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Theory of Government in Ancient India (Post-Vedic) c9.s1: The Dharma Śāstras

Theory of Government in Ancient India (Post-Vedic) c9.s1

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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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¹ Bühler placed Vijñâneśwara in the 14th century, but as Basu points out (Preface to his translation, xix), the commentator quotes from Mâdhava, the great minister of the Vijayanagara empire, and cannot be anterior to the 14th century. The Mitâkṣarâ, as his commentary is called, bears traces of Buddhist influence.

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¹ The Asahâya Bhâṣya on Nârada Smṛiti was probably the oldest of all commentaries but only extracts from it have been recovered. It is believed to have been recast by Kalyâṇabhaṭṭa.

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Seven old commentaries on Manu have been discovered. Medhâtithi is by far the most important. Bhojarâja belongs to the eleventh century. Govindarâja comes later, Nârâyaṇa and Kullûka later still.

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Next to Manu, Yâjñavalkya has received the greatest attention. Vijñâneśwara, the author of the Mitâkṣara, or as it is sometimes, called Ṛiju Mitâkṣarâ Ṭikâ or Ṛiju Sammitâkṣarâ or Pramitâkṣarâ, is believed to have lived at Kalyâṇapur, now in the Nizam's dominions. Its sway has been felt over the greater part of the country. Colebrooke translated its chapter on Inheritance which at once assumed a tremendous importance. Aparârka, though less influential, is most probably earlier than Vijñâneśwara. His silence about the latter was ascribed by modern scholars to etiquette which prevents a royal author from mentioning the names of servants of other kings. But after the discovery of Vijñâneśwara's reference to Mâdhava it seems clear that Aparârka's silence is the natural accident of his priority in time. Among the commentaries on the Mitâkṣarâ itself may be mentioned the Subodhinî or Viśweśwarî by Viśweśwara Bhaṭṭa. Among the commentaries on the Sûtras, perhaps the most important are Uaradatta's gloss on the Âpastambîya Dharma Sûtra called Ujjvalâ and his gloss on Gautama called Gautamîya Mitâkṣarâ, both composed in the sixteenth century. Toḍar Mal, surnamed Toḍarânanda, the great minister of Akbar, was the author of the Saukṣyas, one of the numerous Digests on law which were composed during the middle ages.

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Another law-book which acquired some vogue is the Saraswativilâsa composed by King Pratâpâditya of Orissa in the sixteenth century.

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Five distinct schools of Indian Law are recognised but the division relates to civil law and has no reference to governmental agency.

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