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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s4.t1: 1. The Jury as a Hindu Institution

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s4.t1

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1. The Jury as a Hindu Institution

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The oldest historical date for the institution of the Hindu jury is B. C. 443, a hundred years after the death of Śâkya the Buddha. The occasion was brought about by the “ten heretical practices” of Vesali which were submitted for examination to a committee of eight presided over by a judge. In conformity with a rule established by Śâkya, one Revata proposed to refer the matter to a jury. He chose four *bhikkhus* (monks) from the east and four from the west. This choice was formally approved by the *Samgha* (Ecclesiastical Council). There was added to the arbitrators, as regulator of the sittings, a monk named Ajitâ.²

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² Poussin’s “Buddhist Councils” in the *Ind. Ant.*, 1908, p. 85.

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The *idea* of the jury is therefore at least as old as Śâkya (sixth century B. C.). Evidently it was an well-established institution in the public law of his time. By advocating and adopting the system for the settlement of disputes in ecclesiastical matters this spiritual doctor gave but another evidence of his strong civic and legal sense. “If, O *bhikkhus*”, said he on one occasion, “whilst the case is being inquired into by those *bhikkhus*, pointless speeches are brought forth, and the sense of any single utterance is not clear, I enjoin upon you, O *bhikkhus*, to settle the case by referring it to a jury or commission (*ubbahika*).”¹

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¹ *Chulla*, IV, 14, 19.

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Not everybody could be elected on the jury. The *Chulla-vagga* mentions ten qualifications of the juror. It was held, among other things, that the *ubbahika* must be “competent to point out both friends and foes, to get them to understand a thing, get them to see it and recognize it, and able to pacify them”. Secondly, the person to be chosen on the jury must be “clever in judging both as to the origin and as to the settlement of disputes”. And thirdly, he must “under-stand legal questions, the origin thereof, the close thereof, and the way that leads to the close thereof”.²

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² *Ibid*, IV, 14, 19.

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The method of appointing a jury was also clearly described. First, the *bhikkhu* was to be asked as to whether he was willing to undertake the office. Then some discreet and able monk was to address the *Samgha* thus: “May the venerable *Samgha* hear me ***. Let it appoint *bhikkhus* of such and such a name, and of such and such a name on a committee. This is the motion ***. The *Samgha* appoints *bhikkhus* of such and such names on a committee to settle the case.”³

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³ *Ibid*, IV, 14, 20.

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Traces of the jury system are to be detected in Maurya India. For, by a ruling of Kautilya in the *Artha-śâstra*, disputes concerning boundaries, fields and “miscellaneous hindrances” were to be decided by elders of the neighborhood. If they were divided in their opinions decision was to be given in favor of the opinion of the honest *vahavah*, i. e. the “many” or the majority.⁴ There is here an anticipation of the Grand Assize of Henry II by which the claimant to disputed lands could demand the nomination of four knights of the neighborhood. The Kautilyan principle is also the same as that of the Assize of Northampton by which the property due to heirs was determined in the identical manner.

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⁴ The interpretation of *vahavah śuchayah* (vide the *Artha*, Bk. III, Ch. IX) in Jayaswal’s “Introduction to Hindu Polity” in the *Mod. Rev.*, June 1913, is more accurate than that in Shamasastry’s translation (pp. 214–215). For the law of the majority see also Śukra, I, lines 732—733. Bosanquet is certainly more chauvinistic than philosophic when he naively makes the statement that the principle of the majority is “found for the first time as an everyday method of discussion in Greek political life” (*Phil. Theory of State*, pp. 45). cf. *Pos. Back*, II, p. 19.

Cites (3)