, XII, 39), which appears
to imply individual ownership in land.
to imply individual ownership in land.
Cambridge History of India - v1
Local
usage is the basis of law and may overrule laws made without regard to custom.
2 On Bșihaspati, see Jolly, Tagore Lectures, and the introduction to the trans.
lation of Nārada and Bțihaspati in S. B. E. , vol. XXXIII.
## p. 251 (#285) ############################################
XII]
CIVIL AND CRIMINAL LAW
251
6
law. givers omit it. It is likely that instead of this stage many priests
became mendicants. The act of renouncing the world is introduced by
a sacrifice of worldly goods and other ceremonies prescribed by the
Sūtras and law-books. But the latter, in distinction from the former,
if indeed they devote much time to such matters at all, now turn to
that part of Dharma or Right which is included under the head of Royalty
and Vyavahāra. The latter term means law in the modern sen se, business
intercourse legally interpreted, legal procedure. There is no formal dis-
tinction between civil and criminal law till the term vyavahāra is divided
by later writers into cases of property' and ' cases of hurt'. The first
enumeration of legal titles is found in Manu and is as follows : (1) Re-
covery of debts : (2) Deposits and pledges ; (3) Sale without ownership ;
(4) Partnership ; (5) Resumption of gifts ; (6) Non-payment of wages ;
(7) Breach of contract; (8) Annulling of sale and purchase ; (9) Disputes
between the owner and tender of cattle ; (10)Disputes regarding boundaries ;
(11) Assault ;(12) Defamation ; (13) Theft ;(14) Robbery (with violence);
(15) Adultery"; (16) Duties of man and wife ; (17) Partition (inheritance) ;
(18) Gambling (with dice) and betting (on cook-fights, etc. ). In this
category, criminal law is represented by the titles eleven to fifteen and
eighteen, while the first nine and the sixteenth and se venteenth titles
belong to civil law. There is also no distinction between laws affecting
things and persons, and, to follow the indictment of Mill in his History of
India, 'Nonpayment of wages stands immediately before breach of contract,
as a separate title, though it ought to be included under that head. ' But
the eighteen titles are remarkable as the first attempt to separate different
cases ; to demand that Manu should have given us a perfect or even
a perfectly clear list is unreasonable.
The titles and the arrangement of Manu are followed by later writers,
though with sub-divisions. Thus Bșihaspati (11, 8), after giving the eighteen
titles says that they are divided owing to diversity of lawsuits'; and
other writers give ten chief crimes (killing a woman, mixture of caste,
adultery, robbery, causing illegitimate birth, abuse, insults, assault, procur-
ing abortion) headed by disobedience of the king's commands. It is, too,
only later writers who assert that a lawsuit cannot be instituted mutually
between father and son, or man and wife, or master and servants (Nārada,
1, 6). Although the titles begin with civil cases, there is no doubt that
primitive procedure had to do with criminal cases before civil cases
known. Thus the earliest trials are for theft and perjury, and it is prob-
able that theft was the first crime to be recognised legally. We have seen
that even in the Sūtras the thief is brought before the king and punished
by him, and theft is the chief crime mentioned in the Vedas (more
particularly theft of cattle, or robbery). There are a thousand forms
were
## p. 252 (#286) ############################################
252
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
of theft, according to Brihaspati, who makes theft one of the kinds of
'violence,' of which there are four-homicide, theft, assault on another's
wife, and injury (either abuse or assault). Thieves are of two sorts, open
and concealed, ‘and these are sub-divided a thousandfold, according to
their skill, ability, and mode of cheating' (Bșih. , XXII, 2). Those who
cheat at dice or cheat a corporation are to be punished as impostors.
The punishment for breaking into a house to steal is impalement ; high-
waymen are hanged from a tree by the neck; kidnappers are burned
in a fire of straw ; one who steals a cow has bis nose cut off ; for stealing
more than ten measures of grain the thief is executed; for less he is
fined eleven times what he has stolen (ibid. 9 f. ; Manu, VII, 320).
The proof of theft is possession of the stolen property, or a track leading
to the house of the suspected man ; but excessive expenditure, intercourse
with sinners, and other 'signs' may make a man suspected ; then he may
have to clear himself by oath or ordeal.
Manu recognises only two ordeals. Later authors add several more
and some admit the application cf an ordeal to the plaintiff as well as to the
defendant. The oath of a witness is virtually an ordeal, as the oath invokes
divine power, which punishes the guilty. The oath is taken according to the
caste of the witness. For example, a farmer swears by his cattle, etc. Or
one may simply swear that a thing is so, and if his house burns up within a
week it is a divine conviction of perjury. Later authors also prescribe that
in ordeals a writing be placed on the head of the suspected man containing
the accusation and a prayer, so that the divine power may understand the
matter. The two earliest ordeals are those of fire and water (Manu, VII,
114 f). As the Sūtras do not notice ordeals, except for a general recogni-
tion of them as ‘divine' proofs on the part of the late Āpastamba, and as the
later writers Yājñavalkya and Nārada describe five ordeals, adding the
plough-share, scales, and poison, it is reasonable to conclude that Manu
stands in time, as in description, midway between the two sets of authors
and is the first to describe ordeals already known and practised. This is the
judgment of Bühler and of Jollyı, but the implication that the mention of
daira in older literature makes probable the existence of all the forms of
ordeal mentioned only in later literature is not safe. Fire and water were
first used, then come the elaborate trials with balance, etc. , till eventually
there are nine formal ordeals? .
The nine ordeals are as follows, arranged in the order chosen
by Brihaspati (xix, 4) : the balance, fire, water, poison, sacred libation,
grains of rice, hot gold-piece, ploughshare, and the ordeal by Dharma and
1 S. B. E. , vol. XXV, p. cii; and Jolly, Recht und Sitte, p. 145.
2 Compare Stenzler, tie Z. D. JI. G. , vol. IX, p. 661 ; E. Schlagintweit,
Die Gottesurtheile der Inder (1866); and A. Kaegi, Alter und Herkunft des german.
Gottesurtheils (1887).
9
in
## p. 253 (#287) ############################################
XII]
ORDEALS
253
Adharma. When Professor Jolly says that no one of these can be judged
later than any other on the ground that the growth from two to five
and then to nine ordeals does not necessarily imply that one named later did
not exist before the two named first, he exaggerates the probabilities. Is it
likely, for example, that the ordeal by Dharma and Adharma is as old as
that by fire and water ?
The ordeal by ploughshare is especially for those suspected of stealing
cattle; the piece of heated gold is reserved for cases involving a theft 'over
four hundred'; that by poison, for one worth a thousand, etc. All such
restrictions are late amendations and additions. In the fire-test one carries a
hot iron ball, and if unburned is innocent. In the water-test, one plunges
under water and to prove innocence must remain under as long as it takes
for a dart, shot at the moment of diving, to be brought back. These two
are alterations of old material, in which the accused walks through fire, as
in epic tests, or is thrown into water to see if he drown. The balance is an
easy ordeal and hence is used in the case. of priests and women. It consists
in seeing whether the accused weigh less or more the second time the test is
made ; if heavier, one is guilty. Probably the weight of sin weighs
one down. So in the Mahābhārata, when a truth-telling man lies, his
chariot begins to sink.
Another method of exacting justice, used generally in the case of debt,
was called 'the custom' (Manu, viii, 49) and consisted in what is now known
as dharņa. The guilty man (debtor) is besieged in his own house by
his opponent, who fasts on him till the guilty one yields or the accuser dies.
This method of punishing an injurer is well known in the epics, where fast-
ing to death against a person is an approved form of retaliation. The one
who has committed the offence (or owes the money) usually yields in order
to prevent the ghost of the dying creditor from injuring him.
The punishment for murder, as already noticed (v. sup. p. 217), is at
first a compensation paid to the relatives or the king (perhaps both)
and later paid to the priests. · The compensation is reckoned at a hundred
cows (with a bull). This is in the case of a man; in the case of a woman,
the punishment is no more than if a slave is killed. Manu treats the com-
pensation as a penance (paid to a priest) instead of a ‘royal right,' as in the
earlier Sūtra period. The custom of appraising death at so much a head for
which compensation is exacted existed into modern times and is mentioned
by Tod in his Annals of Rajasthan.
1 The ordeal by Dharma and Adharma consists in painting pictures of Justice or
Right and Injustice or Wrong (abstract divinities) upon two leaves, one picture being
white, the cther black. The two images are then worshipped and invoked with sacred
verses, and, after the leaves have been sprinkled with perfumes and the five products of
the sacred cow, they are rolled in balls of earth and set in a jar without the accused
obierving them, who then extracts one and if he draws Dharma he is acquitted. '
See also Roth, Z. D. M. G. , vol. XLI, pp. 672 f. ; and other references in Jolly,
Recht und Sitte, p. 132.
