take a sixth, the monarch the

residue--such being the converse of the plain language used.]

[Footnote 94: Manu ch. 8, sl. 40: in which, to the monarch who fails

to make restitution is imputed the guilt of the thief. Sir Wm. Jones'

translation of this passage is too indefinite.]

[Footnote 95: _i. e._ The brahman borrower gives two hundredths,

the kshattriya three hundredths, &c. (_M._) But Jagannat'ha, in his

Digest (Colebrooke, B. 1, c. 1, s. 28) interprets the text inversely,

_viz._ the brahman creditor takes two _suvarnas_ in a hundred, the

kshattriya three, and so on. Manu, ch. 8, sl. 140-142.]

[Footnote 96: where there is risk of life or property. (_M._)]

[Footnote 97: as well brahmans as others, (_M._) Manu ch. 8, sl.

157.]

[Footnote 98: _scil._ Notwithstanding the above provisions of the law,

where nothing is expressly stipulated, whatever interest is contracted

for must be given and taken.]

[Footnote 99: oil, ghee, &c. (_M._)]

[Footnote 100: Manu enumerates five modes of enforcing or recovering a

debt; persuasion, law-suits, artifice, worrying, force: ch. 8, sl.

49.]

[Footnote 101: as a fine. (_M._)]

[Footnote 102: to defray the cost of adjudication. (_M._)]

[Footnote 103: This includes one of equal cast (_M._) Manu ch. 8, sl.

177; also ch. 9, sl. 229.]

[Footnote 104: in conformity with the usages of his class. (_M._)]

[Footnote 105: This includes every debtor of superior cast to the

creditor. (_M._)]

[Footnote 106: This rule of course (as observed by the Commentator)

includes the head or manager of the family himself, if alive. Manu,

ch. 8, sl. 166.]

[Footnote 107: for drinking. (_M._)]

[Footnote 108: _e.g._ what is promised to a flatterer, a mountebank, a

panegyrist, a prize-fighter, &c. (_M._) Manu ch. 8, sl. 159.]

[Footnote 109: The Commentator explains this to mean, an

acknowledgment by the husband on his death-bed or when about to go

abroad.]

[Footnote 110: Colebrooke's translation of this passage adds "or son,"

but this is unauthorised either by the text or the Commentary.]

[Footnote 111: The Commentator adduces in illustration, his being

afflicted with incurable disease.]

[Footnote 112: and this, notwithstanding they are wholly without

patrimony or estate derived from their father. (_M._)]

[Footnote 113: that there is such a debt.]

[Footnote 114: capable of inheriting and managing. (_M._)]

[Footnote 115: _i. e._ marries.]

[Footnote 116: This is the reading sanctioned by the Commentator,

_viz._ _putro' nanya'sritadravyah_, signifying, that, on failure of

those before designated, a son who would be otherwise incapable, by

reason of blindness, &c. is to be deemed capable. Another reading may

be, as suggested by the Commentator, _putro nu'aya'sritadraoyah_, "not

the son whose paternal estate another holds," which is adopted by

Colebrooke, and by his author, Jagannat'ha, (Dig. B. 1, ch. 5, s.

171)]

[Footnote 117: _e.g._ "Give such a one money, he will not deceive you;

he is the son of such a one." (_M._)]

[Footnote 118: "If he do not pay, I will." (_M._)]

[Footnote 119: Manu ch. 8, sl. 160-162.]

[Footnote 120: metaphorically in the original "If all stand under the

same shade:" The Commentator explains.]

[Footnote 121: lit. "publicly."]

[Footnote 122: as of a field, garden, &c. (_M._) Manu, ch. 8, sl.

143.]

[Footnote 123: fire, water, &c. (_M._)]

[Footnote 124: The Commentator excludes from this exception a culpable

act of the monarch, but the text is general.]

[Footnote 125: Even though there be a written memorial of the pledge,

and attested; yet, without actual acceptance and possession, it is

incomplete. (_M._)]

[Footnote 126: _charitrabandhakam. charitra_ (the mode or the subject

of pledge) is defined by the Commentator to be either, moral worth,

or, the merit earned by performance of religious rites, such as

ablution in the Ganges, &c. We have rendered it as the mode, not

subject, of pledge. See Jagannat'ha's Digest (Colebrooke), Bk. 1, ch.

3, sec. 2, text cxxiv.]

