The Minor Law-Books, Part I: Nârada, Brihaspati (SBE 33)

Oxford University Press Warehouse Amen Corner, E.G.

First Title of Law. The Law of Debt... -41

4. Means of Livelihood for a Brahman in Times of

13. Six Cases where Witnesses are unnecessary.. 85

18. What has to be done in default of both Witnesses

26. The Ordeal of the Hot Piece of Gold Second Title of Law. Deposits. Third Title of Law. Partnership. Fourth Title of Law. Resumption of Gift Fifth Title of Law. Breach of a Contract of Service Sixth Title of Law. Non-payment of Wages Seventh Title of Law. Sales Effected by Another than

Eighth Title of Law. Non-delivery of a Sold Chattel Ninth Title of Law. Rescission of Purchase Tenth Title of Law. Transgression of a Compact Eleventh Title of Law. Boundary Disputes Twelfth Title of Law. The 'Mutual Duties of Husband

Thirteenth Title of Law. The Law of Inheritance Fourteenth Title of Law. Heinous Offences Fifteenth and Sixteenth Titles of Law. Abuse and

Seventeenth Title of Law. Games Eighteenth Title of Law. Miscellaneous Appendix. Theft Quotations from NArada L Judicial Procedure n. The Plaint in. The Answer IV. Writings and Possession V. Witnesses VI. Ordeals. VII. Miscellaneous Laws. Introduction to the Fragments of B^j/haspati

I. Constitution of a Court of Justice. 11^ General Rules of Procedure

Transliteration of Oriental Alphabets adopted for the

Translations of the Sacred Books of the East. •393

The Narada-smnti or Ndradiya Dharma^astra first Supposed origin attracted attention nearly a century ago by

of the Code of being quoted in the Preface to Sir W. Jones's celebrated translation of the Code of Manu. What caused it to be brought before the notice of the learned world, was its bearing on the origin and history of the authoritative law-book of ancient India. The statements extracted by Sir W. Jones from the opening chapter of Narada's law-book require some modification at present, as he was not acquainted with the larger and more authentic of the two versions of Narada's work, which is now translated. It appears from the present work (pp. 1-4) that Narada, the reputed com- piler of the Naradiya Dharma^astra, refers to four, instead of three, successive versions of the Code of Manu, in 100,000 jlokas or i^oSo chapters, in iij,ooo, 8,000, and 4,000.ylokas. The authorship of these four versions is assigned, respectively, to Manu, Narada, Marka;/</eya, and Sumati, the son of Bhr/gu, and the Narada-smr/ti is described as an abridgment, made by Narada, of the ninth or Vyavahara (legal) chapter of the original Code in 100,000 j-lokas. The first part of Narada's abridgment of the ninth chapter of Manu's Code is designed as a matr^'k^ or vyavahara- m^tr^ka, 'summary of proceedings-at-law ' or 'general rules of procedure.'

Though the mythical nature of the Preface to the Narada-

Explanation of smrttl is Sufficiently apparent, some facts

the legend. which recently have come to light impart a

higher degree of probability to the alleged connexion between

Manu and Narada, than was formerly allowed by myself.

Thus the contents of Narada's Preface to his Smrtti appear

to have been known to such an early author as Medhatithi, who quotes it, rather loosely it is true, in his Commentary on the Code of Manu, where he says that ' this work, con- sisting of one hundred thousand (^lokas), was composed by Pra^apati and abridged successively by Manu and the; rest -^.' This goes far to prove that the Preface to the Narada-smr/ti had attained notoriety as early as the ninth century A. D., and must be nearly or quite as old as the remainder of the work. The antiquity of the account given by Narada of the origin and history of the principal code of ancient India is supported to some extent by the Paura/^ik statement regarding four successive remodellings of the original composition of Svaya;;/bhuva (Manu), by Bhrigu, Narada, Br^'haspati, and Ahgiras^, and by a curious tradition preserved in the Mahabharata, to the effect that the original Dharmajastra, produced by Brahman in 100,000 chapters, was successively reduced to 10,000, 5,000, 3,000, and 1,000 chapters by 5a;;^kara, Indra, Br^'haspati, and Kavya^. What is more, in a colophon of the ancient Nepalese MS. of the Narada-smr/ti, that work is actually designed as the Manava Dharma^astra in the recension of Narada (manave dharma^astre naradaproktaya;^ sa;;^hita- yam), just as the Code of Manu in the colophons is usually called the Manava Dharma^astra in the recension of Bhr/gu (manave dharma^-astre bhr/guproktaya;;^ saz/^hitayam, or manave dharmai-astre bhr/guprokte). Again, the chapter on theft (y^aurapratishedha), which has come to light in Mr. Bendall's Nepalese Palm-leaf MS. of Narada, and in a Nepalese paper MS. recently discovered by the same scholar, forms an appendix to the body of the Narada- smr/ti, exactly in the same way as an analogous chapter on robbery and other criminal offences is tacked on at the close of the eighteen titles of law in the Code of Manu, IX, 252-293. It also deserves to be noted, perhaps, that the Dhamathats of Burma, while professing to be founded

^ Manu/ikasaiigraha, p. 39, gloss on Manu I, 58; Biihler, Sacred Books of the East, vol. xxv, p. xv.

