7

7. If the king decides lawsuits justly, the assessors obtain their own absolution through the just decision. A.

9. Where justice, having been hit by Injustice, enters a court of justice, and the members of the court do not extract the dart from the wound, they are hit by it themselves.

10. Either the judicial assembly must not be entered at all, or a fair opinion delivered. That man who either stands mute or delivers an opinion contrary to justice is a sinner.

1 1. Those members of a court who, after having entered it, sit mute and meditative, and do not speak when the occasion arises, are liars all of them.

* T2. One quarter of the iniquity goes to the offender; one quarter goes to the witness; one quarter goes to all the members of the court; one quarter goes to the king.

13. The king is freed from responsibility, the

9. Virtue is here compared to one wounded with a weapon, who goes to a physician in order to be cured by him. The judges are compared to physicians who, by means of a careful judicial investi- gation, deliver justice from the attacks of iniquity. If they do not extract the dart of iniquity, they are killed themselves by the dart of iniquity, which has been spared by them. A. Nearly identical with Manu VIII, 12.

10. Either the judicial assembly must not be entered at all, not even a single time, or an opinion conformable to justice must be delivered. A judge who remains silent, or who, when asked to pass a sentence, says what is contrary to justice, is criminal, i.e. a great sinner. A. Nearly identical with Manu VIII, 13.

11. Those judges who sit mute in the judicial assembly, being apparently engaged in meditating over an altogether different affair than that for which the parties have appeared before the tribunal, and who fail to declare at the proper time the victory of the one party and the defeat of the other, all such persons shall be looked upon by the king as equally criminal with those who pass a false sentence. A.

12. 13. These two paragraphs belong together. If the judges

members of the court obtain their absolution, and the guilt goes to the offender, when the guilty person is punished.

14. He who, having entered the court, delivers a strange opinion, ignoring the true state of the case, resembles a blind man who regardless swallows fish together with the bones.

15. Therefore let every assessor of the court deliver a fair opinion after having entered the court, discarding love and hatred, in order that he may not go to hell.

* 16. As an experienced surgeon extracts a dart by means of surgical instruments, even so the chief

were to acquit the criminal, and unjustly to condemn the innocent party, the iniquity or sinful action committed by the unjust decree would go into four parts, i. e. a quarter of it would go respectively to the shares of the perpetrator of the deed, of the witnesses, of all the assessors of the court, and of the king. If, however, the guilty person alone is condemned, i.e. if the criminal party loses his cause, the king becomes free from guilt, the judges are free from responsi- bility, and the whole guilt falls on the perpetrator of the iniquitous deed. A. Medhttithi, in commenting on the identical rule of Manu (VIII, 18), observes that the guilt goes to the king, in case the sentence had been passed by him in person. Otherwise it goes to his chief judge. Identical with Manu VIII, 18,. 19, &c.

14. One whose eyesight is unimpaired, does not eat fish without having previously removed the bones, which would injure his mouth, his tongue, and his palate. A blind man, on the contrary, eats fish together with the bones, because he is unable to remove them. The case is similar with the eye of knowledge. A.

15. Considering all this, let a judge, after having entered the court of judicature, reject every kind of bias, and deliver a fair, i.e. an impartial opinion, in order that he may not go to hell burdened with the crime of a guilty person (acquitted by him). A.

16. As a skilful surgeon conversant with the art of extracting a dart, extracts it, though it may be difficult to get at and invisible, by tl;ie application of surgical instruments, of spells, and other manifold artful practices, even so a judge shall extract the dart of

judge must extract the dart (of iniquity) from the lawsuit.

* 1 7. When the whole aggregate of the members of a judicial assembly declare, ' This is right/ the lawsuit loses the dart, otherwise the dart remains in it.

18. That is not a judicial assembly where there are no elders. They are not elders who do not pass a just sentence. That is not a just sentence in which there is no truth. That is not truth which is vitiated by error.

iniquity which has entered a lawsuit, by employing the artful expe- dients of judicial investigation. A.

17. 'The members of a judicial assembly' are those who have come together for the trial of a cause. A.

18. This paragraph, in the original, is a verse composed in the TrishAibh metre, arxi has the look of an old versus memorial! s. Though the author of the Narada-smr/ti has incorporated it in his work, its contents do not quite fit in with his own ideas regarding the constitution of a judicial assembly, and the prominent place which he assigns to the chief judge of the king.

* I. Which debts must be paid, which other debts must not be paid; by whom, and In what form (they must be paid); and the rules of gift and receipt, (all that) is comprised under the title of * Recovery of a Debt.'

* 2. The father being dead, it is incumbent on the sons to pay his debt, each according to his share (of the inheritance), in case they are divided in interests. Or, if they are not divided in interests, the debt must

The twenty-five sections into which the law of debt has been divided in this translation correspond in the main, though not throughout, to the headings proposed by Asahaya in different portions of his work. Asahaya, as pointed out before, is not con- sistent with himself in this respect. It is curious to note that the whole law of evidence, excepting the general rules laid down in the preceding chapters, has been inserted by Narada between the divers rules of the law of debt. He seems to have followed in this respect, as in other particulars, the example set to him by the earlier legislators, such as Manu and Ya§^wavalkya.

I, I, 2. If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it accord- ing to their respective shares. If they remain united, they shall pay it in common, or the manager shall pay it for. the rest, no matter whether he may be the senior of the family or a younger member, who, during the absence of the oldest, or on account of his incapacity, has undertaken the management of the family estate. A.

be discharged by that son who becomes manager of the family estate.

* 3. That debt which has been contracted by an undivided paternal uncle, brother, or mother, for the benefit of the household, must be discharged wholly by the heirs.

'" 4. If a debt has been legitimately inherited by the sons, and left unpaid by them, such debt of the grandfather must be discharged by his grandsons. The liability for it does not include the fourth in descent.

■^^' 5. Fathers wish to have sons on their own account, thinking in their minds, * He will release me from all obligations towards superior and inferior beings.'

3. A debt contracted for the household, by an unseparated paternal uncle or brother, or by the mother, must be paid by all the heirs. If they are separate in affairs they must pay for it according to their shares. If they live in union of interests, they must repay it in common. A.

2, 3. ManuVIII, 166; VishwuVI, 27, 35, 36; Ya^wavalkya II,

4. A. proposes an explanation of this paragraph which is not in accordance with its literal meaning, and decidedly opposed to the principles of a sound method of interpretation. He says that the term * grandsons ' must be taken to relate to the grandsons of the debtor's sons, i.e. to the great-grandsons of the debtor, and that the term * the fourth descendant* signifies the fourth in descent from the debtor's sons, i.e. the fifth in descent from the debtor himself. This assumption, he says, is necessary in order to reconcile the present rule with the statements of all other legislators, and with Narada's own rule (par. 6). Vishwu VI, 27, 28; Ya^wavalkya II, 50.

5. A. uses this paragraph in support of his theory that the obli- gation to pay the debts of an ancestor extends to the fourth in descent. As the great-grandson has to discharge *the debt to superior beings,' i.e. as he has to offer the customary -Sraddhas to his great-grandfather, so he is liable for debts contracted by him, which have not been repaid.

