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Hindu Law and Custom (Recht und Sitte) c9: IV. Crime, Penance and Punishment

Hindu Law and Custom (Recht und Sitte) c9

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IV. Crime, Penance and Punishment

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§ 36. Religious transgressions. The expressions for the general concept of "crime, 'trangression" are very numerous, but are mostly of a religious nature ; by way of example I mention here agha, āgas, enas, pāpa, pāpman "evil, sin", aśubha, kalmaṣa, paṅka, mala "filth, sin", adharma "injustice", kilbiṣa, doṣa, duṣṭa "omission, transgression", unmārga "going astray", hiṃsā, aparādha, apakāra "infraction, transgression," atikrama, dharmavyatikrama, apacāra, duṣkṛta, vikarman, vikṛta "transgression, evil-doing", patanīya, saṃkarīkaraṇa, jātibhramśakara, pātaka as well as the derived words atipātaka, mahāpātaka, anupātaka, upapātaka signifying "crimes which cause the loss of caste." The last group of expressions is specially important because they exhibit the close connection between the criminal law and the caste system. Impenitent sinners and those whose sins are generally unatonable, not only go to hell and later undergo low births, but they are also excommunicated out of the caste.

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The systematic lists of sins in the Smṛtis are arranged according as re-acceptance into the caste may be secured easily, with difficulty or not at all, on the performance of certain penances ; of these lists that of Vi. 33-42 is the most exhaustive and may be given here: (1) Sins punished by death (atipātaka), namely sexual intercourse with mother, daughter or daughter-in-law ; (2) great sins (mahāpātaka), namely murder of a Brahman, indulging in spirituous liquors (surā), theft of gold belonging to a Brahman, sexual intercourse with the wife of the teacher (guru), association with those who have committed any of these crimes ; (3) sins which are equal to great sins (anupātaka), and indeed equal to the murder of a Brahman :

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Sins equal to a Mahā-pātaka.

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the murder of a Kṣatriya or a Vaiśya actually engaged in a sacrifice, of a woman in her courses or of a woman who has not bathed after temporary uncleanness or of a pregnant woman or of an embryo of unknown sex or of one who begs for protection; sins equal to the drinking of spirituous liquors are: giving false witness and murder of a friend; sins equal to theft of gold are: usurpation of land belonging to a Brahman and the embezzlement of an entrusted property; sins equal to the sexual intercourse with the wife of a teacher are: intercourse with the wife of father's brother, of a maternal grandfather of a father-in-law, of a king, and other incests; (4) lesser crimes (upapātaka): are hypocritical bragging, denunciation before the king, false accusations against a teacher, to revile or forget the Veda, abandoning parents, son, wife or the sacred fire intentionally, indulging in forbidden food and drink, usurpation of property belonging to others, adultery, sacrifice for low people, improper occupation, receiving unlawful presents, killing a Kṣatriya, Vaiśya, Śudra or a cow, selling forbidden articles, marriage of the younger brother before that of the elder, every kind of abetting to these transgressions, the mode of life of an outcast (vrātya), teaching and studying the Veda for a reward, work in the mines, manufacturing big machines, injuring trees or plants, earning livelihood by means of the wife, magic, violent actions, neglect of sacrifices, Vedic studies and other religious duties, reading bad books, atheism, the profession of a dancer or a singer, intercourse with women who take spirituous drinks; (5) crimes which entail excommunication out of the caste, namely injuring a Brahman, smelling of disgusting things and spirituous liquors, dishonesty, sexual intercourse with beasts or men; (6) crimes which degrade the perpetrator to a mixed caste, namely injuring household or wild animals; (7) crimes which render the perpetrator unfit to accept

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Lesser crimes.

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presents, namely accepting presents or alms from contemptible persons, trade, money lending, mendacity and serving a Śūdra ; (8) crimes which entail defilement : killing birds, amphibious animals, aquatic animals, worms or insects and to partake of substances which came in contact with spirituous liquors (or are like them); (9) miscellaneous crimes namely all that has not been specially mentioned.

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Even this last expression shows that Vi.’s enumeration does not claim to be exhaustive and in fact still many more crimes may be collected from the parallel passages of other ancient authors, as for instance, sea voyage, medical practice, murder of husband, regicide and other important cases of murder, intentionally abandoning nearest relations, various cases of theft, etc. Further sins of commission and omission are seen particularly in the rules about penances (Vi. 50 ff. etc.), in the teachings about retaliation (karmavipāka) in which particularly the various forms of theft are discussed with lively symbolism (he who steals flesh is reborn as a vulture Vi. 44, 21 etc.), in the Snātakadharma (Vi. 71 etc.) and in the enumerations of those Brahmans who should not be invited to a Śrāddha (Vi. 82, etc.).

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Many crimes in these lists appear to be disconcerting and almost phantastic and about some of the expressions used therein even the commentators are of divided opinion. Thus the crime of earning livelihood by means of the wife (M. 11, 64 etc.) is interpreted not only by the prostitution of the wife but also by the appropriation of her earnings or her own property or by the sale of the wife. On the whole there is no part of the Brahmanical codes of law whose roots reach so far into antiquity and which with all its peculiarities has maintained itself tenaciously up to the present day as the theory of crimes and the penances for those sins. The Sūryābhyudita and the Brahmahan, Bhrūṇahan, Parivitta, Didhiṣupati, Agredidhiṣu and other categories of sinners may be traced back even to the Vedic Saṃhitās (Kāṭh. 31, 5; AV 6, 112, 3 etc.)¹. The Taitt. Brāhm. 3, 2, 8, 11 ff. contains an enumeration of sinners which agrees almost literally with Āp. 2, 12, 22. Konow in his translation of the Sāmavidhāna-brāhmaṇa has pointed out many parallel passages out of the Smṛtis to the rules of atonement contained in it. Over and above those parallel passages I compare Sāmav. 1, 5, 6—9 (disrespectful conversation with Brahmans and relatives) with M. 11, 205, Y. 3, 292; 1, 5, 12 (smell of impure things) with Vi. 55, 8; 1, 8, 2 (sale of animals with two rows of incisors) with Vi. 45, 23, and 1, 8, 5 (forcibly carrying away a girl) with the Rākṣasa marriage of the Smṛtis. The deadly sins and the minor sins of the Smṛtis are mentioned also in the Mah. 12, 165, 34 ff. as well as in inscriptions e. g. EI 1, 366, 39 (gohatyābrahmahatyādi mahāpātakam). The Buddhist lists of sins exhibit many points of agreement with the Smṛtis².

