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Theory of Government in Ancient India (Post-Vedic) c9: Chapter VI. The Dharma Sûtras, Dharma Sâstras and Commentators

Theory of Government in Ancient India (Post-Vedic) c9

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English

Contents

Chapter VI. The Dharma Sûtras, Dharma Sâstras and Commentators

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The Dharma Sûtras. Both Manu and Kauṭalya are, in their present shape, posterior to the commencement of the Christian era, but they are the best representatives extant of the two dominant types of political thought which had arisen several centuries before. Both have preserved strata of earlier thought. The science of Dharma and the science of Artha had a good deal in common and, in strict theory, supplemented each other and formed a full series with the sciences of Kâma (desire and enjoyment) and Mokṣa (salvation). Thus was exhausted the fourfold object of human existence. But each of the sciences branched off from the parent stem and expanded in its own manner. Dharma and Artha often come together and, for instance, coalesce into a single system in the Mahâbhârata. But for a long while each retained its identity. The earliest literature of either was in Sûtra or aphoristic form, the very acme of brevity. The evidence of literature leaves no doubt that there existed once a Mânavadharma Sûtra, but it is lost. Perhaps, it was wholly incorporated in the Smṛiti of Manu. The Dharma Sûtras which have survived are, in theory, related to Śrauta Sûtras and Gṛihya Sûtras of the respective schools. In ancient India all learning was cultivated in schools and the results arrived at were given, generally, the stamp of schools which, in their turn, were attached to various Vedic sects. Such schools arose all over the country at different ages and differed from one another in details.

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The Dharma Sûtras of Gautama, Baudhâyana, Āpastamba and Vasiṣṭha are not identical in every precept. A Kalpa Sûtra should include Śrauta, Gṛihya and Dharma Sûtras, but soon they all become independent. Their fundamental object, however, was the same—the regulation of human life. The Śrauta Sûtras lay down the intricate details of Vedic sacrifices and ceremonies on the authority of the Brâhmaṇas. They are merely systems of Vedic ritual, but they were of the highest importance to the true Ārya. The Gṛihya Sûtras cover the whole field of home life and treat exhaustively of the ritual which played an important part in it. Their scope, however, seldom extends beyond the household and they are of little use to the student of Governmental theory. The Dharma Sûtras treat of private and associated life together. They mention domestic ritual and stress its importance, but they pass on quickly to speak of social custom, law and government. Sûtras in general, fall between the seventh and second centuries before Christ but the dates of the Dharma Sûtras cannot be precisely determined. Bühler placed them between the sixth and third centuries B.C. and arrived at a chronological order—Gautama, Baudhāyana, Vasiṣṭha and Āpastamba. Jolly assigns the sixth or fifth century B.C. to Gautama and Baudhāyana and the fifth or fourth century to Vasiṣṭha and Āpastamba.

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Jayaswal would ascribe the first forms of the Sûtras to about 500 B.C., but in their present form he would place Gautama at 350 B.C., Baudhāyana at 240 B.C., and Vasiṣṭha at 100 B.C. Hopkins thinks that “probably the Gṛihyas represent the earlier Sûtras; the Dharmas as a whole come later, perhaps 300 B.C. would represent the earliest.” Āpastamba, he concludes, “probably is not older than the second century B.C.” Hopkins regards Vasiṣṭha as even later. Not even the lowest date is, however, always a safe guide in discussing the subject-matter of Sûtras. Their texts have been constantly tampered with. It appears that attempts were made to bring them into line with the later Dharma Śāstras. The oldest of all Dharma Sūtras, those of Gautama, are even known as a Dharma Śāstra. If the canon of historical criticism be rigidly applied, all that is possible to say is that the Dharma Sūtras, on the whole, represent an earlier stage of political and legal thought than the Dharma Śāstras. It will be a mistake to compare either the Dharma Sūtras or the Dharma Śāstras, as Sir William Jones compared Manu, to the institutes of Justinian. The Hindu texts cover far more than law and do not cover the whole of law. They are manuals of conduct, but they leave large tracts to custom. These circumstances explain their failure to create a real science of law. They embody no real system of jurisprudence. They expressly recognise the force of family, caste and local usage.

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The Dharma Sūtras and Śāstras, whatever weight might have been attached to them, could not be placed on any statute book. They grew up in the schools of those who were not only priests but also had a practical monopoly of the higher learning and were the repositories of legal lore. The exigencies of their composition and the dominance of caste explain the extraordinary “benefit of clergy” which they claim. This also explains one striking feature of the Sūtras as well as Śāstras—the system of penances. They view this life not as a whole in itself but as part of the life in past and future births. The sins committed by a person have to be expiated either here or in the long series of existences to come. Expiation may take the form of penances here. So for many actions two classes of punishments are given, or rather, a punishment to be inflicted by the secular power and a penance to be performed by the sinner voluntarily or forced on him by those who wish him well. The ‘sanctions,’ to use a modern term, are both civil and spiritual. It is sometimes difficult to say to which class a writer attaches greater importance. Gautama, for instance, lends colour to the hypothesis that a system of penances, voluntary and enforced, was the earliest Hindu way of promoting virtue and punishing sin, and that justice in the modern sense of the word was introduced only later.¹ Unfortunately, neither the Sūtras nor the Smṛitis throw much light on the origin of law and institutions;

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but it is safe to conclude that the former represent an earlier stage of development. Sir Henry Maine supposed that rules of conduct were first worked out by priestly lawyers who later addressed themselves to the kingly power to have them enforced. The little that we know of legal and administrative evolution in ancient India does not support Maine's hypothesis.² The civil and spiritual jurisdictions seem to have run concurrently, though the former was constantly expanding in scope.

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¹ Gautama, Chs. XIX—XXVIII are devoted to penances.

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² Sir Henry Maine, Early Law and Custom, pp. 43-44.