9
.
a
## p. 254 (#288) ############################################
254
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
Treason of all kinds is punishable by death, where it consists in attack-
ing the king or falsifying an edict or bribing the ministers of the king or
helping his foes (Manu, ix, 232, etc. ). Instead of other penalties, the guilty
man, especially a priest, may be outcasted, that is, formally thrown out or
banned from society, for in losing his caste he loses all social rights ;
though in certain cases through established ceremonies he may be taken
back. One who is outcast loses all right to primogeniture, inheritance, etc. ?
Except for treason, all crimes are judged relatively, that is, there is
no absolute penalty, but one conditioned by the social order of the criminal
or the victim of the crime. Thus in cases of defamation, if a warrior
defame a priest, he is fined one hundred paņas ; if a man of the people-
caste do so, one hundred and fifty ; if a slave, he shall be corporally
punished ; but if a priest defame a warrior, fifty ; if he defame a man of
the people, twenty-five ; if he defame a slave, twelve, and this last fine is
that imposed upon equals defaming equals within the Āryan castes. But
if a slave insult a “regenerate'. (Āryan), his tongue is to be cut out.
Especially is this the case in relation between the sexes, for though the rule
of death for adultery is general (the woman is devoured by dogs in a public
place and the man is burned alive, Manu, viii, 371 f. ), yet its antique
provisions are really preserved only out of respect for tradition, the real law
being that the offending man shall be fined and the woman have her hair
cut off and be treated with contempt (Nārada, XII, 92), unless the crime be
one that outrages caste-sentiment. Thus a slave who has intercourse
with a guarded high-caste woman may be slain ; a Vaiçya shall lose his
property ; a warrior be fined a thousand and be shaved with urine
(Manu, viii, 384 f. ). The old general rule of the Sūtras to the effect
that the woman be eaten by dogs and the man killed is preserved under the
form, explicit in the later works but already implied by Manu, that
this be the punishment if ‘a wife who is proud of the greatness of her
. family' (that is a woman of high caste) commit adultery, while Nārada
restricts the ferocious penalty to the impossible case of a priest's wife
deliberately going to a low-caste man and seducing him.
The general lex talionis is similarly confined to thieves or robbers
(Manu, VIII, 334), though another restriction limits it to intercourse
between low and high caste (if a man of low caste injure a man of
high caste the limb corresponding to the one hurt shall be cut off, ibid. 279).
In one particular, however, the rule of increased fines is reversed, for in any
case where a
>
man would be fined one penny kārshāpaņa)
1 Primogeniture is not absolutely the cause of preference among heirs. An
unworthy son may be passed over even if he be the eldest, in favour of a worthier
junior. On banishment in lieu of capital punishment see Manu, VIII, 380.
common
## p. 255 (#289) ############################################
X11]
TRADE LAWS
255
a
9
the king is fined a thousand (Manu, viii, 336), probably on the principle
(Manu, VIII, 338) that he who knows more should suffer more? .
In the province of civil law the later law-books show the greatest
advance over the earlier. For example, where trade is concerned, the
Sūtras know nothing of legal business partnership, apart from the united
family and its obligation as a whole to pay debts. Manu has the idea of a
partnership, but his whole discussion of the tite concerns only the amount
of fees payable to priests who together perform a ceremony ; and he
merely raises the question whether all the religious partners or the one who
performs a special act shall take the traditional fee for that one part. He
decides that the four chief priests out of the sixteen shall get a moiety,
the next four half of that, the next set a third share, and the next a quar-
ter (the commentators are not unanimous in appraising the amounts), and
adds ‘by the same principle the allotment of shares must be made among
men on earth who perform work conjointly' (Manu, vur, 211). In other
words, except for stating that one should be paid in accordance with the
work one does, Manu has nothing to say regarding 'partnership', the for-
mal fourth title of the list. Yājñavalkya on the other hand includes
agriculture and trades in his rule (11, 265). Nārada, while retaining the
matter concerning priestly partnership, expresses the axiom above in this
way : 'Loss, expense, profit of each partner are equal to, more than, or
less than those of other partners according as his share invested) is equal,
greater, or less. Storage, food, charges (tolls), loss, freightage, expense of
keeping, must be paid by each partner in accordance with the terms of
agreement, etc. (III, 3f. ). Finally Bțihaspati begins his title ‘Partnership’
thus : 'Trade or other occupations should not be carried on by prudent men
jointly with incompetent or lazy persons or with such as are afflicted
with illness, ill-fated, or destitute. Whatever property one partner
may give, authorised by many, or
or whatever contract he
may
to be executed, all that is (legally) done by them all. Whatever loss
has occurred through Fate or the king shall be borne by all in proportion
to their shares. When artists practise their art jointly, they share according
to their work. If a number of men in partnership build a house or
1 The slave of the rules cited above is a Çūdra-slave. The law defines s'aves as
of seven kinds, war-captives, daily workers for food, slaves born in the house, men
bought, given, inherited, and those enslaved for punishment. Slaves of war are known
in the epic (v. sup. p. 241) and there is no reason for suppoaing that a captive warrior
may not be a slave (the commentator confines the captive to the Çūdra caste). Accord-
ing to practice, the warrior-caste slave is in bondage only for a year. The ‘slave by
punishment' means a debtor unable to pay. It may be observed that prisons are for
malefactors and traitors rather than for debtors. Manu speaks of prisons situated
by the roadway where all who pass may see the punishments suffered by the wretches
within, and the tortures of hell have the appearance of being copied from models nearer
home (Manu, viii, 288).
cause
## p. 256 (#290) ############################################
256
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
a temple, or dig a pool, or make leather articles, the headman among the
workmen gets a double share. So too among musicians : the singers share
and share alike, but be who beats time gets a half share over. ' And (still
under the head of Partnership), 'when freebooters return from a hostile
country bringing booty, they share in what they bring after giving a
sixth to the king, their captain getting four shares, the bravest getting
three, one particularly clever getting two, and the remaining associates
sharing alike' (Brihaspati, xiv, 32).
Regarding the use of money, an old Sūtra rule confirmed by Manu
permits interest at fifteen per cent. annually, but for men (debtors) of
low caste the interest may be sixty per cent; yet this is where there is no
security. The amount differs in any event according to caste, as already
explained (p. 222). No stipulation beyond five per cent. per mensem is legal.
Debts unpaid shall be worked out by labour by men of low caste. These
rules obtain from the Sūtra age and vary scarcely at all. Megasthenes
erroneously reports that the Indians do not take interest ove av sigouci
OV 35 € icaci ea 3 vi&occai Fr. 27). Possibly he has in mind the provision that
no Brāhman shall be a usurer. Wages are often paid in kind ; one-fifth of
the crop or of the increase in flocks goes to the man who cares for the
work. The tender of cattle, in contrast to the epic rule (v. sup. p. 240 f. ),
gets the milk of one cow out of ten (Manu, VIII, 231). If a man work with-
out food or clothing given to him he may take a third of the produce ; other
wise a fifth (Brihaspati, xvi, 13). But Nārada gives a general rule to the
effect that the servant of a trader, a herdsman, and an agricultural servant
shall respectively take a tenth part of the profit, whether from the sale of
merchandise, the increase of flocks, or the grain-crop (Nārada, vi, 3). This
is also the provision of Yājñavalkya (11, 194)". The agricultural servant is a
Çūdra slave or a member of a mixed caste? .
The family represented in the law-books as the usual family is
one where all the brothers live together as heirs of the father, who may or
may not, as he or they prefer, divide his property during his life-time. The
eldest son has certain rights of primogeniture. but, as said above (p. 254,
note), they may be taken from him in case he is unworthy (Manu, ix, 213).
The property of a childless wife belongs to her husband, unless she is
married by a rite not countenanced by the law; in that case her property
reverts to her parents. Woman's property consists only in wedding-gifts,
tokens of affection, and gifts from her brothers, father, and mother, as also
1 This is expiesely the wage ordained by the king in case there has been no spe.
cial stipulation between master and man. It represents therefore the normal percentage
of gain (1'10) as wage for the hired assistant of a party merchant, herdsman, or farmer.
2 According to the commentator on Vishņu, LVII, 16, where the practice of rent.
ing land for half the crop is referred to, the herdsman is usually the son of a warrior by
a slave. girl. These “mixed castes' really did most of the general work of a village,
a
.
a
## p. 257 (#291) ############################################
XII)
KING AND GOVERNMENT
257
what is given her after marriage by her husband. All this goes to
her children at her death.
As the preferred family is the joint-family, so the village is possessed
as a whole of its holdings in land. Thus the only full discussion in Manu
regarding boundaries (the tenth title) has to do with boundaries between two
villages. Yet it is clear from other passages that private ownership in land
under the king was recognised. He who first cultivates wild land, owns it
(Manu, ix, 44). There is also a Sūtra rule : 'Animals, land, and females
are not lost by possession of another' (Gaut.
, XII, 39), which appears
to imply individual ownership in land. The land around a village on
all sides for one hundred 'bows' (about 600 feet) is common; and if crops
are grown there and cattle injure the crops, no damage can be exacted
(Manu, viii, 237 f. ); but the fields appear to be private property as they
are fenced in1.