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¹ Cf. Weber I. Str. 2, 210f.

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² Kern, Der Buddhismus 2, 100—138.

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Even now in Bombay among many castes the following are considered to be the chief sins: murder of Brahmans, women and children, indulging in spirituous liquors and forbidden foods, omission of the funeral ceremonies on the death of a relative and also every intercourse with people of low caste and Muhammedans. Also the killing of a cow is considered to be a particularly grave act of murder and stealing gold is considered to be the most heinous act of theft³. Similarly in Nepal the 5 chief crimes (pañc khāt) are taken from the 5 deadly sins of the law-books, namely Brahmahatyā, Strīhatyā, Balahatyā, Gohatyā and Agamyāgamana¹. Also according to Alberuni the following were regarded as deadly sins in the mediaeval age: murder of a Brahman or a cow, drinking wine and incest, particularly with one’s own mother and the wife of the teacher². How the religious fanaticism of the Hindus always flares up in the case of a transgression of the law of diets, particularly in the case of eating beef, is well-known from Indian history; even now the society for the protection of cows espouse the cause of the cows against Muhammadans as well as Europeans.

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³ Steele, Castes 147—152.

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¹ Hodgson, Ess. 2, 215.

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² Alberuni. 2, 162.

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§ 37. The penances. As old as the lists of sins is the theory of penances (*prāyaścitta*) the determination and prescription of which was one of the most essential means of maintaining the influence of the Brahmans and frequently was also a lucrative source of income for them. It is not improbable that the principle of spiritual punishment goes back even to the Indo-Germanic epoch, because frequent use of prayers, presents of every kind to the priests and the use of cow’s urine on the occasion of penances are often met with also in the Vendidad. In India the Sāmavidhāna-brāhmaṇa, as already mentioned, seems to contain the oldest detailed exposition of the penances. On account of its connection with the Sāmaveda it mentions particularly many Sāmans the chanting of which is said to produce the effect of a penance; in 1, 3 however it also mentions the three penances (*kṛcchra*). The Kṛcchra in the narrow sense consists of taking unspiced food during the first three days only in the morning, during the next three days only in the evening, for further three days eating only that food which may be obtained without asking for it and fasting during the last three days. The Atikṛcchra is an intensified form of this penance in which one may eat only as much at each meal as the mouth can hold at a time; the Kṛcchrātikṛcchra however is to be regarded as the most difficult of penances in which one has to live only on water.

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Of the Smṛtis Gaut. 26 has taken the three Kṛcchras verbatim from the Sāmav. and they are found also in other works, particularly the Kṛcchra in the narrow sense, which however is generally called Prājāpatya, i. e. the penance discovered by Prajāpati. Other Kṛcchras are: the hot penance in which during three periods of three days each one has to live on hot water, hot milk and hot clarified butter respectively and to fast completely for the last three days, the cold penance in which the same fluids are to be taken in cold state, the penance of leaves, the water penance, the penance of roots, the quarter penance etc. (Vi. 46, 10-23 etc.). The lunar penance of the Smṛtis (also Mah. 12, 165, 69) should be specially mentioned with its varities Yati, Śiśu, and Sāmanyacāndrāyaṇa—so called, because the quantity of food taken is increased or decreased according as the moon waxes or wanes (Vi. 47 etc.). The Parāka penance consists of a complete fast for twelve days (Y. 3, 321 etc.). In the Sāmtapana penance which, in an intensified form is called Mahāsāmtapana, one may take cow's urine, cowdung, milk, sour milk, butter and a broth of Kuśa grass in one day and must fast on the second day (Y. 3, 315 f. etc.).

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"The five things of the cow" (pañcagavya) mentioned in this penance appear also in other penances, and thus almost everything what comes from this holy beast, even when in itself it is extremely impure, may be used as an instrument of purification and expiation. In the Govrata (Vi. 50, 24 etc.), the penance for killing a cow, the sinner should accompany the cows to the meadow and serve them in every way, inhale the dust raised by their hoofs, bring them into safety in case of inclement weather and danger even at the risk of his own life and live on nothing but the Pañcagavya. Even if one scratches the back of a cow and lets himself be wetted by the drops of water falling from the horns of a cow, one may derive thereby an expiating effect (Vi. 23, 59 f.).

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The prayers play even a more important role than the cultus of the cow in the penances. Among them the Sāmans are the most important and their power of effecting penances is already referred to in the Sāmav. The most important prayers have particular names (Vi. 56 etc.). The more a man repeats them the greater is the effect attained by him; thus according to Baudh. 4, 5, 31, he who murmurs the Gāyatrī 1008 times at sunrise may get absolution from all sins excepting the murder of a Brahman. Frequently the recitation of prayers is accompanied by other observances, thus for instance, in the Anaśnatpārāyaṇa we have the recitation of the whole Veda along with fasts and other self-mortifications (Baudh. 3, 9).

