[43] Various terms are used by our author to denote the head of the State (e.g. Rájá, Protector of men, Lord of men, &c.) to suit the metre or fancifully. In translation we have thought it better to be uniform.
[44] What is understood by science is explained in the first book sl. 3.
[45] Manu, ch. 8, sl. 9.
[46] The original is, smriti ádi (the second word being equivalent to &c.), which the Commentator explains, as translated, law and usage, or custom.
[47] The &c. signifies, description of chattels, with their number, also particulars of place and time. (M.)
[48] The Commentator has enabled us to supply the ellipsis, but he does not fully explain the author's meaning. It would seem, that in those primitive times, it was considered harsh or inexpedient to harass a defendant, or accused person with two legal proceedings, of any sort, at the same time. The sentence will, however, bear the sense, that no stranger or intervener shall be permitted to come in and interrupt the progress of a pending suit.
[49] The Commentator, observing that this prohibition would seem to be implied in the terms of the sixth sloka, explains (on the authority of Nárada) that the latter refers only to the general object of the suit, e.g., that if his verbal complaint be of a loan of money, his recorded complaint shall not be of a loan of apparel—but that this clause, in the ninth sloka, ensures further uniformity in the description of the grievance and character of the suit, e.g., where one has originally complained of retention of 100 pieces of money lent, he shall not vary his complaint to a forcible taking of 100 pieces.
[50] These are expressed by one word, kalaha: but the Commentator notes its comprehensive character, as we have translated it. See the analogous passage in Manu, ch. 8, sl. 6, where an equally ambiguous word párushya is similarly explained in the text itself. The term rendered "slander" by Sir Wm. Jones is simply, reviling or verbal abuse.
[51] sáhasa, explained by the Commentator, assault by means of poison, or any instrument destructive of life. The word has another and more particular signification, as infra sl. 230.
[52] Manu (ch. 8, sl. 59) inflicts a fine of double the debt upon the mendacious debtor.
[54] We have followed the Commentator in rendering these terms, which are very general and indefinite.
[55] i. e. restlessly before the Court.
[56] Manu ch. 8, sl. 25, 26.
[57] ibid, sl. 55, 56.
[58] Literally "put down," i. e. taken for granted, all question of it disposed of. See next note.
[59] This sloka is by no means unambiguous: but it is satisfactorily explained by the Commentator, who says: "What course is to be adopted where two parties simultaneously present themselves to the Court and tender proofs? e.g. A man acquired a field by gift, and, having for some time possessed it, departed with his family to another country: then, another person obtained a gift of the same field, and, having possessed it awhile, was likewise obliged to go to another country. Both parties return at the same time, claim the same field, and resort to a Court of law. Then arises the question,—whose proofs shall be taken? Yájnavalkya says (ut supra sl. 17); that is to say, where one sets up an older title, saying—I was possessed of this field at such a date—his witnesses are the first to be examined; but should the other party urge—True, the field was acquired and enjoyed by him at the first, but the king bought it of him and granted it to me—or—Another got the field and gave it to me; in that case, as the proofs of him who has the older title are of no consequence, and thus he is disposed of, the witnesses of the other claimant are to be examined. It is incorrect [to read the sloka as asserting] that, where there is a denial [of a claim] the witnesses of the plaintiff shall be examined, and where a former judgment or something as a ground of defence is set up, in [either of] which cases the original claim is met, then the witnesses of the defendant shall be heard; inasmuch as all this is included in the rule,—(here the Commentator quotes the 7th sloka of the text). This view is clearly supported by Nárada, viz. On a denial, proof is upon the plaintiff; where some ground of defence is stated, upon the defendant; upon an allegation of prior decree, the decree shall be the proof.—After this Nárada proceeds:—When there are two claimants, if there be witnesses, the witnesses of the prior claimant shall be [first examined]—So we perceive, this [description of] law-suit is distinguished from all others." These quotations favor the supposition, that the science of special-pleading is not of European origin, and is traceable to a remote antiquity.
[60] Supra sl. 11.
[61] e.g. that the defendant has got possession of gold and silver and apparel, &c. (M.)
[62] Supra, sl. 6. The Commentator excludes from the operation of the harsh rule in this 20th sloka, an heir, who is supposed to deny his ancestor's debt or liability through ignorance; but he attempts to justify the rule itself by experience of human conduct.
[63] This Śástra teaches a system or science of ethics such as moralists now-a-days designate as Machiavellian or jesuitical; in which right or wrong have a relative but little intrinsic meaning.
The Artha Śástra is to be found in the writings of Uśanas, of Brihaspati and others.
[64] A special-pleading signification is given to this dogma by the Commentator: viz.