[Footnote 127: Receiving on one's plighted word (_satyankara_)

signifies, borrowing on a solemn promise to repay. The application

is,--where, at the time of handing over the pledge, it was expressly

declared by the debtor, that the loan should be repaid, even if

increased to two-fold the original sum, and the pledge not abandoned;

in such case also, the debtor should be made to repay twice the amount

of the debt contracted.(_M._)

The Commentator adds another meaning or application of the latter

words of this sloka, in which, reciting the first part, _viz._,

pledging upon the guarantee of character, or, a pledge of religious

merit, he goes on to say--It is here laid down, that one who receives

on his word, _scil._ words ratifying a bargain of sale and purchase,

&c., for instance, receiving a gold ring, &c., as earnest, shall be

made to repay twice the value of the thing so given, on breach of the

contract: if the party depositing the ring, &c., break off the

bargain, he forfeits what he gave as earnest; if the other party break

off, he is to be compelled to refund double the value of the earnest

received by him.]

[Footnote 128: punishable as a thief. (_M._)]

[Footnote 129: to one of the family who is a fit person. (_M._)]

[Footnote 130: The Commentator implies, that where the usufruct has

done more than this, still the transaction is closed by return of the

pledge.]

[Footnote 131: Manu, ch. 8, sl. 180.]

[Footnote 132:90 ibid, sl. 189.]

[Footnote 133: _yachita_, _e.g._ ornaments, clothes, &c. lent on

occasion of festivals. (_M._)]

[Footnote 134: _anvahita._ We have followed the Commentator in

translating this indefinite term.]

[Footnote 135: This qualification too is the Commentator's. The term

used _nyasa_ is simply, a deposit.]

[Footnote 136: which are those given in the presence of (_i. e._

personally to) the depositee. (_M._)]

[Footnote 137: such as gold &c. given to be worked (_M._)]

[Footnote 138: _tapaswi_, the third in rank of the Hindu religious

orders.]

[Footnote 139: The four objects of living being, in the creed of the

Hindu, virtue, wealth, pleasure, and final liberation of the soul.]

[Footnote 140: Manu, ch. 8, sl. 62, 63.]

[Footnote 141: The terms used are _jati_ and _varna_ which are

somewhat ambiguous; but the sense is evidently as rendered, and is so

explained by the Commentator. Manu adds,--Women should be witnesses

for women, ch. 8, sl. 68.]

[Footnote 142: _i. e._ if the regular and more appropriate witnesses

are not available. (_M._)

After sloka 69 the Calcutta edition has the following:--Those learned

in the Vedas, ascetics, the aged, devotees, and the like, are

incompetent witnesses, because so declared by law; no other ground [of

incompetency] is assigned.

We do not insert this additional sloka for the reasons stated in note

[79] supra.]

[Footnote 143: of not less than eighty years.(_M._)]

[Footnote 144: possessed of devils. (_M._) The expression used by the

Commentator may be also translated--under planetary influence.]

[Footnote 145: which the Commentator explains _nirgranthi

prabhritayah_, by which probably are indicated those of the Hindu

community who disbelieve the Vedas, _e.g._ the Jains.]

[Footnote 146: the slayer of brahman, and such heinous criminals.

(_M._) Manu ch. 11, sl. 54. See Note [155].]

[Footnote 147: of either party. Perhaps this might be rendered,

partisans, or, allies.]

[Footnote 148: Said by the Commentator to allude to notorious liars.]

[Footnote 149: _scil._ as found in the other Smritis. The Commentator

(quoting Narada) gives a more detailed account of persons excluded or

exempt from giving testimony. Manu ch. 8, sl. 64--67.]

[Footnote 150: a fortiori two persons, (_M._)]

[Footnote 151: or, who knows the Dharma.]

[Footnote 152: The Commentator excludes from this enabling exception

those under moral (not merely arbitrary or conventional) disability,

as, criminals. Manu, ch. 8, sl. 72.]

[Footnote 153: also, murder. (_M._)]

[Footnote 154: _parushya_ and _sahasa_: v. supra in notes [9] et

[11].]