3 Mahabharata XII, 59, 22, and 80 foil.; Buhler, ibid. p. xcvi.

on the laws of Manu, contain several rules and maxims which may be traced to the Narada-smr/ti, whereas they do not occur in the Code of Manu ^

Although, therefore, there appears to be an element of Manu anterior truth in Narada's account of the history of to Narada. ^hc Code of Manu, and of his own Smrtti, there can be no doubt that the actual position of the two works has been inverted by him. The composition of Bhrigu, or of Sumati, the son of Bhr/gu, i. e. the now extant Code of Manu, is not posterior, but decidedly anterior, in date to the Narada-smr/ti, as may be gathered easily from a comparison of both works. Thus e.g. Narada mentions twenty-one modes of acquiring property, fifteen sorts of slaves, fourteen species of impotency, three kinds of women twice married, and four kinds of wanton women, twenty women whom a man must not approach, thirty-two divisions of the law of gift, eleven sorts of witnesses, five or seven ordeals, four or five losers of their suit, two kinds of proof and two kinds of documents, seven advantages resulting from a just decision, eight members of a lawsuit, one hundred and thirty-two divisions of the eighteen principal titles of law. The first germs of some of these theories may be traced to the Code of Manu, and it is interesting to note how these germs have been developed by Narada. As a rule, his judicial theories show an infinitely advanced stage of development as compared to Manu's, and his treatment of the law of procedure, in particular, abounding as it does in technical terms and nice distinctions, and exhibiting a decided preference for docu- mentary evidence and written records over oral testimony and verbal procedure, exhibits manifest signs of recent composition.

An analogous inference may be drawn from the fact that Narada acquainted ^^^^^^ ^^^ apparently acquainted with a

with the Code work either identical with, or closely allied

analysis of the contents of the original Code composed by

Manu in 100,000 j-lokas corresponds in the main to the topics

^ Forchharamer, The Jardine Prize Essay, pp. 54-58.

treated in that work as it now stands. He quotes the open- ing verse of the original gigantic work of Manu, and it is a remarkable coincidence that this verse agrees with Manu I, 5, 6, i.e. with the actual exordium of the Code of Manu, as vv. 1-4 serve as an introduction only, and may be a subse- quent addition. Forensic law is alleged to have formed the subject of the ninth chapter of the original composition of Manu. In the Code of Manu, law and judicature are dis- cussed in the eighth and ninth chapters. The twenty-four chapters, divided into one thousand and eighty, i. e. 45 x 24 sections, of the original Code, seem to represent double the twelve chapters of the Code of Manu. On the other hand, Sumati, the son of Bhrigu, who is alleged to have reduced the original Code of Manu to its present size, and to have produced the law-book now current among man- kind, may be identified with Bhrigu, the supposed author of the actual Manu-smr/ti; and the number of 4,000.ylokas, which is assigned to his composition, may be taken to be a rough statement of the actual extent of the Manu-smrzti, which in reality runs up to 2,685 jlokas only.

A consideration of these facts leaves but little doubt that the compiler of the Narada-smr/ti, whoever he was, must have been acquainted with a work closely akin to the now extant Manu-smr/ti. This is so much the more probable because several of his references to the authoritative enunciations of Manu may be actually traced to the Manu- smr^ti ^, and because a number of verses either occurring in the MSS. of the Narada-smr/ti, or attributed to him by the digest-writers, recur in the Code of Manu.

However, though acquainted with the Code of Manu, the T^.. so-called Narada was far from offering: a

between Manu mere slavish reproduction of its doctrines in his own work. On the contrary, the Narada-smr/ti must be considered as an independent, and therefore specially valuable, exposition of the whole system of civil and criminal law, as taught in the law schools of the period. It is in fact the only Smr/ti, completely preserved

^ See e. g. Appendix 26 (p. 227) and Manu VIII, 320; Appendix 34 (p. 228) and Manu VIII, 334; Appendix 36, 37 (p. 228) and Manu VIII, 124, 125.

in MSS., in which law, properly so-called, is treated by itself, without any reference to rules of penance, diet, and other religious subjects; and it throws a new and an important light on the political and social institutions of ancient India at the time of its composition. Several of the doctrines propounded by Narada are decidedly opposed to, and cannot be viewed in the light of developments from, the teaching of Manu. Thus e.g. Narada advocates the practice of Niyoga, or appointment of a widow to raise offspring to her deceased husband; he declares gambling to be a lawful amusement, when carried on in public gaming-houses; he allows the remarriage of widows; he virtually abrogates the right of primogeniture by declaring that even the youngest son may undertake the management of the family property, if specially qualified for the task; he ordains that, in a partition of the family property, the father may reserve two shares for himself, and that, in the case of a partition after his death, the mother shall divide equally with the sons, and an unmarried sister take the same share as a younger son; he lays down a different gradation of fines from those laid down by Manu, &c.-^ It may be argued that Narada would not have ventured Their probable ^o differ from the Code of Manu on such origin. essential points as these, unless he had found

good authority for doing so in other early works or dicta attributed to the primeval legislator of India, and that this fact furnishes another reason for attaching some credit to what Narada relates of the original Code in 100,000 verses, and of its successive abridgment. Thus much is certain, that a great many floating proverbs and authoritative enunciations of Manu and of Vriddha. or Br/lian-Manu must have existed by the side of the Code of Manu in the times of Ndrada as well as before and after his period, when they were quoted in the Mahabharata^ and in the Com-

2 See Narada XII, 80-88, and Manu IX, 65-68; Narada XVII, 1-8, and Mann' IX, 221-228; Narada XII, 97, and Manu V, 162; Narada XIII, 5, and Manu IX, 105-109; Narada XIII, 13, 14, and Manu IX, 104, 131; Narada, Appendix 30, 31, and Manu VIII, 138.

mentaries and Dharmanibandhas from Medhatithi's Manu- bhashya down to 6^agannatha's Digest, translated by Cole- brooke. The compiler of the N^rada-sm/'/ti may have incorporated a number of these dicta in his own com- position. At the same time, it is far from improbable that a work on law, called the Code of Manu in the version of Narada, may have existed by the side of the celebrated Code of Manu in the version of Bhr/gu, and that the unknown compiler of the Narada-smnti may have utilised that work for his own composition, and enhanced the value and authority of the latter by referring to, and arranging in his own way, the reports current with regard to Manu and Narada. The precise nature of the origin of such a work as the Narada-smr/ti must needs remain a matter for speculation; but it certainly was an established practice with Sanskrit writers to graft their own compositions on earlier works attributed to fabulous personages of the heroic age of India, and indeed to fabricate an authority of this kind for the productions of their own pen.