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Gautama, probably the earliest of the Sūtra writers, begins by declaring that the source of the sacred law lies in the Veda and in the tradition and practice of those who know the Veda. But the violence and transgressions observable in the conduct of great men in the past are not to be followed, for now people had grown weaker.³ Gautama accepts the traditional Varṇāśrama system—the four castes and the four stages of life—and wants it to be enforced by the king. But he allows wide relaxation of the rules in "distress," that is, in emergency. Then Brāhmaṇas may study under non-Brāhmaṇas, and may follow the occupations of Kṣatriyas and, failing that, of Vaiśyas, though he should abstain from dealing in a number of articles like perfumes, prepared food, roots, flowers, meat, etc., etc. But in dire emergency even these restrictions do not hold.

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³ Gautama, I, 1—3.

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Gautama himself would not like a Brāhmaṇa to follow Śūdra occupations under any circumstances, but he admits that some had permitted even this when life was in danger.¹ In self-defence a Brāhmaṇa may always use arms.² It goes without saying that in emergencies, a Kṣatriya may follow Vaiśya occupations.³ Later Gautama permits Brāhmaṇas to adopt agriculture, trade and usury, provided they do not work themselves.⁴

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¹ Ibid., VII, 1--24.

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² Ibid., VII, 25.

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³ Ibid., VII, 26.

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⁴ Ibid., X, 5-6.

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Gautama, however, is deeply concerned to maintain the supremacy of Dvijas and to keep Śūdras in the lowest position. If a Śūdra hears, recites or remembers Vedic texts, he must be visited with terrible tortures. If in conversation or on the road, in sitting or in lying down, he assumes a position equal to that of the twice-born, he must be punished.⁵

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⁵ Ibid., XII, 4--7.

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From his account of the duties of the king and the sources of revenue, Gautama seems to refer to extremely small states. He pictures the king seated on a "higher seat," honoured by Brāhmaṇas, and "worshipped" by others who occupy lower places.⁶ The king must learn the management of chariots and the use of the bow and stand firm in battle. He must not only protect all "created beings" and inflict lawful punishments but also support needy students, Brāhmaṇa Śrotriyas, all who are unable to work and all who are free from taxes.⁷ He must lead truants from duty back to the right path. He must be impartial towards his subjects and promote the interests of all.⁸

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⁶ Ibid., XI, 7-8.

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⁷ Ibid., X, 7--12.

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⁸ Ibid., XI, 5-6.

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According to Gautama, the land tax should be one-sixth, one-eighth or one-tenth of the produce, while five per cent. is to be charged on merchandise, two per cent. on cattle and gold and somewhat less than two per cent. on meat, honey, fruits, flowers, medicinal herbs, firewoods, grass and roots. Every artizan should contribute a day's labour in the month to the state.

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Particular attention should be paid to the collection of taxes. Of the spoils of war, chariots, riding animals, and a preferential share of the rest (except in cases of single combat) go to the king.¹

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¹ Ibid., X, 24—29, 20—23. ² Ibid., VIII, 1—5. ³ Ibid., VIII, 7—13. ⁴ Ibid., XI, 14, 12-13, 1. ⁵ Ibid., XII, 11—13.

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The spiritual life, the moral order of the world and the existence of all beings, depend on the king and " a Brāhmaṇa versed in the Vedas," including worldly knowledge and power of argumentation.² Brāhmaṇas who are versed in sacred lore and base their conduct on it should be exempted by the king from corporal punishment, imprisonment, fines, exile, censure and disgrace.³ Kṣatriyas prosper when they are assisted by Brāhmaṇas. A king must have a well-born, handsome, eloquent, virtuous and austere Brāhmaṇa as a domestic priest to assist him in the discharge of his religious duties. Brāhmaṇas, as a class, occupy a transcendent position. For instance, the king is once declared to be " master of all with the exception of Brāhmaṇas."⁴ Caste privilege vitiates the whole of criminal law in Gautama as in other Hindu writers. For instance, a Brāhmaṇa abusing a Kṣatriya has to pay fifty Kārṣāpaṇas, abusing a Vaiśya he pays half the amount but he may abuse a Śūdra with perfect immunity.⁵ It need hardly be added that Gautama lays down numerous rules of civil law.¹ In judicial administration, he insists on the importance of witnesses and by heaven and hell exhorts all to speak the truth in court except when it may cost the life of a good man.² In his scheme of sanctions for morality, Gautama seems to rely primarily on penances, voluntary or enforced, and devotes but a small space to royal chastisement.

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¹ Ibid., Ch. XII.

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² Ibid., Ch. XIII. For exceptions, 24-25.

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Of all the legal writers Baudhâyana is in many respects the most interesting to the student of governmental theory. He preserves a record of the old theory of wergild cast in a very oligarchic mould. For slaying a Kṣatriya, one should give the king a thousand cows besides a bull in expiation of his sin; for slaying a Vaiśya, a hundred cows and a bull, for slaying a Śûdra, ten cows and a bull. Then one is astounded to learn that the fine for killing a flamingo, a peacock, a crow, an owl, a frog, a musk-rat, a dog, etc., etc., is the same as for killing a Śûdra.³

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³ Baudhâyana, I, 10, 19, 1-6.

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Baudhâyana begins by specifying three sources of law—the Vedas, Smṛitis or tradition and the practice of the Śiṣṭas. Śiṣṭas are those who are free from envy, pride, arrogance, greed, hypocrisy, anger and perplexity and are content "with a store of grain sufficient for ten days." They must be versed in Vedas and auxiliary studies. They must be able to draw inferences therefrom and must be "able to adduce proofs perceptible by the senses from the revealed texts." Failing the Śiṣṭas, points of law are to be decided by an assembly of ten, comprising four scholars, each master of one of the four Vedas, a Mimâmsaka, a scholar acquainted with the Aṅgas, a reciter of the sacred law, and three Brâhmaṇas belonging to three different orders. If such an assembly cannot be got together, the points may be submitted to five, three or a single blameless man, but not to a thousand fools. A little later, however, he adds that narrow and difficult is the path of the sacred law, that many gates lead to it and a doubt can never be resolved by a single person "however learned he may be."¹ Thus Baudhāyana imparts the force of law to the best opinion and practice of the age. Customs and opinions vary in different regions and must be locally respected.² Baudhāyana accepts the traditional scheme of castes and their duties remarking that Brahman placed its majesty in the Brāhmaṇas. In several respects, he represents the ultra-orthodox school of Hindu social thought. Brāhmaṇas are exempted from corporal punishment and caste privilege enters at numberless points in the administration of justice. But the term Brāhmaṇa is to be interpreted rather strictly. Brāhmaṇas who tend cattle, practise agriculture or who live as artizans, actors, servants or usurers should be treated as Śūdras. Usury is exceptionally reprehensible. In Brahman's balance, it outweighed the crime of killing a Brāhmaṇa. Almost in the same breath, however, Baudhāyana permits Brāhmaṇas and Kṣatriyas to lend money to misers, atheists, scoundrels and those who neglect sacred duties. So, it is sinful to charge interest from good people only.³ He declares that the king must protect his subjects, receiving as his pay a sixth