The Government of the country described in legal literature is not
different from that of the Sūtras, and in most respects agrees with the con-
ditions represented in the epics, where government without a king is so well
krown as to be the object of the most severe condemnation ; and it
is regarded as essential that a king of good family should be at the head of
the state. Slave-born kings are known in history but tabooed in law. The
king is įreated in the law. books under two heads, as general lord of the
land and as judge and executioner.
As lord of the land the king is a Zeus Agamemnon, a human divinity
incorporating the essence of the deities Indra, Vāyu, Yama. Varuņa, Agni,
etc. , that is of the gods who protect the world in the eight directions. In
other words, his chief function as lord is to protect, and he protects as 'a
great deity in human form' (Manu, vii, 8). He has, to aid him, seven or
eight councillors of hereditary office (“whose ancestors have been servants of
kings'), with whom he daily consults as to affairs of state and religion. His
prime minister should be a learned priest ; he should appoint officials over
all public works, mines, manufactures, storehouses, etc. Various royal
monopolies are mentioned (salt is one of them). His officers must be brave
and honest, and he himself must be brave and lead his troops personally in-
to battle, where he is to make it his duty to ‘kill kings,' for those kings
go to heaven who seek to slay each other in battle and fight strenuously
for that purpose (Manu, VII, 89). As overlord, the king receives a share of
the booty won in battle, and it is his duty to distribute such booty
as has not been taken singly among the soldiers. One military officer and
a company of soldiers he should place as a guard over each village
1 This is not certain evidence that they were private possessions, but such appears
to have been the case, as the rules regarding flowing water, ‘seed cast in another's
field,' etc. also presuppose private ownership (Manu, IX, 52 f. ). To let land’ renders
one impure (Ap. , Dh. S. , I, 18, 20).
## p. 258 (#292) ############################################
258
CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
>
a
>
and town, to protect them. There should be a lord of one village, a
lord of ten, (of twenty), of a hundred, and a lord (or lords) of a thousand.
It is the duty of the lord of one village, grāmika, to report all crimes
to the dacapa or lord of ten, and the lord of ten shall report likewise
to the lord of twenty, and he to the) lord of a hundred, and he to the lord
of a thousand. As much land as suffices for one family shall be the
income of the lord of one village and so on to the lord of a thousand, who
shall enjoy the revenue of a town. All these men (it is said) are probably
knaves and must be spied upon continually through the agency of a general
superintendent in every town, who shall scrutinise the conduct of all the
governing lords, 'for the servants of kings appointed to protect generally
become rascals who steal the property of others' (ibid 123). The sum
collected from his subjects by a just king (as taxes) is a fiftieth part of the
increment on cattle and gold, and the eighth, sixth, or, twelfth part of the
crops ; while common artisans pay tax by a day's work monthly.
These provisions (of Manu) are followed by Vishņu, who however
omits the intermediate lords of twenty villages and recognises only the
decimal system throughout? . Instead of a thousand villages Vishņu speaks
of the 'whole country,' and probably the two expressions were synonymous.
Vishņu also specifies eunuchs as guards of king's harem, not mentioned by
Manu in connexion with the palace. Another point which brings Vishņu
into line with the Sūtra authorities (Baudh. , 1, 17, 18, 1 ; Vas. , I, 42)
is found in his rule regarding taxes. He gives no such option as Manu,
but specifies one-sixth as the tax on grain and seeds and one-fiftieth
on cattle, gold, and clothes (all authorities exempt priests from taxation-
laws).
The men of war, according to Manu, are to be selected for prominent
places in the van) from Kurukshetra, the Matsyas, Panchālas, and those
born in Çūrasena -all districts in the neighbourhood of Delhi, Jaipur,
Kanauj, and Muttra-a provision sufficiently indicative of the geographical
origin of this code. It is interesting to note that both Manu and Vishņu
state that when a king has conquered a foreign foe he shall make a prince
of that country (not of his own) the king there, and (Vishņu adds, III, 49)
he shall not destroy the royal race of his foe unless that royal race
be of ignoble birth. He is to honour the gods and the customs of
the conquered country and grant exemption from taxation (for a time)
(Manu, vii, 201).
In his capacity as judge the king tries cases himself or appoints a
priest in his stead (Vishņu, III, 73) : but this latter provision is a later trait,
though found in the Sūtras. The earlier rule is that the king himself
1 The army divisions are also arranged decimally, in squads of ten and companies
of one hundred or of other multiples of ten (Vas. , XIX, 17 f. ).
## p. 259 (#293) ############################################
X11]
FAMILY LAW
259
shall try cases daily and have built for that purpose a special hall as
part of his palace in the inner city, and even, as we saw in the Sūtra
period (v. sup. p. 216), act as executioner. The fact that the king bas also
the pardoning power is implied in the provision that if the thief come
before the king and the king smite him or let him go he is thereby
purified? , a provision which also brings up the intricate question of the
relation between legal punishment and religious penance. For many of
the legal punishments for gross crimes are set down not as such but
as religious expiations, and it is said that the king has to see to it that these
religious obligations are fulfilled. In some cases without doubt punishment
as a matter of law began as a matter of priestly religious law. The
business of the king as judge was not unremunerative, as every debtor who
was tried and convicted paid a tenth of the sum involved into the royal
treasury (Vishņu, vi, 20). According to Manu (VIII, 59), if plaintiff or
defendant is found guilty of falsification in regard to a contested sum, twice
the sum itself shall be paid as a fine (to the king). The king's chaplain has
an important place in the court of justice ; he is chief of the councillors
who as a body may include members of other Āryan castes.
If a deputy
act for the king, later authorities state that he should carry a seal-ring of
the king as sign of authority (Bţibaspati, 1, 3). The right of appeal
is also admitted in later law-books, which assume that a case may come
up first before a family, or corporation, when if the judgment is questioned
the case may be tried by assemblies (of co inhabitants or castes) and then
by judges duly appointed (ibid. 39). Yājñavalkya (11, 305) and Nārada also
(1, 65) say that, when a lawsuit has been wrongly decided, the trial must be
repeated. According to Yājñavalkya appeal may be taken from corpora-
tions, etc. , to the judge appointed by the king' (11, 30). Such a judge is
one appointed to act for the king in his own city or in the provinces.
a provision found also in epic literature. All the law-books acknowledge
the importance of the law of family (kula), guild or corporation (creņi),and
assembly or greater corporation (pūga, gana), of caste or co-inhabitants in
making their own laws, which the king must not contravene.
There is one aspect of legal literature which is very significant of the
origin of the completed codes. The laws, namely, frequently contradict
one another either by implication or directly, not only the laws in general
but those of the same code and even the laws placed in juxtaposition.
An example of such contradiction is what may be found in Manu's code
respecting the sale of a daughter. In vill, 204, 'Manu declares' that if one
girl has been shown to a prospective bridegroom and another is given,
he may marry them both for the same price. In iii, 51 the same code
1 Apparently a murderer might expiate his crime by dying for the king in battle
(Apastamba, 1,24. 21), and even, “if he fights three times, when not slain, he is freed'
(Vas. , Dh. C. , XX, 28). This antique provision is not preserved in the later law.
9
## p. 260 (#294) ############################################
260
(CH.
GROWTH OF LAW AND LEGAL INSTITUTIOVS
we
a
a
a
(presumably the same Manu) says 'Let no wise father take even a small
price for his daughter. . . for small or great this would be a sale, ; and
finally in ix, 97,
read :
'If the giver of the price die after the
price for a girl has been paid, she shall be given to the (bridegroom's)
brother if she is willing,' and immediately after (1x, 98), 'Even a slave
should no! accept a price in exchange for his daughter,' with a couple
of verses following in the tone of the passage above, repudiating the 'sale
of a daughter. ' Yet in viii, 366, under the head of the fifteenth title
of law, it is stated that a low-caste man courting a woman of the highest
caste deserves death (or corporal punishment) ; but one who courts
an equal shall ‘pay the price' (and take her) if her father consents. It
was an old provision that a fee or price (a yoke of oxen) should be paid to
the father, and though, this was softened down to a 'fee' or 'tax' (çulka),
yet the advanced code objects formally to this business transaction. At
the same time the old provision is retained, because it was
a part of
hereditary traditional law. In the epic also, the rule against selling a
daughter is recorded ; but so strong is the feeling against violating family-
law that the man who purposes to sell his daughter, because it is the
custom in my family,' is upheld in doing so by a saint, who even declares
that the sale is justified by the ancients and by God (Mbh. , I, 113, 9 f. ).
Here the girl is bought with gold and elephants and other costly things.