The probable date of the Code of Manu may be turned Date of the ^o account for determining the date of the Narada-smr/ti. Narada-smr/ti; just as the presumable date of the latter work has been used in its turn for fixing the chronological position of Manu. The composition of the two works is separated, apparently, by a considerable interval of time. If, therefore, the date of Manu has been rightly placed between the second centuries B.C. and A.D. by Professor Biihler ^, it would seem to follow that the Narada-smr/ti can hardly belong to an earlier period than the fourth or fifth century A. D. The same con- clusion may be arrived at by other, and independent considerations.

Thus the Narada-smr/ti agrees on many important

Compared with points, especially in the law of evidence,

other Smrztis, ^ith the Dharma^astras or Smr^tis of

Ya^72avalkya, Vish;m, BWhaspati, Katyayana, and Vyasa.

It may be a little older than the three last-named works,

which belong to the latest productions of the Smr^'ti epoch of Hindu Law, but its legal rules and judicial theories have a decidedly more advanced character than either Vishnu's or Ya^^avalkya's. The Smriii of Vish;/u cannot belong to an earlier period than the third century A. D. ^, and the Ya^«avalkya Smrzti is not likely to be anterior to it in date^.

Again, the judicial trial which is described in the well- and with the drama known drama MrtkMsiksL^ikk corresponds

MrtWiak&/ika. in all essential features to the rules laid down in Narada's chapter on ' The Plaint ^.' If, then, the Naradiya Dharmai-astra and the Mrikk/iaka.tikk are contemporaneous productions, we have a further reason for assigning the composition of the former work to the fifth or sixth century A. D. It may also be noted that Narada (XII, 74) regards sexual intercourse with a female ascetic, pravra^ita, as a kind of incest. In the earlier Indian dramas likewise, such as Kalidasa's Malavikagnimitra and 5udraka's Mrikk/iaksifika., the position of nuns and monks is highly dignified.

Last, not least, the European term Dinara, i. e. denarius

^, _^, or b-nvdpLov, which is so important for

the purposes of Indian chronology, occurs repeatedly in the Narada-smWti. In the first passage (Introd. II, 34, p. 32), Dinaras are mentioned among other objects made of gold, and it would seem that a gold coin used as an ornament is meant, such as e. g. the necklaces made of gold mohurs, which are being worn in India at the present day. 'A string of Dinaras' (dinara- malay a) used as a necklace occurs in a well-known Jain work, the Kalpa-sutra of Bhadrabahu *. It is, however, possible that the ' Dinaras or other golden things' may be gold coins simply, and that Narada means to refer to forged or other- wise counterfeit coins. The second passage (Appendix v. 60, p. 232) is specially valuable, because it contains an exact

^ Sacred Books of the East, vol. vii, p. xxxii. ^ Tagore Law Lectures, p. 49. ^ See, particularly, p. 27, note on 18.

* See Dr. Jacobi's edition, par. 36 (p. 44), and the same scholar's translation of the Kalpa-sutra, Sacred Books of the East, vol. xxii, p. 232.

statement of the value of a Dinara which, it says, is called a Suvan^a also. The reception of Dinaras among the ordinary coins of that period shows that their circulation in India must have commenced some time before the Narada- smr^ti was written. The first importation of gold Dinaras into India cannot be referred to an earlier period than the time of the Roman emperors, and the gold Dinaras most numerously found in India belong to the third century A. D.^ The earliest reference to a work called Naradiya References to Dharma^astra seems to be contained in a Narada. work of the sixth century, Ba;/a's Kadam-

bari^. Whether the compiler of the Pa;'^>^atantra was ac- quainted with the Narada-smr/ti appears to be doubtful. The Pa^/^atantra in Kosegarten's edition contains a legal text which is attributed to Narada, though it is not to be found in the Narada-sm?^2ti. The standard Bombay edition of the 'Pa.nk2Lta.ntr a. has that very text, but the name of Narada is omitted ^. Medhatithi's Manubhashya, which seems to belong to the ninth century, contains several references to the Narada-smr/ti, and Asahaya, who appears to have preceded Medhatithi, is the reputed author of the ancient Commentary on it, which has largely been used for the present work *.

These considerations tend to show that the composition ^, of the Narada-smr/ti cannot be referred to

a more recent period than the fifth century A.D., or the sixth century at the very latest. Nor can it belong to a much earlier age than that. This estimate of its age agrees with the results arrived at, thirteen years ago, from the very scanty data then available.

* Biihler, S. B. E., vol. xxv, p. cvii; West and Biihler, p. 48; Max Miiller, History of Ancient Sanskrit Literature, p. 245; Jolly, Tagore Law Lectures, p. 36; Hornle, Proceedings of the Seventh Congress of Orientalists, p. 134.

^ P. 91 in Peterson's edition. See Biihler, Sacred Books of the East, vol. xxv, p. cvii, note i.