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¹ Baudhāyana, I, 1, 1, 1–10, 12. ² Ibid., I, 1, 2, 1–9. ³ Ibid., I, 10, 18, 2–6, 18–20; I, 10, 19, 1–5; I, 5. 10, 23–24, 25; II, 6, 11, 12–16. For the duties of castes, I, 10, 18.

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Like Vasiṣṭha, Baudhāyana also declares that a Brāhmaṇa's property is the worst poison, destroying its taker with all his sons and grandsons (I, 5, 11, 15-16). Baudhāyana holds the arts and crafts in contempt. He prescribes penances for following the professions of medicine, singing, dancing, acting, tending cows and buffaloes, etc. (II, 1, 2, 13).

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part of their incomes. He prescribes a ten per cent. duty on goods imported by sea, "after deducting a choice article."

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The duties on all marketable goods are to be fixed according to their intrinsic value but traders should never be oppressed.¹ In all this there is nothing new. Baudhāyana is slightly more enlightening when he deals with inter-state morality. According to him all is not fair in war. No king should ever use barbed or poisoned weapons. Nor should he strike women, infants, old men, Brāhmaṇas, those who are insane, intoxicated, terrified or who have lost their armour. From this humanitarian rule, however, assassins are excepted.²

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¹ Ibid., I, 10, 18, 1, 14-15.

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² Ibid., I, 1, 10, 18, 10-18.

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Āpastamba does not admit any absolute finality in law or morality. Their character depends on the age and circumstances. Ancient sages had committed violence and transgression of the present law but they had incurred no sin. None could, however, follow them with impunity at the present moment. Āpastamba is anxious to lay down that in a state no one should suffer from hunger, sickness, cold or heat. A king should bestow gifts of land and money on Brāhmaṇas.³ The state may provide gambling halls for "pure and truthful" members of the first three castes—a statement which seems to imply that gambling was not considered a vice in the age of Āpastamba. The public services should be recruited from the first three castes. A village officer must protect the country within a radius of one kos (nearly two miles) of his village. If he cannot recover any stolen property, he must be made to compensate the owner from his own pocket. Among those exempted from taxation are Brâhmaṇas, all women, minors, students, ascetics, the blind, the dumb, the deaf, and diseased and Śûdras, who live by washing the feet of others. That is to say, indigence is below taxation and scholarship and sanctity are above it.¹ On failure of all heirs property escheated to the king. Āpastamba would allow Brâhmaṇas, only in times of distress, to trade, and that only in certain commodities. They should give up the occupation as soon as their distress is over. A Brâhmaṇa should not handle a weapon even to inspect it. The supremacy of Brâhmaṇas is unquestioned. Even a king must give the way to them.

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³ Āpastamba. II, 10, 25, 11 : II, 10, 20, 1; II, 6, 18, 8-9: Āpastamba probably belonged to the south. Bühler placed his date between the third and fifth century B. C. but later scholars bring him down to the second or first century B. C.

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¹ Āpastamba, II, 10, 26, 4, 6—8; 10—17; I, 6, 19, 10—12; I, 7, 21, 4; I, 10, 29, 6. Āpastamba declares that men of all castes, if they only fulfil the duties assigned to them, enjoy the highest everlasting bliss in heaven. II, 1, 2, 2. For giving the way to Brâhmaṇas—II, 4, 10, 5-6. For escheat—II, 6, 14, 5. For inheritance in general—II, 6, 14, 1—13. Āpastamba expressly declares that men of the first three castes should superintend villages and towns (II, 10, 26, 4). Āpastamba would like the king to support and protect women who had been cruelly wronged by wicked men (II, 10, 26, 22—24). For the provision of gambling halls—II, 10, 25.

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For the rest, Āpastamba is in line with the other lawgivers. It may be mentioned that from internal evidence he is believed to have belonged to the Āndhra country in the south. His general agreement with other Hindu writers shows that the broad principles of law and organisation were the same in North and South India.

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Vaśiṣṭha generally accepts the received ideas on the social order and government; only here and there he adds something of his own. In the absence of revealed texts, the laws of castes, countries and families are to be followed. Vaśiṣṭha offers the usual explanation of caste. He admits that the bearing of arms is the constant duty of Kṣatriyas alone but he allows Brāhmaṇas and Vaiśyas to resort to force in self-defence and in order to prevent a confusion of castes. He forbids both Brāhmaṇas and Kṣatriyas to practise usury.¹ His principles and methods of taxation are the same as those of Manu and others but he gives a long list of exemptions. Not only Śrotriyas or Vedic scholars but all students, very old men, royal servants and children are free from taxes. So, too, unmarried women, wives of servants and widows who return to their parental homes. No taxes should be levied on the use of rivers, dry grass, forests, mountains and places of cumbustion.² In the next clause, however, we are told that those who draw their sustenance from these sources may pay something. Artizans are to be taxed monthly.³ The property of a Brāhmaṇa should never be taken. It is the deadliest poison. It destroys him who takes it with all his descendants. Again, no guilt ever attaches to a Brāhmaṇa who possesses learning, practises austerities and repeats the sacred texts. Vasiṣṭha provides that the property of eunuchs and lunatics should escheat to the king.⁴ On social law, justice, warfare, diplomacy and other matters Vasiṣṭha follows the traditional line. He allows a man to follow the occupation of the next inferior caste in times of need but does not permit the adoption of a higher vocation under any circumstances.⁵

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¹ Vasiṣṭha, III, 24-25; I, 17; IV, 2; II, 40.

