No More Learning

A. 0. S. , 1888 p. 296 f. Since the publica-
tion of this article Oppert has had published a correspondence with Mr. Oscar Gutt.
mann(Mitteilungen zur Geschichte der Medizin and Naturwissenschaften, No, 16, iv Band,
No. 3. 1905), in which he upholds his contention, adopted without question by S. M.
Mitra in his Anglo-Indian Studies (1913).
>
run
away. The


## p. 243 (#277) ############################################

XI ]
RELIGION AND PHILOSOPHY
243
>
knights, however, contending for glory as well as for their king, remain
fighting though the mass desert them. Their motto is Sweet it is to die
. '
in battle ; the path to heaven lies in fighting (Mbh. , viii, 93, 55 f. ).
In peace the warrior, supported by the king, lived at ease and the nobles
spent the time carousing and enjoying themselves. In war the warrior
lived and fought for glory as well as for his chief. In the case of Karņa,
who was an independent king, revenge and desire for glory are blended
but most of the epic kings are in the war as allies of one side or the other
and have no personal motive in fighting except to win renown. 'A hero
lives as long as his fame reaches heaven' (Mbh. , III, 313, 20); ‘Glory is
preferable to life' (ibid. 31). And again, 'Only he who has glory wins
heaven' (says Karņa, ibid. 11, 300, 31). The exhortation to fight valorously
is based upon the precept that whether slaying or slain one is blessed,
‘for he who is slain in battle obtains heaven, and if he slays he obtains
fame' (ibid. xi, 2, 14). Every hero boasts of his great deeds performed and
to be performed, even while deprecating boasting as a folly. The heroes
boast of their families as well as of their prowess? .
The religious and philosophical views of the epics represent every
shade of opinion from Vedic theism to philosophical pantheism with later
forms of Sun-worship (in both epics) and sectarian cults of Durgā, Çiva,
Krishņa-Vishņu in the Mahābhārata, and Rama-Vishņuism superimposed
upon the cult of Rāma as a hero demi-god in the Rāmāyaṇa. The religion
assumed as orthodox in both epics is that which we call Brāhmanical. The
Vedic gods with Brahmā at their head are to be worshipped, as a matter of
In addition comes the constantly growing tendency to exalt the
chieftain demi-god from his position as clan-hero god to a higher power,
till he is identified with Vishņu, the popular god of many clans. The cult of
Vishņu in this form comes under the hands of philosophers, who we may
be sure had nothing to do with the original epic ; and as god he is then
interpreted according to the philosophical systems of the Sāňkhya and
Vedānta, which are united with the aid of the Yoga system. Of late years
it has become usual for scholars to follow the lead of Professor Garbe, who
has interpreted the chief philosophical tract of the Mahābhārata, the
famous Bhagavadgītā, as a rewritten Sānkhya document of theistic tendency
manipulated to serve the ends of Vedānta schoolmen. By excluding all the
1 For examples of these and other traits shown by the epic warriors, see the
specimens collected in the writer's monograph on The Position of the Ruling Caste.
Interesting parallels may be drawn between the attitude of Homeric and Indic
warriors in these respects, parallels which may now be complemented by those between
Greek and Teutonic ideals, as shown in Chadwick’s Heroic Age (pp. 325 f. ). Prof.
Chadwick compares the Anglo-Saxon dom with the Greek ky e a’audür and the same
may be said of the kirti and yacas of the Hindu, as the personal combat of king
with king, which is the leading characteristic of Hindu epic fighting, may be compared
with the style of fighting in Homeric and Teutonic poetry (ibid, p. 339).
course.