3 See Kosegarten's Pa«/^atantra III, 94; Bombay ed., Ill, 2. It is true that the two texts immediately preceding the text in question in the Pa^/^atantra may be compared with Narada XI, 2 and I, 5, 79,

* The fact that Asahaya refers to a coin called dramma, i. e. the Greek Spaxnv, may be used for fixing the earlier limit of his date.

The present translation, unlike the Institutes of Narada previously published by myself (London, Triibner & Co., The present 1^76), is based in the main on what may be translation. termed the large version of Narada, and accords throughout with the editio princeps of the Narada-smr/ti in the Bibliotheca Indie a. The reasons which have induced me to consider the large version as the original and authentic composition of Ndrada, and to make it the basis of my edition of the Sanskrit text in the Biblio- theca Indie a, have been stated in my volume of Tagore Law Lectures, pp. 54-56. In those parts of the work also where both versions agree, or where the only extant MS. of the large version is deficient and has to be supplied from the MSS. of the minor version, the present translation will be found to differ not inconsiderably from my previous render- ing of the ' Institutes of Narada.' The discovery of five valuable MSS. of the minor version, besides the three used in preparing the ' Institutes of Narada,' the recovery of Asahaya's ancient and valuable Commentary on the Narada- smrtti, and the dies diem docet have united to produce a considerable number of new results. Among the new MSS. discovered, the fifteenth-century Nepalese Palm-leaf MS. of Mr. Bendall is the most important, and has furnished an entire new chapter, the authenticity of which is proved by numerous references in the mediaeval and modern Digests of Law. The chapter in question has been termed an Appendix in the present work (pp. 223-232). It is found, likewise, in a Nepalese paper MS. of the minor version, discovered very recently by Mr. Bendall among the Nepalese MSS. of the British Museum, where it had been labelled wrongly as ATaurapratishedha.

The Commentary of Asahaya, as far as it goes, has Asahayaand furnished the substance of the foot-notes Kalya«abha//a. ^q the present translation, in which it has been quoted constantly as 'A.' Asahaya was a standard writer in the province of Hindu Law, and his Naradabhashya is a very valuable production indeed. He shares with other early commentators of law-books the pecuHarity of indulging every now and then in illustrations

taken from the every-day life of his period, which help to throw some light on the practical working of Indian Law in those times. As an instance of this tendency I would cite his remarks on a rule concerning liability for debts (pp. 43, 44). Of course it would be dangerous to trust his philological skill everywhere, and some of his interpreta- tions are decidedly artificial. What is worse, the Com- mentary of Asahaya has not been preserved in its original shape, but in a recast due to one Kalya;^abha//a, whose name is entirely unknown to fame. It is just possible that Kalya7?abha//a, instead of confining his activity to sup- plying deficiencies and correcting mistakes in the copies of Asahaya's Commentary, may have inserted some new verses in the text of the Narada-smr/ti as well. Such might be conjectured, for example, to be the origin of the four verses, Introd. I, 2,1-2,4 (pp. 9-13), which are quoted in none of the authoritative Digests, and objectionable as to grammar and metre. It should be remembered, however, that Kalya/^abha^/a declares the original work of Asahaya to have been spoiled by negligent scribes, and so the grammatical blunders may be charged to their account.

The latter half of Asahaya's Commentary being lost, I had to avail myself for the corresponding portion of the

Other auxiliary Narada-smr^'ti, of the glosses of other me- wntings. diaeval writers, by whom the texts of Na- rada have been quoted and discussed a great deal. Their opinions have been adverted to very fully, in the chapter on inheritance especially, both on account of the practical importance of inheritance for the law-courts of modem India, and because each of the various schools of Sanskrit lawyers has been anxious to interpret the sayings of Na- rada to its own advantage. For the curious and some- what obscure disquisition on fourteen kinds of impotency (XII, 11-18, pp. 167-169), I have been able to use the advice of my late lamented friend Dr. Haas, the well-known student of Indian medical science. A somewhat analogous passage in the canonical literature of the Buddhists has been kindly pointed out to me by Mr. Rhys Davids \

^ Aullavagga X, 17, i. See Sacred Books of the East, vol. xx, p, 349.

The sign of an asterisk {*) has been prefixed to those Narada's repnte texts of Narada which were found to be as a legal writer, quoted in one or several of the Sanskrit Commentaries or Digests of Law. The same method has been observed previously in the Bibliotheca Indica edition of the Sanskrit text, but a considerable number of quotations has come to light since then. The repute of Narada as a legal writer appears to have been so great that upwards of half his work has been embodied in the authoritative compositions of the mediaeval and modern writers in the province of Sanskrit law.

Under the heading of Quotations from Narada, all those texts have been collected at the close of the present transla- * Quotations from tion which are attributed to Narada in one or Narada.' several of the Digests and Commentaries, without being traceable in the MSS. of the Narada-smr/ti. Between these quotations have been inserted, for the sake of completeness and in order to fill up the gaps between the single texts contained in the quotations, a number of unpublished texts from the MSS. of the minor version, and from the final chapter on Ordeals in the ancient Nepalese MS. of the Narada-smr^ti ^. A complete edition of that chapter will, I trust, be published by Dr. A. Conrady. The quotations have been taken from all the principal Sanskrit works on law, from Medhatithi's Manubh^shya downwards. For a detailed statement of the particular work and chapter from which each text has been quoted, I may refer to the foot-notes. Most texts being quoted in more than one work at a time, it has not been thought necessary to give com- plete references to every such work in each particular case, but I have made a point of referring as much as possible to those law-books which exist in English, both for convenience of reference and in order to facilitate a comparison of the present translation with previous renderings of the texts of Narada. All the unpublished texts have been given in the foot-notes in the original Sanskrit, together with the names of the works from which they have been taken. The MSS.