On the other hand, as a matter of dignity, the father of an aristocratic girl,
more particularly a princess, bas in effect heavy expenses. Thus when
king Virāța weds his daughter he bestows upon his son-in-law
thousand horses and two hundred elephants (Mbh, iv, 72, 36). The didactic
epic says that a man who sells his daughter goes to hell (XIII, 45, 18); there
is a general Sūtra rule against selling any human being (Gaut. , VII, 14. )
In regard to infant marriages the Sūtras generally admit the
advisability of marrying a girl when she is still too young to wear clothes,
that is, before she becomes adult, or shows signs of maturity. This latter
law and practice are all at variance on this point. One of the epic heroes
marries at sixteen a princess still playing with her dolls but old enough
to become a mother shortly afterwards. The epic rule is that a bride-
groom of thirty should marry a girl of ten, a bridegroom of twenty-one a
girl of seven (XIII, 44, 14). Arrian (23, 9) reports that Indian girls were
married at seven. Sītā is said to have married Rāma at six ! The rule of
Manu is that a bridegroom of thirty shall marry a girl of twelve, one of
twenty-four, a girl of eight (1x, 94) ; he also recommends that a girl shall not
marry at all unless a suitable bridgroom appear ; but again he countenances
infant-marriages (1X, 88 and 89).
1 The purchase of a wife is the 'demoniac' form of marriage formally permitted
in the case of a Vaicya and slave (Manu. III, 24). These two classes ‘are not particular
about wives' Baudh. , Dh. S. , I, 11, 20, 14).
seven
>
a
## p. 261 (#295) ############################################
XII]
MARRIAGE : SUTTEE
261
The rule in regard to the levirate, or the assignment of widows to
another man to raise up sons for the deceased husband, is another instance
of the way in which the codes were assembled out of contradictory material.
In Manu, ix, 64-68, there is a flat contradiction of the preceding pro-
visions on this point. No remarriage and no assignment of widows are
permitted in a passage directly following the injunction that a widow shall
be so assigned, for the purpose of giving her dead husband a son to pay
him the funeral feast, etc.
These laws regarding women are on the whole the most self-
contradictory in the later codes. As the position of woman is more or less
indicative of the state of civilisation, it is important to notice that the high
regard paid to woman is confined to her function as a mother of sons,
The bride must be a virgin (not a widow, Manu, jx, 65) and the remarriage
of widows is generally not countenanced ; but the codes do not sanction
the custom of suttee till late, and the provisions for widows show that,
though they probably lived miserably and without honour, they were not
expected to die with their husbands. The Mabābhārata and the Rāmāyaṇa
both recognise the custom of suttee, but only the former (and probably not
in an early part) gives a case of a royal widow burning herself with her
husband. It is perhaps the extension of a royal custom, as in the epic,
which has made the rule general, so that later law and practice recommend
suttee for all. A parallel would be the Self-choice (svayamvara) or election
of a husband by a princess, afterwards regarded as an election-rule in the
case of other maidens. The mother is praised as equal to the father in
honour, and in default of sons she may inherit (Manu, ix, 217) but if she
bear only daughters or has no children she may be divorced (ibid. 81)'. In
general, a woman receives respect only as potential or actual mother of
Manu repeats with unction the dictum of the Sūtras that a
is never independent (1x, 2 f. ), and says that she may be slain for unfaithful-
ness and divorced for barrenness; he also regards women as too 'unstable' to
be called as witnesses (v11, 77). The view that women are chattel is yielding
in the Çāstra to a more enlightened opinion. In the epics also the rigidity
of the law is not upheld by the tenor of tales showing women in a very
different light from that exhibited in the didactic parts of the epic. Even
at a much later age women were students, as they were wise in antiquity,
and the annals of the law itself testify to the ability of the sex, for in the
eighteenth century one of the great legal commentaries on the Mitāksharā
was written by a woman, Lakshmidevi. At what time the Purdah (“curtain')
rule came to confine women to the house is uncertain ; but probably not
1
1 The property of women forins too complicated a subject to be discussed here
but it may be said in general that Manu represents an advance on the older denial of the
Sūtras that women, and in particular widows, could inherit. Baudhāyana and Āpastamba
exclude widows from the husband's inheritance (e. g. Āpast. II, 14).
sons.
woman
## p. 262 (#296) ############################################
262
[ch.
GROWTH OF LAW AND LEGAL INSTITUTIONS
before foreign invasions bad compelled the Hindu to adopt it. The epics
and law-books speak of confining a woman as a punishment for ill-conduct
(e g. Manu, viii, 36. 5), but Manu insists that ‘no man can really guard
women by force' (1x, 10). To go veiled is only a court-custom alluded to in
both epics.
Deficient as are the legal text-books in arrangement and self-
contradictory as are their enactments, they form a priceless heritage of a
past which would otherwise have been largely lost to us, for they may be
accepted as reflecting real and not artificial or invented conditions of life.
Very material evidence has been furnished in the last few years as regards
the trustworthy character of the information given by authors of the law-
books. As remarked above concerning the Sūtras (v. sup. p. 198), the idea
that Brāhman tradition is manufactured in order to glorify the Brāhmans
and that in the time of Buddha there were no castes, is rendered inadmissi-
ble by the fact that all Hindu literature acknowledges the main facts as
stated in the epics and law-books. The fresh evidence on this point is
supplied by the text of the Arthaçāstra called the Kauțiliya, which may
date from about 300 B. C. and is in accord with the Sūtras and Çāstras in all
the chief points which these works have in common. This Arthaçāstra,
which forms the subject of Chapter xix in in this work, recognises castes and
mixed castes and agrees with the Çāstra of the law-givers in a multitude of
instances, showing that the scheme of law arranged by the Brāhmans was
neither ideal nor invented but based upon actual life? Here for example
! .
is repeated almost verbatim the rule against debts between father and son ;
the kinds of marriage are the same; the antithesis between Ārya and Çūdra
is maintained ; the rule that the wage is one-tenth the gain 'without
previous agreement' is identical with that of Yājñavalkya cited above, etc.
As the Kautiliya is a manual of rules imposed by a practical statesman, it
is impossible to suppose that the conditions it depicts are imaginary, yet the
same conditions are found in the Sūtras, etc. If it was indisputable that
this work belonged to the third or fourth century B. C. , it would be of the
utmost importance historically. As it is, some of the provisions of the
Kauțiliya agree with those of later rather than earlier law-books, and for the
present it is not advisable to accept all its rules as belonging to the time
assigned to the work as a whole2.
1 Cf. the articles of Prof. Jacobi in Sitz. K. P. A. , 1911, pp. 732, 954 f. ; 1912,
pp. 832 f. ; also the parallels published by Prof. Jolly in Z. D. M. G. , LXVII, pp. 49 f.
2 A sketch of law and government as presented by the Kuuțiliya Arthacāstra is
given by Dr. Barnett in his Antiquities of India, pp. 98 f. (1914); also by Mr. M. N. Law
in his Studies in Ancient Hindu Polity (1914).
## p. 263 (#297) ############################################
xn)
THE LAW BOOKS AND THE ARTHAÇĀST ARA
263
We see in the law-books the king of a limited realm still more or less
of a patriarch among his people'; a people divided into general orders
representing the military, priestly, and agricultural or mercantile classes,
still mingling freely with each other, intermarrying, but with due regard for
the respect paid to the higher orders, and utterly devoid of the 'caste' rules
later adopted in respect of food and marriage. The family is usually
monogamous though it may be polygamous, and there are traces of the
family-marriage, in which a wife marries a group of brothers. The menial
work of house-wife is carried on by slaves and half-breeds, who also do
most of the village labour and serve as petty craftsmen. More skilled
workers like chariot-makers are of almost Āryan rank and are not exclud.
ed from society. The laws are harsh and cruel as regards punishment
(the worker in gold who defrauds the king, for example, is, according to
Manu, ix, 292, 'to be chopped to pieces with knives”), but a regard for
truth and justice is the dominant trait of the law, which, if it may be
per-
sonified, has at times a naive air of blandly but perplexedly seeking to steer
a course between that which it thinks is right and ought to think is right,
because the one has been reasoned out and the other has been handed
down as part of 'revelation' or law divine”.
1 Thus the king has personally to go to market and ‘settle, the price of goods'
every five days (Manu, VIII, 402).
2 In his Lectures on the Ancient History of India (Calcutta, 1919), Prof. D. R.
Bhandarkar argues that the legal parts of the twelfth book of the epic revert to a period
earlier than Kautilya; and that the beginnings of Indian thought in the sphere of
Arthacāstra' are to be assigned to the seventh century B. C. The first thesis is based
on the theory that verse precedes prose in legal diction, which is certainly not demons-
trable. The second is only another way of saying that the subject-matter of the
Dharma Sūtras is probably older than their present form, and that Kautilya had num.
erous predecessors, which is probable. The chief discrepancy between Manu and Kau-
țilya is that the former represents a state conceived as a smaller kingdom ; the latter's
purview is not only more exhaustive but vider, e. g. , he discusses the ‘Arabian steeds' in
the king's stud (known to both epics) and cites as authorities later writers. On the
whole, as with the Jātakas, it would be well not to accept as undoubtedly of 'c. 400
B. C.
usage is the basis of law and may overrule laws made without regard to custom.