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Another mode of atonement with which the authors of the Smṛtis are naturally in full sympathy consists of presents given to Brahmans. Baudh. 3, 10, 14 mentions as fitting substances of present gold, cows, dresses, land, sesamum, clarified butter and food stuff; Gaut. 19, 16 mentions moreover the horse; in the case of particular sins however many more presents are mentioned which have to be given for their expiation. Thus in connection with the penance for killing beasts it is laid down that for killing a snake an iron spade should be given, for a boar a pot of clarified butter, for a partridge one Droṇa of sesamum, for a parrot a two-year-old calf, for a peacock and other birds or for an ape a cow, for a horse a garment, for an elephant 5 black bulls, for an ass a one-year-old calf, for a camel one Kṛṣṇala of gold, for a beast of prey a milch-cow and for stealing gold belonging to a Brahman one's own weight of gold should have to be given, etc. (Vi. 50, 25 ff. etc.). That the presents are intended for Brahmans, and primarily for the Ācārya who has prescribed the penance, is indeed expressly mentioned only in a few passages (Vi. 50, 31, 33; M. 11, 131 etc.) but it is implied in the connection in which it is mentioned. In Baudh. 1, 19, 6 of course the expiatory presents for killing a swan and other animals are set on an equal footing with the indemnity that is to be paid for killing a Śudra,—the source of the very important penance, often amounting to 1000 cows, which is to be performed in expiation of homicide, is at all events to be sought in blood-money (§ 44). Yet presents and gifts of every kind form an important feature of the religious law even from its very beginning, cf. § 30. Other means of expiation are visiting holy places, of which Vi. 85 alone enumerates 51 in all parts of India, a mendicant life in which one lives only on alms, baths mostly with the clothes on, sacrifice, sleeping on the ground, sitting in the sun, shaving of the hair, living in the forest, humble apologies and obeisance, etc. The penances for secret crimes (rahasyaprāyaścitta) form a particular category; according to Mit. on Y. 3, 301, a sinner who is well-acquainted with the Dharmaśātras should impose on himself these penances which mostly consist of prayers; an ignorant man on the other hand should approach one who knows these things and enquire about the proper penance under the pretext that somebody else has committed the crime.

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The graver the sins the more difficult are the penances; for this reason a deadly sin may be expiated for only by suicide. According to Mah. 12, 165, 46 ff. the murderer of a learned Brahman (bhrūṇahan) shall plunge into the turmoil of a battle in order to obtain

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Hardly any mention of Brahmans in this connection.

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Other means of expiation.

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Secret penance.

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Deadly sins expiated for only by suicide.

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absolution from sin through death at the hand of the enemy, or shall throw himself into fire. He who takes intoxicating drink will be pure if he drinks hot water till he is scalded to death. He who has defiled the conjugal bed of his teacher shall embrace the iron image of a woman glowing with heat till he dies of it or cut off his organ and the testicles and holding these limbs in his hands he should walk till he falls dead on the ground or he should sacrifice his life in defending a Brahman from the danger of life. Yet, for instance, the drinking of spirituous liquor may be expiated for through fasting, chastity and sleeping on the ground. The above-mentioned and similar other modes of suicide for the expiation of deadly sins are met with in most of the Smṛtis, yet later on the penances leading to death have been reckoned among the customs no longer in vogue in this age.

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The later Smṛtis seem to have attempted to fill up the gaps in the theory of penances and elaborate it casuistically. Thus now besides the killing of a cow the case of more or less serious injury to the same is also taken into consideration. If children, sick persons or women have committed sins they should have to perform only half the same penance. The consulting Brahmans shall give their opinion about the Prāyaścitta for the particular case in writing (Bṛh., Kāty. etc.). Equivalents in money may be always substituted for the penances.

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Already Alberuni 2, 172f. mentions the vows of fasts Kṛcchra, Parāka, Cāndrāyaṇa etc. Even at the present day the principles of the Dharmaśāstra are in force for the penances which are still always prescribed by the Brahmans learned in law (dharmādhikārin) who give their opinions in writing. Fines or presents are most common; they are either directly exacted or, as is most usual, the man who performs the penance has to give a feast to all the members of his caste with prescribed entertainments. The Pañcagavya and the cultus of the cow in general also play an important role in the religious expiatory ceremonies, e. g. as recorded by Dubois, who also speaks of a rite comparable with the Govrata of the Smrtis in which one has to accompany the cow to the meadow and receive the urine in vessels actually brought for that purpose ¹. For graver crimes going on pilgrimage is regarded as the proper penance ². Also the Rahasyaprāyaścittas, decided either by the sinner himself or by the head of the family, are still in evidence, at least in Kashmir ³.

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¹ Dubois 29.

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² Steele 150.

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³ Bühler, Kashmir Report 22.

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§ 38. *Excommunication out of the caste.* Nobody can escape the performance of the prescribed penances if he does not wish to run the risk of being excommunicated out of the caste. The ceremonies of excommunication (*tyāga*), the outward sign of which is to overturn or break the water vessels and the victim of which becomes fallen (*patita*) and thereby forfeits all his rights, are according to M. 11, 183-188 and the parallel passages and commentaries somewhat as follows. If anybody has committed a great sin (*mahāpātaka*) and is therefore accused by his Guru, his relations or the king, he is, if he confesses his crime, ordered to approach an Ācārya who prescribes him the proper penance. If he does not comply with this and refuses to perform the penance inflicted on him, the ceremony of overturning water-pots takes place. His relations and his spiritual initiator hold a meeting on an inauspicious day, in which, just as if he were dead, they perform for him all the funeral ceremonies beginning with the offering of water. Upon this a slave or a servant or a kinsman of low lineage brings a broken pot from a heap of sweepings or an impure dish, fills it with water out of the water-pot of a female slave and upsets it with his left foot; on this the relations of the person who is going to be excommunicated touch it after loosening their hair; the female slave or even the relations themselves may upset the pot. In this act the name of the person who is going to be excommunicated is proclaimed and it is said that the offering is meant for him and that he is going to be deprived of water for all time to come (*anudakam karomi*).