## p. 244 (#278) ############################################

244
[Ch.
PRINCES AND PEOPLES OF THE EPIC POEMS
verses which teach the Vedātan doctrine, Garbe is naturally enabled to
show a document which is not Vedāntic ; and it may be admitted that such
a process makes a clearer and more attractive theological tract. But the
historical effect produced is fallacious. Exactly the same mixture of
Sāňkhya and Vedānta permeates the teaching of the philosophical epic in
many other passages ; and unless one is willing to apply the same process
and excise all objectionable matter in favour of a theory of Sankhya
priority in the philosophical disquisitions of Çānti or 'quietism' one bas no
right to dissect the Bhagavadgitā into its supposititious prius and 'later
additions'. The epic philosopher is never a Sānkhyan ; he is a Sānkhya-
Yogist, and it is this connecting link of the Yoga which to his mind makes
it possible to unite two radically different systems. It must at least remain
quite doubtful whether the philosophical parts of the epic, most of which
have no radical connexion with the poem, were not originally composed in
their present form, representing an attempt, on the part of later redactors, to
weave into the epic a system of philosophy inculcating the belief in a
theistic pantheism derived from Sankhyan principles improved by the Yoga
and then combined with the All-soul principle later called Vedānta. Vishņu
and Çiva both served the purpose of the philosophical interpretation. Both
were popular gods who became the One God in turn (sectarian differences
probably representing geographical distinctions), that One God who
even in the Upanishads is also the All-god. For this reason many passages
of the epic are on the philosophical-religious level of the Cvetāçvatara
Upanishad.
Two notable attempts to extract historical material from the
epic have been made in the last few years. They enlarge the vision
of the fighting hosts on the plain of the Kurus both geographically and
historically and demand careful examination. The first is the result of a
study of the forces named in the epic itself as allies. As already men-
tioned, the fighting of the Rāmāyaṇa consists in combats between fiends
and monkeys, and unless the monkeys are interpreted as southern
Hindus speaking an alien tongue, and for this and other reasons
regarded as little better than apes by the Āryan leaders, there is no profit in
endeavouring to guess at their real significance. In the Mahābhārata,
which deals with real people, it is different. The human hosts marshalled
as friend or foe by the Pāņdus and Kurus may be set against each other
geographically. There is a certain amount of fiend-fighting, and Nāgas of
unknown habitat are mentioned as contestants. There are also some allies
1 For a review of these systems as given in the epic, see the writer's Great Epic of
India (1901). That the Gitā was originally theistic throughout can be proved only by
rejecting stanzas which are otherwise unassailable. Only four passages out of the twenty
selected to prove the case in Garbe's Bhagavadgitā (1905) show any sign of interpola.
tion, and of the four only one is a really striking case of breaking the connexion.


## p. 245 (#279) ############################################

XI ]
INTERPRETATION OF HISTORICAL DATA
245
of unknown geographical provenance. But the chief factors in the great
hosts can be distributed geographically. For making such a classification
it will be convenient to use the Indian term Madhyadeça, the Middle
Country, to denute 'the whole of the Ganges basin from the Punjab as far
as the confines of Bihār,' and to arrange the various peoples who
are said to have taken part in the war in relation to this region.
The Pānļu forces included the king of Magadha associated with the
Kācis and Kosalas, the king of Pañchāla, the king of the Matsyas
with mountaineers, , the king of Chedi-all representing peoples
Madhyadeça - with some adherents from the north and south, but
especially all the Yadus of the west. The Kurus, on the other hand,
had as allies the king of Prāgjyotisha, the Chinas, and the Kirātas in the
north-east ; the Kambojas, Yavanus, Çakas, Madras, Kaikeyas, Sindhus
and Sauviras in the north-west ; the Bhojas in the west ; the king of
Dakshiņāpatha in the south ; the Andhras in the south-east; and the kings
of Māhishmati and Avanti in Madhyadeça. Therefore, since the Yadus of
Gujarāt came from Mathurā, the statement holds that “the division of the
contending parties may be broadly said to be South Madhyadeça and
Pañchāla against the rest of India? . ' That this is an important conclusion
must be admitted. But if it follows that the war was one between southern
Madhyadeça, united with Pañchāla and the rest of India, how far may we
assert that this represents earlier epic conditions before the nations of the
Indian sub-continent were all brought into the frame of the epic ?
Obviously it would not be safe to make too much of a list based on factors
of doubtful age, but it is perhaps safe to assert that the central plan, so to
speak, is historical, namely the opposition of the less civilised Pāndus and
the old Pañchāla to the orthodox Kurus.
In the opinion of Sir George Grierson we may make a further
induction and assert that the Brāhmanism of the Kurus represents a later
tide of immigration as compared with the anti-Brāhmanism of the
Pañchūlas as earlier Aryan immigrants into India. In a way, the anti-
Brāhmanical party may be said to represent the warrior-spirit as opposed to
the priestly, which was defeated in the contest but revenged itself by
manipulating the epic to its own glory? . It is, however, doubtful whether
the Pañchālas were earlier immigrants or in early days were regarded
1 F. E. Pargiteſ, The Nations of India at the Battle between the Pāndavas and
Kauravas (J. R. A. S. , 1908, p. 334), gives a complete analysis of the forces. The author
admits that the ethnological value of the general statement made above is dimini hed
by the fact that the nations on either side were not of the sim 3 stock ; also it must be
remembered that kings were not always of the same stock as the people they ruled and
brought to war.
2 J. R. A. S. , 1908, p. 606.