2 On Bșihaspati, see Jolly, Tagore Lectures, and the introduction to the trans.
lation of Nārada and Bțihaspati in S. B. E. , vol. XXXIII.
## p. 251 (#285) ############################################
XII]
CIVIL AND CRIMINAL LAW
251
6
law. givers omit it. It is likely that instead of this stage many priests
became mendicants. The act of renouncing the world is introduced by
a sacrifice of worldly goods and other ceremonies prescribed by the
Sūtras and law-books. But the latter, in distinction from the former,
if indeed they devote much time to such matters at all, now turn to
that part of Dharma or Right which is included under the head of Royalty
and Vyavahāra. The latter term means law in the modern sen se, business
intercourse legally interpreted, legal procedure. There is no formal dis-
tinction between civil and criminal law till the term vyavahāra is divided
by later writers into cases of property' and ' cases of hurt'. The first
enumeration of legal titles is found in Manu and is as follows : (1) Re-
covery of debts : (2) Deposits and pledges ; (3) Sale without ownership ;
(4) Partnership ; (5) Resumption of gifts ; (6) Non-payment of wages ;
(7) Breach of contract; (8) Annulling of sale and purchase ; (9) Disputes
between the owner and tender of cattle ; (10)Disputes regarding boundaries ;
(11) Assault ;(12) Defamation ; (13) Theft ;(14) Robbery (with violence);
(15) Adultery"; (16) Duties of man and wife ; (17) Partition (inheritance) ;
(18) Gambling (with dice) and betting (on cook-fights, etc. ). In this
category, criminal law is represented by the titles eleven to fifteen and
eighteen, while the first nine and the sixteenth and se venteenth titles
belong to civil law. There is also no distinction between laws affecting
things and persons, and, to follow the indictment of Mill in his History of
India, 'Nonpayment of wages stands immediately before breach of contract,
as a separate title, though it ought to be included under that head. ' But
the eighteen titles are remarkable as the first attempt to separate different
cases ; to demand that Manu should have given us a perfect or even
a perfectly clear list is unreasonable.
The titles and the arrangement of Manu are followed by later writers,
though with sub-divisions. Thus Bșihaspati (11, 8), after giving the eighteen
titles says that they are divided owing to diversity of lawsuits'; and
other writers give ten chief crimes (killing a woman, mixture of caste,
adultery, robbery, causing illegitimate birth, abuse, insults, assault, procur-
ing abortion) headed by disobedience of the king's commands. It is, too,
only later writers who assert that a lawsuit cannot be instituted mutually
between father and son, or man and wife, or master and servants (Nārada,
1, 6). Although the titles begin with civil cases, there is no doubt that
primitive procedure had to do with criminal cases before civil cases
known. Thus the earliest trials are for theft and perjury, and it is prob-
able that theft was the first crime to be recognised legally. We have seen
that even in the Sūtras the thief is brought before the king and punished
by him, and theft is the chief crime mentioned in the Vedas (more
particularly theft of cattle, or robbery). There are a thousand forms
were
## p. 252 (#286) ############################################
252
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
of theft, according to Brihaspati, who makes theft one of the kinds of
'violence,' of which there are four-homicide, theft, assault on another's
wife, and injury (either abuse or assault). Thieves are of two sorts, open
and concealed, ‘and these are sub-divided a thousandfold, according to
their skill, ability, and mode of cheating' (Bșih. , XXII, 2). Those who
cheat at dice or cheat a corporation are to be punished as impostors.
The punishment for breaking into a house to steal is impalement ; high-
waymen are hanged from a tree by the neck; kidnappers are burned
in a fire of straw ; one who steals a cow has bis nose cut off ; for stealing
more than ten measures of grain the thief is executed; for less he is
fined eleven times what he has stolen (ibid. 9 f. ; Manu, VII, 320).
The proof of theft is possession of the stolen property, or a track leading
to the house of the suspected man ; but excessive expenditure, intercourse
with sinners, and other 'signs' may make a man suspected ; then he may
have to clear himself by oath or ordeal.
Manu recognises only two ordeals. Later authors add several more
and some admit the application cf an ordeal to the plaintiff as well as to the
defendant. The oath of a witness is virtually an ordeal, as the oath invokes
divine power, which punishes the guilty. The oath is taken according to the
caste of the witness. For example, a farmer swears by his cattle, etc. Or
one may simply swear that a thing is so, and if his house burns up within a
week it is a divine conviction of perjury. Later authors also prescribe that
in ordeals a writing be placed on the head of the suspected man containing
the accusation and a prayer, so that the divine power may understand the
matter. The two earliest ordeals are those of fire and water (Manu, VII,
114 f). As the Sūtras do not notice ordeals, except for a general recogni-
tion of them as ‘divine' proofs on the part of the late Āpastamba, and as the
later writers Yājñavalkya and Nārada describe five ordeals, adding the
plough-share, scales, and poison, it is reasonable to conclude that Manu
stands in time, as in description, midway between the two sets of authors
and is the first to describe ordeals already known and practised. This is the
judgment of Bühler and of Jollyı, but the implication that the mention of
daira in older literature makes probable the existence of all the forms of
ordeal mentioned only in later literature is not safe. Fire and water were
first used, then come the elaborate trials with balance, etc. , till eventually
there are nine formal ordeals? .
The nine ordeals are as follows, arranged in the order chosen
by Brihaspati (xix, 4) : the balance, fire, water, poison, sacred libation,
grains of rice, hot gold-piece, ploughshare, and the ordeal by Dharma and
1 S. B. E. , vol. XXV, p. cii; and Jolly, Recht und Sitte, p. 145.
2 Compare Stenzler, tie Z. D. JI. G. , vol. IX, p. 661 ; E. Schlagintweit,
Die Gottesurtheile der Inder (1866); and A. Kaegi, Alter und Herkunft des german.
Gottesurtheils (1887).
9
in
## p. 253 (#287) ############################################
XII]
ORDEALS
253
Adharma. When Professor Jolly says that no one of these can be judged
later than any other on the ground that the growth from two to five
and then to nine ordeals does not necessarily imply that one named later did
not exist before the two named first, he exaggerates the probabilities. Is it
likely, for example, that the ordeal by Dharma and Adharma is as old as
that by fire and water ?
The ordeal by ploughshare is especially for those suspected of stealing
cattle; the piece of heated gold is reserved for cases involving a theft 'over
four hundred'; that by poison, for one worth a thousand, etc. All such
restrictions are late amendations and additions. In the fire-test one carries a
hot iron ball, and if unburned is innocent. In the water-test, one plunges
under water and to prove innocence must remain under as long as it takes
for a dart, shot at the moment of diving, to be brought back. These two
are alterations of old material, in which the accused walks through fire, as
in epic tests, or is thrown into water to see if he drown. The balance is an
easy ordeal and hence is used in the case. of priests and women. It consists
in seeing whether the accused weigh less or more the second time the test is
made ; if heavier, one is guilty. Probably the weight of sin weighs
one down. So in the Mahābhārata, when a truth-telling man lies, his
chariot begins to sink.
Another method of exacting justice, used generally in the case of debt,
was called 'the custom' (Manu, viii, 49) and consisted in what is now known
as dharņa. The guilty man (debtor) is besieged in his own house by
his opponent, who fasts on him till the guilty one yields or the accuser dies.
This method of punishing an injurer is well known in the epics, where fast-
ing to death against a person is an approved form of retaliation. The one
who has committed the offence (or owes the money) usually yields in order
to prevent the ghost of the dying creditor from injuring him.
The punishment for murder, as already noticed (v. sup. p. 217), is at
first a compensation paid to the relatives or the king (perhaps both)
and later paid to the priests. · The compensation is reckoned at a hundred
cows (with a bull). This is in the case of a man; in the case of a woman,
the punishment is no more than if a slave is killed. Manu treats the com-
pensation as a penance (paid to a priest) instead of a ‘royal right,' as in the
earlier Sūtra period. The custom of appraising death at so much a head for
which compensation is exacted existed into modern times and is mentioned
by Tod in his Annals of Rajasthan.
1 The ordeal by Dharma and Adharma consists in painting pictures of Justice or
Right and Injustice or Wrong (abstract divinities) upon two leaves, one picture being
white, the cther black. The two images are then worshipped and invoked with sacred
verses, and, after the leaves have been sprinkled with perfumes and the five products of
the sacred cow, they are rolled in balls of earth and set in a jar without the accused
obierving them, who then extracts one and if he draws Dharma he is acquitted. '
See also Roth, Z. D. M. G. , vol. XLI, pp. 672 f. ; and other references in Jolly,
Recht und Sitte, p. 132.