^ Regarding that chapter, see Preface to Narada-smrzti, pp. 6, 7.

of these works were obtained principally from the India Office and Deccan College libraries; for some of them I was able to use copies of my own. A peculiar source of difficulties lies in the fact that these works differ con- siderably as to the names of the authors of the single texts. Many texts w^ere no doubt proverbial sayings, and appropriated therefore by several writers. In other cases, the mutually conflicting statements of various writers regarding the authorship of the texts may be attributed to carelessness. Grammatical blunders and faulty readings, as well as the varietas lectionis, have been referred to in important cases only. I subjoin a list of the abbrevia- tions used in the foot-notes to the present translation.

Apararka=Apararka's Commentary on the Ya^wavalkya-smr/li, Deccan College MS.

Col. Dig. = Colebrooke's Digest of Hindu Law (translation of 6^agannatha's work).

Dayabhaga=Colebrooke's translation of the Dayabhaga on Inheri- tance, or the Sanskrit text of the D., in the Calcutta edition of 1829.

Dayakramasahgraha=Wynch's translation in Stokes's Hindu Law- Books, or the Calcutta edition.

(j^agannatha=6^agannatha's Vivadabhangarwava (the work trans- lated by Colebrooke), Bengali MS. in my possession.

M. or Mitakshara=Mitakshara, the Calcutta edition of the Vya- vaharadhyaya, or Colebrooke's version of the Mitakshara on Inheritance. M. Macn. = Macnaghten's translation of the Mitakshara on Ad- ministration of Justice.

Manu=the Code of Manu, ed. Jolly, London, 1887; or Professor Biihler's translation of the same. For the principal editions and translations of Apastamba, Baudhayana, and the other old law- books, I may refer to my volume of Tagore Law Lectures. May. = Mandlik's translation of the Vyavahara Mayiikha, in his

Hindu Law, Bombay, 1880. May. (text) = Man dlik's edition of the same, ibid. Mayukha=the same work.

Minor Narada= The Institutes of Narada, transl. by J. Jolly, London, 1876; or the unpublished Sanskrit original of the same work.

Narada-smmi = The Institutes of Narada, edited by J. Jolly, in the Bibliotheca Indica series.

Nepalese Narada = Mr. Bendall's Nepalese Palm-leaf MS. of Narada.

Raghunandana=Raghunandana's Vyavaharatattva, the Calcutta

edition. Ratn.=Vivada Ratnakara, in the Bibliotheca Indica.

Smmi^.=Deva««abha//a's Smnti/^andrika, India Office MS. Smn'ti/^andrika=the same, or the chapter on Inheritance, transl.

by Iyer. Tod, or 7b^arananda= Vyavaharasaukhya in Tb^ar Mall's Tb^ara-

nanda, Deccan College MS. (Uncertain) = texts quoted as ' Smnti' generally, without the name

of the author being given. Vasish//^a, see Manu.

Vtram.=Viramitrodaya, in Jibananda Vidyasagara's edition. Vishwu, see Manu.

Viv.=Vivada>^intama;^i, translated by Tagore, Calcutta, 1863. Vivaday^intama;2i=the Sanskrit text, Calcutta edition of 1837. V. T.=Vivadata«^ava by Kamalakara, India Office MS. Vy. ^.=Vyavahara/^intama«i by Va/^aspatimi^ra, Devanagari MS.

I. Holy Manu, in order to promote the welfare of all beings, composed a book here, which was to become the foundation of the established rule of con- duct. It was made up of twenty-four sections, on (i) the creation of the world; (2) the various kinds of living beings; (3) the extent of the virtuous

I. Regarding the historical value and bearing of this Preface, see Introduction. The table of contents, which is here given for the original Code of Manu, corresponds in the main to the contents of the now extant version of that work. Thus the creation of the world is treated of, Manu 1, 5-57; the various kinds of living beings,!, 34-50; the virtuous countries, II, 1 7-23; the constitution of a judicial assem- bly, XII, 1 08-1 14; the performance of offerings. III, 69-286; IV, 21-28, &c.; established usage (AHra), passim, all the multifarious rules of private morals and social economy falling under this head; forensic law, chapters VIII and IX; the extirpation of offenders, IX, 252-293; the mode of Hfe of a king, chapter VII; the system of the four castes and four orders, I, 87-101; IX, 325-336, &c.; marriage laws, III, 1-62; the mutual relations between husband and wife, IX, 1-103; the order of succession, IX, 103-220; the performance of obsequies, III, 122-286; rules of purification, V, 57-146; rules of diet, V, 1-56; saleable commodities, and those which may not be sold, X, 85-94; the classification of offences, XI, 55-71; the twenty-one hells, IV, 88-90; penances, XI, 72- 266. The Upanishads are frequently referred to, e.g. II, 165; VI, 29. Secret or mysterious doctrines are e.g. those taught in the twelfth chapter of the Code of Manu. A somewhat analogous table, of contents of the Code of Manu is given in that work itself, I, 111-118.

country; (4) the constitution of a judicial assembly; (5) the performance of offerings according to the Vedas and Vedaiigas; (6) established usage; (7) forensic law; (8) the extirpation of offenders; (9) the mode of life of a king; (10, 11) the system of the (four) castes and (four) orders; (12) marriage laws; (13) the mutual relations between husband and wife; (14) the order of succession; (15) the performance of obsequies; (16) the elucidation of difficult points regarding purification; (17) the rule as to what may be eaten and what not; (18, 19) the law regarding vendible commodities, and those which must not be sold; (20) the various kinds of crime; (21) heaven and hell; (22) penances; (23) the Upanishads; (24) secret doctrines.