6. Three deceased (ancestors) must be worshipped, three must be reverenced before the rest. These

6. Three deceased ancestors, i.e. the father, grandfather, and great-grandfather, may claim the discharge of their terrestrial and celestial liabilities from the fourth in descent. This rule is illustrated by the history of an action which was brought before a court in Patna. A merchant of the Brahman caste, by the name of ^S'ridhara, had lent the whole of his wealth, consisting of io,ooo drammas (drachmas), which he had gained through great labour, to a trader, by the name of Devadhara, on condition that interest amounting to two per cent, per mensem of the principal stock should be paid to him. The interest was duly paid to ^ridhara at the end of the first month. In the second month, however, Devadhara met his death through an accident. His son died of an attack of cholera. Devadhara's great-grandson alone was left. His name was Mahi- dhara. As he was addicted to licentious courses, the management of the estate was undertaken by his sons and maternal uncles. They got into the hands of a cunning Brahman called Smarta- durdhara, who advised them not to pay a single rupee to iSridhara, as he was able to prove from the law-books that he had no claim to the money. The uncles of Mahidhara, much pleased with this piece of advice, promised to give 1,000 drammas to the Brahman if they need not pay the money to -SVidhara. Thus, when at the close of the second month, the uncles and guardians of Devadhara's great- grandson, Mahidhara, were asked by ^Sridhara to pay 200 drammas, being the amount of interest due on the sum lent to Devadhara, they refused payment. They said: * We do not owe you the prin- cipal, much less any amount of interest. The Brahman Sm^rta- durdhara has pointed out to us that the obligation to pay stops with the fourth in descent.' -Sridhara was struck dumb with grief and terror on hearing this announcement made to him. When he had regained his senses, he repaired to the court of justice, attended by his family, friends, and servants, and impeached Mahidhara, together with his uncles, for their dishonesty. Both parties took sureties. The uncles of Mahidhara engaged Smartadurdhara to plead for them. After pretending his clients to be connected with his family by a friendship of long standing, he went on to refer to a text of Narada (above, par. 4), as proving that the obligation to pay the debt? of ancestors stops with the fourth in descent All his argu- ments, however, were refuted, and held out to derision by a learned

three ancestors of a man may claim the discharge of their twofold debt from the fourth in descent.

'"' 7. If a man fails to pay on demand what had been borrowed or promised by him, that sum (to- gether with the interest) goes on growing till it amounts to a hundred krores ( = one milliard).

* 8. A hundred krores having been completed, he is born again, in every successive existence, in his (creditor's) house as his slave, in order to repay the debt (by his labour).

*'^ 9. If an ascetic or an Agnihotri dies without

Brahman, by the name of Smart ajekhara, who, at the end of his address, charged him openly with having taken a bribe from his clients. The consequence was that Mahidhara and his uncles lost their cause. A. I have quoted this story in full, because it presents a vivid picture of the way in which judicial proceedings used to be transacted in ancient India. The doctrine which the story is in- tended to illustrate, viz. that the liability to pay debts contracted by an ancestor extends to the great-grandson, is opposed to the teach- ing of such an eminent authority as Vi^?lanejvara, who maintains in the Mitakshara that the great-grandson is not liable for debts contracted by his great-grandfather, and, conversely, that he does not inherit his property. See the author's Tagore Law Lectures (Calcutta, 1885). The same opinion was apparently held by the author of the Narada-smrni, as may be gathered from par. 4, and by other Smn'ti writers. It appears quite probable that the present paragraph, which is not quoted in any of the standard compilations on civil law, may have been inserted by the author of the com- mentary, who wanted to make the contents of the Narada-smrz'ti agree with his personal views. The shorter recension and the quotations, instead of the present paragraph, exhibit another para- graph, in which the obligation of the son only to release his father frojn debt is inculcated.

7. This paragraph has been translated according to the explana- tion given in Viramitrodaya, p. 358.

9. The ample heavenly reward due to an Agnihotri, i.e. one who has kept the three sacred fires from the date of his birth, or who has practised austerities without interruption, shall belong to the creditor, and not to the debtor. A.

having discharged his debt, the whole merit col- lected by his austerities and by his Agnihotra belongs to his creditors.

* 10. A father must not pay the debt of his son, but a son must pay a debt contracted by his father, ex- cepting those debts which have been contracted from love, anger, for spirituous liquor, games, or bailments.

* 1 1. Such debts of a son as have been contracted by him by his father's order, or for the maintenance of the family, or in a precarious situation, must be paid by the father.

* 12. What has been spent for the household by a pupil, apprentice, slave, woman, menial, or agent, must be paid by the head of the household.

13. When the debtor is dead, and the expense has been incurred for the benefit of the family, the debt must be repaid by his relations, even though they be separated from him in interests.

10, 1 1. A debt contracted by one blinded by love, or incensed by wrath against his own son, or in an outrageous state of intoxica- tion, or mad with gambling, or who has become surety for another, must not be paid by the son. If, however, a debt has been con- tracted, even by the son, for the benefit of the household, or in a dangerous situation, it is binding on the father. A. According to Katyayana, a debt contracted from love is a promise made to a dissolute woman, and a debt contracted from anger is a reward promised by an angry man to a ruffian for injuring the person or estate of his enemy. * A debt contracted in a precarious situation,' i. e. a debt contracted in danger of life. A. Ya^navalkya II, 45, 46, 47; Vish«uVI, 33, 39.

12. 'A pupil,' one engaged in studying science. * An appren- tice,' a pupil who resides with his preceptor for a certain fixed period. *A slave,' whether born in the house or purchased. A. Vishwu VI, 39.

13. Where the debtor has gone abroad and met his death through illness, or accident, the debtor may claim his due from his relatives, should they even be separated in interests. A.

* 14. The father, uncle, or eldest brother having gone abroad, the son, (or nephew, or younger brother) is not bound to pay his debt before the lapse of twenty years.

* 15. Every single coparcener is liable for debts contracted by another coparcener, if they were con- tracted while the coparceners were alive and unsepa- rated. But after their death the son of one is not bound to pay the debt of another.

* 1 6. The wife must not pay a debt contracted by her husband, nor one contracted by her son, except if it had been promised by her, or contracted in common with her husband.

* 1 7. A sonless widow, and one who has been en- joined by her dying husband (to pay his debt), must pay it. Or (it must be paid) by him who inherits the

14. Necessary debts, such as those enumerated in paragraph 11, must be paid at once by the other family members. Where, how- ever, the father, uncle, or eldest brother resides abroad, and is known to be alive, the son, &c. need not pay his debt till after the lapse of twenty years. A. Vishwu VI, 27; Ya^?^avalkya II, 50.

15. After the death of those who have contracted the debt jointly, the son of one is not bound to pay the debt of another than his father. His liability does not extend beyond his father's share of the debt. A. Vish«u VI, 34; Ya^navalkya II, 45.

16. A woman need not pay a debt contracted by her son, unless she has promised herself to repay it. Similarly, she is not bound to pay a debt contracted by her husband, unless she should have contracted it jointly with him, or if he should have enjoined her on his deathbed to pay his debts, or if she has inherited his property. A. Vishnu VI, 31, 38; Ya^wavalkya II, 46, 49.

17. A widowed woman who has no son is bound to pay the debt of her husband, if he has commissioned her to do so on his deathbed, or if his property has escheated to her. If she is unfit to take the estate, her husband's debt must be repaid by those who have inherited the estate. The property and the liabilities go together. A. Vishwu VI, 29; Ya^^iavalkya II, 51, &c.

estate. (For) the liability for the debts goes together with the right of succession.

* 1 8. A debt contracted by the wife shall never bind the husband, unless it had been contracted at a time when the husband was in distress. House- hold expenses are indispensably necessary.

■^'^ 19. The wives of washermen, huntsmen, cow- herds, and distillers of spirituous liquor are exempt from this rule. The income of these men depends on their wives, and the household expenses have also to be defrayed by the wives.

* 20. If a woman who has a son forsakes her son and goes to live with another man, that man shall take her (separate) property. If she has no property of her own, her son (shall take the property of her husband).

*2i. If, however, a woman repairs to another

18. A debt contracted by the wife, for the purpose of saving from distress her husband, son, daughter, or other family members, must be discharged by the family head. A. Vish«u VI, 32, &c.

20. If a widow who has a son, blinded by love forsakes her son and betakes herself to another husband, taking her Stridhana (separate property) with her, the Stridhana shall belong to her second husband, and not to her sons. If, however, a woman who has no separate property goes to live with another man and takes her first husband's property with her, it shall not belong to the second husband. It shall escheat to her son by the first husband. A. This interpretation has been followed in the text. It is hardly reasonable, however, to explain the term dravya, in the first instance, as denoting Stridhana, and then again, as denoting property inherited from the husband. It would seem that the reading adopted by Asahaya is erroneous. The Viramitrodaya and other compilations read rma.m for dravyawz, * (the son) must pay the whole debt, if she has no property of her own.' Vish«u VI, 30; ' Ya^navalkya II, 51.

21. If a widow who has a young son takes her deceased hus-

man, carrying her riches and offspring with her, that man must pay the debt contracted by her husband, or he must abandon her.

* 2 2. He who has intercourse with the wife of a dead man who has neither wealth nor a son, shall have to pay the debt of her husband, because she is considered as his property.