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When leaving the place the relations, in token of their contempt for the excommunicated person, turn their left side to him and then go home after taking a bath. Henceforth it is forbidden to speak to the excommunicated person, to sit by him, or in any way to come into intercourse with him; he who speaks to him has to perform penance and he who continues to be in intercourse with him for a year shall himself be an outcast. The Patita is excluded from all religious ceremonies and businesses of his caste, he is even disinherited (cf. § 24) and if he is the eldest son he loses his right of primogeniture as well as the privileges connected with it. After his death he goes to hell (Gaut. 21,6); moreover no funeral sacrifice is performed for him but instead of the offering to the dead a female slave upsets a pot of water on the day of his death with the words "drink this" (Vi. 22,57). Excommunicated women are treated in the same way; yet however she should be allowed sustenance and a place of abode should be assigned to her in the neighbourhood of the family house (Y. 3, 297 etc., cf. § 19).

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Re-acceptance of the excommunicated person into his caste may take place on the resolution of his caste people in case he has performed the prescribed penances. The cere- Re-acceptance into the caste.

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monies which take place are just the antithesis of the ceremonies of excommunication. A new pot of clay or gold is brought, it is filled with water out of a sacred tank or river and then it is overturned or poured upon him while his relations too bathe in the same water. Mantras from the Veda, presents to Brahmans and the same festivities which take place at the consecration of a new-born child accompany this sacred ceremony. Yet before the excommunicated person is taken into society another test shall take place : he offers grass to the cows as fodder ; now only if the cows eat this grass he is again considered to be fit for mixing in society (Y. 3, 300, M. 11, 197). After his re-acceptance into the caste he can no longer be kept down in any way; everybody must have intercourse with him in every respect (Y. 3, 296). Vas. 15, 18 contains a remarkable statement: people should walk before those who re-admit a person into society gamboling and laughing and walk before those who excommunicate a person weeping and sorrowing.

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Excommunication and its effects at the present day.

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Even to this day the excommunication out of the caste is effected by the ceremony of Ghaṭasphoṭa¹, and even to this day it is everywhere feared although the effects thereof falling into the sphere of civil law have been abrogated by an act of English law in 1850, and the re-admission of the culprit into society, excepting in the case of the gravest crime, may take place if he submits to the judgment given on him and pays a fine. So long as the period of excommunication continues the excommunicated person cannot eat together with any one of the members of his caste, cannot get the services of the spiritual advisor, the washerman and the barber of the village and with his whole family is excluded from connubium with his caste.² Dubois 28 f. lucidly describes the humiliating proceedings to which the excommunicated person has to submit himself in order to obtain his re-admission into the caste. In the mediaeval age the Hindus who were able to run away from the slavery of Mohammedans had to fast in their house, lie for a long time in a mixture of cowdung, cow's urine and milk and to use it as food before they could again be taken into their caste.¹

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¹ West and Bühler, 3rd. ed., 58.

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² IG 6, 199 f.

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¹ Alberuni 2,162 f.

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§ 39. Relation between spiritual and worldly punishments. Is the secular criminal law in India later than the law of spiritual punishment and has the former been evolved out of the latter? Burnell² has answered both these questions in the positive, but certainly Weber, Barth and Konow are more correct who are of opinion that on the whole the two systems of punishment had developed independently of each other. Even though the theory of religious expiation had been codified as an important feature of the Dharma at an earlier period than the theory of punishment yet however the power of punishment has always been an essential attribute of royalty. Nothing stood in the way to prevent the welding together of spiritual and worldly punishments and the punished criminal moreover performed also the penances prescribed in the Dharmasūtras in order to gain re-admission into his caste³.

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² Sāmav, XIV ff.

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³ Cf. Bühler in "Festgruss an R. v. Roth" 47 note.

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Burnell however was right in saying that in all the Smṛtis an elaborate admixture of spiritual and worldly punishments is in evidence. Thus according to M. 9, 240 criminals of every class may escape the branding by the order of the king and pay only a fine if they perform the prescribed penance. On the other hand, it is said that "the criminals who have received their punishments from the king are purged of guilt and go to heaven Admixture of spiritual and temporal punishments. like holy men” (M. 8,318 ; Vas. 19, 45 ; Nār. App. 48) ; for this reason the thief who goes to the king with a club, confesses his crime and asks the king to strike him down to the ground is purified all the same whether the king acts according to this or grants him forgiveness ; though of course the sin of the thief in the latter case is transferred to the king (M. 8, 314 ff. etc.). According to Nār. 14, 11 in the case of the Sāhasas of the first and the second grades the criminal may again be received into his caste ; but he who has committed the Sāhasa of the highest grade shall for ever be excommunicated from his caste. Gaut. 23,14 f. and Mah. 12, 165, 64f. mention among Prāyaścittas a penance for adultery in which the woman is torn to pieces by a dog and the man is roasted on a bed of glowing iron. Usually (M. 8, 371f. etc.) this punishment is referred to in the criminal law. Also the branding of the great sinners (mahāpātakin), e. g. the murderer of a Brahman with the brand of a headless man, is always met with among the punishments inflicted by the king (Baudh. 1,18,18 ; Vi. 5, 3-7 etc.) ; according to M. 9, 236 however it takes place only subsidiarily in the place of a penance. Originally the Mahāpātakin, as even the name shows, certainly belonged only to the spiritual law. The blood-money (§44) on the other hand, has gone over to spiritual law from secular law.