"In questions of debt, &c., though the prior act have been proved, yet a second act may be more important; e.g. if one prove that another by borrowing has incurred debt, and the other prove that the money borrowed has been repaid." (M.)
[65] The word in the original is, acceptance: but this is evidently used as the concluding act of the transaction referred to, scil. gift.
[66] e.g. if one, for a consideration, pledge a field to another, and then pledge the same field to some one else, also for a consideration—the first act is the valid one. (M.)
[67] Sir Wm. Jones and other learned persons would seem to have restricted the term here used (pashyati) to personal knowledge by sight; but it comprehends every mode of personal and actual observation or discovery.
[68] who has no legal connection with it. (M.)
[69] The Commentator quotes Nárada, scil. "The guilty one who holds possession without title, for even many hundred years, should be punished by the monarch as a thief"—and he endeavours to reconcile with this the law of Yájnavalkya, by confining the latter to the fruits or profits of the land withheld. But this construction cannot be admitted. There is a curious document germane to the subject of this sloka copied in the official notes of Sir Robert Chambers (Chief Justice of the Calcutta Supreme Court) in July 1791. It is a letter from Sir William Jones to the Governor of Bombay upon the Hindu title by adverse possession or prescription. Sir William writes, that the doctrine of the Mitákshará is; "An absolute property may be acquired in land by continued and undisputed possession for twenty years, in the presence of the owner, provided that the possessor came in by a fair title, either by descent or purchase; if he had no fair title, the intermediate profits only are irrecoverable, but the property is not lost." And he concludes; "I only add for your further satisfaction, that, if three descents have happened since the first possession, without a fair title, property is lost, even though the owner was absent; but if three descents have not been cast, an adverse possession for a hundred years gives an absolute property in the land to the possessor, unless the owner was under some legal disability." These may have been the modifications of a later age: they are not to be found in Manu or in Yájnavalkya. Manu ch. 8, sl. 147, &c.
[70] any thing delivered for safe-keeping, its quality and quantity being made known. (M.)
[71] explained infra, sloka 65.
[72] The word literally or usually means "takes away"; and the Commentator explains—where a pledgee retains and refuses to give back the pledge, relying upon his long possession. The &c. refers to the other exceptions in sloka 25.
[73] The Commentator considers the force and intent of this qualification to be, to make the fine commensurate with the usurper's means, with a view rather of enhancing it to the wealthy than of moderating it to the poor, who are perhaps less likely to offend in this wise.
[74] gift, sale, &c. (M.)
[75] as proof of ownership, (M.) Manu, ch. 8, sl. 200.
[76] for three generations. (M.)
[77] Possession is proof when attended with five incidents; a title, length of time, continuance, absence of counter-claim, knowledge of the adverse party. (M.)
[78] This qualification is the Commentator's.
[79] Between this and the succeeding sloka another is introduced in the text of the Calcutta edition; viz. Possession accompanied by a clear title is proof; possession unaccompanied by a clear title is no proof.—We have omitted this, because the Commentator quotes it as a saying of Nárada, and because it is not found (as vouched by professor Stenzler) in either of the M.S.S. in the Berlin Royal Library.
[80] scil. as directed in sloka 2.
[81] By a community (puga) is meant, the body of inhabitants of any village or place, without reference to cast or occupation. (M.)
[82] A guild (sreni) signifies those of one calling, whether of the same cast or not. (M.)
[83] Literally "before, before," which implies their successive rank and importance, i. e. that an appeal lies from the family to the guild, and so on.
[84] Literally "outside." The Commentator explains it—outside of the town, &c.
[85] ártta out of health; evidently meaning here, the victim of disease so as to be unfit for the business of life.
[86] The word (vyasani) may also be rendered, suffering calamity; and the Commentator explains the use made of it in the text to be, a person who is unhappy either by reason of the absence of the object of his desire or by reason of the presence of what is disagreeable to him. We have however preferred the alternative meaning which the word admits of.
[87] &c., i. e. paralysed by any cause or emotion whatever. See Manu, ch. 8, sl. 163.
[88] by public officers and delivered to the king. (M.)
[89] The Commentator considers the treasure-trove here alluded to, to be buried wealth, of which there is no claimant.
[90] Manu, ch. 8, sl. 37, 38.
[91] The Commentator explains—of the whole world!
[92] i. e. by any other than the monarch or a learned bráhmaṇ. (M.)
[93] The Commentator (referring to Vaśishṭha and Gautama) reads this,—the finder shall take a sixth, the monarch the residue—such being the converse of the plain language used.
[94] Manu ch. 8, sl. 40: in which, to the monarch who fails to make restitution is imputed the guilt of the thief. Sir Wm. Jones' translation of this passage is too indefinite.