* 23. Among these three, the heir of the wealth, the protector of the widow, and the son, he is liable for the debts who takes the wealth. The son is liable, on failure of a (protector of the) widow and of an heir; the protector of the widow, on failure of an heir and of a son.

* 24. Debts contracted by the husbands of the last

band's property and goes to live with another man, the latter is bound to pay the debts contracted by her first husband. His conduct is unimpeachable, likewise, if he lets her go, she taking the whole of her property with her. A.

23. This rule contains the answer to the question; Who is liable for the debts of a deceased person, whose property has been taken by his heirs, whilst his wife through poverty has acceded to another man, and whilst his son remains both penniless and deprived of the protection of his mother? The decision is as follows. Between those three, the heir of the wealth and no other is liable for the debt. Where, however, there is no heir, owing to the want of assets, there the son is liable, if there is no widow; and the widow's husband, if there is no son. The respective hability of the son and of the taker of the widow depends on the circumstances of the case. If the widow is a young and handsome woman of high origin, her second husband has to discharge the debt of her first husband, according to the maxim that she is considered as his property (see above, paragraph 22). If, however, she is kept like a handmaid and receives a mere livelihood from the man who has taken her, the son is bound to pay the debt. A. Ya^iiavalkya II, 51.

24. The term uttama 'the first,' besides its ordinary meaning, conveys a secondary meaning. It implies that when any of the seven Svairims and Punarbhiis happens to be specially handsome or

Svairi/^i and of the first Punarbht!!, must be paid by him who lives with them.

25. A wife, a daughter-in-law, a woman entitled to maintenance, and the attendants of the wife: by these have debts to be paid, as also by one who lives on the produce of land (inherited from the debtor).

[If among such brothers as have come to a division and are separate in wives, affairs, and wealth, one should die without leaving issue, his wife inherits his wealth.]

26. The sages declare that the transactions of a woman have no validity, especially the gift, hypo- thecation, or sale of a house or field.

27. Such transactions are valid when they are sanctioned by the husband; or, on failure of the husband, by the son; or, on failure of husband and son, by the king.

* 28. What has been given to a wife by her loving

gifted, her second husband is bound to pay the debts contracted by the first. A. This, no doubt, is a highly artificial interpretation. A definition of the seven Punarbhfis and Svairiwis is given further on, XII, 46-53. A. refers to XII, 48 and 52. However, the meaning of the term ' the first PunarbhA ' is defined in XII, 46. The Mitakshara (p. 77) and Viramitrodaya (p. 347) explain the term ' the last of the Svairiwis ' as referring to one who, overwhelmed with distress, delivers herself to another man. See XII, 51, and note.

25 b. This paragraph, which contains a rule relative to the law of inheritance, seems to be a marginal gloss, which has somehow crept into the text by mistake.

28. ' Immovables,' such as houses, fields, and the like. A. This rule is frequently quoted in the mediaeval and modern com- pilations on the law of inheritance, as indicating the extent of a woman's power over her property.

husband, that she may spend or give away as she likes after his death even, excepting immovables.

* 29. In the same way the transactions of a slave are declared invalid, unless they have been sanctioned by his master. A slave is not his own master.

* 30. If a son has transacted any business without authorization from his father, it is also declared an invalid transaction. A slave and a son are equal in that respect.

*3i. A youth who, though independent, has not yet arrived at years of discretion, is not capable of contracting valid debts. ( Real) independence belongs to the eldest son (only); (the right of) seniority is based on both capacity and age.

* 32. Three persons are independent in this world: a king, a spiritual teacher, and in all castes successively a householder in his own household.

'^ 2>3^ AH subjects are dependent; the ruler of the country is independent; a student is pronounced to be dependent; independence belongs to the teacher.

30. A son who has not come to a partition of the family estate with his father, continues dependent on him till the father dies. A.

31. This rule constitutes an exception to the general indepen- dence of the son after the death of his father. During the period of his minority, he is unable to contract a valid debt. A. The rule that seniority is based both on capacity and age, is cer- tainly remarkable. It is, however, in accordance with the view enounced further on (XIII, 5) by Narada, that the management of the family property may be undertaken by the youngest brother even, if capable, because the prosperity of a family depends on ability.

32. The king is independent of his subjects. A teacher is independent of his pupils. The head of a household is independent of his family and attendants. A.

33. 34. These two paragraphs are intended to show the respective dependence and independence of wives, sons, householders, &c. A.

* 34. Wives, sons, slaves and other attendants are dependent. The head of the family, to whom the property has descended by right of inheritance, is independent with regard to it.

* 35. A child is comparable to an embryo up to his eighth year. A youth, who has not yet reached the age of sixteen, is called Pogaw^a.

* T^6. Afterwards he is no longer a minor and independent, in case his parents are dead. While they are alive he can never acquire independence, even though he may have reached a mature age.

"^2)7- Of the two (parents), the father has the greater authority, because the seed is superior (to the womb); on failure of the begetter, the mother; on failure of the mother, the eldest son.

* 38. All these persons are independent at all times of those who depend on others. They have

34. Colebrooke (Dig. II, 4, 15) has translated a different reading of paragraph 34, thus, * A householder is not uncontrolled in regard to what has descended from an ancestor.' See, as to the distinction between inherited and self-acquired wealth, Ya^na- valkya II, 121.

35. * Comparable to an embryo ' is one who is not yet allowed to perform purificatory and other rites. From his eighth year onwards a boy may perform purificatory ceremonies and commence sacred study. He is called Poga«</a (a young man), because he is not yet capable of transacting legal business. A. This rule of Narada has become the foundation of the modern law regarding the duration of minority. A controversy has recently arisen as to whether minority terminates at the end or at the beginning of the sixteenth year. Most, if not all, Indian writers seem to agree in taking the latter view. A. seems to be of the same opinion, though he does not express himself very clearly.

36. He remains dependent during the lifetime of his parents, i.e. if he continues to live in union of interests with them. A.

38. * Coercion,' i. e. punishment or beating; ' relinquishment,' i.e. renouncing. A.

authority in regard to coercion, the relinquishment and the sale (of property).

* 39. If a boy or one who possesses no indepen- dence transacts anything, it is declared an invalid transaction by persons acquainted with the law.

* 40. That also which an independent person does, who has lost the control over his actions, is declared an invalid transaction, on account of his want of (real) Independence. •

'''41. Those are declared to have lost the control over their actions who are actuated by love or anger, or tormented (by an illness), or oppressed by fear or misfortune, or biassed by friendship or hatred.

42. That is declared a valid transaction which is done by the senior or head of a family and by one who has not lost the control over his actions. That is not valid which has been transacted by one who does not enjoy independence.

43. All transactions depend on wealth. In order to acquire it, exertion is necessary. To preserve it,

39. Both what a minor does, and the transactions of one grown up but dependent on others, as e. g. of a slave, are declared invalid by those conversant with law. A.

40. ' One who has lost the control over his actions,' i.e. one whose natural disposition has been perverted, owing to possession by a demon, or to his addiction to gambling or other vicious propensities. A.

42. Here ends the second section of the law of debt, which treats of valid and invalid transactions. A.

43. * All transactions,' whether originating in virtue, interest, or love. The rule regarding the acquisition (and enjoyment) of wealth is said to be threefold: protection against bipeds, quadrupeds,

to increase it, and to enjoy it: these are, successively, the three sorts of activity in regard to. wealth.

44. Again, wealth is of three kinds: white, spotted, and black. Each of these (three) kinds has seven subdivisions.

* 45. White wealth is (of the following seven sorts): what is acquired by sacred knowledge, valour in arms, the practice of austerities, with a maiden, through (instructing) a pupil, by sacrificing, and by inheritance. The gain to be derived from exerting oneself to acquire it is of the same description.

"'46. Spotted wealth is (of the following seven sorts): what is acquired by lending money at in- terest, tillage, commerce, in the shape of K^ulka, by artistic performances, by servile attendance, or as a return for a benefit conferred on some one.

* 47. Black wealth is (of the following seven

&c.; increase, through agriculture, lending at interest, trading, and other modes of acquisition; enjoyment of terrestrial and celestial pleasures. A.

