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The Cambridge History of India, Vol. I: Ancient India v1.c23: Chapter XII. The Growth of Law and Legal Institutions

The Cambridge History of India, Vol. I: Ancient India v1.c23

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English

Chapter XII. The Growth of Law and Legal Institutions

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The law-books, Dharma Çāstras, and especially trained experts in law, Dharma-pāṭhakas, 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 all knowledge, and the metre chosen for this purpose was the later *çloka*, 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. Vishṇu’s law-book, for example, is both Sūtra and Çāstra, as well as Smṛiti, a general term for traditional teaching.

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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 Vishṇu 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 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 Purāṇas and subsequent literature. The great law-books which we have to examine revert to the beginning of the Purāṇic age or before it. Whatever is of value in the later works is taken from the older, which are still authoritative.

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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 Vishṇu, 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 century¹. 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.

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¹ Julius Jolly in *Recht und Sitte*, 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.

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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 recommendation 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 Vishṇu in the Dharma Sūtra. The law-book of Vishṇu belongs to the third century a.d., and that of Yājñavalkya to the fourth century, and the advance on Manu 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 later¹.

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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 as barbarians in early Brāhman literature. Cf. *Aitareya Brāhmaṇa*, vii, 18.

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The law-book of Vishṇu, 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 Kāṭhaka school of the Yajurveda enlarged in the hope of making it a general code favouring the cult of Vishṇu. 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 Tīrthas or pilgrimages, which are decried by Manu, and in the matter of debts and legal procedure 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.²

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² The connexion of the Mānava code with the earlier Mānava Sūtras is not so close as that of the Vishṇu code with the Kāṭhaka Sūtra, and it is even doubtful whether, as first thought probable, the Mānava Çāstra reverts to a sectarian Mānava school.

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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 recommends 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.

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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 and out of which the earlier works on Dharma arose¹, a code which in its fine sub-divisions of the titles of law, as well as in its elaborate treatment otherwise of slaves, 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 Bṛihaspati, 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 day².

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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.

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² On Bṛihaspati, see Jolly, *Tagore Lectures*, and the introduction to the translation of Nārada and Bṛihaspati in *S.B.E.*, vol. xxxiii.

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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 Manu 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 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 sense, business intercourse legally interpreted, legal procedure. There is no formal distinction 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) Recovery 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 cock-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 seventeenth 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*, ‘Non-payment 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.

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The titles and the arrangement of Manu are followed by later writers, though with sub-divisions. Thus Bṛihaspati (II, 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, procuring 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 servant (Nārada, I, 6). Although the titles begin with civil cases, there is no doubt that primitive procedure had to do with criminal cases before civil cases were known. Thus the earliest trials are for theft and perjury, and it is probable 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 of theft, according to Bṛihaspati, 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' (Bṛih., 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; highwaymen are hanged from a tree by the neck; kidnappers are burned in a fire of straw; one who steals a cow has his 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, VIII, 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.

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Manu recognises only two ordeals. Later authors add several more and some admit the application of 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, VIII, 114 f.). As the Sūtras do not notice ordeals, except for a general recognition 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 ploughshare, 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 Jolly¹, but the implication that the mention of *daiva* 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 ordeals².

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¹ *S.B.E.*, vol. XXV, p. cii; and Jolly, *Recht und Sitte*, p. 145.

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² Compare Stenzler, in the *Z.D.M.G.*, vol. IX, p. 661; E. Schlagintweit, *Die Gottesurtheile der Inder* (1866); and A. Kaegi, *Alter und Herkunft des german. Gottesurtheils* (1887).

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The nine ordeals are as follows, arranged in the order chosen by Bṛhaspati (XIX, 4): the balance, fire, water, poison, sacred libation, grains of rice, hot gold-piece, ploughshare, and the ordeal by Dharma and 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 water³?

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³ 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 other 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 observing them, who then extracts one and ‘if he draws Dharma he is acquitted.’

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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 emendations 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.

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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 *dharṇa*. 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 fasting 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.

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The punishment for murder, as already noticed (*v. sup.* p. 242), 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 compensation 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.

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¹ 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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Treason of all kinds is punishable by death, whether it consist in attacking 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.²

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² 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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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 *paṇas*; 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 relations 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.

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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 common man would be fined one penny (*kārshāpaṇa*) the king is fined a thousand (Manu, VIII, 336), probably on the principle (Manu, VIII, 338) that he who knows more should suffer more¹.

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¹ The slave of the rules cited above is a Çūdra-slave. The law defines slaves 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. 270) and there is no reason for supposing that a captive warrior may not be a slave (the commentator confines the captive to the Çūdra caste). According 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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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 title 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 quarter (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, VIII, 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 formal fourth title of the list. Yājñavalkya on the other hand includes agriculture and trades in his rule (II, 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, 3 f.). Finally Bṛihaspati 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 whatever contract he may cause 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 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 he 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' (Bṛihaspati, XIV, 32).