[Footnote 155: Who these are is described by Yajnavalkya, in the third

book, _scil._

sl. 227. The slayer of a brahman, the drinker of what intoxicates, the

thief, one who violates his _guru's_ bed, are great criminals--also,

whoever associates with such persons.

sl. 228. Grossly to revile one's _guru_, speaking reproachfully of the

Vedas, to slay a friend, after reading from the Veda to forget

it,--these [sins] are like to the murder of a brahman.

sl. 229. To eat forbidden food, a crooked insincere mode of dealing, a

multitude of lying words, kissing the mouth of a menstruous

woman,--these [sins] are like to drinking intoxicating liquor.

sl. 230. To steal horses, jewels, men, women, land, cows, property

pledged,--these [sins] are like to the stealing of gold.

sl. 231. To debauch a friend's wife, a maiden, a sister, a woman of

the lowest grade, a female relative, a son's wife,--these [sins] are

recorded as equivalent to violation of a _guru's_ bed.

sl. 232. To debauch a father's sister, or a mother's, the wife of a

maternal uncle, a daughter-in-law, a step-mother, the sister or

daughter of an _acharya_,

sl. 233. or his wife, or one's own daughter,--these are equal to

violation of a _guru's_ bed. The penalty is death, the pudenda [of the

criminal] being previously amputated. A like doom is for the woman, if

she consented.

See Manu, ch. 9, sl. 235; ch. 11, sl. 54--58, sl. 170--180.

As to the _guru_ and _acharya_, the following is the 34th sloka of

Yajnavalkya's first book:--He is a man's _guru_, who, after going

through the ritual, imparts to him the Veda: he is _acharya_, who

invests with the sacred cord and then imparts the Veda.]

[Footnote 156: Manu, ch. 8, sl. 89 &c.]

[Footnote 157: _guni_, referring not merely to personal qualities or

eminence in virtue, but to possession of wealth, sons, and learning:

so explained by the Commentator.]

[Footnote 158: Manu, ch. 8, sl. 73.]

[Footnote 159: The Commentator explains this to refer to the fine

which would be payable on failure (supra sl. 11).]

[Footnote 160: out of the realm. (_M._) Manu, ch. 8. sl. 119-124.]

[Footnote 161: supra, sl. 73.]

[Footnote 162: The Commentator adds--If the brahman, or any of the

other casts, cannot pay the fine, he must suffer imprisonment and the

labour proper to his cast. He explains the enormity of the offence

described in this sloka to consist in the contempt of Court.]

[Footnote 163: _i. e._ if, by such untruth, the death be averted. If

from testimony either way, the alternative of the death of the

plaintiff or defendant must ensue, the witness should maintain

silence, the monarch assenting. In case the monarch do not assent, the

testimony may be rendered of no avail by confusing the witness: if

this cannot be effected, then let the truth be spoken; for by so doing

one fault only is incurred, _viz._ causing the death, whereas from

untruth would arise the sin of it as well as of the death. (_M._)]

[Footnote 164: Manu, ch. 8, sl. 104, 105.]

[Footnote 165: &c. _i. e._ his property, tribe, calling, customs, &c.

(_M._)]

[Footnote 166: Manu, ch. 8, sl. 168.]

[Footnote 167: literally "by three only," explained by the Commentator

as above rendered.]

[Footnote 168: the Commentator considers the &c. here to signify,

testing the handwriting of the writers or amanuenses employed.]

[Footnote 169: _i. e._ consideration of place, time, and persons

connected with possession of the document. (_M._)]

[Footnote 170: The Commentator divides written instruments into, 1.

public or given by authority, and, 2. private, or those which the

community use among themselves, and to which the rules in the text

apply. These again are either, autograph, _i. e._ wholly written by

the party who speaks by the document--or, written by another for him.

The last description, he says, require to be attested, and their

effect as proof depends upon local usage. He quotes Narada as to the

private writings. For the instruments emanating from authority, he

refers to sl. 317, 318, 319 of Yajnavalkya's first Book, _viz._

"When the monarch bestows lands or creates a charge in favor

of any one, he shall, for information of future good

monarchs, put it in writing, either on cloth or copper,

setting his seal thereto. He shall inscribe the names of his

ancestors and his own [also the donee's (_M._)], the extent

of the gift, its description by boundaries, also the date;

all this shall be authenticated under his hand."

]

[Footnote 171: This word in the 94th sloka we have rendered

'discharge.' Its ordinary and literal sense is 'purification.']

[Footnote 172: _scil._ ordeals. (_M._)]

[Footnote 173: the ocean god.]

[Footnote 174: the inferior Brahma, the immediate cause or creator of

the universe.]