45. 'What is acquired by sacred knowledge,' i.e. the gains of sacred study. What is gained by ' the practice of austerities,' i. e. by one who duly performs greater and minor observances, optional and regular rites, and on whom worthy people bestow alms for that reason. What is received 'with a maiden,' i.e. as her marriage portion. The fruit derived from relinquishing white property is of the same kind, i. e. it is pure likewise. Thus A.

46. * Commerce,' the sale of merchandise. ' *Sulka,' the price obtained for giving a damsel in marriage, whether the transaction be lawful or otherwise. ' Artistic performances,' the art of painting or another art. ' Servile attendance,' waiting upon, and paying homage to, another man. Wealth obtained by one of these seven modes is called spotted, i.e. of a middling kind. A. Others explain the ambiguous term -S'ulka differently, as denoting tolls, or a fare for crossing a river, &c.

47. * Gambling,' with dice or otherwise. ' One afflicted with

sorts): what is acquired as a bribe, by gambling, by bearing a message, through one afflicted with pain, by forgery, by robbery, or by fraud.

48. It is in wealth that purchase, sale, gift, receipt, transactions of every kind, and enjoyment, have their source.

49. Of whatever description the property may be, with which a man performs any transaction, of the same description will the fruit be which he derives from it in the next world and in this.

50. Wealth is again declared to be of twelve sorts, according to the caste of the acquirer. Those modes of acquisition, which are common to all castes, are threefold. The others are said to be ninefold.

51. Property obtained by inheritance, gifts made from love, and what has been obtained with a wife (as her dowry), these are the three sorts of pure wealth, for all (castes) without distinction.

52. The pure wealth peculiar to a Brahman is

pain,' one pained by an attack of disease. ' Forging/ falsification, of gold, silver, or other metals. ' Robbery,' such as theft. ' Fraud,' deception. What has been acquired by one of these seven kinds is called ' black wealth,' i.e. wealth of the lowest kind. A.

48. From these three kinds of wealth, with their twenty-one subdivisions, spring all the various kinds of transactions, and all kinds of enjoyment. A.

49. The difference between this and the previous classification of the divers modes of acquisition seems to lie in this, that the one system of classification is solely based on the respective legitimacy or illegitimacy of each mode of acquisition, whereas the diversity of caste represents the principle of classification in the other system. It should be borne in mind that an occupation, according to Indian notions, may be perfectly lawful for one caste, though it is unlawful for all others.

52-54. Manu I, 88-91, X, 74-80; Ya^iiavalkya II, 118-120; Vishwu II, 4-14; Apastamba I, i, i, 5-6; Gautama X, 2, 7, 49, 56; VasishMa II, 13-20; Baudhayana 1, 18, 1-5.

declared to be threefold: what has been obtained as alms, by sacrificing, and through (instructing) a pupil.

53. The pure wealth peculiar to a Kshatriya is of three sorts likewise: what has been obtained in the shape of taxes, by fighting, and by means of the fines declared in lawsuits.

54. The pure wealth peculiar to a Vai^ya is also declared to be threefold: (what has been acquired) by tillage, by tending cows, and by commerce. For a K-Vtidra it consists of what is given to him by the members of the three higher castes.

55. These are the legitimate modes of acquisition of wealth for all the (four) castes severally. If one caste should take to the occupations of another caste, it is a criminal proceeding, except in extreme cases of distress.

4. Means of Livelihood for a Brahman in Times of Distress.

56. In times of distress, a Brahman is allowed to gain his substance in the mode prescribed for the caste next to him in rank; or he may gain his sub- stance like a Vaii^ya. But he must never resort to

55. Here ends the section of the divers kinds of wealth in the law of debt. A.

56. ' The class next to him in rank,' i.e. the Kshatriya or warrior caste. If he should find himself unable to support his family by the mode of livelihood of his own caste, he may gain his substance like a Kshatriya. At the time of a drought or famine, he may gain his substance like a Vaijya even. ' The lowest caste,' i. e. the -S'udra caste. A. Manu X, 81, 82; Vishwu II, 15; Yag^la- valkya III, 35; Gautama VI I, 6, 7; Baudhayana II, 4, 16, &c.

the mode of livelihood prescribed for a member of the lowest caste.

57. At no time must a Brahman follow the occu- pations of a man of vile caste, or a vile man the occupations of a Brahman. In either case, expul- sion from caste would be the immediate conse- quence.

'"' 58. For neither of them are such occupations permitted as are either far above or far below their own rank. Those two occupations are lawful for them which lie between these two extremes; for they are common to all (castes).

59. When a Brahman has lived through the times of distress, with the wealth acquired by following the occupations of a Kshatriya, he must perform a penance and relinquish the occupations of a Kshatriya.

60. When, however, a Brahman takes delight in those occupations and persists in them, he is de- clared a K3.nda.pr 7 shif/ia. (professional soldier) and must be expelled from society, because he has swerved from the path of duty.

57. By the term ' a vile man,' a member of the ^S'iidra caste is referred to. The occupations of such a man, i.e. the acceptance of food from everybody and the sale of all sorts of commodities, must never be resorted to by a Brahman, even in times of distress. And so must a -Sudra avoid the occupation of a Brahman, such as wearing the sacred thread, study of the Vedas, pronouncing sacred benedictions, offering burnt-oblations, and the rest. A.

58. ' Such occupations as are either far above or far below their own rank,' i.e. the occupations of a Brahman and of a -S'udra respectively. 'Those two occupations,' i.e. those peculiar to the Kshatriya and Vaijya. A. hitva seems a faulty reading (for hite).

60. 'Ejected from society,' i.e. he must not be admitted to obsequial repasts and other religious ceremonies. A.

61. When a Brahman Is Hving by the occupations of a Val^ya, he must never sell milk, sour milk, clarified butter, honey, beeswax, lac, pungent condi- ments, liquids used for flavouring, spirituous liquor,

62. Meat, boiled rice, sesamum, linen, the juice of the Soma plant, flowers, fruit, precious stones, men, poison, weapons, water, salt, cakes, plants,

63. Garments, silk, skins, bone, blankets made of the hair of the mountain-goat, animals whose foot is not cloven, earthen pots, buttermilk, hair, dregs, vegetables, fresh ginger, and herbs.

64. A Brahman may sell dry wood and (dry) grass, excepting fragrant substances, Eraka grass, ratan, mulberry, roots, and Kusa. grass.

65. (He may sell) twigs of bamboo that have fallen spontaneously, of fruits, the fruits of the jujube tree,

61-66. Manu X, 85-90; Ya^navalkya III, 36-39; Gautama VII, 8-22; Vasish/^a II, 24-31; Apastamba I, 7, 20, 11 foil.

61. 'Pungent condiments,' such as sugar. 'Liquids,' such as clarified butter and oil. A.

62. A. explains the term Soma, ' the juice of the Soma plant,' which is offered to the gods at a sacrifice, as denoting sacrificial implements generally; 'men,' i.e. servants; 'plants,' i.e. shrubs, creeping plants, and others. A.

63. 'Blankets,' i.e. what is made of wool. * Animals whose foot is not cloven,' i.e. whole-hoofed animals, such as horses. ' Dregs,' i. e. the deposit of oil. ' Vegetables,' i.e. fresh pot-herbs. A.

64. 'Fragrant substances,' such as the fragrant root of the plant Andropogon Muricatus, Balaka, the root of the Musta grass, and others. A. If the reading of a single MS. be followed, the sale of the articles enumerated in pars. 64 and 65 is also prohibited for a Brahman. Several of these articles are included among those substances the sale of which is prohibited by other legislators. See Manu X, 86-89; Ya^navalkya III, 36-39. However, the reading translated above is distinctly supported by the Commentary of Asahaya, and by the analogous rules of Vasish/-^a.

arid of the Iriguda plant, ropes, and thread of cotton, if its shape has not been altered (by working it up).

66. If it is for a medicament used to cure a disease, or for an offering, or if necessity can be shown, he may sell sesamum for a corresponding quantity of grain.

67. A Brahman who swerves from the path of duty by selling prohibited articles, must be reminded of his duty by the king by inflicting a severe chas- tisement on him.

* 68. Those invested with legal authority must pay strict attention to the (various) modes of proof. That even which is provable fails to be proved, if the (prescribed) modes of proof are not attended to.