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² Ibid., XIX, 2.

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³ Ibid., XIX, 23-28.

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⁴ Ibid., XIX, 35-36; XVII, 85-86; XXVI, 18.

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⁵ Ibid., II, 22-23.

The Dharma Śāstras

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There can be no doubt that a good many Dharma Sūtras have been lost but their contents are imbedded in the Dharma Śāstras which were composed after the Christian era. The Sūtras glide insensibly into Śāstras. Manu probably marks the transition. Viṣṇu, though in Sūtra style, must be regarded in his present form as posterior to Manu. The Smṛitis, as the Dharma Śāstras are generally called, are distinct from Śruti or Revelation, but they claim to be grounded in Vedic Dharma. In his Jaiminīya Nyāyamālāvistara, Mādhavāchārya declares that Smṛitis are digests collecting and epitomising ordinances which lie scattered in the Vedas. As a matter of fact, however, the Smṛitis reflect the ideal or positive morality of the ages following the Dharma Sūtras. They develop at great length the civil law which the Sūtras had only touched.

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They often differ from one another and from Revelation. Later writers were at pains to avoid confusion. The Pūrva Mimāṃsa declares that of two contradictory Smṛiti texts, the one supported by a Śruti (Vedic) text shall prevail. But it was argued by some that the other text might accord with a Śruti text which has disappeared. The Pūrva Mimāṃsa replies that a known Śruti text takes precedence of one unknown. It goes further and lays down that a Smṛiti text, though uncontradicted by Śruti, is liable to be rejected if it can be traced to an unworthy motive.¹ On the other hand, in his Mimāṃsa Sūtras, Jaimini denies to local usage any authority as a source of law independently of Śruti and Smṛiti. A similar opinion is expressed by Mādhavāchārya in his Jaiminīya Nyāyamālāvistara, though in his Vyavahāra Khaṇḍa he comes round to the view of Nārada, Kātyāyana and others. The Skanda Purāṇa, however, expressly admits that where the Vedas and Smṛitis are silent, the Dharmas should be ascertained by observation of the customs of families and countries. Commenting on Manu, Medhātithi remarks that Ācāra, as understood in Smṛtis, meant Śiṣṭa practices uncontradicted by Śruti or Smṛti. Vijñāneśwara, the commentator of Yājñavalkya, goes further and interdicts action which, though supported by Smṛtis, is disapproved by usage.¹ Yājñavalkya himself said that in a conflict between two Smṛti texts reason prevails according to usage. Nārada expresses himself in a similar strain. But later writers insist that reason must be exercised merely to reconcile conflicting texts.

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¹ Pūrva Mimāṃsa, Ch. 1, Part III, 3-4. The Mimāṃsa rules, though relating primarily to ritual, have been extended to law, and form a recognised canon of interpretation. The subject is reduced to what is called a Darśana or system of philosophy.

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¹ Vijñāneśwara on Yājñavalkya, Ch. I, V. 136. Nārada, I. 40. Yājñavalkya, 21.

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The exact dates of Smṛtis cannot be ascertained. Their origin perplexed even some ancient writers. For instance, Kumārila Bhaṭṭa in his Tantra Vārtika remarks that owing to the scattering of Śākhās, human error or carelessness and the variety of topics, the beginnings of Smṛtis could not be traced. Modern scholars at first assigned very ancient dates to these compositions. Sir William Jones, for instance, referred Manu to 1200 B.C. Later, some scholars brought it down to the twelfth or thirteenth century A.D. It is now generally accepted that the Smṛtis assumed their present shape sometime in the first millenium of the Christian era. Bhāndārkar placed them in the Kuṣān-Gupta period, or, between the middle of the third and the end of the fifth century A.D.² Hopkins refers Viṣṇu to the third, Yājñavalkya to the fourth and Nārada to the fifth century, while he would place Manu at the commencement of or even before the Christian era.³ Jolly thinks that Manusmṛti cannot be later than the second or third century A.D. while Viṣṇu cannot be earlier than the third. He would place Yājñavalkya in the fourth and Nārada about the commencement of the sixth century, while Bṛhaspati and Kātyāyana are referred to the sixth or seventh century A.D. It must be remembered, however, that all these texts have suffered from later interpolations. Yājñavalkya, for instance, bears clear traces of the influence of the seventh century which have led Śrīśa Chandra Basu to declare that century to be his upper limit.

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² Bhāndārkar, J. B. B. R. A. S., Vol. XX, No. LVI, p. 356.

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³ Cambridge History of India, p. 279.

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The Smṛitis were composed in different parts of the country. Manu belongs to the Gangetic plains, Nārada probably to Nepāl and Yājñavalkya probably to Mithilā, in modern Bihār. But as with the Sūtras, the difference of locality matters only in details. The Smṛitis are attached to different Vedic Schools but on the whole they treat of law, social affairs and politics in the same fashion. The Padma Purāṇa, indeed, classifies Smṛitis into Sātwika, Rājasika and Tāmasika¹ but their political ideas would fall only under one category.

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¹ Padma Purāṇa, Uttarakhanda, Ch. 43.