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Points of agreement and distinction between the two systems. There are many more instances of exchange and analogies between these two systems of punishment. Thus in both of these systems the caste-distinction and the privileges of the Brahman have been fully recognised which stand out prominently particularly in the punishments and penances for murder, maiming, adultery, theft, injuries and other grave crimes.¹ In civil law too the gradation of penances, which is seen e. g. in Sāmav. 1,6,8, for withholding the interests on a loan, according as the creditor is a Brahman or not, may be compared with the various rates of interest according to the caste of the debtor and the privileges of the Brahman as found in the law about the recovery of debts. Further in the penances as well as in the punishments the existence or absence of criminal intention is taken into consideration. Y. 3, 226 even expresses the view that penances are proper for sins committed unintentionally and punishments are appropriate for sins committed intentionally (kāmatāḥ), and it corresponds to the religious belief that for the existence of a sin which has to be expiated for only the actual facts of the case and not the evil design come into consideration.

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¹ Kant. however almost wholly ignores such caste distinctions in criminal law. Tr.

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Penances for unintentional and punishments for intentional crimes.

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Yet often Prāyaścittas are prescribed for the expiation of intentionally committed crimes. Thus according to M. 11, 46 prayers are to be resorted to in the case of unintentional crimes and Prāyaścittas in the case of intentionally committed crimes. The general rule is that the penances for unintentional crimes are doubled when there is evil intention in evidence (Mit. on Y. 3,226). According to Viśvāmitra the intentional killing of a cow is to be expiated for by 4 Kṛcchras and unintentional killing by 2 Kṛcchras. Raghunandana (228 Calc. ed.) explains it in this way: it is not to be regarded as intentional killing of a cow if anybody mistakes it to be a bos gavaeus and strikes it dead or if the arrow meant for another object accidentally hurts a cow. The commentators such as Nandapaṇḍita mention all the penances referred to in the Smṛtis whether connected with intentional or unintentional crimes. Accordingly the conceptions of dolus (evil design) and culpa (crime) are as much in evidence in the religious law as in the secular law, cf. § 32.

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Penances also for intentional crimes.

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Penances aggravated when evil intention is in evidence.

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Crimes in self-defence remain unpunished in both systems.

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The same is the case also with the conception of permissible self-defence. For killing an assailant (*ātatāyin*), even if he is learned in the Veda, neither punishments nor penances are prescribed; the fury of the assailant in such a case meets the fury of the defender (M. 8, 350 f. etc.). Yet however the killing of a Brahman in self-defence is one of the customs now obsolete (*kalivarjya*). The participation in a crime is judged likewise from the same point of view in the religious law and in the secular law. Thus he who eats or serves, cooks and sells the flesh of a killed animal commits as great a sin as he who himself has killed it or has cut it into pieces (Vi. 51, 74 etc.). The Mit. on Y. 3, 227, in the theory of penances, quotes a text, said to be of M., according to which among a troop of men carrying weapons not only he who gives the mortal blow should be considered to be the murderer but his companions too are as guilty as he himself. Similarly Āp. 2, 29, 1 speaks of the rewards of heaven and the tortures of hell which are shared by the instigator (*prayojayitṛ*), helper (*mantṛ*) and the perpetrator (*kartṛ*) of an evil deed.

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Abetment condemned in both the systems.

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Repetition of a crime severely punished in both the systems.

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Also the repetition of a crime has been taken into consideration in the same way both in punishments and in penances. Thus according to Āp. 2, 27, 11 ff. in the case of repeated adultery the penance for the adulterer is more and more intensified. Similarly M. 9, 277 in criminal law affirms that the cut-purse when caught for the first time shall have two fingers cut off, the second time a hand and a foot and the third time will lose his life and Vi. 3, 93 declares that the king should not let a twice repeated crime go unpunished. In theft the penances as well as punishments are graded according to the value of the stolen property. Thus also for penances in general it is said, e. g. Y. 3, 294, that in cases of crimes not specially provided for in law the penance is to be fixed on consideration of Deśa, Bala, Vayaḥ, Śakti and Pāpa just as according to Y. 1,367 the king should determine the punishment after consideration of Aparādha, Deśa, Kāla and Bala.

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In this thorough parallelism of the two systems it is quite natural that they should have very many particular sins and crimes in common with one another. As already mentioned, in such cases it is to be assumed that penances and punishments were both prescribed at the same time and this is sometimes even expressly mentioned. Thus according to Baudh. 1, 19, 4 he who kills a bull shall finally, that is after paying the fine, also perform the penance Cāndrāyaṇa. According to Nār. 12, 77, in the case of grave sexual crimes (agamyāgamana), the king should decree a punishment; at the same time however the sin should have to be destroyed by Prāyaścitta. There being no fine line of demarcation between penances and punishments both may be applied indiscriminately. In the mediaeval age according to Alberuni 2, 162 f. in punishing an act of murder the penances and punishments were arranged in this way: in the case of the murder of people of lower castes by a Brahman, only penance consisting of fasts, prayers and alms-giving was ordained; in the case of acts of murder among people of lower castes, penance as well as punishment, and in the case of murderous deed and other grave crimes among Brahmans and Kṣtriyas, only punishments consisting of confiscation and banishment were prescribed. Probably the line of demarcation between the church and the state was never fixed with any certainty and it is also to be remembered that princes with religious zeal themselves used to enforce the performance of the penances prescribed in the Dharmaśāstras, cf. § 47.