69. Documents, witnesses, and possession are the traditional three means of proof, by which a creditor endeavouring to recover his loan may obtain what he has lent.

70. If the Creator had not created writing as an

69. The term pramawa, which has been translated ' means of proof,' is both a philosophical and a law term. A. explains it etymologically, as denoting anything which may be known or discerned accurately. Thus, what is counted or reckoned, may be known by figures. What is capable of measurement, may be known by its measure. Similarly, where a lawsuit is pending, the truth may be known by having recourse to one of the ordinary modes of proof, viz. documents, witnesses, possession, and ordeals. Therefore, these means of proof should be duly applied by holy men, kings, and assessors of the court, and others endowed with legal authority, because that which is doubtful cannot be proved otherwise.

70. The term ' documents' in this section seems to relate princi- pally to the well-known land grants which have been found in many

excellent eye (as it were), the affairs of this whole world would not take their proper course.

71. Writing is an excellent eye (as it were), because it solves all doubts which may have arisen in regard to place, time, profit, matter, quantity, or stipulated period.

72. He who, having received a chattel in a certain place, tries to deny the fact, is liable to be confronted with witnesses and convicted, difficult as it may be to prove his guilt.

']'^, A document is subject to many blemishes; witnesses are neither exempt from old age nor from death; possession, which has been continually held, is the only sure mode of proof, as it is not connected with any material object (liable to decay).

74. Thus have these three modes of proof been declared, by means of which a creditor may recover an outstanding debt, which has not been paid to him and called into doubt (by the debtor).

75. A document is valid at all times; witnesses (may give valid evidence) as long as they live; possession acquires legal validity through the lapse of a certain period. This is a legal maxim.

parts of India. Ya^wavalkya II, 22; Vish«u VI, 23; Vasish//^a XVI, 10.

75. Witnesses can give evidence while they live only, whereas a document which has been carefully preserved, remains evidence even after the death of the creditor, debtor, and witnesses, and is capable of substantiating a claim raised by the son, grandson, great- grandson, or more remote descendant of the original owner. On the other hand, even after a lapse of time, i.e. when four or five generations have passed away, and an immeasurable period has elapsed; a creditor may recover his loan by dint of uninterrupted possession. * This is a legal maxim,' i.e. this is the relative value of the divers kinds of proof. A.

76. Of the three modes of proof here enumerated in order, each previous one is superior to the one named after it; but possession is the most decisive of all.

^'' yy. Though a document be in existence and witnesses living, that is no (true) property of which possession is not actually held. This is specially true as regards immovables.

* 78. If a man is foolish enough to allow his goods to be enjoyed by strangers in his own eyesight, they shall belong to the possessor, even in the presence and during the lifetime of the rightful owner.

* 79. Whatever the owner looking on quietly suffers to be enjoyed by strangers for ten years,

76. The apparent contradiction between the first and second parts of this paragraph is thus removed by A.: 'Possession of immovables without a title does not create proprietary right, as stated in par. 84. Therefore, the possessor of landed property becomes its lawful owner, if his right or title is established by witnesses, but not otherwise. Thus far possession is more im- portant than witnesses. In the same way documents with a title are superior to witnesses, and possession with a title is superior to witnesses, documents, and ordeals.'

77. This paragraph is intended to show the weakness of proof by witnesses or documents, where it is not accompanied by posses- sion. Generally speaking, any of the three kinds of proof is invalid, where it is not accompanied by one of the other kinds. A. Ya^?la- valkya II, 27; ManuVIII, 200.

78. If a man suffers his movable or immovable property to be enjoyed by another, the latter will become its lawful owner after the lapse of a long period, no matter whether it has been bestowed on him through affection, or forcibly seized by him, or abandoned by its previous owner. A.

79. Where, however, the owner, though unable to recover his property, owing to special reasons, proffers his claim to it every day, or every month, or every year, it is not lost to him, even after the lapse of a longer period than ten years. A. Identical with ManuVIII, 147.

though he Is present, that cannot be recovered by him.

''^80. If he is neither an idiot nor a minor, and the enjoyment takes place before his eyes, his right to it is extinct by law, and the possessor is allowed to keep it.

*8i. A pledge; a boundary; the property of a child; an open deposit, an Upanidhi deposit; women; and what belongs to the king or to a learned Brah- man, none (of these descriptions of property) is lost (to the owner) by adverse possession.

82. Pledges and the rest, excepting the property of a woman and of the king, are however lost to the owner if they have been enjoyed in his presence for twenty years.

80. ' If he is not an idiot,' nor afflicted by a chronic or agonising disease, nor dumb, blind, or deaf. A. Identical with Manu VIII, 148.

81. 'The property of children' is not lost, though it has been enjoyed for a long time by their guardian. ' An Upanidhi deposit,' i.e. a valuable article which has been delivered under cover to another person. ' A woman,' one who has been delivered to a stranger as a deposit, and enjoyed by him. * The property of a king,' i.e. land. * The property of a learned Brahman,' i.e. cows. A. Kulluka, in commenting on the identical verse of Manu, refers the term 'woman' to 'female slaves,' &c. The rules laid down in pars. 79-81, which recur literally in the code of Manu, seem to belong to an older order of ideas than those contained in pars. 84 foil. It may be presumed that the harsh law under which adverse possession of ten years' standing was constituted a source of pro- prietary right, was mitigated at a subsequent period, and has been inserted here as a sort of historical reminiscence only. According to Br/Tiaspati, thirty years is the ordinary period of prescription. Identical with Manu VIII, 149; VasishMa XVI, 18.

82. In this paragraph, as in the preceding one, the term * a king's property' is referred to landed property by A. The correctness of this interpretation seems questionable.

'''' 83. The property of a woman and of a king is never lost (to the owner), should it even have been enjoyed for hundreds of years without a title (by strangers).

84. Where there is enjoyment, but no title of any sort, there a title is required in order to produce proprietary right. Possession is not sufficient to create proprietary right in that case.

* 85. A clear title having been produced, posses- sion acquires validity. Possession without a clear title does not make evidence (of ownership).

*86. He who can only plead possession, without being able to adduce any title, has to be considered as a thief, in consequence of his pleading such illegiti- mate possession.

"^ Sy. He who enjoys without a title for ever so many hundred years, the ruler of the land should inflict on that sinful man the punishment ordained for a thief.

* 88. If a man holds the property of a stranger without a title, it is not legitimate enjoyment. How- ever, after the death of the occupant, it may be en- joyed legitimately by his descendants.

* 89. In cases falling within the memory of man.

88. While the possessor is alive, the property which he is enjoying without a title cannot become his. The owner may claim it at any time. When, however, the possessor dies, unmolested by the owner, the property continues to be enjoyed by his heirs. Therefore, the owner should not fail to assert his own right. A.

89. The Mitakshara explains the term ' what falls within the memory of man' as denoting a period of 100 years, in accordance with a text from the Veda, ' The life of men extends over a hundred years/ If this explanation be correct, the present rule agrees in substance with the rule laid down in 89 b and 91, a period of a hundred years being about equal in duration to three lives. It is

possession with a title creates ownership. In cases extending beyond the memory of man, and on faihire of documents, the hereditary succession of three ancestors (has the same effect).

* 90. If the occupant is impeached (by the legiti- mate owner), he cannot escape defeat (without refut- ing the charge). That possession only can create proprietary right, which has been legitimately in- herited from the father.

* 91. When possession has been successively held, even unlawfully, by the three ancestors of the father (of the present possessor), the property cannot be taken away from him, because it has gone through three lives in order.

* 92. What has been deposited with a third person to be delivered ultimately to the owner (Anvahita), stolen goods, ordinary deposits, what is held by force, loans for use, and what is being enjoyed during the absence of the owner, these are six (things pos- sessed) without a title.

true that another legislator, Vyasa, mentions sixty years as the dura- tion of continued possession extending over three generations.

90. If the owner claims his own property from the possessor, the former has to make good his claim. That enjoyment, how- ever, which has passed from the father to the sons by right of inheritance, constitutes a legal title for them. A. Ya^wavalkya

91. If the great-great-grandfather has held possession, be it even without a title, of a certain thing, and if it has been enjoyed, after his death, by the great-grandfather and by the grandfather, it cannot be claimed from the father by any one. Vishwu V, 187.