9
.
a
## p. 254 (#288) ############################################
254
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
Treason of all kinds is punishable by death, where it consists in attack-
ing the king or falsifying an edict or bribing the ministers of the king or
helping his foes (Manu, ix, 232, etc. ). Instead of other penalties, the guilty
man, especially a priest, may be outcasted, that is, formally thrown out or
banned from society, for in losing his caste he loses all social rights ;
though in certain cases through established ceremonies he may be taken
back. One who is outcast loses all right to primogeniture, inheritance, etc. ?
Except for treason, all crimes are judged relatively, that is, there is
no absolute penalty, but one conditioned by the social order of the criminal
or the victim of the crime. Thus in cases of defamation, if a warrior
defame a priest, he is fined one hundred paņas ; if a man of the people-
caste do so, one hundred and fifty ; if a slave, he shall be corporally
punished ; but if a priest defame a warrior, fifty ; if he defame a man of
the people, twenty-five ; if he defame a slave, twelve, and this last fine is
that imposed upon equals defaming equals within the Āryan castes. But
if a slave insult a “regenerate'. (Āryan), his tongue is to be cut out.
Especially is this the case in relation between the sexes, for though the rule
of death for adultery is general (the woman is devoured by dogs in a public
place and the man is burned alive, Manu, viii, 371 f. ), yet its antique
provisions are really preserved only out of respect for tradition, the real law
being that the offending man shall be fined and the woman have her hair
cut off and be treated with contempt (Nārada, XII, 92), unless the crime be
one that outrages caste-sentiment. Thus a slave who has intercourse
with a guarded high-caste woman may be slain ; a Vaiçya shall lose his
property ; a warrior be fined a thousand and be shaved with urine
(Manu, viii, 384 f. ). The old general rule of the Sūtras to the effect
that the woman be eaten by dogs and the man killed is preserved under the
form, explicit in the later works but already implied by Manu, that
this be the punishment if ‘a wife who is proud of the greatness of her
. family' (that is a woman of high caste) commit adultery, while Nārada
restricts the ferocious penalty to the impossible case of a priest's wife
deliberately going to a low-caste man and seducing him.
The general lex talionis is similarly confined to thieves or robbers
(Manu, VIII, 334), though another restriction limits it to intercourse
between low and high caste (if a man of low caste injure a man of
high caste the limb corresponding to the one hurt shall be cut off, ibid. 279).
In one particular, however, the rule of increased fines is reversed, for in any
case where a
>
man would be fined one penny kārshāpaņa)
1 Primogeniture is not absolutely the cause of preference among heirs. An
unworthy son may be passed over even if he be the eldest, in favour of a worthier
junior. On banishment in lieu of capital punishment see Manu, VIII, 380.
common
## p. 255 (#289) ############################################
X11]
TRADE LAWS
255
a
9
the king is fined a thousand (Manu, viii, 336), probably on the principle
(Manu, VIII, 338) that he who knows more should suffer more? .
In the province of civil law the later law-books show the greatest
advance over the earlier. For example, where trade is concerned, the
Sūtras know nothing of legal business partnership, apart from the united
family and its obligation as a whole to pay debts. Manu has the idea of a
partnership, but his whole discussion of the tite concerns only the amount
of fees payable to priests who together perform a ceremony ; and he
merely raises the question whether all the religious partners or the one who
performs a special act shall take the traditional fee for that one part. He
decides that the four chief priests out of the sixteen shall get a moiety,
the next four half of that, the next set a third share, and the next a quar-
ter (the commentators are not unanimous in appraising the amounts), and
adds ‘by the same principle the allotment of shares must be made among
men on earth who perform work conjointly' (Manu, vur, 211). In other
words, except for stating that one should be paid in accordance with the
work one does, Manu has nothing to say regarding 'partnership', the for-
mal fourth title of the list. Yājñavalkya on the other hand includes
agriculture and trades in his rule (11, 265). Nārada, while retaining the
matter concerning priestly partnership, expresses the axiom above in this
way : 'Loss, expense, profit of each partner are equal to, more than, or
less than those of other partners according as his share invested) is equal,
greater, or less. Storage, food, charges (tolls), loss, freightage, expense of
keeping, must be paid by each partner in accordance with the terms of
agreement, etc. (III, 3f. ). Finally Bțihaspati begins his title ‘Partnership’
thus : 'Trade or other occupations should not be carried on by prudent men
jointly with incompetent or lazy persons or with such as are afflicted
with illness, ill-fated, or destitute. Whatever property one partner
may give, authorised by many, or
or whatever contract he
may
to be executed, all that is (legally) done by them all. Whatever loss
has occurred through Fate or the king shall be borne by all in proportion
to their shares. When artists practise their art jointly, they share according
to their work. If a number of men in partnership build a house or
1 The slave of the rules cited above is a Çūdra-slave. The law defines s'aves as
of seven kinds, war-captives, daily workers for food, slaves born in the house, men
bought, given, inherited, and those enslaved for punishment. Slaves of war are known
in the epic (v. sup. p. 241) and there is no reason for suppoaing that a captive warrior
may not be a slave (the commentator confines the captive to the Çūdra caste). Accord-
ing to practice, the warrior-caste slave is in bondage only for a year. The ‘slave by
punishment' means a debtor unable to pay. It may be observed that prisons are for
malefactors and traitors rather than for debtors. Manu speaks of prisons situated
by the roadway where all who pass may see the punishments suffered by the wretches
within, and the tortures of hell have the appearance of being copied from models nearer
home (Manu, viii, 288).
cause
## p. 256 (#290) ############################################
256
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
a temple, or dig a pool, or make leather articles, the headman among the
workmen gets a double share. So too among musicians : the singers share
and share alike, but be who beats time gets a half share over. ' And (still
under the head of Partnership), 'when freebooters return from a hostile
country bringing booty, they share in what they bring after giving a
sixth to the king, their captain getting four shares, the bravest getting
three, one particularly clever getting two, and the remaining associates
sharing alike' (Brihaspati, xiv, 32).
Regarding the use of money, an old Sūtra rule confirmed by Manu
permits interest at fifteen per cent. annually, but for men (debtors) of
low caste the interest may be sixty per cent; yet this is where there is no
security. The amount differs in any event according to caste, as already
explained (p. 222). No stipulation beyond five per cent. per mensem is legal.
Debts unpaid shall be worked out by labour by men of low caste. These
rules obtain from the Sūtra age and vary scarcely at all. Megasthenes
erroneously reports that the Indians do not take interest ove av sigouci
OV 35 € icaci ea 3 vi&occai Fr. 27). Possibly he has in mind the provision that
no Brāhman shall be a usurer. Wages are often paid in kind ; one-fifth of
the crop or of the increase in flocks goes to the man who cares for the
work. The tender of cattle, in contrast to the epic rule (v. sup. p. 240 f. ),
gets the milk of one cow out of ten (Manu, VIII, 231). If a man work with-
out food or clothing given to him he may take a third of the produce ; other
wise a fifth (Brihaspati, xvi, 13). But Nārada gives a general rule to the
effect that the servant of a trader, a herdsman, and an agricultural servant
shall respectively take a tenth part of the profit, whether from the sale of
merchandise, the increase of flocks, or the grain-crop (Nārada, vi, 3). This
is also the provision of Yājñavalkya (11, 194)". The agricultural servant is a
Çūdra slave or a member of a mixed caste? .
The family represented in the law-books as the usual family is
one where all the brothers live together as heirs of the father, who may or
may not, as he or they prefer, divide his property during his life-time. The
eldest son has certain rights of primogeniture. but, as said above (p. 254,
note), they may be taken from him in case he is unworthy (Manu, ix, 213).
The property of a childless wife belongs to her husband, unless she is
married by a rite not countenanced by the law; in that case her property
reverts to her parents. Woman's property consists only in wedding-gifts,
tokens of affection, and gifts from her brothers, father, and mother, as also
1 This is expiesely the wage ordained by the king in case there has been no spe.
cial stipulation between master and man. It represents therefore the normal percentage
of gain (1'10) as wage for the hired assistant of a party merchant, herdsman, or farmer.
2 According to the commentator on Vishņu, LVII, 16, where the practice of rent.
ing land for half the crop is referred to, the herdsman is usually the son of a warrior by
a slave. girl. These “mixed castes' really did most of the general work of a village,
a
.
a
## p. 257 (#291) ############################################
XII)
KING AND GOVERNMENT
257
what is given her after marriage by her husband. All this goes to
her children at her death.
As the preferred family is the joint-family, so the village is possessed
as a whole of its holdings in land. Thus the only full discussion in Manu
regarding boundaries (the tenth title) has to do with boundaries between two
villages. Yet it is clear from other passages that private ownership in land
under the king was recognised. He who first cultivates wild land, owns it
(Manu, ix, 44). There is also a Sūtra rule : 'Animals, land, and females
are not lost by possession of another' (Gaut.
, XII, 39), which appears
to imply individual ownership in land. The land around a village on
all sides for one hundred 'bows' (about 600 feet) is common; and if crops
are grown there and cattle injure the crops, no damage can be exacted
(Manu, viii, 237 f. ); but the fields appear to be private property as they
are fenced in1.