2. Holy Manu, after having thus (composed) that (book) in a hundred thousand ^lokas, and in one thousand and eighty chapters, delivered it to the divine sage Narada. He having learnt It from him, reflecting that a work of this kind could not be remembered easily by mortals on account of its size, abridged it In twelve thousand (^lokas) and delivered it to the great sage Marka^^^eya.

3. He having learnt it from him, and reflecting on

2. The Manu who is referred to in this place is no doubt Manu Svaya^zbhuva, or ' Manu sprung from the self-existent Being,' to whom the Code of Manu is said to have been revealed by Brahman; see Manu I, 58. Narada is one of the seven principal /?/shis. He is also reckoned among the Pra^apatis, ' lords of creatures * or 'creators,' and is viewed as the chief of heavenly musicians. Markaw^eya is elsewhere called ' the long-lived,' and is celebrated for his austerities. He is the reputed author of a well-known Purawa, called after him the Mdrka«</eya Purawa.

3. Bhngu, one of the great i?zshis of antiquity, is in the Code of Manu introduced as a son of Manu, and as the compiler of the

the (limited duration and) capacity of human life, reduced it to eight thousand (^lokas), and delivered this (abridgment) to Sumati, the son of Bhrtgu.

4. Sumati, the son of Bhrtgu, after having learnt (this book) from him and considered what human capacity had been brought down to through the (successive) lessening of life (in the four ages of the world), reduced it to four thousand (xlokas).

5. It is this (abridgment) which Manes and mortals read, whilst the gods, Gandharvas, and other (ex- alted beings) read in extenso the (original) code, consisting of one hundred thousand (^lokas). There the first i-loka runs as follows: ' This universe was wrapped up in darkness, and nothing could be dis- cerned. Then the holy, self-existent Spirit issued forth with his four faces.'

6. After this exordium, chapter follows chapter

present version of the Code of Manu; see Manu I, 35, 59, 60. The fact of his being mentioned here as the father of Sumati, the compiler of the final recension of the Code of Manu, renders it probable that this work may have closely resembled the now extant Code of Manu. However, the latter work has not more than 2684 ^lokas, instead of the 4000 attributed to the version of Sumati.

4. As for the successive lessening of life, and general deteriora- tion of the world, in the four ages, Kma, Treta, Dvapara, and Kali, see Manu I, 81-86.

5. A. observes expressly that the term ' there ' refers to the original Code in 100,000 jlokas. The jloka here quoted is nearly identical with Manu I, 5 a, 6 a.

6. The Matnlia or ' Introduction ' (compare divyamatnTca, a * general introduction to the law regarding ordeals,' in the Mita- kshard, p. 139) which is here attributed to Narada, appears to have formed part of the abridgment in 12,000 jlokas, which was originally composed by him. It was composed in the SGtra style, i.e. it was made up of aphorisms. The jlokas are frequently designed as Sfitras by the commentators of law-books. Supposing this- work to have consisted of twelve chapters, like the present Code

continuously. There the ninth chapter is headed, ' Judicial Procedure.' There Narada, the divine sage, composed an Introduction in the Sutra style, as follows. It begins with the following ^loka.

of Manu, each chapter would have contained about looo jlokas. The Narada- smr/ti actually has about looo jlokas. In the Code of Manu, forensic law is treated in the eighth and ninth chapters. The compiler of the present work declares his composition to be the ninth chapter of Narada's abridged version of the Code of Manu. In the above enumeration of twenty-four subjects treated in the original Code of Manu, judicial procedure is introduced as the seventh and eighth subject. This coincidence indeed might be accidental.

*i. When mortals were bent on doing their duty alone and habitually veracious, there existed neither lawsuits, nor hatred, nor selfishness.

* 2. The practice of duty having died out among mankind, lawsuits have been introduced; and the king has been appointed to decide lawsuits, because he has authority to punish.

3. Documents and (the testimony of) witnesses are declared to be the two methods for clearing up doubtful matters, where two parties are quarrelling with one another.

'"' 4. Proceedings at law are of two kinds; attended by a wager, or not attended by a wager. A lawsuit

I, I. Where the sun shines, there is no shade. Where there is shade, there the sun does not shine. Similarly, where virtue reigns, there are neither lawsuits, nor hatred, nor selfishness. On the other hand, where these three are, there virtue is not to be found. A. The object of this introductory portion is to show how far judicial procedure is connected with Dharma * Virtue,' or ' Duty,' the principal subject of an Indian law-book. The Viramitrodaya and other compilations attribute a further hemistich to Narada, in which the happy age here alluded to is referred to the period 'when Manu, the father of mankind, was reigning on earth.'

3. Ya^navalkya II, 22; Vasish/y^a XVI, 10; Vishwu VI, 23.

4. * A lawsuit attended by a wager' is where one of the parties promises in writing to pay a certain sum to the king, over and above the amount in dispute. ' A lawsuit not attended by a wager' is one devoid of a stipulation of this sort. Viramitrodaya. This is apparently the correct explanation. Asahaya observes that the amount staked may be much smaller than the amount in dispute.

attended by a wager is where (either of the two parties) stakes in writing a certain sum which has to be paid besides the sum in dispute (in case of defeat).

5. In a lawsuit attended by a wager, he of the two who is cast must pay his stake and a fine when his defeat has been decided.

* 6. The plaint is declared to be the essential part of a proceeding-at-law. If he succumbs with it, the defendant loses the whole suit. If he can prove the charge, he gains the suit.