[95] i. e. The bráhmaṇ borrower gives two hundredths, the kshattriya three hundredths, &c. (M.) But Jagannát'ha, in his Digest (Colebrooke, B. 1, c. 1, s. 28) interprets the text inversely, viz. the bráhmaṇ creditor takes two suvarṇas in a hundred, the kshattriya three, and so on. Manu, ch. 8, sl. 140-142.
[96] where there is risk of life or property. (M.)
[97] as well bráhmaṇs as others, (M.) Manu ch. 8, sl. 157.
[98] scil. Notwithstanding the above provisions of the law, where nothing is expressly stipulated, whatever interest is contracted for must be given and taken.
[99] oil, ghee, &c. (M.)
[100] Manu enumerates five modes of enforcing or recovering a debt; persuasion, law-suits, artifice, worrying, force: ch. 8, sl. 49.
[101] as a fine. (M.)
[102] to defray the cost of adjudication. (M.)
[103] This includes one of equal cast (M.) Manu ch. 8, sl. 177; also ch. 9, sl. 229.
[104] in conformity with the usages of his class. (M.)
[105] This includes every debtor of superior cast to the creditor. (M.)
[106] This rule of course (as observed by the Commentator) includes the head or manager of the family himself, if alive. Manu, ch. 8, sl. 166.
[107] for drinking. (M.)
[108] e.g. what is promised to a flatterer, a mountebank, a panegyrist, a prize-fighter, &c. (M.) Manu ch. 8, sl. 159.
[109] The Commentator explains this to mean, an acknowledgment by the husband on his death-bed or when about to go abroad.
[110] Colebrooke's translation of this passage adds "or son," but this is unauthorised either by the text or the Commentary.
[111] The Commentator adduces in illustration, his being afflicted with incurable disease.
[112] and this, notwithstanding they are wholly without patrimony or estate derived from their father. (M.)
[113] that there is such a debt.
[114] capable of inheriting and managing. (M.)
[115] i. e. marries.
[116] This is the reading sanctioned by the Commentator, viz. putro' nanya'sritadravyah, signifying, that, on failure of those before designated, a son who would be otherwise incapable, by reason of blindness, &c. is to be deemed capable. Another reading may be, as suggested by the Commentator, putro nú'aya'sritadraoyah, "not the son whose paternal estate another holds," which is adopted by Colebrooke, and by his author, Jagannát'ha, (Dig. B. 1, ch. 5, s. 171)
[117] e.g. "Give such a one money, he will not deceive you; he is the son of such a one." (M.)
[118] "If he do not pay, I will." (M.)
[119] Manu ch. 8, sl. 160-162.
[120] metaphorically in the original "If all stand under the same shade:" The Commentator explains.
[121] lit. "publicly."
[122] as of a field, garden, &c. (M.) Manu, ch. 8, sl. 143.
[123] fire, water, &c. (M.)
[124] The Commentator excludes from this exception a culpable act of the monarch, but the text is general.
[125] Even though there be a written memorial of the pledge, and attested; yet, without actual acceptance and possession, it is incomplete. (M.)
[126] charitrabandhakam. charitra (the mode or the subject of pledge) is defined by the Commentator to be either, moral worth, or, the merit earned by performance of religious rites, such as ablution in the Ganges, &c. We have rendered it as the mode, not subject, of pledge. See Jagannát'ha's Digest (Colebrooke), Bk. 1, ch. 3, sec. 2, text cxxiv.
[127] Receiving on one's plighted word (satyankára) signifies, borrowing on a solemn promise to repay. The application is,—where, at the time of handing over the pledge, it was expressly declared by the debtor, that the loan should be repaid, even if increased to two-fold the original sum, and the pledge not abandoned; in such case also, the debtor should be made to repay twice the amount of the debt contracted.(M.)
The Commentator adds another meaning or application of the latter words of this sloka, in which, reciting the first part, viz., pledging upon the guarantee of character, or, a pledge of religious merit, he goes on to say—It is here laid down, that one who receives on his word, scil. words ratifying a bargain of sale and purchase, &c., for instance, receiving a gold ring, &c., as earnest, shall be made to repay twice the value of the thing so given, on breach of the contract: if the party depositing the ring, &c., break off the bargain, he forfeits what he gave as earnest; if the other party break off, he is to be compelled to refund double the value of the earnest received by him.
[128] punishable as a thief. (M.)
[129] to one of the family who is a fit person. (M.)
[130] The Commentator implies, that where the usufruct has done more than this, still the transaction is closed by return of the pledge.
[131] Manu, ch. 8, sl. 180.
[132]90 ibid, sl. 189.
[133] yáchita, e.g. ornaments, clothes, &c. lent on occasion of festivals. (M.)
