History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c62.230
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c62.230
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In modern times the activities of a sovereign person are three-fold, viz. executive, judicial and legislative. The judicial activities of the ancient Indian king will be dealt with in another section on law and the administration of justice. One great difference between ancient and modern societies is that the legislative action of the king was extremely limited in ancient times, while in modern times people are more and more looking to legislation for regulating all manner of things. Manu (VII. 13) lays down that since the king has in him the glory of all deities, whatever rule as regards desirable matters the king establishes and whatever action he declares as undesirable among those actions that are harmful, should not be transgressed by any one. In his gloss on this verse Medhātithi carefully points out what orders the king can issue and on what subjects he cannot issue orders. He gives the following instances of orders of both kinds: 'To-day all should observe a festival in the capital; all should attend a marriage ceremony at the house of the minister; animals should not be killed to-day by the butchers and birds should not be caught; debtors should not be harassed by creditors on these days (to be specified); no one should associate with such and such a man (an undesirable person); no one should allow a certain (undesirable) person to enter the house'.
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Medhātithi adds that the king is not authorised to interfere with the *śāstric* rules governing the varṇas and āśramas such as the performance of agnihotra.127a This gloss of Medhātithi occurs word for word in the Rājanītiprakāśa (pp. 23-24), which gives a more correct text than the printed editions of Mandlik and Gharpure. Kauṭilya (II. 10) devotes a chapter to the drawing up of śāsanas, particularly with reference to their linguistic elegance and diplomatic etiquette. The Śukranītisāra (I. 312-313) prescribes that the king's edicts (śāsana) should be proclaimed to the subjects by beat of drum, that his edicts should be written and displayed where four roads meet, and that the king should declare that breaches of the orders would entail heavy fines. In I. 292-311 Śukra gives instances of such orders, the most important of which are: Watchmen should take rounds in the several streets every one hour and a half at night in order to prevent thieves and paramours moving about; people should not employ abuse or beating towards their slave, servant, wife, son or pupil; no one should practise deceit in respect of measures, weights, coins, resins, metals, ghee, honey, milk, fat, flour; no document should be got by force; no bribes should be taken nor should any bribes be given to persons engaged in doing the king's work; no one should offer shelter to bad characters, thieves, paramours, those who hate the king, the enemy;
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parents, persons worthy of honour, learned men, men of good character should not be disrespected or ridiculed; no dissensions should be sown between husband and wife, master and servant, between brothers, between teacher and pupil, between father and son; no interference or obstruction should be caused to wells, parks, boundaries, *dharmasālās*, temples, roads or to those who are deficient in a limb; without the king's permission no one should engage in gambling, selling liquor, hunting, bearing arms, sale or purchase of cattle or elephants or horses or camels or she-buffaloes or slaves or immoveable property or silver, gold, gems, intoxicants, poisons, drugs, the profession of medicine or should pass a sale deed, deed of gift or give a decision about a debt; no one should falsely accuse another of the great sins, nor take treasure trove, nor frame new rules for clubs or convivial gatherings (*samāja*) nor should publish slander against a caste, nor should appropriate property which is without an owner or has been lost, nor divulge the (king's) lines of policy, nor babble about the vices of the king; the people should not even think of forsaking their dharma, speaking untruth, committing adultery with another's wife, giving false evidence or fabricating documents, accepting gifts secretly, committing thefts and engaging in other desperate acts, engaging in sedition; public servants should not exact more than the tax already settled;
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only such weights and measures are to be used as bear the royal stamp; all subjects should strive to possess good qualities; desperadoes should be arrested and handed over to the king; bulls let loose (in memory of the dead) should be kept well controlled and fed by those who let them loose. Medhātithi on Manu VIII. 399 states that a king may prohibit the export of foodstuffs from the kingdom in a famine. The several edicts of Aśoka show that his orders were framed on the same lines that are contained centuries later on in the Śukranītisāra. Most of his proclamations insist on moral virtues such as truthfulness, obedience and reverence to parents, elders and preceptors, honouring brāhmaṇas and śramaṇas, kindness to animals, tolerance of other faiths. Proclamations that may be called positive laws are very few, such as his order in Pillar Edict IV to give three days' respite to criminals condemned to death (C. I. I. vol. I p. 125) or his regulations restricting the killing of animals contained in the 5th Pillar Edict (C. I. I. vol. I. p. 138) or in the First Rock Edict at Girnar (p. 7) 'no living being must be killed or sacrificed and no festival meeting must be held'. In the reign of Avantivarman of Kashmir the killing of living beings was prohibited for ten years (vide Rājataraṅgiṇī V. 64). Law-making in the modern sense is almost entirely lacking in the smṛtis. Gaut. XI.
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19-25 show¹²⁸ that the king was to find the law required for the decision of causes from the following, viz. (1) the Veda, Dharmaśāstras, the Aṅgas (lores auxiliary to the Veda such as grammar, exegesis, metrics etc.), Upavedas, Purāṇas; (2) customs of countries, castes and families that were not opposed to the Veda; (3) the usages of husbandmen, traders, herdsmen, moneylenders and artizans; (4) ratiocination; (5) the opinions128a delivered by the assembly (pariṣad) of men deeply learned in the three Vedas. The authoritativeness of customs, usages and conventions and their relation to śāstra will be discussed later on. In the decision of causes there were four deciding factors, dharma, vyavahāra, caritra and rājaśāsana, which will also be dealt with later. So royal edicts or orders first came to be made in the administration of justice and probably served as laws or precedents in later times. Vide H. of Dh. vol. II. pp. 968-970 for the role of pariṣads in religious matters. Yāj. I. 9 and Śaṅkha speak of *parṣat* or assembly of learned men as final authorities on dharma.