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§ 40. Secular crimes and transgressions. The secular crimes and transgressions, i. e. those that are punished by the king, are also dealt with along with the corresponding punishments in the Dharmaśāstras in the chapter on the duties of kings without any trace of systematic arrangement. In M. the criminal law, divided into real and verbal injuries, theft, violence and sexual crimes, constitutes the contents of 11.—15. of its 18 titles of law. In Nār. the laws about punishments, dealt with in 14.—16. titles of law, consist of violence or grave crimes (sāhasa), real and verbal injuries, and these 3 titles are subdivided into 15 sections; moreover in Nār. the 12. and the 18. titles contain things connected with criminal law—their titles being "duties of man and wife" and "miscellany"—as well as an appendix which like M. 9 deals with theft and robbery and the destruction of evil-doers (kaṇṭakasodhana). Also a quotation from Nārada (Quot. 1, 11f.) enumerates the 10 chief crimes (daśāparādha) as follows: violation of a royal command, murder of a woman, mixing of castes, adultery, theft, pregnancy as the result of criminal intercourse, verbal injury, gross abuse, real injury and abortion of the embryo. But only Bṛh. 2, 5-10 expressly makes distinction between civil and criminal cases (dhanodbhavāni and hiṃsodbhavāni); according to Bṛh. the latter consist of real and verbal injuries, violence and adultery and each of these four crimes is again divided into three grades.

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According to Kāty. the king should himself investigate and give judgment over the 10 chief crimes (daśāparādha) as well as the chalāni and the padāni nṛpateḥ even though nobody complains to him about them. The following 50 are the chalāni nṛpasamnidhau according to Pitāmaha 1, 8-18: (1) obstructing the road; (2) raising hand in a threatening manner; (3) leaping over

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The ten chief crimes.

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Brh. makes distinction between civil and criminal cases.

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a fence; (4) breaking a cistern or (5) a temple; (6) filling up a ditch; (7) betraying the weakness of a king (to his enemies); (8) unlawful entrance into the harem, (9) sleeping chamber, (10) treasury and (11) kitchen of the king and (12) prying in when (the king) is at his meal; (13-16) uncovering the body or making water, blowing nose or passing wind in the presence of the king; (17, 18) to sit before the king with folded legs or to take the foremost seat; (19-22) to enter the audience hall in a dress more gorgeous than that of the king, to enter alone, to enter not through the door or to enter at an improper time; (23-25) to lie on the couch of the king, to sit on his seat or to put on his shoes; (26) to go near the king when he is taking rest on a couch; (27) to serve his enemies; (28) to occupy an unoffered seat; (29, 30) to use gold in garments or in ornaments (?); (31) to accept and enjoy alms without being invited; (32) to presume to speak without being asked; (33) to insult the king; (34) to wear only one cloth; (35) to anoint oneself; (36) to untie hair; (37) to hide the face; (38) to paint the body; (39) to wear a garland; (40) to shake the dress; (41) to cover the head; (42) to spy into the weak points (of the king); (43) to touch him (?); (44) to shave the hair; (45-47) to point to the nose, the ears and the eyes; (48) to pick the teeth; (49, 50) to cleanse the ear or the nose. These prohibitions mostly contain rules of etiquette for deportment at the presence of the king.

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More serious are the 22 *padāni nrpateḥ* in which likewise the king should directly interfere, namely (1) killing (an animal); (2) destruction of corn; (3) arson; (4) defloration of a maiden; (5) misappropriation of a deposit or treasure; (6) breaking a dike or (7) a hedge of thorn; (8) to let the cattle graze on other people's field; (9) to cut down the trees of a forest; (10) poisoning;

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(11) intrigue against the king; (12) to break the royal seal; (13) to cross king's plans; (14) liberating a prisoner; (15—18) embezzlement of a tax, fine, present or a sold property; (19) to render the sound of the drum inaudible; (20, 21) embezzlement of unclaimed property confiscated by the king; (22) to hinder the mutilation of a criminal ordered by the king (Pitām. 1, 19—23).

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The destruction of evildoers, literally “removal of thorns” (kaṇṭakasodhana) appears also in the inscriptions as one of the chief duties of an able ruler, as for instance, in the inscriptions of the 12. and 13. centuries, EI 1, 198, 210, 334. The inscriptions are also familiar with the Daśāparādha or Daśāpacāra (IA 15, 306) and how popular this conception of ten great sins was may be understood from the fact that there was an officer who was actually called ‘Daśāparādhika’ (IA 14, 167; 15, 306).

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§ 41. Crimes with regard to property. Many points indicate that crimes against property were investigated at a very early period and that very energetically. Thus in ṚV 6, 45, 1 there is perhaps already a reference to an act of stealing cattle and to a class of spies corresponding to the modern Khojis¹. At all events such spies, experienced in tracking the marks of feet or hoofs, were known to the authors of the Smṛtis. When cattle and other properties are lost they are to trace the track up to its starting point; the inhabitants, the headmen or the proprietors of the village or meadow concerned have to make the required compensation excepting when they can prove that the track goes further out of that place (Nār. 14, 22 ff., App. 16—18; Y. 2, 271 f.). If the thieves cannot be caught the king is personally liable to make good the loss (Vi. 3,67 etc.); the king however may charge the loss from his officers and the guards of thieves (cauragraha, cauroddhatr, the cauroddharanikas of the inscriptions) in whose jurisdiction the robbery took place (Nār. Y. 1. c.). The tragic figure of the penitent thief who with flying hair—the sign of his submission—goes to the king with a club on his shoulder and confesses to him his crime and asks him to strike him dead (Gaut. 12, 43-45 etc.) certainly belongs to the most ancient part of the penal law; this appears to be personal dispensation of justice thinkable only in the case of petty chiefs of small tribes.

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¹ ZAL 182 f. Cf. Elliot, Memoirs (Lond. 1869), 276 ff.