The Government of the country described in legal literature is not
different from that of the Sūtras, and in most respects agrees with the con-
ditions represented in the epics, where government without a king is so well
krown as to be the object of the most severe condemnation ; and it
is regarded as essential that a king of good family should be at the head of
the state. Slave-born kings are known in history but tabooed in law. The
king is įreated in the law. books under two heads, as general lord of the
land and as judge and executioner.
As lord of the land the king is a Zeus Agamemnon, a human divinity
incorporating the essence of the deities Indra, Vāyu, Yama. Varuņa, Agni,
etc. , that is of the gods who protect the world in the eight directions. In
other words, his chief function as lord is to protect, and he protects as 'a
great deity in human form' (Manu, vii, 8). He has, to aid him, seven or
eight councillors of hereditary office (“whose ancestors have been servants of
kings'), with whom he daily consults as to affairs of state and religion. His
prime minister should be a learned priest ; he should appoint officials over
all public works, mines, manufactures, storehouses, etc. Various royal
monopolies are mentioned (salt is one of them). His officers must be brave
and honest, and he himself must be brave and lead his troops personally in-
to battle, where he is to make it his duty to ‘kill kings,' for those kings
go to heaven who seek to slay each other in battle and fight strenuously
for that purpose (Manu, VII, 89). As overlord, the king receives a share of
the booty won in battle, and it is his duty to distribute such booty
as has not been taken singly among the soldiers. One military officer and
a company of soldiers he should place as a guard over each village
1 This is not certain evidence that they were private possessions, but such appears
to have been the case, as the rules regarding flowing water, ‘seed cast in another's
field,' etc. also presuppose private ownership (Manu, IX, 52 f. ). To let land’ renders
one impure (Ap. , Dh. S. , I, 18, 20).
## p. 258 (#292) ############################################
258
CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
>
a
>
and town, to protect them. There should be a lord of one village, a
lord of ten, (of twenty), of a hundred, and a lord (or lords) of a thousand.
It is the duty of the lord of one village, grāmika, to report all crimes
to the dacapa or lord of ten, and the lord of ten shall report likewise
to the lord of twenty, and he to the) lord of a hundred, and he to the lord
of a thousand. As much land as suffices for one family shall be the
income of the lord of one village and so on to the lord of a thousand, who
shall enjoy the revenue of a town. All these men (it is said) are probably
knaves and must be spied upon continually through the agency of a general
superintendent in every town, who shall scrutinise the conduct of all the
governing lords, 'for the servants of kings appointed to protect generally
become rascals who steal the property of others' (ibid 123). The sum
collected from his subjects by a just king (as taxes) is a fiftieth part of the
increment on cattle and gold, and the eighth, sixth, or, twelfth part of the
crops ; while common artisans pay tax by a day's work monthly.
These provisions (of Manu) are followed by Vishņu, who however
omits the intermediate lords of twenty villages and recognises only the
decimal system throughout? . Instead of a thousand villages Vishņu speaks
of the 'whole country,' and probably the two expressions were synonymous.
Vishņu also specifies eunuchs as guards of king's harem, not mentioned by
Manu in connexion with the palace. Another point which brings Vishņu
into line with the Sūtra authorities (Baudh. , 1, 17, 18, 1 ; Vas. , I, 42)
is found in his rule regarding taxes. He gives no such option as Manu,
but specifies one-sixth as the tax on grain and seeds and one-fiftieth
on cattle, gold, and clothes (all authorities exempt priests from taxation-
laws).
The men of war, according to Manu, are to be selected for prominent
places in the van) from Kurukshetra, the Matsyas, Panchālas, and those
born in Çūrasena -all districts in the neighbourhood of Delhi, Jaipur,
Kanauj, and Muttra-a provision sufficiently indicative of the geographical
origin of this code. It is interesting to note that both Manu and Vishņu
state that when a king has conquered a foreign foe he shall make a prince
of that country (not of his own) the king there, and (Vishņu adds, III, 49)
he shall not destroy the royal race of his foe unless that royal race
be of ignoble birth. He is to honour the gods and the customs of
the conquered country and grant exemption from taxation (for a time)
(Manu, vii, 201).
In his capacity as judge the king tries cases himself or appoints a
priest in his stead (Vishņu, III, 73) : but this latter provision is a later trait,
though found in the Sūtras. The earlier rule is that the king himself
1 The army divisions are also arranged decimally, in squads of ten and companies
of one hundred or of other multiples of ten (Vas. , XIX, 17 f. ).
## p. 259 (#293) ############################################
X11]
FAMILY LAW
259
shall try cases daily and have built for that purpose a special hall as
part of his palace in the inner city, and even, as we saw in the Sūtra
period (v. sup. p. 216), act as executioner. The fact that the king bas also
the pardoning power is implied in the provision that if the thief come
before the king and the king smite him or let him go he is thereby
purified? , a provision which also brings up the intricate question of the
relation between legal punishment and religious penance. For many of
the legal punishments for gross crimes are set down not as such but
as religious expiations, and it is said that the king has to see to it that these
religious obligations are fulfilled. In some cases without doubt punishment
as a matter of law began as a matter of priestly religious law. The
business of the king as judge was not unremunerative, as every debtor who
was tried and convicted paid a tenth of the sum involved into the royal
treasury (Vishņu, vi, 20). According to Manu (VIII, 59), if plaintiff or
defendant is found guilty of falsification in regard to a contested sum, twice
the sum itself shall be paid as a fine (to the king). The king's chaplain has
an important place in the court of justice ; he is chief of the councillors
who as a body may include members of other Āryan castes.
If a deputy
act for the king, later authorities state that he should carry a seal-ring of
the king as sign of authority (Bţibaspati, 1, 3). The right of appeal
is also admitted in later law-books, which assume that a case may come
up first before a family, or corporation, when if the judgment is questioned
the case may be tried by assemblies (of co inhabitants or castes) and then
by judges duly appointed (ibid. 39). Yājñavalkya (11, 305) and Nārada also
(1, 65) say that, when a lawsuit has been wrongly decided, the trial must be
repeated. According to Yājñavalkya appeal may be taken from corpora-
tions, etc. , to the judge appointed by the king' (11, 30). Such a judge is
one appointed to act for the king in his own city or in the provinces.
a provision found also in epic literature. All the law-books acknowledge
the importance of the law of family (kula), guild or corporation (creņi),and
assembly or greater corporation (pūga, gana), of caste or co-inhabitants in
making their own laws, which the king must not contravene.
There is one aspect of legal literature which is very significant of the
origin of the completed codes. The laws, namely, frequently contradict
one another either by implication or directly, not only the laws in general
but those of the same code and even the laws placed in juxtaposition.
An example of such contradiction is what may be found in Manu's code
respecting the sale of a daughter. In vill, 204, 'Manu declares' that if one
girl has been shown to a prospective bridegroom and another is given,
he may marry them both for the same price. In iii, 51 the same code
1 Apparently a murderer might expiate his crime by dying for the king in battle
(Apastamba, 1,24. 21), and even, “if he fights three times, when not slain, he is freed'
(Vas. , Dh. C. , XX, 28). This antique provision is not preserved in the later law.
9
## p. 260 (#294) ############################################
260
(CH.
GROWTH OF LAW AND LEGAL INSTITUTIOVS
we
a
a
a
(presumably the same Manu) says 'Let no wise father take even a small
price for his daughter. . . for small or great this would be a sale, ; and
finally in ix, 97,
read :
'If the giver of the price die after the
price for a girl has been paid, she shall be given to the (bridegroom's)
brother if she is willing,' and immediately after (1x, 98), 'Even a slave
should no! accept a price in exchange for his daughter,' with a couple
of verses following in the tone of the passage above, repudiating the 'sale
of a daughter. ' Yet in viii, 366, under the head of the fifteenth title
of law, it is stated that a low-caste man courting a woman of the highest
caste deserves death (or corporal punishment) ; but one who courts
an equal shall ‘pay the price' (and take her) if her father consents. It
was an old provision that a fee or price (a yoke of oxen) should be paid to
the father, and though, this was softened down to a 'fee' or 'tax' (çulka),
yet the advanced code objects formally to this business transaction. At
the same time the old provision is retained, because it was
a part of
hereditary traditional law. In the epic also, the rule against selling a
daughter is recorded ; but so strong is the feeling against violating family-
law that the man who purposes to sell his daughter, because it is the
custom in my family,' is upheld in doing so by a saint, who even declares
that the sale is justified by the ancients and by God (Mbh. , I, 113, 9 f. ).
Here the girl is bought with gold and elephants and other costly things.