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Of all the Dharma Śāstras Manu is the oldest and most influential. Viṣṇu generally follows Manu. His scheme of human duties is much the same but he expressly allows Śūdras to practise all branches of art. In times of distress, each caste may adopt the occupation of that next to it in rank. It is also permitted to men to take wives from lower castes. A later passage, however, perhaps an interpolation, qualifies this rule by restricting it to the circle of the twice-born and by severely interdicting marriage between a Dwija and a Śūdra.² The king must keep the four castes to their duties and should see that the twice-born adhere to the duties of the four stages of their life. He was responsible for the protection of the people. If he could not recover stolen goods from thieves, he must compensate the owners from his own treasury. For administrative purposes, Viṣṇu prescribes the same scheme of local government as Manu, only omitting the subdivision of twenty villages.¹ The Brāhmaṇas are exempt from taxation for they pay taxes in the form of their actions. The king, that is, the state, is entitled to a sixth of all the gross produce of the land. Like Manu and Kauṭalya, Viṣṇu assigns to the government a share in all income. It is entitled to a tenth of the price of the articles sold in the country and a twentieth of those disposed of in foreign states. The latter is tantamount to an export duty. The king could charge a sixth on meat, honey, clarified butter, herbs, perfumes, flowers, roots, fruits, liquids and condiments, wood, leaves, skins, earthen pots, stone vessels and anything made of split bamboo. He could take a fiftieth of cattle, gold and clothes. Any attempt to evade the customs should be punished by the forfeiture of all the goods of the defaulter. Artizans, manual labourers and Śūdras should give a day's labour in the month to the government. The government is entitled to the whole produce of the mines and to one-half of treasure-trove, the other half going to Brāhmaṇas. But if the treasure has been discovered by Brāhmaṇas, they could keep the whole of it, and if by members of other castes, it was to be divided in varying proportions among the discoverer, the king and Brāhmaṇas. Justice is another source of public income. Not to speak of numerous fines, one-tenth of a debt which was the subject of a law-suit goes to the king.² The administration of justice in Viṣṇu follows the old principles and procedure. When treating of insults and offences, he enters into an extraordinarily minute classification. For example, a fine is prescribed for omitting to invite a Brāhmaṇa neighbour to a feast or for offering him no food when he has been invited. On the other hand, if the guest, having duly accepted the invitation, refused to eat, he should pay a gold Māṣaka as fine and double the amount of food to the host. The law on social matters follows the lines of Manu. His criminal code is Draconic. Viṣṇu provides spiritual penalties, such as the performance of sacrifices, penances and the bestowal of gifts for most of the crimes which man can commit. He adopts the Arthaśāstra analysis of the elements of the state and counsels the old foreign policy in accordance with the doctrine of maṇḍala. But he emphasises that when a country has been conquered, its time-honoured laws and customs should not be abolished. Nor should its old dynasty be uprooted, unless it be of ignoble descent. The conqueror should invest a prince of the same line with the royal dignity.¹ In foreign affairs as in domestic government spies play an important part.²

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² Viṣṇu, II, 8, 14-15; XXIV, 1-8; XXVI, 4-7.

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¹ Ibid., II, 2-3, 7-16, 65-67, 98. In a passage which is probably an interpolation, but which reflects the spirit of Viṣṇusūtra, the earth is told by her saviour Viṣṇu that she will be sustained by those "who practise the duties ordained for each caste and for each order and who act up strictly to the holy law." "O earth, to them is thy care committed." I, 47. Viṣṇu counsels the appointment of pious persons for performing acts of piety, skilled men for financial business, brave men for fighting, stern men for acts of vigour and eunuchs to guard the wives of the king. Ibid., II, 17-21.

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² Ibid., III, 23-32, 55-64; VI, 20. It is clear that half the treasure-trove could go to the king only when it had been discovered by royal officers.

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¹ Ibid., III. 38, 38-39, 47-49, Ch. V. Viṣṇu's solicitude for animal life is extraordinary. The killing of an elephant, a horse, a camel or a cow should be punished with the amputation of a hand and a foot (V. 48). Fines of various amounts are prescribed for killing domestic animals, wild animals, birds, fish or insects (VV. 50-54). See also Chs. XXXIII-XLII for penances ranging from voluntary death by fire to trivial ceremonies. See also Chs. L-LVI.

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² Ibid., III, 35. Viṣṇu's treatment of military affairs is scanty and amateurish. Viṣṇu (III, 49) declares that a king should not destroy the race of his enemy unless it is of low birth.

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Later than the lawgivers noticed so far but more systematic and therefore more influential than any of them except Manu is Yājñavalkya. The fourth century A.D. is the upper limit of his Yājñavalkya.

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Smṛiti or code. It is more a compilation than an original production. The author borrows freely from Dharma Sūtras, Manu. Viṣṇu, and the Purāṇas among others, but his comprehensive manner and clear style have ensured him a wide popularity.¹ According to Yājñavalkya, there are fourteen seats or sources of the sciences and Dharma or law—the Purāṇas, Nyāya, Mimāṃsa, the Dharma Śāstras together with the Aṅgas and the Vedas. Among the promulgators of Dharma Śāstras he mentions Manu, Atri, Viṣṇu, Hārita, Uśanas, Aṅgiras, Yama, Āpastamba, Saṃvrat, Kātyāyana, Bṛihaspati, Parāśara, Vyāsa, Śaṅkha, Likhita, Dakṣa, Gautama, Śātātapa, Vasiṣṭha and himself. It seems he perceived that these authorities did not always agree among themselves. It was necessary to provide some means for the correct interpretation and elucidation of law. Yājñavalkya would constitute a Pariṣad or legal assembly, versed in the Vedas and Dharmas or in the three sciences. Its decrees should be considered law. Failing an assembly, the verdict of the foremost of theologians was law. It is remarkable that Hindu lawgivers, though wedded to tradition, recognise the need of adapting law and custom to a changing environment and provide a machinery for the purpose. It is generally recognised that the Smṛitis are not eternal or unchangeable. They have

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¹ Yājñavalkya Smṛiti, with the commentary of Vijñāneśwara called the Mitākṣarā and notes from the gloss of Bālambhatta translated into English by Śrīśa Chandra Vidyārṇava, Panini Office, Allahabad, 1918. See the Introduction on the character of Yājñavalkya's work.

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The Smṛiti is divided into three sections:—
(1) Āchāra or the Moral Code, (2) Vyavahāra or the Civil Law, and (3) Prāyaśchitta or Penances which comprise a sort of Penal Code. They contain 1,010 couplets. The first and last sections are incorporated in Garuḍa Purāṇa. Yājñavalkya's Smṛiti was composed probably in Mithilā.