^^7. Gatherings (kula), corporations {sr&m), assem- blies (ga/^a), one appointed (by the king), and the king (himself), are invested with the power to decide

Thus, although the sum in dispute be very considerable, one may- stake two hundred Pawas, or a hundred Pawas, or fifty Pawas only.

5. According to Asahaya, the wager must not be laid till the two first stages of the trial, the charge and the answer, are over. The wager may be laid either by the plaintiff or by the defendant. The plaintiff, whose declaration has been refuted by the defendant, stakes a certain sum on the issue of the case. Or the defendant, after having denied the correctness of the charge, stakes a certain sum on the correctness of his own statements, to be proved by the issue of the case. Asahaya does not say to whom the sum staked has to be paid in his opinion. It may be observed that, according to Burmese law, which is an offshoot of the early law of India, ten per cent, of the sum staked should be given to the judge and to the pleaders, and the remainder to the victorious party; see Richard- son's Dhammathat, p. 73. Ya^rlavalkya II, 18 (see Mitakshara).

7. Kula means an assemblage consisting of a few persons. Sreni denotes an assemblage of eminent merchants, &c. Ga«a denotes a fellowship, such as e.g. the Brahman caste. A. Other commentators take kula to mean a family meeting; sreni, a company of artizans; ga«a, an assembly of cohabitants. These three stages of private arbitration may be compared to the modern Panchayats of India.

lawsuits; and of these, each succeeding one is superior to the one preceding him in order.

'""8. Judicial procedure has four feet, four bases, four means, it benefits four, reaches four, and pro- duces four results. This has been declared.

* 9. It has eight members, eighteen topics, a hundred branches, three efficient causes, two modes of plaint, two openings, and two issues.

^'' 10. Virtue, a judicial proceeding, documentary evidence, and an edict from the king are the four feet of a lawsuit. Each following one is superior to the one previously named.

*ii. There virtue is based on truth; a judicial pro- ceeding (rests) on the statements of the witnesses; documentary evidence (rests) on declarations reduced

II. Where both parties adhere strictly to truth in their statements, there is virtue or justice clearly enough, judicial procedure, written proof, and a royal edict being quite unnecessary in that case. Where either of the two parties is suspected to have made a false statement, judicial procedure has to be resorted to, which depends on the evidence given by witnesses. Documentary evidence (^aritra) is where the statements of witnesses are consulted, written in their own hand, on a leaf, or on birch-bark, or on a strip of rind, or some other writing material. That suit, however, which has been decided by an edict from the king himself, is superior to all the rest, according to the saying, * What has been decided in a village, goes into the town. What has been decided in the town, goes before the king. What has been decided by the king, though wrongly decided, cannot be tried anew.' A. The term ^aritra has been rendered in conformity with this interpretation, which is confirmed by the remarks of A'andejvara on this jloka. Other commentators and several MSS. of the Narada-smn'ti read svi- karawe or pra^nakarawe for pustakarawe. These commentators explain the term ^aritra in conformity with a text of Br/haspati, * Whatever is practised by a man, proper or improper, in accordance with local usage, is termed ^aritra (custom).'

to writing; an edict (depends) on the pleasure of the king.

*I2. Because the four means, of conciliation and the rest, are adopted, it is said to have four means. Because it protects the four orders, therefore it is said to benefit four.

*i3. Because it affects criminals, witnesses, the assessors of the court, aiid the king, to the amount of one quarter each, therefore it is said to reach four.

* 14. Because it produces these four, justice, gain, renown, and esteem among men, therefore it is de- clared to produce four results.

* 15. Because it consists of these eight, the king,

12. Because a lawsuit is decided by resorting, as the case may be, to any one of the four means of success, viz. conciHation, division, bribery, and force, therefore it is said to have four means. Because it protects or guards the four castes and the four orders, therefore it is said to benefit four. A. The four orders are the four stages in the life of a twice-born man: student, householder, hermit, and ascetic.

13. If unjustly decided, it brings evil on the four persons men- tioned in this jloka. If justly decided, it confers good on them. A.

15. The several functions of the eight (or ten) 'members' of a judicial proceeding are thus described in a jloka attributed to Brzhaspati. * The chief judge publishes the sentence. The king passes it. The assessors investigate the facts of the case. The law-book dictates the judgment, i.e. the victory of the one party, and the fine imposed on the other party. Gold and silver serve the purpose of administering ordeals. Water is used for relieving thirst or appeasing hunger. The accountant has to compute the sums. The scribe has to record the proceedings. The attendant must compel the defendant and the witnesses to appear in court, and detain both plaintiff and defendant, if they have given no sureties.' According to Asahaya, the term * the king's righteous officer ' has to be referred to the king's chief judge, and by ' law-

his dutiful officer, the assessors of the court, the law- book, the accountant and scribe, gold, fire, and water; therefore it is said to have eight members.

* 1 6. Recovery of a debt, deposits, partnership, resumption of gift, breach of a contract of service,

* 1 7. Non-payment of wages, sales effected by another than the rightful owner, non-delivery of a sold chattel, rescission of purchase,

*i8. Transgression of a compact, boundar^^ dis- putes, the mutual duties of husband and wife, law of inheritance, heinous offences,

*i9. Abuse, assault, games, and miscellaneous, these are (the eighteen titles of law) on account of which (judicial procedure) is said to have eighteen topics.

■^^ 20. Their branches amount to one hundred and

books ' are meant the compositions of Manu, Narada, Vijvarfipa, and others.