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Another noticeable point is that in the rules about evidence (Nār. I, 1, 42; Bṛh. 2, 13) and punishment theft appears to be the typical crime. "Like a thief" (cauravat) is to be punished, for instance, he who binds freely roaming cattle or sets free cattle that are bound fast (M. 8, 342), he who drives the cattle to other people's fields (Y. 2, 162), he who uses other peoples' property without obtaining permission for it (Nār. Quot. 7,10), he who misappropriates a treasure trove (Nār. 7, 7), he who kills a man through carelessness (M. 8, 296), etc. For this reason various sorts of crimes have been put in the category of theft. Cheats of every kind, particularly falsifiers of wares, measures, weights or coins, soothsayers, people living on bribe or extortion, quacks, jugglers, treacherous arbitrators, false witnesses—they are considered as "word thieves" (Nār. 1, 228)—unjust judges, gamblers etc. are "open thieves" or robbers (prakāśataskara, M. 9, 256 ff.; Nār. App. 1—3; Bṛh. 22, 2—4). Opinions are however divided as to whether gambling is permissible or is it to be condemned as it appears already from Bṛh. 26. Thus M. 9, 221—228, Gaut. 12, 41, Baudh. 2, 2, 16 etc. also strongly emphasise the sinful character of gambling, while on the other hand Āp. 2, 25, 12 ff. regards gambling to be a lawful amusement of the higher castes and Nār. 17 and Y. 2, 199 ff. raise only the demand that the king should receive his share and that there should be no foul play. Even in the Vedas gambling is frequently mentioned (RV 10, 34; 1, 41, 9; AV 7, 50 etc.), and in the Mah. the gambling scene is the central theme of the whole plot¹. Thieves proper, burglars, highwaymen, cut-purses etc. are considered to be "secret thieves" (*aprakāśataskara*) (Bṛh. 22, 5 etc.). According to Bṛh. 22, 2 varieties of thieves are thousand-fold.

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¹ Cf. Hopkins R. C. 122 f.

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The detection of theft and cheating and keeping watch over the thieves is one of the most important duties of princes according to the Smṛtis. Thieves are to be looked for specially in the gambling houses (Y. 2, 203; Bṛh. 26, 2) and also in public houses and houses of evil reputation, shops, festive gatherings etc. the king, through spies and agents provocateurs (*cāra*), should keep watch over them and cause them to practise their profession in order to bring them into his power (M. 9, 261—269). Even a mere suspicion, e. g. if anybody expends very large sums of money or is in intercourse with criminals, or if he drinks or gambles or goes about in disguise or under false names, makes enquiries about houses of other people, sells articles that have been lost, lives in a house of doubtful reputation or is known as a criminal by nature or if he behaves in an unusual manner at the court etc., is sufficient to get a man under arrest² and he must prove his innocence by means of human or superhuman witnesses to escape being punished as a thief (Y. 2, 266—269; Nār. App. 8—12; Bṛh. 22, 6). The possession of a stolen property (*loptra, hoḍha*) or a foot-mark (Y. 2, 266; Nār. App. 6) is regarded as sure proof of guilt.

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² Cf. Kauṭ. IV, 6. 7r.

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The punishments for theft are very heavy. In all cases of serious crimes the accused is sentenced to death: he is impaled, hanged or drowned and often his hands are hacked off and other tortures are inflicted for the purpose of aggravating the punishment. The same punishments are ordained also in the case of burglary, frequently repeated instances of picking pockets, robbery, stealing cows, horses or elephants or more than 10 Kumbhas of grains, more than 100 Palas of precious metals, particularly valuable jewels or stuffs etc. (Y. 2, 273; M. 8, 320 f.; 9, 276 f., 280; Bṛh. 22, 17—19 etc.). Forging of royal grants and even of private documents is punished by death (Vi. 5, 9 f.; M. 9, 232); the king should have a dishonest goldsmith cut to pieces, i. e., according to the commentaries, those who use false weights, touch-stones, alloys and practise other kinds of fraud (M. 9, 292). In determining the magnitude of the punishment according to the value of the stolen property often three grades are distinguished. Thus Y. 2, 275 speaks about the theft of small, middling or large properties and similarly speak Nār. 14, 13; 15, 6; App. 29 and Bṛh. 22, 24. Enumerations of objects of about equal value are generally given along with data about the punishments for misappropriating the same, which, besides the already mentioned cases of capital punishment, consist of the hacking off of a hand or a foot and other kinds of mutilation and fines in most cases amounting to many times the value of the stolen property. No distinction is made between robbery and theft as regards punishment and moreover taking part in these crimes, abetting of every kind or refusing to render help is regarded as equally criminal (Nār. 14, 12, 19 f.; Y. 2, 276etc.).

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The caste of the thief and the person whose property has been stolen likewise come into consideration in determining the punishment¹. Thus the Brahman remains unpunished if he takes away the property of his Śudra slave (M. 8, 417) or if, when on journey, he takes two stalks of sugarcane and two eatable roots out of a field (M. 8, 341; Nār. 18, 39). On the other hand stealing gold which belongs to a Brahman is punished by death. However, on the other hand the responsibility and culpability for an act of theft is heavier as the thief is of higher position and intelligence (M. 8, 337 f.; Gaut. 12, 15-17; Nār. App. 51 f.). For cheating mostly fines are prescribed varying according to the amount of the damage done (Brh. 22, 13 f. etc.).

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¹ See p. 264, f.-n. Tr.