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been composed from time to time and only reflect the received opinions of particular ages and regions. Besides, Yājñavalkya would recognise the individual "satisfaction" or conscience as one of the sources of law.¹

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¹ Ibid., 1, 3—5, 11, 7.

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In Yājñavalkya, as in his predecessors, the scope of the activity of the government coincides with the whole field of human life. For example, it is the duty of the king to discipline and set right families, castes, and all guilds and associations—Śreṇīs, Gaṇas and Janapadas—who may have deviated from their duties.² The social order has to be maintained with a firm hand. It was in the shape of the rod that Brahman had created justice. The rod must be hurled ceaselessly on the heads of evil-doers. The king should not allow even his brothers, sons or parents-in-law, if they are guilty of any crimes, to go unpunished. To inflict punishment or death on those who deserve it, is to perform many sacrifices and bestow the finest gifts. But punishment is never to be arbitrary. It must conform to the scriptures. When it is lawful, it brings glory, victory and heaven to the king. Otherwise, it devastates all.³ If this supreme task of maintaining order is to be well-performed, it is essential that power should rest in the hands of those who are endowed with wisdom, purity and truthfulness, who are free from greed and who command excellent assistance.

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² Ibid., XIII, 361.

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³ Ibid., XIII, 354, 356—59.

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The king must be learned, disciplined, gentle, righteous, energetic, enthusiastic and brave. His ministers ought to be hereditary servants, steady, intelligent and pure. The king must have a priest well-versed in the science of government, in ritual and in astrology.

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The king should first consult the ministers, then the Brāhmaṇas and finally decide for himself. Counsels must be kept confidential.¹ It was, in any case, essential that the king should personally guide the whole administration. Personally, he must examine his revenue and expenditure, dispatch spies and messengers and receive their reports, administer justice, inspect his forces and consult the commander. Yājñavalkya prescribes for him a programme like that of Kauṭalya.² Among other economic matters, the coinage is regulated entirely by the state. Towards his servants and subjects, the king should behave like a father. The protection of the people is the *raison d'être* of his being. It brings him greater merit than all the gifts in the world. If the king levies taxes on the people, it is his bounden duty to care for them. Otherwise he must undergo suffering for half the sin that is committed in his kingdom. In particular, he should shield his people from the exactions of Kāyasthas—state accountants and clerks. Corruption should be punished by confiscation of property and banishment. Illegal exactions plunge a king into hell. The fire which emanates from the sufferings of subjects extinguishes the king, his fortune and his family.³ On justice Yājñavalkya has nothing new. Punishment depends on the nature, time and place of the crime, and the age, ability and means of the accused. Caste enters as usual into social law. Punishment is divided into four classes—gentle admonition, reproof, fine and corporal affliction. Fines fall into three grades, the highest, middle and lowest amercements, eighty, forty and twenty *paṇas* respectively. The customs of families, castes and corporations are to be respected, but an appeal lies from their decisions to royal judges. In fact, all cases which have been wrongly decided should be retried.¹ In dealing with foreign states, the usual means of conciliation, diplomacy, fraud and force are explained. A king should attack the enemy when the latter is weak and has his realm filled with corn and provisions. There is nothing more meritorious than to acquire wealth by war and bestow it on Brâhmaṇas. But warfare has a law which must always be respected. One should never strike eunuchs, those who are unarmed, who are fighting with others, who desist from fighting or who surrender. Spectators are not to be molested. When a country has been conquered, its customs, laws and family usages must be maintained.² It is essential for a monarch to make adequate provision for the defence of his own realm. The safety of the king, his treasure and his people demands that numerous fortresses should be erected and placed in charge of experts.³

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¹ Ibid., XIII, 355, 309—318, 344.

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² Ibid., XIII, 327—333, 360, 364 *et seq.*.

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³ Ibid., XIII, 334—341.

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¹ Ibid., XIII, 366–68; II, 30, 305. In the seventh century, Yuan Chwang (Watters, I, 176) noted that taxes were light.

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² Ibid., XIII, 321.

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³ Ibid., XIII, 353.

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Taking a comprehensive view of the state, Yājñavalkya agrees with his predecessors that there are seven constituent elements or limbs of the state but he substitutes the Rod of Justice for the Army in the traditional category.⁴

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⁴ Several Sanskrit editions of Nārada Smṛiti have been published. The standard English translation is that by Dr. Julius Jolly in the Minor Law-Books, Part I. Sacred Books of the East Series, Oxford, 1889. In Nārada, civil law and legal procedure appears in a far more advanced state of progress than in other Smṛitis. A fragment of a different version of the Smṛiti also exists. (Jolly, Tagore Law Lectures, II, III.)

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The Śāstra of Nārada is a work on law and touches but incidentally on administrative matters. It draws freely on Manu and on the predecessors of Kauṭalya and contains little that is original. The law which the state is to enforce pertains to the whole of human life. For example, if a man deserts a wife who obedient and virtuous and who is the mother of male issue. he should be severely punished and made mindful of his duty by the king.¹ In administering oaths, admitting evidence and determining punishments, the caste discriminations of Manu are reproduced. For example, Brāhmaṇas are exempted from certain ordeals. Nārada, it may be mentioned, reduces ordeals to a precise system.² In the administration of justice, the assessors are assigned a more important position than in Manu.³

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¹ Nārada. XII, 95.

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² Jolly, Minor Law-Books, Part I, 248-250.

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³ Ibid., 39-40. It is interesting that at the very time when theoreticians were counselling strict enforcement of caste, Yuan Chwang (Watters, I, 162) spoke of Śūdras as agriculturists.