[Footnote 175: It is only of self-acquired property that unequal

partition can be made. Of that which is inherited or ancestral, there

is co-ownership: it cannot therefore be apportioned at the father's

pleasure. (_M._) Infra sl. 121.]

[Footnote 176: Jagannat'ha, in his Digest, quotes the Dipakalika and

other authorities interpreting this injunction to refer to such wives

only as have not male issue. (Colebrooke, vol. 3, p. 97.)]

[Footnote 177: Something, however valueless; in order that the heirs

of the separated son may have no claim to a share of the family

inheritance, (_M._) Manu, ch. 9, sl. 207.]

[Footnote 178: For instance, if one son have a large family, or be

disqualified to earn a livelihood, the father may give him a portion

larger than the others. But an unequal partition from angry impulse,

or weak-mindedness, has no validity. (_M._)]

[Footnote 179: Manu, ch. 9, sl. 104. Whenever the father wishes, is

one of the ordained periods for partition; the second is, when the

father has renounced worldly enjoyment and the mother is past

child-bearing; and this partition may be enforced (according to

Narada) at the son's desire, though the father object. Partition

should also be made, the son desiring it, if the father lead a vicious

life, or be suffering under incurable disease; even though the

mother's menstruation have not ceased. The third period for partition

is, the father's decease. (_M._) Manu divides,--to the eldest two

aliquot parts, to the second son one and a half, and to each

succeeding son a single part. The Commentator asks, why that division

was not adhered to; and he solves his own question by the remark, that

it was disliked by the people, and therefore rightly abandoned. This

position he supports by several quotations, and by allusion to the

abolition or non-observance of other ancient ordinances, _e.g._ the

raising up of male heirs by the brother of the husband or others.

It is an obvious reflection, that the altered law of distribution is

one of the few instances in the Hindu economy where an innate feeling

of natural equality has overcome or superseded arbitrary rule--and

further, that the change has been brought about by the pressure of the

old law upon the privileged casts, who, in common with others, were

affected by it.]

[Footnote 180: Manu, ch. 9, sl. 206, 208.]

[Footnote 181: When the recovered properly is land, he who obtained it

shall take a fourth part, the remainder to be equally divided. (_M._)

The Commentator supports this view by the authority of Sankha.

Manu, ch. 9, sl. 209.]

[Footnote 182: Supra, Book 1, sl. 3.]

[Footnote 183: Manu, ch. 9, sl. 215.]

[Footnote 184: The Commentator refers, in explanation of this sloka,

to Manu, ch. 9, sl. 216, _viz._ A son born after a division shall

alone inherit the patrimony [_i. e._ the share allotted to the parents

(_M._)], or shall have a share of it with the divided brethren, if

they return and unite themselves with him.--With respect to the

deduction for expenditure, &c., the Commentator explains, that the

accumulations of mere income are not to be included in the estate to

be repartitioned, and that a previous deduction is to be made for

necessary expenditure, _e.g._ the father's debts.]

[Footnote 185: but, if she have _stridhana_, only a half share.

(_M._)]

[Footnote 186: Manu, ch. 9, sl. 118.]

[Footnote 187: These varying proportions ofcourse apply only where

there are several mothers of differing casts. Manu, ch. 9, sl.

148-157.]

[Footnote 188: or escaped notice altogether. (_M._) Manu, ch. 9, sl.

218.]

[Footnote 189: Manu, ch. 9, sl. 59, 145, 167, 190.]

[Footnote 190: But if the actual father have already a son, his son by

another's wife is not his heir. (_M._)]

[Footnote 191: _aurasa_ is from _uras_ 'the best,' being the first in

order of sons.]

[Footnote 192: _dharma_ wife is defined by the Commentator, a wife of

the same cast with her husband, and wedded to him according to the

_brahma_ and other approved forms of marriage; which are described in

the first book, sl. 58-61, _viz._ "In the marriage called _brahma_,

[the bride], adorned in a manner suitable to the means [of her

family], is bestowed upon the invited bridegroom,--In the _daiva_

[marriage, the bride is made over] to the priest whilst offering

sacrifice: _arsha_ [marriage], is where [the bride's father] receives

a pair of kine.--In the _kaya_ [marriage, the bride] is delivered to

the suitor with the injunction, Together practise the rules of duty!

In the _asura_ [marriage], wealth is received [from the bridegroom].