## p. 246 (#280) ############################################

246
[CA.
PRINCES AND PEOPLES OF THE EPIC POEMS
as in any way anti-Brāhmanical. The further contention, that this
unorthodox warrior spirit produced the work of the Bhāgavatas and that
the Bhagavadgītā emanates from an un-Brāhmanical source, is based
upon the supposition that the Bhagavadgitā and its underlying system of
Sankhya philosophy is an exponent of the free eastern anti-Brāhmanical
or un-Brāhmanical life which produced the great heresies of that region,
Buddhism and Jainism. One wishes that the veiled history of Hindu
thought might be traced back so clearly, but the data at our disposal do
not justify us in so summary a method of reconstructing the past. There is
no cogent evidence to show that a difference of religious belief had any-
thing to do with the war, or that any racial antagonism lies behind the
division of parties, certainly not of parties opposed as primarily Pañchālas
and Kurus.
Whether the genealogical lists of the epic may impart trustworthy
information is a second question of importance. It has been answered
affirmatively by Mr. Pargiter in the second of his valuable papers on the epic
though with due conservatism in view of the contradictions in the epic
itself. The later lists found in the Purāṇas may be combined with epic
data to make a fairly consistent chronological table, but there remains
much to be taken for granted. Although the names of kings are given, the
length of their reigns must be assumed on common basis. On the
probability that the average length of a Hindu reign was fifteen years
and on the assumption that unimportant kings have been omitted once in
so often from some of the lists, Mr Pargiter, taking the more complete
list of the Solar dynasty as his guide, finds that a period of fourteen
hundred years intervened between the first king, ‘son of Manu' (Ikshvāku)
and the great war; that Rāmā, the hero of the Rāmāyaṇa, lived in the
fifth century before the great war of the Mahābhārata; Bharata in the eighth
century, etc. The great war itself marks the beginning of the present age
(Kali Yuga), ‘about 1100 B. . . "2
1 Ancient Indian Genealogies and Chronology (J. R. A. S. , 1910, p. 1).
2 See more particularly the work of the same author, The Purāņa Text of the
Dynasties of the Kali Age (1913). For the evidence of the Purāṇas as to the date of the
war between the Kurus and the Pāņdus v. inf. , pp. 273-74.
some
a


## p. 247 (#281) ############################################

CHAPTER XII
THE GROWTH OF LAW AND LEGAL INSTITUTIONS
The law-books, Dharma Çāstras, and especially trained experts in law,
Dharma-pāțhakas, are recognised in the didactic parts of the epic ;
and codes of law are assigned to various ancient worthies, among whom
Manu generally, but not always, holds the chief place. The difference
between the formal law. book, Çāstra, and the Sūtra, also concerned with
Dharma, is due mainly to the gradual exclusion of irrelevant matter
in the law-book. Whereas in the Sūtra the term Dharma embraces
all domestic duties, religious and ethical, with slight attention paid to formal
law, in the completed Çāstra law itself is the sole subject discussed.
But this difference marks only the extremes, the primitive Dharma Sūtra
and the law-book of the fifth century A. D. Between the two comes
a number of works bearing the title of law-book but still retaining in
large measure the characteristics of the Sūtra. Likewise the formal
distinction between a prose Sūtra and a metrical law-book is bridged by a
period when legal works were partly prose and partly verse. In the
end, it was found more convenient to versify the rules as the Hindus versified
ali knowledge, and the metre chosen for this purpose was the later
cloka, which ousted both prose and the older trishtubh metre still used in
early Sūtras and Çāstras. The name also is not absolutely fixed. The
Sūtra is sometimes called Çāstra. Vishnu's law-book, for example, is
both Sūtra and Çāstra, as well as Smțiti, a general term for traditional
teaching.
As the Dharma Sūtras emanated from Vedic schools, so, though less
surely, it may be said in general that the law-books at first represented
certain schools of Brāhmanical teaching. The law-books of Vishņu
and of Yājñavalkya are thus exponents of Yajurveda schools ; but in
the end the popular works of this class lose all connexion with any
one school and become universally authoritative. There are not many
of the long list of later law-books which really deserve the name. As time
went on, a large number of works appeared, claiming as their authors sages
of old, or divine beings, but they are all without historical value and usually
247