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Like Nārada, Brihaspati deals primarily with law. He cannot be placed later than the sixth or seventh century A. D. and belongs pretty much to the same period as Nārada. He begins by pointing out the need of courts of justice in a manner which recalls theories of the origin of the state itself. "In former ages men were strictly virtuous and devoid of mischievous propensities. Now that avarice and malice have taken possession of them, judicial proceedings have been established."⁴ Brihaspati divides courts into four classes, (1) stationary, that is, those held in towns or villages, (2) those moving about, (3) those presided over by the chief judge, and (4) those directed by the king himself.⁵ As in Manu, the king should be assisted by three assessors.⁶ But the popular element enters into the administration of justice in a much more pronounced manner than in Manu. Cultivators, artizans, companies of tradesmen, artists, money-lenders, dancers, religious mendicants, and even robbers are told to adjust their disputes according to the rules of their own profossions. Families, craft-guilds and local assemblies may be authorised by the king to dispose of law-suits among their members except such as concern violent crimes. Bṛihaspati also provides for appeal from meetings of kindred to companies, thence to assemblies and finally to the royal judges on the ground that the lower courts have not duly investigated or deliberated on the cause. The law which the royal courts are told to administer takes account of sacred injunctions, customs and equity. Thus, the king in the court is exhorted to listen to the Purāṇas, codes of law, and rules of polity, to act on the principles of equity, and abide by the opinion of the judges and the doctrine of the sacred law. It was a political necessity to preserve intact the time-honoured institutions of every country, caste and family. "Otherwise the people would rise in rebellion, the subjects would become disaffected towards their rulers; and the army and treasure would be destroyed." Among those who are not to be consulted in adjudication are people ignorant of local customs. A little later, Bṛihaspati expressly lays down that no sentence should be passed merely according to the letter of the law, but the circumstances of a case must be closely examined. Local custom, however, can be overruled by royal edicts, which thus constitute a distinct source of law. As in Manu, the law on defamation and adultery is vitiated by considerations of caste. Bṛihaspati counsels itinerant courts. "For persons roaming the forest, a court should be held in the forest; for warriors, in the camp; and for merchants, in the caravan."¹ It is needless to follow Bṛihaspati into rules of procedure, etc., for they correspond to those enunciated by Manu. But it may be pointed out that, according to him, law-suits fall into two categories, those originating from disputes regarding wealth and those relating to injuries. Roughly, 'ie distinction corresponds to civil and criminal suits.¹ In the absence of the king, some Brāhmaṇa versed in law is to act as judge.²

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⁴ Brihaspati, I, 1.

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⁵ Ibid., I, 2-8.

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⁶ Ibid., I, 20.

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¹ Ibid., I, 26-31, 23-25, 33; II, 28. 12. 24. 26-27: XX. 5-15; XXIV, 12.

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¹ Ibid., II, 5.

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² Ibid., II, 32.

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Like Manu and Nārada, Bṛhaspati stresses the need of evidence, classifies witnesses and hurls anathemas against perjury, but he thinks that various motives, affection, anger or avarice, may render the testimony of witnesses nugatory. When doubts arise with regard to documentary and oral evidence, and reasoning itself fails, ordeals should be employed. While Manu had been content with two, Bṛhaspati enumerates nine of them to be administered according to the character of the accused and the nature of the charge. An ordeal must always be administered according to the established rule by persons versed in the regulations. "If it is administered against the rule, it is ineffective as a means of proving what ought to be proved." There was a general rule that if a certain amount of money or property in question justified an ordeal for a low-class man, double the amount justified it for a middle-class man and four times as much for a high-class man. In the ordeal by balance, a person who, when weighed a second time, retained his original weight, was declared innocent while he who weighed heavier was adjudged guilty. It was held that the weight of sin made the difference. "Should the scale break, or the balance or beam, or iron hooks split, or the strings burst, or the transverse beam split, he would have to be declared guilty." In the ordeal by water, an individual was immersed in water and three arrows were discharged. In the ordeal by poison, one had to digest poison "given to him according to rule, without the application of spells or antidotes." One should drink three handfuls of water in which the weapon of one's special deity had been bathed. If in a week or fortnight, no calamity happened to him, to his son, wife, or property, he was declared innocent. Or, after a fast and purification, one should chew grains of rice when the sun is not visible. If what he spits out is pure, he is innocent; if it is mixed with blood, he is guilty. If one can take out a hot piece of gold out of heated oil and butter, without one's fingers trembling or being blistered, one is declared innocent. To prove his innocence, one accused of theft should lick with his tongue without injury an iron ploughshare twelve palas in weight. The lighter ordeals were reserved for Brāhmaṇas and women. The Hindu law-givers tend to regard the oath as a kind of ordeal on the ground that it invokes supernatural agency.¹

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¹ Ibid., X, 1—33. For actual practice cf. Yuan Chwang (Watters, I, 172) who, writing in the seventh century, speaks of four ordeals—water, fire, weighing and poison. His description of them is different from that of the Smṛitis.

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Parāśara² recognises that there is no absolute law. The law changes from time to time. Every age has its own scheme of duties which the government should enforce. Parāśara undertakes to expound the Dharma of his own times. He bases his theory partly on existing facts and ignores the canon law in several particulars. He is averse to begging and counsels the government to punish those Brāhmaṇas who do not study but live on charity.³ Brāhmaṇas are not to practise agriculture but they may employ others to till the land for themselves. Later, he altogether throws open agriculture to

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² Parāśara is an old name in Sanskrit literature. He is the seer of some Vedic hymns and is called the son of Vasiṣṭha and Sakti in the Ṛigveda (I, 65—73). He appears in the Mahābhārata, in Yājñavalkya and in the Viṣṇu Purāṇa. The Smṛiti, however, which goes by his name, is one of the latest. There is a still later work, Parāśarīya Dharma Śāstram, highly tinged with sectarianism which must be pronounced a late expansion of his Smṛiti. Parāśara deals almost exclusively with Āchāra and Prāyaśchitta.

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³ Parāśara Smṛiti (edited by Vinayak Dharmadhikarin, with the Vidvanmanohar Commentary, Benares, 1919), I, 33. Also XI, 50.