_Gandharva_ is [a union in marriage] by mutual consent [of the

parties]: the _rakshasa_ [marriage], is by capture [of the woman] in

war: the _paisacha_ [marriage, where she is obtained] by

deception." Manu ch. 3, sl. 20 _et. seq._]

[Footnote 193: _scil._ according to Vasishtha, such as, by

agreement between father and son-in-law, at the time of the daughter's

marriage, has been, by anticipation, given up to the father. (_M._)

And the Commentator notes, that the term used, _puttrikasata_, may be

also rendered or understood 'daughter as a son' _i. e._ a daughter

appointed or placed in the same position and with the same rights as a

son.]

[Footnote 194: _sagotra._]

[Footnote 195: it being merely known that the father is a man of the

same cast, not who he is. (_M._)]

[Footnote 196: privately, in the father's house. (_M._) Manu adds the

condition, if she marry her lover; ch. 9, sl. 172.]

[Footnote 197: Manu, ch. 9, sl. 175.]

[Footnote 198: This is permitted to a man of the same cast, in time of

distress; but only where there are several sons: the eldest cannot be

bestowed as a gift-son. (_M._) Manu, ch. 9, sl. 168.]

[Footnote 199: The Commentator explains, that this can only be on the

same conditions as the given or gift son. Manu, ch. 9, sl. 174.]

[Footnote 200: having lost his parents, or being abandoned by them.

(_M._) We have some doubt of the Commentator's meaning: here as the

alternative includes a separate head and description, _viz._ (xii) in

the succeeding sloka. The word rendered 'abandoned' literally

signifies 'liberated,' 'set free;' so the meaning may be,--one who is

left free to choose for himself.]

[Footnote 201: Manu, ch. 9, sl. 173.]

[Footnote 202: ibid. sl. 171.]

[Footnote 203: _pinda_, which literally signifies any round

substance. The cake is a compound, in form of a ball, given as an

offering to the dead.]

[Footnote 204: The Commentator quotes Vasishtha--If a son be

adopted, and afterwards an _aurasa_ be born, the former takes a fourth

part--and deduces from this, that a son of any inferior grade receives

a fourth share when superseded by an afterborn _aurasa._]

[Footnote 205: Manu, ch. 9, sl. 179.]

[Footnote 206: _pitarau._ First the mother, then the father--says the

Commentator. But Manu, ch. 9, sl. 185:--If a man die without male

issue, the father is heir; next to him in order, the brothers--and,

sl. 217--If a man die childless, his mother succeeds.--Such is the

contradictory character of texts and comments on this subject. The law

in use in Bengal is the reverse of the Commentator's gloss.]

[Footnote 207: first, of the whole blood; then, half-brothers. (_M._)]

[Footnote 208: as representing their respective fathers. (_M._)]

[Footnote 209: family; kindred of the same _stirpes_ or stock. These

are thus detailed by the Commentator;

1. paternal grandmother,

2. paternal grandfather,

3. paternal uncles,

4. sons of the uncles,

on failure of paternal grandfather's line, then,

5. paternal great-grandmother,

6. paternal great-grandfather,

7. their sons,

8. their sons' offspring.

All of whom (proceeds the Commentator) are _sapindas_, connected

by food oblations. If they fail, then follow those connected by the

water oblation only, _viz._ seven degrees in the ascending line beyond

_sapindas_, _i. e._ _samanodacas._]

[Footnote 210: divided by the Commentator into three classes, _viz._

1. of one's self, 2. of one's father, 3. of one's mother; as, the sons

of a father's or of a mother's sister, or a maternal uncle (one's own

kin)--the sons of a father's paternal or maternal aunt, or a father's

maternal uncle (a father's kin)--and those in the same relation to a

mother.]

[Footnote 211: _sa-brahmachari_, one instructed together with him in

his religious duties. This head applies only to the first three

classes, those invested with the sacred cord.]

[Footnote 212: as distinguished from the temporary _brahmachari_ or

religious student, which all of the twice born classes should be, in

youth.]

[Footnote 213: who, having been separated, again holds his property in

community with those from whom he had separated. Such reunion is

permitted only with the father, the brothers, and the paternal uncle.

(_M._)]

[Footnote 214: This participle has a masculine termination; and the

ellipsis is supplied from the Commentator.]

Hindu Law and Judicature from the Dharma-Sástra of Yájnavalkya · 第 4 / 6 段