## p. 248 (#282) ############################################

248 GROWTH OF LAW AND LEGAL INSTITUTIONS ( ch.
are sectarian tracts inculcating special religious observances. Besides these
pseudo-law-books may be mentioned the later legal works, Dharma
Nibandhas, of the eleventh century and later, and the learned commentaries,
like the Mitāksharā, which have become as authoritative as the text
itself. But these later law-books do not come into our present purview.
They belong to the age of the later Purāņas and subsequent literature. The
great law-books which we have to examine revert to the beginning
of the Purāņic age or before it. Whatever is of value in the later works is
taken from the older, which are still authoritative.
By far the most important of these is the law-book of Manu or
the Mānava Dharma Çāstra, a work closely connected with the law-
book of Vishņu, which has no less than 160 verses of Manu, and with the
didactic chapters of the epic, which contain numerous verses found in the
code. Moreover, the epic recognises Manu as a law-giver and refers
to the Dharma Çāstra of Manu. The relationship between the two works
is made doubtful for the reason that we do not know when the later parts
of the epic embodying these allusions may have been composed An
analysis of all the passages in the epic referring to Manu shows that the
law-book was probably unknown to the early epic but that it was not
unknown to the later epic. This indicates at least that the fabulous
age ascribed to the law-book by the Hindus and by early European scholars
may be disregarded in favour of a much later date. On the other hand, the
present tendency is to exaggerate the lateness of the law-book and bring
it down even to the third or fourth century A. D. Professor Jolly thinks that
the code and the epic belong to about the same time, not later than
the second or third century. The code in any case may not have
been identical with the work known to-day as Manu's law-book, for
all these metrical works have suffered, as has the epic, from unnumbered
additions.
Nevertheless, from the contents of the extant law-book of Manu
some noteworthy data may be extracted which seem to show that the work
is earlier than any other Dharma Çāstra. There is not the slightest
allusion to any sectarian cult; documents are not cited in the rules
on evidence ; widow-burning is not recommended ; there is no recommen-
dation of the cult of idols (service, etc. ) though idols are known as
objects of veneration ; the position of the law-giver in regard to titles
of law, evidence, ordeals, etc. , is more primitive than that of any other
author of a Dharma Çāstra and even than that of Vishņu in the Dharma
Sutra. The law-book of Vishņu belongs to the third century A. :). , and
that of Yājñavalkva to the fourth century, and the advance on Manu
1 Julius Jolly in Recht und Dute, pp. 16 and 30. Burnell in his translation of
Manu contended for a still later date ; but this (1883) was before the relation of Manu
to other law-books was understood.