92. The term Anvahita is usually explained, like Anvadhi, as denoting what has been deposited with a third person to be delivered ultimately to the owner. A., however, explains Anvahita as denoting a valuable object received from another in exchange for a worthless article.

* 93. If a litigant dies before a lawsuit (regarding property enjoyed by him) has been decided, the son is required to prove his title. The enjoyment is not legitimate (otherwise).

* 94. After the death of a creditor, witnesses, though available, cannot give valid evidence, except If a statement made by the creditor himself on his deathbed (has been preserved).

95. After the death of the defendant, the deposi- tion of witnesses ceases to make evidence. An attested document retains its validity during his life- time only.

* 96. Where a pious act Is announced by a diseased

93. Supposing a man were to have obtained possession of the property of a stranger by one of the previously mentioned illegiti- mate modes of acquisition, if the rightful owner were to impeach him for it, and if the possessor were to die before the case has been decided, in that case the son would have to substantiate his claim, and would not be allowed to continue his enjoyment of the property without doing so. A. Ya^wavalkya II, 29.

94. A man says after the death of his creditor, ' I have restored this or that cow, female buffalo, bull, or field to my creditor; certain honest men have witnessed the transaction.' Another man says, ' Your father owes me one hundred drachmas; certain persons have witnessed the transaction.' He dies, however, before his claim has been examined. In either of these two cases trustworthy witnesses even are of no avail. If, however, the creditor has stated his claim before witnesses on his deathbed; or if a man has given evidence as witness on his deathbed regarding a certain loan, about which the creditor has asked him; the testimony of the witnesses has to be considered as valid even after his death. A.

95. 'The defendant,' i.e. the debtor. An attested document is valid while he lives only. It loses its validity after his death. A.

96. When a diseased father has stated his intentions regarding a religious endowment or other matters of this kind during the absence of his sons, but in the presence of witnesses, the deposition of the latter will be valid even after his death. Similarly, when a man

man, the testimony of the witnesses retains its vaHdity even after his death. The case is the same widi the six (things possessed without a title), viz. an Anvdhita deposit and the rest.

97. In all transactions relative to a debt or to any other (among the eighteen titles of law), the last act is the decisive one. In the case of a gift, a pledge, or a purchase, the prior act settles the matter.

* 98. A contract of delivery and receipt may be made with a view to the profit arising from Sthana. It is called Kusida (lending money at interest), and money-lenders make a living by it.

during an attack of illness, repents of his former act, and declares before witnesses that he has deposited with a friend a worthless object in exchange for a valuable one, and wishes to restore the former; or that he has stolen something and wishes to restore it to the owner; or that he wishes to restore a deposit, which had been delivered to him by the owner; or that he intends to make restora- tion of what he had obtained by forcible means; or of a loan for use; or of what he had been enjoying in secret: in any one out of these six cases the deposition of the witnesses is valid even after his death. A. See par. 92 and note.

97. In all the eighteen titles of law, beginning with the law of debt, the latest act is considered decisive. The law is different in cases of acceptance, where e. g. a village belongs to him who has been the first to receive it; in the case of a pledge or mortgage, and in the case of a purchase, where the pledge or mortgage, and the article sold belong likewise to the first taker. A. Nearly identical with Ya^wavalkya II, 23.

98. According to A., Sthana, ' continued abode,' may be three- fold: relating to the matter, as when profit arises from (the continu- ance of) victuals remaining well kept in a certain place; or relating to one's own abode, as when a dealer.derives profit from business transactions in his own country; or relating to a different place, as when a dealer earns money through foreign trade.

* 99. Let a money-lender take, in addition to the principal, the interest fixed by Vasish//^a, viz. an eightieth part of a hundred in every month.

* 100. Two, three, four, or five (in the hundred) is the legitimate (rate of interest). Let him take as much in the shape of interest, every month, in the direct order of the (four) castes.

*ioi. Or let him take two in the hundred, re- membering the practice of the virtuous. By taking two in the hundred, he does not commit the crime of covetousness.

* 102. Interest is declared fourfold In this law- book: periodical interest; stipulated interest; kayika interest; and compound interest.

* 103. That which runs by the month is termed

99. Identical with Manu VIII, 140. This rule, which fixes the rate of interest at i| per cent, by the month, or 15 per cent, per annum, is actually found in the Dharmasiitra of Vasish/^a II, 51.

100. Identical with Manu VIII, 142. The meaning is that he shall take 2 per cent, from a Brahman, 3 per cent, from a Kshatriya, 4 per cent, from a Vaijya, and 5 per cent, from a -Sudra. A. It appears, from the commentaries on the code of Manu, that the present rule is applicable in those cases where no security has been given, whereas the preceding paragraph refers to loans secured by a pledge.

loi. Identical with Manu VIII, 141. The meaning is that he shall take 2 per cent, only from honest men, to whatever caste they may belong. A. In the code of Manu, the present rule precedes par. 100, instead of following it. The author of the Narada-smrzti would seem to have erroneously inverted the original position of the two verses.

102. Manu VIII, 153; Gautama XII, 34, 35. See, too, Cole- brooke's Digest I, XXXV-XLV.

103, 104. ' Periodical interest' means monthly interest, at the rate of from 2 to 5 per cent., according to the caste of the debtor. ' Stipu- lated interest' is interest at the rate of more than 10 per cent., which has been promised by the debtor himself in times of great distress. Kaya means principal. If a Pa;za, or quarter of a Pa;za, has to be

periodical interest. That interest is termed stipu- lated interest which has been promised by the debtor himself.

* 104. Interest at the rate of one Pa«a or quarter of a Pa;^a, paid regularly without diminishing the principal, is denoted kayika interest. Interest upon interest is called compound interest.

*io5. This is the general rule for interest to be paid on loans. There are special rules according to the local usages of the country where the loan has been made.

* 106. In some countries the loan may grow till twice the amount of the principal has been reached. In other countries it may grow till it becomes three, or four, or eight times as large as the principal.

107. The interest on gold, grain, and clothes may rise till it amounts to two, three, or four times the principal. On liquids, the interest may become octuple; of women and cattle, their offspring (is con- sidered as the interest).

paid every day, without diminishing the principal, i.e. if the whole principal has to be restored, though ever so much interest may have been paid on it, it is called kayiM interest. Where interest at the rate of 5 per cent, per mensem has been paid for twenty months, it will reach the same amount as the sum originally due, so that the principal is doubled. After twenty months more it becomes quad- ruple; twenty months later it becomes octuple, and so on. This is called compound interest. A. Br/haspati and Vyasa derive the term kayika from kaya ' a body,' and explain that it denotes bodily labour, or the use of a pledged slave.

105. Where local customs obtain, differing from the rules pre- viously given, they have to be followed. A.

106. 107. Manu VIII, 151; Vishwu VI, n-17; Ya^wavalkya II, 39; Gautama XII, 36.

107. Gold borrowed at whatsoever rate of interest shall grow till it becomes double; grain, till it becomes treble; cloth, till it becomes

* io8. No interest must ever be raised on loans made from friendship, unless there be an agreement to the purpose. Without an agreement even, in- terest accrues on such loans after the lapse of half a year.

* 109. A loan made from friendship can never yield any interest, without being reclaimed by the creditor. If the debtor refuses to restore it on demand, it shall yield interest at the rate of five per cei:it.

* 1 10. Thus has the rule been declared for the in- terest to be paid on loans offered through friendship. If, however, interest be demanded on grain, at the rate which has been mentioned, it is termed usury.

* 1 1 1. A Vaii-ya is at liberty to get over a period of distress by practising usury. A Brahman must never resort to usury, not even in the extremity of distress.

quadruple; liquids (and condiments), till they become octuple. The oifspring of pledged females and cattle shall belong to the creditor. A.

108. The chattels, which have been mentioned in the preceding paragraph, if lent in amicable intercourse, shall not yield any interest before the expiration of six months, without a special stipulation to that effect. Even without a stipulation to that effect, however, they shall yield interest after the lapse of six months. A.