20-25. The 132 divisions of the eighteen titles of law are stated as follows by Asahaya: —

I. Recovery of a debt. I. Which debts have to be paid, and which not, &c.; 2. debts (in general); 3. property; 4. means of livelihood of a Brahman in times of distress; 5. modes of proof; 6. lending money at interest; 7. usurers; 8. sureties; 9. pledges; 10. documents; 11. incom- petent witnesses; 12. witnesses for the plaintiff; 13. witnesses for the defendant; 14. six cases where witnesses are unnecessary; 15. validity of testimony, how long retained; 16. false witnesses; 17. exhorting the witnesses; 18. valid evidence; 19. invalid evidence; 20. what has to be done, where both witnesses and documents are wanting; 21. ordeal by balance; 22. ordeal by fire; 23. ordeal by water; 24. ordeal by poison; 25. ordeal by sacred libation.

2. Deposits. I. Nyasa (common deposits); 2. aupanidhika (sealed deposits);

thirty-two. On account of the multifariousness of human concerns, (a judicial proceeding) is said to have a hundred branches.

21.* Recovery of a debt' has twenty-five divisions; ' deposits ' has six; ' partnership ' has three; * re- sumption of gift ' has four;

3. ya^itaka (loans for use); 4. anvahita^a (deposits for delivery);

5. jilpihastagata (bailments with an artizan); 6. pogaw^adhana (property of a minor).

3. Partnership. I. The common undertakings of partners in business; 2. sacrifices offered by officiating priests; 3. tolls.

4. Resumption of gift. I. What may be given; 2. what may not be given; 3. valid gifts; 4. invalid gifts.

5. Breach of a contract of service. I. Service; 2. impure work; 3. conduct of a student; 4. rules of conduct for an apprentice; 5. rules of conduct for a manager;

6. fifteen sorts of slaves; 7. emancipation from slavery; 8. legal position of a slave; 9. release of a slave by the favour of his master.

6. Non-payment of wages. I. The wages of servants; 2. cowherds and the rest; 3. fee of a public woman; 4. questions arising in regard to the payment of rent.

7. Sales effected by another than the rightful owner. I. Sale without ownership; 2. treasure- trove.

9. Rescission of purchase. I. Time; 2. worn clothes; 3. loss on metals (caused by working them); 4. preparing cloth.

I. Quarrels regarding a field; 2. quarrels regarding a house; 3. quarrels regarding a garden; 4. quarrels regarding a well; 5.

2 2. * Breach of service ' consists of nine divisions;

* wages ' has four divisions; there are two divisions of * sales effected by another than the rightful owner;'

* non-delivery of a sold chattel ' has a single division only;

23. * Rescission of purchase' has four divisions;

* transgression of compact ' is onefold; ' boundary disputes' is twelvefold; there are twenty divisions in ' mutual duties of husband and wife; '

quarrels regarding a sanctuary; 6. quarrels regarding (the boundary of) a village; 7. prohibition to decorate (to cause nuisance in?) a cross-road, &c.; 8. making a dike; 9. wasteland; 10. protection of grain; 11. compensation for grain (destroyed by cattle); 12. the foundation (of a householder's existence).

12. Mutual duties of husband and wife. I. Examination of a man's virile potency; 2. gift of a maiden in marriage; 3. the offence of insulting an officiating priest; 4. the right time for giving a maiden in marriage; 5. the offence of casting a blemish on an unblemished maiden, or suitor; 6. marriage forms; 7. rule regarding incontinent females and other (unchaste women); 8. what constitutes legitimate issue; 9. illicit intercourse; 10. punishment of adultery; 11. incest; 12. intercourse with cattle, and other crimes of this sort; 13. raising issue where there is no husband; 14. the offspring of adulterous intercourse; 15, 16. authorised and unauthorised intercourse of a woman with one not her husband; 17, 18. rule regarding bad wives and hus- bands; 19. conduct prescribed for a woman whose husband is ab- sent; 20. definition of a rendezvous.

13. Law of inheritance. I. Definition of heritage; 2. its distribution; 3. indivisible pro- perty; 4. what constitutes stridhana; 5. descent of stridhana after the death of the proprietress; 6. rules regarding the property of brothers; 7. division of the property between parents and sons; 8. case of a daughter whose father is unknown, &c.; 9. case of a father unauthorised (to raise issue); 10. share of a son suffering from a chronic or agonising disease, or otherwise (incapable of inheriting); 11. division among the sons of a reunited coparcener;

24. ' Law of inheritance ' consists of nineteen divi- sions; ' heinous offences ' of twelve; of both ' abuse ' and ' assault ' there are three divisions;

25. 'Gambhng with dice and betting on animals' has a single division; ' miscellaneous ' has six divi- sions. Thus, adding up all these branches (of the principal titles of law), there are one hundred and thirty-two of them.

12. management of the property of a deceased or absent brother;

13. work done by one to whom the management of the family property has been entrusted, &c.; 14. decision in the case of a contested partition; 15. enumeration of the divers kinds of sons. [There ought to be nineteen subdivisions of the law of inheritance, instead of fifteen. That number might be obtained by counting each reason of exclusion from inheritance as a separate division.]

I, What constitutes a heinous offence; 2. punishments ordained for heinous offences; 3. robbery; 4. distinction between articles of inferior, middling, and superior value; 5, 6. the two kinds of robbers; 7. seizure of robbers; 8. granting food or shelter (to thieves), &c.; 9. thieves; 10. punishment of heinous offences and larceny; 11. tracing a thief by the foot-marks; 12. confiscation of the property of thieves or others, when the stolen goods have not been recovered.

15, 16. Abuse and assault. I. Abuse; 2. assault; 3. punishments ordained for both offences.

17. Gambling with dice, and betting on animals.