On the other hand, as a matter of dignity, the father of an aristocratic girl,
more particularly a princess, bas in effect heavy expenses. Thus when
king Virāța weds his daughter he bestows upon his son-in-law
thousand horses and two hundred elephants (Mbh, iv, 72, 36). The didactic
epic says that a man who sells his daughter goes to hell (XIII, 45, 18); there
is a general Sūtra rule against selling any human being (Gaut. , VII, 14. )
In regard to infant marriages the Sūtras generally admit the
advisability of marrying a girl when she is still too young to wear clothes,
that is, before she becomes adult, or shows signs of maturity. This latter
law and practice are all at variance on this point. One of the epic heroes
marries at sixteen a princess still playing with her dolls but old enough
to become a mother shortly afterwards. The epic rule is that a bride-
groom of thirty should marry a girl of ten, a bridegroom of twenty-one a
girl of seven (XIII, 44, 14). Arrian (23, 9) reports that Indian girls were
married at seven. Sītā is said to have married Rāma at six ! The rule of
Manu is that a bridegroom of thirty shall marry a girl of twelve, one of
twenty-four, a girl of eight (1x, 94) ; he also recommends that a girl shall not
marry at all unless a suitable bridgroom appear ; but again he countenances
infant-marriages (1X, 88 and 89).
1 The purchase of a wife is the 'demoniac' form of marriage formally permitted
in the case of a Vaicya and slave (Manu. III, 24). These two classes ‘are not particular
about wives' Baudh. , Dh. S. , I, 11, 20, 14).
seven
>
a
## p. 261 (#295) ############################################
XII]
MARRIAGE : SUTTEE
261
The rule in regard to the levirate, or the assignment of widows to
another man to raise up sons for the deceased husband, is another instance
of the way in which the codes were assembled out of contradictory material.
In Manu, ix, 64-68, there is a flat contradiction of the preceding pro-
visions on this point. No remarriage and no assignment of widows are
permitted in a passage directly following the injunction that a widow shall
be so assigned, for the purpose of giving her dead husband a son to pay
him the funeral feast, etc.
These laws regarding women are on the whole the most self-
contradictory in the later codes. As the position of woman is more or less
indicative of the state of civilisation, it is important to notice that the high
regard paid to woman is confined to her function as a mother of sons,
The bride must be a virgin (not a widow, Manu, jx, 65) and the remarriage
of widows is generally not countenanced ; but the codes do not sanction
the custom of suttee till late, and the provisions for widows show that,
though they probably lived miserably and without honour, they were not
expected to die with their husbands. The Mabābhārata and the Rāmāyaṇa
both recognise the custom of suttee, but only the former (and probably not
in an early part) gives a case of a royal widow burning herself with her
husband. It is perhaps the extension of a royal custom, as in the epic,
which has made the rule general, so that later law and practice recommend
suttee for all. A parallel would be the Self-choice (svayamvara) or election
of a husband by a princess, afterwards regarded as an election-rule in the
case of other maidens. The mother is praised as equal to the father in
honour, and in default of sons she may inherit (Manu, ix, 217) but if she
bear only daughters or has no children she may be divorced (ibid. 81)'. In
general, a woman receives respect only as potential or actual mother of
Manu repeats with unction the dictum of the Sūtras that a
is never independent (1x, 2 f. ), and says that she may be slain for unfaithful-
ness and divorced for barrenness; he also regards women as too 'unstable' to
be called as witnesses (v11, 77). The view that women are chattel is yielding
in the Çāstra to a more enlightened opinion. In the epics also the rigidity
of the law is not upheld by the tenor of tales showing women in a very
different light from that exhibited in the didactic parts of the epic. Even
at a much later age women were students, as they were wise in antiquity,
and the annals of the law itself testify to the ability of the sex, for in the
eighteenth century one of the great legal commentaries on the Mitāksharā
was written by a woman, Lakshmidevi. At what time the Purdah (“curtain')
rule came to confine women to the house is uncertain ; but probably not
1
1 The property of women forins too complicated a subject to be discussed here
but it may be said in general that Manu represents an advance on the older denial of the
Sūtras that women, and in particular widows, could inherit. Baudhāyana and Āpastamba
exclude widows from the husband's inheritance (e. g. Āpast. II, 14).
sons.
woman
## p. 262 (#296) ############################################
262
[ch.
GROWTH OF LAW AND LEGAL INSTITUTIONS
before foreign invasions bad compelled the Hindu to adopt it. The epics
and law-books speak of confining a woman as a punishment for ill-conduct
(e g. Manu, viii, 36. 5), but Manu insists that ‘no man can really guard
women by force' (1x, 10). To go veiled is only a court-custom alluded to in
both epics.
Deficient as are the legal text-books in arrangement and self-
contradictory as are their enactments, they form a priceless heritage of a
past which would otherwise have been largely lost to us, for they may be
accepted as reflecting real and not artificial or invented conditions of life.
Very material evidence has been furnished in the last few years as regards
the trustworthy character of the information given by authors of the law-
books. As remarked above concerning the Sūtras (v. sup. p. 198), the idea
that Brāhman tradition is manufactured in order to glorify the Brāhmans
and that in the time of Buddha there were no castes, is rendered inadmissi-
ble by the fact that all Hindu literature acknowledges the main facts as
stated in the epics and law-books. The fresh evidence on this point is
supplied by the text of the Arthaçāstra called the Kauțiliya, which may
date from about 300 B. C. and is in accord with the Sūtras and Çāstras in all
the chief points which these works have in common. This Arthaçāstra,
which forms the subject of Chapter xix in in this work, recognises castes and
mixed castes and agrees with the Çāstra of the law-givers in a multitude of
instances, showing that the scheme of law arranged by the Brāhmans was
neither ideal nor invented but based upon actual life? Here for example
! .
is repeated almost verbatim the rule against debts between father and son ;
the kinds of marriage are the same; the antithesis between Ārya and Çūdra
is maintained ; the rule that the wage is one-tenth the gain 'without
previous agreement' is identical with that of Yājñavalkya cited above, etc.
As the Kautiliya is a manual of rules imposed by a practical statesman, it
is impossible to suppose that the conditions it depicts are imaginary, yet the
same conditions are found in the Sūtras, etc. If it was indisputable that
this work belonged to the third or fourth century B. C. , it would be of the
utmost importance historically. As it is, some of the provisions of the
Kauțiliya agree with those of later rather than earlier law-books, and for the
present it is not advisable to accept all its rules as belonging to the time
assigned to the work as a whole2.
1 Cf. the articles of Prof. Jacobi in Sitz. K. P. A. , 1911, pp. 732, 954 f. ; 1912,
pp. 832 f. ; also the parallels published by Prof. Jolly in Z. D. M. G. , LXVII, pp. 49 f.
2 A sketch of law and government as presented by the Kuuțiliya Arthacāstra is
given by Dr. Barnett in his Antiquities of India, pp. 98 f. (1914); also by Mr. M. N. Law
in his Studies in Ancient Hindu Polity (1914).
## p. 263 (#297) ############################################
xn)
THE LAW BOOKS AND THE ARTHAÇĀST ARA
263
We see in the law-books the king of a limited realm still more or less
of a patriarch among his people'; a people divided into general orders
representing the military, priestly, and agricultural or mercantile classes,
still mingling freely with each other, intermarrying, but with due regard for
the respect paid to the higher orders, and utterly devoid of the 'caste' rules
later adopted in respect of food and marriage. The family is usually
monogamous though it may be polygamous, and there are traces of the
family-marriage, in which a wife marries a group of brothers. The menial
work of house-wife is carried on by slaves and half-breeds, who also do
most of the village labour and serve as petty craftsmen. More skilled
workers like chariot-makers are of almost Āryan rank and are not exclud.
ed from society. The laws are harsh and cruel as regards punishment
(the worker in gold who defrauds the king, for example, is, according to
Manu, ix, 292, 'to be chopped to pieces with knives”), but a regard for
truth and justice is the dominant trait of the law, which, if it may be
per-
sonified, has at times a naive air of blandly but perplexedly seeking to steer
a course between that which it thinks is right and ought to think is right,
because the one has been reasoned out and the other has been handed
down as part of 'revelation' or law divine”.
1 Thus the king has personally to go to market and ‘settle, the price of goods'
every five days (Manu, VIII, 402).
2 In his Lectures on the Ancient History of India (Calcutta, 1919), Prof. D. R.
Bhandarkar argues that the legal parts of the twelfth book of the epic revert to a period
earlier than Kautilya; and that the beginnings of Indian thought in the sphere of
Arthacāstra' are to be assigned to the seventh century B. C. The first thesis is based
on the theory that verse precedes prose in legal diction, which is certainly not demons-
trable. The second is only another way of saying that the subject-matter of the
Dharma Sūtras is probably older than their present form, and that Kautilya had num.
erous predecessors, which is probable. The chief discrepancy between Manu and Kau-
țilya is that the former represents a state conceived as a smaller kingdom ; the latter's
purview is not only more exhaustive but vider, e. g. , he discusses the ‘Arabian steeds' in
the king's stud (known to both epics) and cites as authorities later writers. On the
whole, as with the Jātakas, it would be well not to accept as undoubtedly of 'c. 400
B. C.