109. A loan which is not restored, on demand even, shall yield interest at the rate of 5 per cent, from that day forward, even though six months are not yet over. A.

no. The term karman is sometimes used as an equivalent for gold. A. This interpretation has not been followed.

in. Agriculture, the tending of cattle, &c., are lawful occupa- tions for a Vaij-ya. Lending money at interest is also permitted to him. Therefore it is said here that a Vaijya may practise usury in times of distress, whereas a Brahman must not resort to usury even in times of overwhelming distress. A.

*ii2. If a debt is due to a (dead) Brahman creditor, whose issue is living, (it must be paid to them.) If there be no issue, the king must cause the debt to be paid to his kinsmen; on failure of kins- men (it must be paid) to his relatives.

*ii3. Where there are neither kinsmen, nor re- latives, nor distant connexions, it shall be paid to (other) Brahmans. On failure of such, he must cast it into the waters.

* 1 14. When a creditor receives payment, he must give a receipt for it to the debtor. If he does not give a receipt, although he has been asked for it, he shall lose the remainder of the sum due to him.

*ii5. If, though pressed by the debtor, he does, not give an acquittance for the sum paid to him by the debtor, that sum shall yield interest to the debtor (henceforth), as (it had done) to the creditor (pre- viously).

112. Sakulya, 'kinsman,' is derived from kulya, 'a bone,' and denotes those who have their bones in common (sic), i.e. a father, a paternal uncle, their sons, and other (agnates). Bandhu, 'a relative,' denotes a mother, a sister, a sister's son, and other (agnates). A.

113. This paragraph is intended to show the pre-eminence of the Brahman caste. A.

114. In Colebrooke's Digest (I, 6, 287) the second half of this paragraph is referred to a refusal on the part of the creditor to restore the money, which the debtor had asked him for, on his refusing to give a receipt. This construction is based on the com- ment of G^agannatha, but it is not countenanced by the remarks of Asahaya, and is thoroughly artificial. Ya^wavalkya II, 93; Vish«u VI, 26.

115. If the creditor fails to receipt the sum which has been restored lo him, on the back of the document, it shall yield interest to the debtor, in the same way as it had yielded interest to the creditor previously. A.

'"' 1 1 6. On payment of the debt, he must restore the bond. On failure of a bond, he must give a written receipt. Thus the creditor and debtor will be quits.

* 1 1 7. The guarantee to be offered to a creditor may be twofold: a surety and a pledge. A docu- ment and (the deposition of) witnesses are the two modes of proof on which evidence is founded.

*ii8. For appearance, for payment, and for honesty, these are the three different purposes for which the three sorts of sureties have been men- tioned by the sages.

* 1 19. If the debtors fail to discharge the debt, or

1 16. Where the bond is no longer in existence, because it has been stolen or destroyed, or met with some calamity, the creditor, instead of it, shall give a written receipt to the debtor. Here ends the sixth section of the law of debt, which treats of lending money at interest and of usurers. A.

1 1 7. A surety and a pledge are the two sorts of guarantee for a loan on interest. Documents and witnesses are the two kinds of evidence for each of the four elements, which have to be distin- guished in the law of debt, viz. the principal, the interest, the surety, and the pledge. A.

118. A surety for appearance is where the debtor denies the debt, and is asked to prove his denial in a court. In that case, he must produce a man, who becomes surety for the debtor's appear- ance at the time of the trial. A surety for payment is where the creditor, anxious to obtain a loan, produces one or several sureties, who are either jointly or severally bound. A surety for honesty is where the debtor denies having received a certain sum, or declares that he has restored it to the creditor, and is required thereupon to produce a surety for his veracity. A. Ya^^lavalkya II, 53; Vish;/u VI, 41.

119. This paragraph is intended to show that the surety for appearance and the surety for honesty are equally responsible as the

if they prove dishonest, the surety (for payment and for honesty) must pay the debt; and (so must the surety for appearance), if he fails to produce the debtor.

120. When there is a pluraHty of sureties, they shall pay each (proportionately), according to agree- ment. If they were bound severally, the payment shall be made (by any of them), as the creditor pleases.

*i2i. Twice as much as the surety, harassed by the creditor, has given (to the creditor), shall the debtor pay back to the surety.

122. By the mode consonant with religion, by legal

surety for payment. A. Manu VIII, 158-160; Ya^wavalkya II, 53; Vishwu VI, 41.

120. Where a number of sureties have promised each to pay a certain stipulated share of the debt, in case of the debtor's inability to discharge it himself, the liability of each surety does not extend beyond what has been promised by him. Where, however, all the sureties have declared their joint liability for the whole debt, the creditor may enforce payment from any one among them whom he thinks able to satisfy his demand. A. Y%iiavalkya II, 55; Vishwu VI, 42.

121. When, however, the surety, anxious to obtain twice the amount of the sum for which he has given security, should pay the sum to the creditor of his own accord, without being pressed to do so by the creditor, the debtor shall pay that sum only to him, and not the double sum. A. Ya^^lavalkya II, 56; Vishwu VI, 43.

122. Identical with Manu VIII, 49. According to Asahaya, four out of the five modes of recovery of a debt are equivalent to the traditional four means of obtaining success, viz. conciliation, division (bheda), presents, and violence. Thus, * the mode consonant with religion' means conciliation, i.e. gentle remonstrances. If these should prove of no avail, 'legal proceedings,' or * division' (bheda), shall be resorted to, i.e. the debtor shall be threatened with a plaint in a court of justice. After that, ' presents ' or ' fraud ' should be adhi- bited, i.e. a false hope of fictitious gain shall be held out to the debtor. If this mode also should prove unsuccessful, 'force' or 'violence'

proceedings, by fraud, by the customary mode, and, fifthly, by force, a creditor may recover what he has lent.

*I23. A creditor who tries to recover his loan from the debtor must not be checked by the king, both for secular and religious reasons.

'"' 1 24. That to which a title is given (adhikriyate) is called a pledge. There are two kinds of it: a

may be used, by fettering the debtor, or confining him, &c. The fifth mode, called the customary mode (a-^arita), consists of fasting. If the creditor himself, or his son, or his servant, takes to fasting it is no offence; or he may confine his own son or threaten to kill him, or seize the property of a stranger, as a compensation. The commentators of the Code of Manu explain the five modes of recovery of a debt much in the same way as Asahaya. * Fraud,' according to them, is when the creditor borrows money from the debtor under false pretences, or retains a deposit belonging to him. Vyavahara, generally interpreted by ' legal proceedings,' means, according to Medhatithi, * engaging the debtor in agriculture, trade, or other work, and taking the proceeds of his labour.' The ' cus- tomary mode ' (a^arita) is variously explained as denoting ' fasting,' or ' killing ' or * taking (one's own or the debtor's) family and cattle.' Under the former interpretation, it is identical with the well-known ' sitting in Dharna.' See the translations of Manu, and Jolly, Ind. Schuldrecht, § 7. For an interesting parallel to the custom of Dharna from the Brehon Laws of Ancient Ireland, see Sir H. Maine's Early History of Institutions, p. 297 foil.

123. A dishonest debtor who applies to the king for protection against a creditor enforcing his demand shall not be abetted by the king. * For secular reasons,' i. e. in order not to disturb the estab- lished order of society. ' For religious reasons,' i. e. in order not to offend against religious law. A. Nearly identical with Manu VIII, 50. Vish;2U VI, 19; Ya^wavalkya II, 40.

124. According to Asahaya, the pledge to be released within a specified time is again twofold. It may be either deposited with a ' keeper of the pledge ' (adhipala), who is to return it on the pledge

pledge which must be redeemed within a certain time, and a pledge which must be retained till the debt has been discharged.

*i25. A pledge is again twofold: one to be kept only, and a pledge for enjoyment. It must be pre- served precisely in the same condition (as at the time of its delivery); otherwise the pledgee loses interest.

*I26. The same thing happens when the pledge has been injured owing to the negligence of the pledgee. If it has been lost, the principal is for- feited, provided that the loss was not caused by fate or the king.

'^''127. A pledge (for custody) must not be used

being restored at the time agreed on. Or it may be delivered to the creditor on condition of its being returned after the lapse of a certain period, say five or ten years. The usufruct of a 'pledge to be retained till the debt has been liquidated ' shall belong to the creditor for ever, till the debt has been discharged.