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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. 248). 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 (οὔτε δανείζουσι οὔτε ἴσασι δανείζεσθαι, 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. 269 f.), gets the milk of one cow out of ten (Manu, VIII, 231). If a man work without food or clothing given to him he may take a third of the produce; otherwise a fifth (Bṛihaspati, 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 (II, 194)¹. The agricultural servant is a Çūdra slave or a member of a mixed caste².

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¹ This is expressly the wage ordained by the king in case there has been no especial stipulation between master and man. It represents therefore the normal percentage of gain (1/10) as wage for the hired assistant of a petty merchant, herdsman, or farmer.

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² According to the commentator on Vishṇu, LVII, 16, where the practice of renting 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.

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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. 284, *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 what is given her after marriage by her husband. All this goes to her children at her death.

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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.

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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 (Āp., *Dh. S.*, i, 18, 20).

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The government of the country described in legal literature is not different from that of the Sūtras, and in most respects agrees with the conditions represented in the epics, where government without a king is so well known 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 treated in the law-books under two heads, as general lord of the land and as judge and executioner.

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As lord of the land the king is a Zeus Agamemnon, a human divinity incorporating the essence of the deities Indra, Vāyu, Yama, Varuṇa, 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 into 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 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 *daçapa* 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.

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These provisions (of Manu) are followed by Vishṇu, who however omits the intermediate lords of twenty villages and recognises only the decimal system throughout¹. Instead of a thousand villages, Vishṇu speaks of the 'whole country,' and probably the two expressions were synonymous. Vishṇu also specifies eunuchs as guards of the king's harem, not mentioned by Manu in connexion with the palace. Another point which brings Vishṇu into line with the Sūtra authorities (Baudh., I, 10, 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).

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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.).

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The men of war, according to Manu, are to be selected for prominent places (in the van) from Kurukshetra, the Matsyas, Pañchālas, 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 his code. It is interesting to note that both Manu and Vishṇu 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 (Vishṇu 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).

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In his capacity as judge the king tries cases himself or appoints a priest in his stead (Vishṇu, III, 73); but this latter provision is a later trait, though found in the Sūtras. The earlier rule is that the king himself 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. 241), act as executioner. The fact that the king has 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 purified¹, 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 (Vishṇu, 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 (Bṛihaspati, I, 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 (II, 305) and Nārada also (I, 65) say that, when a lawsuit has been wrongly decided, the trial must be repeated. According to Yājñavalkya appeal may be taken from corporations, etc., to ‘the judge appointed by the king’ (II, 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*), gild or corporation (*çreṇi*), and assembly or greater corporation (*pūga*, *gaṇa*), of caste or co-inhabitants in making their own laws, which the king must not contravene.

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¹ Apparently a murderer might expiate his crime by dying for the king in battle (Āpastamba, I, 24, 21), and even, 'if he fights three times, when not slain, he is freed' (Vas., *Dh. Ç.*, XX, 28). This antique provision is not preserved in the later law.

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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 VIII, 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 (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, we 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 (IX. 98), ‘Even a slave should not 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, has in effect heavy expenses. Thus when king Virāṭa weds his daughter he bestows upon his son-in-law seven 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)¹.

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¹ The purchase of a wife is the ‘demoniac’ form of marriage formally permitted in the case of a Vaiçya and slave (Manu, III, 24). These two classes ‘are not particular about wives’ (Baudh., *Dh. S.*, I, 11, 20, 14).

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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. The later 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 bridegroom 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 (IX, 94); he also recommends that a girl shall not marry at all unless a suitable bridegroom appear; but again he countenances infant-marriages (IX, 88 and 89).

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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 provisions 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.

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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, IX, 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 Mahābhārata 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 (*svayaṃvara*) 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)¹. In general, a woman receives respect only as potential or actual mother of sons. Manu repeats with unction the dictum of the Sūtras that a woman is never independent (ix, 2 f.), and says that she may be slain for unfaithfulness and divorced for barrenness; he also regards women as too ‘unstable’ to be called as witnesses (viii, 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, Lakshmīdevī. At what time the Purdah (‘curtain’) rule came to confine women to the house is uncertain; but probably not before foreign invasions had 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, 365), but Manu insists that ‘no man can really guard women by force’ (ix, 10). To go veiled is only a court-custom alluded to in both epics.

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¹ The property of women forms 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).

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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. 221), 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 inadmissible 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 Kauṭilīya, 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 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 life¹. 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 Kauṭilīya 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 Kauṭilīya 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.

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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.

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² A sketch of law and government as presented by the Kauṭilīya Arthaçāstra 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).

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We see in the law-books the king of a limited realm still more or less of a patriarch among his people³; 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-life 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 excluded 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 personified, has at times a naïve 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 divine¹.

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³ Thus the king has personally to go to market and 'settle the price of goods' every five days (Manu, VIII, 402).

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¹ 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 Kauṭilya; and that the 'beginnings of Indian thought in the sphere of Arthaçāstra' 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 demonstrable. 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 Kauṭilya had numerous predecessors, which is probable. The chief discrepancy between Manu and Kauṭilya is that the former represents a state conceived as a smaller kingdom; the latter's purview is not only more exhaustive but wider, 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.' all the data of the Kauṭilīya Arthaçāstra.

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