## p. 249 (#283) ############################################

XII]
MANU, VISHNU, YĀJÑAVALKYA NĀRADA
249
9
in order, method, and detail of legal matters of these law-writers is
very great. Hence, as in the case of the epic, it is probable that the
date now currently assumed is too late, and that the Mānava Code belongs
rather to the time of our era or before it than later. 1
The law-book of Vishņu, which because of its Sūtra form might be
thought to be earlier than Manu, is so largely interpolated that in its
present condition it must rank decidedly as secondary to that code. It
appears to have been an expansion of a Sūtra belonging to the Kāțhaka
school of the Yajurveda enlarged in the hope of making it a general
code favouring the cult of Vishņu. It mentions books under the modern
name pustaka, recognises the burning of widows, knows the names of the
days of the week, evidently borrowing here from Greek sources,
acknowledges the Hindu Trinity, recommends the Tirthas or pilgrimages,
which are decried by Manu, and in the matter of debts and legal pro-
cedure is later than that code. At the same time it contains much ancient
material especially in regard to legal penalties, the rights of kings,
inheritance, etc. A large part of the work is not legal, but treats of sacrifice,
impurity, sin and atonement, etc. ?
The codes of Yājñavalkya and Nārada are probably to be referred to
the fourth and fifth centuries, respectively. The former was a learned
pundit, probably of Mithilā, whose work is so closely connected with
that of Manu and at the same time is so clearly a condensation of this
code, that it may be taken as certain that the author desired to better
an original rather than make a new work. Yājñavalkya pays more attention
to legal matters and improves on his model in his views regarding the
rights of women, whom he permits to inherit equally with men.
He,
elaborates the subjects of trade and ownership, and recognises written
documents in evidence where Manu relies on ocular witnesses. He re.
commends the use of several new ordeals in testing truth, and shows
a more conservative social feeling in objecting to the union of a Brāhman
priest and a slave-woman.
Of Nārada, who belongs to the fifth century and seems to have been
from Nepāl, it may be said that he is the first to give us a legal code
unhampered by the mass of religious and moral teaching with which
1 The contention of Mr. Ketkar in his History of Caste in India(1909) that Manu
is at least as late as the fall of the Andhras (third century A. D. ), because they are
mentioned as a low caste is not cogent, because the verse may well have been one
inherited from a list of degraded tribes (castes) and preserved. The Andhras are
regarded us barbarians in early Brāhman literature, Cf. Aitoreya Brāhmaṇa, VII, 18.
2 The connexion of the Mānava code with the earlier Mānava Sūtras is not so
close as that of the Vishņu code with the Kāțhaka Sútra, and it is even doubtful whether,
as first thought probable, the Mānavasāstra reverts to a sectarian Mānava school.


## p. 250 (#284) ############################################

250
[CH.
GROWTH OF LAW AND LEGAL INSTITUTIONS
and out of which the earlier works on Dharma arose? , à code which
in its fine sub-divisions of the titles of law, as well as in its elaborate
treatment otherwise of sk ves, inheritance, witnesses, ordeals, etc. , is the
first in which law itself is the subject-matter. Nārada's evident posteriority
to Manu and Yājñavalkya does not show that it was an independent
work, rather that it was based on these prior works. In addition to
these legal lights it is necessary to mention only Bțihaspati, who as
he extols Manu as the first of law. givers, also proves himself to be a
sort of commentator rather than an original writer. His work is in
fact a brief for Manu, and proves that in his day (about 600 or 700 A. D. )
Manu was recognised as the original and greatest law-giver. His citations
from Manu also show that our text has not changed essentially since his
day?
We have already seen that the four castes are regarded as the frame of
social life, and that the young student, after spending several years with
a priestly preceptor, the length of time depending partly on caste and
partly on aptitude, marries and becomes a householder, with numerous
religious duties to perform. Twelve years of study is regarded as the
minimum, forty-eight years as enough even for the most studious priest.
Megasthenes tells us that the Hindus studied for nearly this length of time,
but it is clear that only priests practised such zeal. The epic warriors
are supposed to have finished their education by their sixteenth year, and
the fact that a few words of a hymn are admitted as substitution for
this part of the education (consisting in memorising verses) shows that for
practical purposes a smattering of Veda was deemed enough in the case of
all except the priest.
The early law-books devote no little space to
the early youth and conduct in later life of the orthodox Āryan. Manu,
for example, gives six of his twelve books to rules of life before he comes
to discuss royal life and legal matters. Noteworthy is the early date
at which a man retires from practical life. As the youth marries early, in
the warrior caste as early as sixteen, though Many recognises twenty-
four or thirty as the usual (priestly ? ) age, it may happen that he becomes
a grandfather before he is forty, by which time, to be sure, the Hindu
is often grey. Now it is expressly said that when a man becomes grey and
a grandfather he is to enter the third āçrama or stage of life and become a
hermit, either accompanied with his wife or not, as he chooses. Severe
asceticism marks this period of life (it is described in full by Manu, Book
VI), and probably it was reserved generally for the priestly caste ; some
1 Dharma means 'law' only as law is an expression of right, duty, etc. It is
based upon revelation and custom, the first perfunctorily, the second actually. 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


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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
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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.
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.
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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.
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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).
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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
.
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