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Brâhmaṇas. Kṣatriyas may freely become agriculturists. Vaiśyas and Śūdras alike may take to agriculture, handicrafts and with certain restrictions, to trade. Śūdras are permitted to trade in salt, honey, oil, milk, butter, curds, etc., but are debarred from dealing in liquor or meat. Śūdras, like others, should lead an upright life and, *inter alia*, should abstain from forbidden food. But on no account are they to adopt a scholastic career. The study of the Vedas, on their part, is equivalent to a most heinous crime.¹ On social law, as on the law of libel, Parâśara allows the caste privileges which had received the sanction of his predecessors. He emphasises the necessity of protecting the earth, maintaining order with a stern hand and conquering the enemy's forces. Taxes should be mild. The king should gather flowers but should not uproot the plant.²

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¹ Ibid., II, 2, 12—14; I, 63—67.

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² Ibid., X, 5—41; I, 61-62.

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Government should always be conducted according to law. Penances, except those for trivial offences, require the sanction of the king. But the king, in laying down the law, must pay heed to the dicta of Brâhmaṇas. Otherwise a sin is multiplied a hundredfold and affects the king.³

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³ Ibid., VIII, 28-29. Some of the penances in Parâśara are mild in comparison with the corresponding ones in other Smṛitis. For instance, after killing a Brâhmaṇa, intentionally or unintentionally, one need only perform a pilgrimage, in rigid ascetic style, to Râmeśwara Bridge in the extreme south and bathe in the sea.

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Such are the leading ideas on government in the principal Dharma Sūtras and Śâstras. There are numerous other Smṛitis in existence which were composed in various places from time to time.⁴ But on government they add nothing new.

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⁴ Yâjñavalkya does not exhaust the list of writers on law or conduct. Vṛiddha Gautama counts 56 or 57 teachers of the law and Nanda Paṇḍita, author of the Vaijayantī, 57. Mitramiśra in his Vīramitrodaya speaks of 18 primary, 18 secondary and 21 other Smṛitis. Stenzler gave a list of forty-six and Dr. Roer of forty-seven

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The chief lawgivers have been for centuries subjected to interpretation and elucidation by a host of commentators. On points of civil law they often make fresh contributions to the subject, but on the principles and methods of government they generally serve only to emphasise and sometimes to obscure the meaning of their texts. Medhâtithi who commented on Manu in the tenth century stresses the intimate connection of protection and taxation. Here, again, the maxim is ‘no taxation without protection.’ The second maxim is ‘no protection without enforcement of order.’ Medhâtithi, however, makes it clear that the duty of protection is universal, that is, even those who are exempted from taxes are entitled to protection. Medhâtithi also admits non-Kṣatriya kingship. When the state is weak, it is permitted to Brâhmaṇas and others to look after their own safety and take up arms.¹

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¹ Medhâtithi’s Commentary on Manu, VII, 1, 2; VIII, 40.

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Explaining Yâjñavalkya, Vijñâneśwara, one of the most influential of commentators about the 14th century, stresses the value of hereditary servants, those whose ancestors served under the government. The government should raise its income by honest means such as the regulation of trade routes, etc. Justice should never be influenced by motives of greed. Vijñâneśwara makes it explicit that the word king, as used in the lawgivers, means the whole government including local officers.² On the whole, Vijñâneśwara exercised a liberal influence on Hindu thought. Jimûtavâhana who was largely

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² Vijñâneśwara’s Commentary on Yâjñavalkya’s Smṛiti, Ch. XIII, Verses 312, 137, 345, 347; I, 368.

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of them. The Ānanda Āśrama of Poona has published a collection of twenty-seven Smritis, including the Devala which were composed in Sindh about the time of the Arab invasion in the 8th century. The Padma Purâṇa, Uttarakhaṇḍa, Ch. 43, has a curious classification of Smritis into (1) Sâttwika, (2) Râjasika and (3) Tâmasika.

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followed in Bengal, was not illiberal. But a great scholar and commentator, Mâdhavâchârya, who flourished in the south in the fourteenth century, was highly conservative. In his commentary on Parâśara, he calls himself a supporter of the Purâṇic doctrines and gives an unprecedented prominence to the Purâṇas. Devânnabhaṭṭa, author of Smṛiti Chandrikâ, was another ultra-conservative. In his chapter on Deśadharma, he refuses to attach any weight to what is not supported by Vedas and Smṛitis. Aparârka, a Raja of Konkan, who flourished about the twelfth century, further elucidates and expands the meaning of Yâjñavalkya. The line of commentators has continued down to modern times. The Vaijayantî Commentary on Viṣṇu was composed in the 17th century.

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The primary commentaries in their turn were commented on by priests, scholars and lawyers. They were more prolific in the south where the stream of Hindu life and thought continued longer undisturbed. Bâlambhaṭṭa Ṭikâ or Lakṣmî Vyâkhyâna, the famous exposition of the Mitâkṣarâ, belongs probably to as late a period as the eighteenth century. But with the progress and consolidation of Muslim dominion, the political matter in this class of writings diminishes and ultimately almost disappears. The same remark applies to the numerous Dharmanibandhas which grew up everywhere, though more in the south than in the north. In the sixteenth century, Dalapati, minister of the Nizâmshâhî ruler of Ahmadnagar, wrote an enormous law-book called Nṛisiṃhaprasâda, divided into twelve sections but it has little to say of government. Already, in the fourteenth or fifteenth century, Jimûtavâhana had founded what is known as the Bengal school of Hindu law but he has hardly a place in a history of governmental theory. The absence of political reflections in the commentaries, sub-commentaries and expositions is all the more striking as the reputed authors of some of them were Râjâs or ministers. In the regulation of life, Hindu society tries to ignore the Muslim government and to legislate for itself. During the medieval period of Indian history, various selections from ancient writings were compiled. Mitra Miśra, in his Viramitrodaya dedicated to Bira Simha Bundelâ of Urchhâ (of the sixteenth century), gives copious extracts on coronation ceremonies, kingly and ministerial duties and so on from Brâhmaṇas, the Mahâbhârata, Smṛitis and Purâṇas, and interprets many of them in his own light.¹

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