[134] anváhita. We have followed the Commentator in translating this indefinite term.
[135] This qualification too is the Commentator's. The term used nyása is simply, a deposit.
[136] which are those given in the presence of (i. e. personally to) the depositee. (M.)
[137] such as gold &c. given to be worked (M.)
[138] tapaswí, the third in rank of the Hindu religious orders.
[139] The four objects of living being, in the creed of the Hindu, virtue, wealth, pleasure, and final liberation of the soul.
[140] Manu, ch. 8, sl. 62, 63.
[141] The terms used are játi and varṇa which are somewhat ambiguous; but the sense is evidently as rendered, and is so explained by the Commentator. Manu adds,—Women should be witnesses for women, ch. 8, sl. 68.
[142] i. e. if the regular and more appropriate witnesses are not available. (M.)
After sloka 69 the Calcutta edition has the following:—Those learned in the Vedas, ascetics, the aged, devotees, and the like, are incompetent witnesses, because so declared by law; no other ground [of incompetency] is assigned.
We do not insert this additional sloka for the reasons stated in note [79] supra.
[143] of not less than eighty years.(M.)
[144] possessed of devils. (M.) The expression used by the Commentator may be also translated—under planetary influence.
[145] which the Commentator explains nirgranthi prabhritayah, by which probably are indicated those of the Hindu community who disbelieve the Vedas, e.g. the Jains.
[147] of either party. Perhaps this might be rendered, partisans, or, allies.
[148] Said by the Commentator to allude to notorious liars.
[149] scil. as found in the other Smritis. The Commentator (quoting Nárada) gives a more detailed account of persons excluded or exempt from giving testimony. Manu ch. 8, sl. 64—67.
[150] a fortiori two persons, (M.)
[151] or, who knows the Dharma.
[152] The Commentator excludes from this enabling exception those under moral (not merely arbitrary or conventional) disability, as, criminals. Manu, ch. 8, sl. 72.
[153] also, murder. (M.)
[154] párushya and sáhasa: v. supra in notes [9] et [11].
[155] Who these are is described by Yájnavalkya, in the third book, scil.
sl. 227. The slayer of a bráhmaṇ, the drinker of what intoxicates, the thief, one who violates his guru's bed, are great criminals—also, whoever associates with such persons.
sl. 228. Grossly to revile one's guru, speaking reproachfully of the Vedas, to slay a friend, after reading from the Veda to forget it,—these [sins] are like to the murder of a bráhmaṇ.
sl. 229. To eat forbidden food, a crooked insincere mode of dealing, a multitude of lying words, kissing the mouth of a menstruous woman,—these [sins] are like to drinking intoxicating liquor.
sl. 230. To steal horses, jewels, men, women, land, cows, property pledged,—these [sins] are like to the stealing of gold.
sl. 231. To debauch a friend's wife, a maiden, a sister, a woman of the lowest grade, a female relative, a son's wife,—these [sins] are recorded as equivalent to violation of a guru's bed.
sl. 232. To debauch a father's sister, or a mother's, the wife of a maternal uncle, a daughter-in-law, a step-mother, the sister or daughter of an áchárya,
sl. 233. or his wife, or one's own daughter,—these are equal to violation of a guru's bed. The penalty is death, the pudenda [of the criminal] being previously amputated. A like doom is for the woman, if she consented.
See Manu, ch. 9, sl. 235; ch. 11, sl. 54—58, sl. 170—180.
As to the guru and áchárya, the following is the 34th sloka of Yájnavalkya's first book:—He is a man's guru, who, after going through the ritual, imparts to him the Veda: he is áchárya, who invests with the sacred cord and then imparts the Veda.
[156] Manu, ch. 8, sl. 89 &c.
[157] guni, referring not merely to personal qualities or eminence in virtue, but to possession of wealth, sons, and learning: so explained by the Commentator.
[158] Manu, ch. 8, sl. 73.
[159] The Commentator explains this to refer to the fine which would be payable on failure (supra sl. 11).
[160] out of the realm. (M.) Manu, ch. 8. sl. 119-124.
[161] supra, sl. 73.
[162] The Commentator adds—If the bráhmaṇ, or any of the other casts, cannot pay the fine, he must suffer imprisonment and the labour proper to his cast. He explains the enormity of the offence described in this sloka to consist in the contempt of Court.
[163] i. e. if, by such untruth, the death be averted. If from testimony either way, the alternative of the death of the plaintiff or defendant must ensue, the witness should maintain silence, the monarch assenting. In case the monarch do not assent, the testimony may be rendered of no avail by confusing the witness: if this cannot be effected, then let the truth be spoken; for by so doing one fault only is incurred, viz. causing the death, whereas from untruth would arise the sin of it as well as of the death. (M.)