History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.458

v4.c63.458

Many crimes and wrongs were sins and entailed secular punishments and also religious sanctions (viz. expiations, *prāyaścittas*). Vide Manu IX. 236, 240, Bṛ. (S. B. E. vol. 33, p. 362, verse 22) and Paiṭhīnasi quoted below⁶¹². Maine in his 'Ancient Law' chap. X (3rd ed. of 1866) examines ancient western systems like those of Greece and Rome and makes the generalisation (p. 370) that the 'penal law of ancient communities is not the law of crimes; it is the law of wrongs or, to use the English technical word, of Torts. The person injured proceeds against the wrong-doer by an ordinary civil action and recovers compensation in the shape of money damages if he succeeds'. Dr. Priya Nath Sen in his Tagore Law Lectures on 'Hindu Jurisprudence' (1918, Lecture XII) rightly points out that this generalisation is not applicable to Ancient Hindu Law. It has already been shown (on pp. 264-266) that the king could of his own motion take cognisance of many wrongs called *chalas*, *padas* and *aparādhas* and it is clear that in such crimes as theft, assault, adultery, rape, and manslaughter the smṛti texts do not prescribe only a money compensation to the person wronged, but corporal punishment in the first instance and monetary compensation in addition. Vide for example, Manu VIII. 287, Yāj. II. 222, Bṛ. (SBE vol. 33 p. 358 verses 9-10), Kāt. (787) which prescribe a punishment for causing pain to the body or the loss of a limb and also the expenses of curing the person injured and some *solatium* to him.⁶¹³ Āp. Dh. S. (I. 9. 24. 1 and 4) lays down that the slayer of a kṣatriya should give a thousand cows in order to remove the enmity (i. e. as compensation to relatives) and one bull in addition for expiation.⁶¹⁴ The Chāndogya Upaniṣad quoted above (p. 362) shows that a thief was punished with death in those early days. There is a passage in the Tai. S. II.