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Impaling as the punishment for theft is found also in literature, as in Mah. 1, 63, 92. The gradation of the punishment according to the value of the stolen property and the three grades of culpability was known also to Alberuni 162; he says that in the case of the theft of particularly valuable properties culprits of the Brahman caste are blinded and a hand and a foot are hacked off by way of punishment, Kṣatriyas are mutilated without being blinded and the culprits of lower castes are punished by death. According to Hodgson death sentence is still given in Nepal for stealing properties of great value or in the case of repeated theft; in less serious cases only mutilation and heavy fines are inflicted. According to Dubois¹ mutilation was in vogue also in Mysore; the owner received only a portion of the stolen property recovered from the thief while the king and his officers got the lion's share. Even to this day in Bombay the chief of a locality has to pay compensation for what has been stolen within his jurisdiction ².

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¹ People of India 499.

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² Bühler on Āp. 2,26,8.

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§ 42. Other crimes. Besides theft and robbery murder, manslaughter, arson, high treason, real and verbal injuries, rape, adultery and other sexual crimes are included among the chief offences. Often the capital offences, in so far as they are connected with violence, are called by the consummate title "act of violence" (*sāhasa*) which is the secular counterpart of the mortal sins (*mahā-pātaka*) of the spiritual law. Thus according to Nār. 14, 2—6 there are four kinds of Sāhasa, namely man-slaughter, robbery, rape and real or personal injuries; he however distinguishes two lower grades of it consisting only of injury to property. The punishments for Sāhasa are regulated according to the gravity of the crime but caste distinctions exercise a definite influence on them; the Brahmans particularly enjoy the privilege that they cannot be condemned to corporeal punishments or death sentence¹ (Vi. 5, 2 f. etc.).

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¹ Kaut. (IV, 11) however under certain circumstances allows the Brahman the dubious privilege of being drowned instead of being burnt alive. *Tr.*

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Death sentence is by no means universal in the case of murder and manslaughter, rather the composition system was originally prevalent (§ 44), according to which the cows given as recompense fell to the lot of the family of the deceased. Later on in the place of this blood-money punishments, partly secular and partly spiritual in character came in vogue which were determined by the Brahmans who of course did not forget themselves in the performance of their duty if the punishments concerned were of a religious character; cf. § 37. Of the secular punishments, according to Baudh. 1, 18 f. etc., the death sentence as well as confiscation of property is ordained only when the person killed is a Brahman and the assassin a man of a low caste; if the culprit is a Brahman he shall be branded and banished; if the person killed belong to a non-Brahman caste he shall pay the proper compensation in coin or kind. According to Y. 2, 279 a female poisoner or a female incendiary and also the woman who murders her husband or her child shall be cruelly executed. According to Y. 2, 273, Bṛh. 22, 27 f. etc. all murderers in general, open as well as secret, shall be punished by death and the confiscation of property. The death sentence is ordained also particularly for the murder of women and children (M. 9, 232 etc.).

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High treason (*nṛpadroha*) is punished very sternly. He who forges a royal edict or bribes the ministers of the king or serves his enemies or is in an understanding with them or being a man of low origin strives for royal position, or opposes the royal commands will be sentenced to death (M. 9, 232, 275; Vi. 5, 14). If a man raises his hand against the king, even though he is wicked, he shall be impaled and burnt to death because his sin is worse than killing 100 Brahmans (Nār. 15, 31). He who expresses inimical views about the king (e. g. if he praises his enemies, Mit.) or vilifies him or betrays his plan shall have his tongue cut off and will be banished; if a person mounts the animal on which the king rides or sits on his throne, he shall pay the highest amercement (Y. 302 f.). High treason as well as the violation of any of the very numerous rules of etiquette about deportment at royal court belongs to those crimes which the king himself can investigate on his own initiative and pass sentence even though he has not been informed about it by any complainant (§40). In such cases the performance of a divine ordeal too may be imposed on the suspected criminal (§52). Crimes against public order are likewise subjected to heavy punishments, e. g. the breaking of a dike is punished by death (Vi. 5, 15; Y. 2, 278; M. 9, 279).

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In verbal and real injuries (*vāk and daṇḍapāruṣya*) particular attention is paid to the castes of the insulter and the insulted; the sentence is fixed according to Varṇa and Jāti (Y. 2, 206). Thus a Kṣatriya will be fined 100 paṇas if he abuses a Brahman and 200 paṇas if he actually assaults him; a Vaiśya shall pay 1 1/2 times as much as the Kṣatriya; on the other hand a Brahman who insults a Kṣatriya pays only 50, for insulting a Vaiśya only 25, and for insulting a Śūdra nothing at all (Gaut. 12, 8-13 etc.).

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Injuries done by a Śūdra to a man of a higher caste is punished with particular severity; thus if a Śūdra reviles a virtuous Aryan his tongue shall be cut off; if he reviles the name or the caste (of a twice-born) a piece of red-hot iron ten fingers in length shall be forced into his mouth or if he dares to learn Vedic texts by heart his body will be cut in twain (Āp. 2, 27, 14; M. 8, 172; Gaut. 12, 6 etc.). In general the insulter or the assailant of low caste loses the particular limb with which he insults or assails a member of a higher caste (Vi. 5, 19 etc.); thus if he sits on the same seat with a high caste man his backside shall be brandmarked; if he spits on him his lips shall be cut off. In such cases the assailed person may also take the law into his own hands by whipping the assailant on the spot, for by extorting a fine from such unholy persons the king himself will only be defiled (Nār. 15, 11-14). In injuring an equal only a fine, small or big, has to be paid according as only the skin has been scratched or if blood too has flowed or if a bone has been broken or if both the eyes have been knocked out, etc. (Vi. 5, 66-72 etc.); the fines for insulting an equal is still more insignificant. When two persons have insulted each other he who began is the criminal (Nār. 15, 9). In the case of injury to property as a rule a fine has to be paid (Nār. 14, 4f.). About paying compensation see § 32.

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