125. Asahaya gives a house and a field as instances of a pledge for use. By spoiling a pledge of this kind, the pledgee forfeits interest, i. e. he loses the produce of a field, the use of a dwelling- place, &c.

126. 'Negligence,' with regard to a bull or other pledge for use, means that it is used at an unseasonable time, or too much, for drawing a cart or carrying a burden. With regard to a pledge for custody, it means that it is abandoned. ' When it has been injured/ as e. g. when an animal given as a pledge has lost one eye. ' The king ' may cause the loss of the pledge, if he confiscates the whole property of a man and the pledge together with it, on account of a slight offence. The loss is caused ' by fate,' if e. g. a pledge is stolen by a thief. A. Ya^wavalkya II, 59; Vishwu VI, 6.

127. Identical with Manu VIII, 144. According to Medhatithi and Kulluka, the provision that the pledgee must make good the value of the pledge to the owner refers to those cases where the pledge has been injured or spoiled. According to Narayawa, whose opinion is apparently shared by Asahaya, it means that the pledgee

forcibly. The pledgee who uses it forfeits the in- terest due to him. Moreover he must make good the value (of the pledge) to the owner. Otherwise he is (considered as) a thief of the pledge.

128. That foolish person who uses a pledge with- out authorization from the owner, shall lose one half of his interest, as a compensation for such use.

129. If a pledge for enjoyment has been given, (the creditor) must not take interest on the loan. Neither must he give or sell a pledge (of any sort) before the (stipulated) period has elapsed.

* 1 30. When a pledge, though carefully kept, loses Its value after a certain time, (the debtor) must either give another pledge, or discharge the debt to the debtor.

*i3i. When a debtor has been disabled by a reverse of fortune (from paying the debt), he shall be made to discharge the debt gradually, according to his means, as he happens to gain property.

* 132. If a wealthy debtor from malice refuses to

must satisfy the owner of the pledge out of the profit derived from the use of the pledge.

128. Nearly identical with Manu VIII, 150. See Professor Biihler's note.

129. 'A pledge for enjoyment' means one where the profit derived from the pledge takes the place of interest. Such a pledge must not be given or sold before the term fixed for its delivery. A.

131. Where the debtor is unable to give another pledge or to restore the loan, he must he made to restore it successively, as best he can, according to his receipts. A. Manu VIII, 177; IX, 229; Ya^/lavalkya II, 43.

132. The king shall take 5 per cent, as a compensation for the assistance rendered by him. A. Manu VIII, 139; Ya^navalkya II, 42; Vishnu VI, 21.

pay his debt, the king shall compel him to pay It by forcible means, and shall take five In the hundred for himself.

133. If the debtor acknowledges the debt with his own mouth, the king shall take from him ten per cent, (of the debt) as a fine; and twice as much (I. e. twenty per cent.) if he has been convicted (after denial of the debt).

134. If the debtor, owing to a calamity, has not means sufficient to discharge the whole debt, (the claim of the creditor) shall be entered in a legal document, specifying the caste (of the creditor and debtor), their names, and the names of their neighbours.

"' 135. Documents should be known to be of two sorts: (the first). In the handwriting of the party him-

133. If the debtor, when impeached by the creditor, acknow- ledges the debt himself, the king shall take 10 per cent. only. If, however, the debtor had undergone the trouble of proving the correctness of his demand against the creditor, the king shall take from him twice as much, i.e. 20 per cent. A. Manu VIII, 139; Ya^navalkya II, 42; Vish;?u VI, 20, 21.

134. If a debtor, who has been cast in a suit, has not means sufficient to discharge the whole debt, he shall give a written bond. A. The meaning of the obscure terms ^ati, samgna., adhi- vasa may be gathered from a text of Brzliaspati, which is quoted in Nandapawd/ita's Va'^ayanti (MS.) Ill, 74. There these three terms occur in an enumeration of ten points which have to be noticed in a written deed concerning landed property. According to Nandapaw^ita, ^ati denotes the caste, Brahmanical or other, of the plaintiff and defendant; saw^/la denotes their names, as e. g. Devadatta; adhivasa refers to the names of their neighbours.

135. A document in the handwriting of the party himself has the advantage of being valid without subscribing witnesses. The cus-

self; (the second), in that of another person, (the former being vahd) without subscribing witnesses, the latter requiring to be attested. The validity of both depends on local usage.

*I36. That document is said to be valid which is not adverse to the custom of the country, the con- tents of which answer to the rules regarding pledges (and other kinds of security), and which is consistent in import and language.

*i37. That document is invalid which has been executed by a person intoxicated, by one charged (with a crime), by a woman, or by a child, and that which has been caused to be written by forcible means, by intimidation, or by deception.

138. A bond ceases to be valid in that case also, if the witnesses, creditor, debtor, and scribe be dead,

torn of the country, i. e. the usages prevailing in each country with regard to the validity of documents, is supreme. A. Vish«u VII, 1-5; Ya^wavalkya II, 84-88.

136. I have translated the reading vyaktadhividhilaksha;zam. That writing is not adverse to the custom of the country which does not record an invalid gift, or a disposition in regard to a minor, &c. If the contents of a document are in accordance with the rules regarding pledges, sureties, &c., and if ils import and language is free from obscurity and breaks, it is vahd. A. Vishnu VII, 11.

137. What has been written by one intoxicated, or charged with the murder of a Brahman or other heavy crime, or by a woman or child; what has been caused to be written by forcible means, the writer not being concerned in the subject matter; and what has been written by one intimidated, or under a delusion; all such documents are invalid. A. Vish/zu VII, 6-10; Ya^^lavalkya II, 89.

138. The invalidity of those documents, where the creditor, debtor, witnesses, and writer are all dead, is declared for that reason, because such documents may be suspected of forgery. Even after the actual death of all those persons, however, a docu- ment retains its validity, where a pledge is in existence and in the possession of the creditor. A.

unless its validity can be established by the exist- ence of a pledge.

''^139. Pledges are declared to be of two kinds, movable and immovable pledges; both are valid when there is (actual) enjoyment, and not otherwise.

'"' 140. If a document has been produced in due time, if (the demand recorded in it) has been (repeat- edly) urged, and (publicly) proclaimed, it remains valid for ever, even after the death of the witnesses.

141. A document which is unknown and has never been heard of before does not obtain validity when it is brought forward, even though the wit- nesses be living.

*i42. When a document has been transferred

139. A pledge which is only mentioned in a document, without being actually enjoyed, has no legal validity. A,

140. A document or bond which the descendants of the creditor have repeatedly shown to the descendants of the debtor whenever interest was due (prarthitar?), or which they have again and again read out, retains its validity for the respective descendants of the creditor and debtor, even after the death of the witnesses and all other persons concerned. A. I have translated the term prarthita»2 as an independant clause.

141. A document or bond, the contents of which are unknown to the descendants of the debtor, about which they have never heard from their ancestors, and which has been suddenly presented to them only in a business transaction, is not considered valid, even though the witnesses be living. A.

142. This rule is equally applicable to a plaintiff and to a defendant in a lawsuit, i. If a creditor suing a debtor is unable to produce the bond on demand, the judge shall give him time to search for it. If the bond has been destroyed by fire or by some other accident, the fact of its former existence ihay be established by the testimony of honest persons, who have acted as scribe or as subscribing witnesses, or who happened to be present while the bond was being executed. The statements of such persons are equally decisive where the marks or part of the writing in a docu- ment has been obliterated. 2. A debtor having been asked in

into another country, or burnt, or badly written, or stolen, a delay must be granted, in case it should exist still; if it be no longer in existence, the evi- dence of those who have seen It decides the matter.

143. If a doubt should subsist, as to whether a certain document be authentic or fabricated, its authenticity has to be established by examining the handwriting (of the party), the tenour of the docu- ment, peculiar marks, circumstantial evidence, and the probabilities of the case.

* 144. If a document is signed by a stranger and

court to discharge a certain debt, on the strength of a bond signed by himself, says: ' It is true. I had written that document. How- ever, the money was not handed over to me, and I omitted to cause the document to be torn, because it did not happen to be at hand. A few days later the father of my would-be creditor informed me that he had lost the bond and could not find it anywhere; that, how- ever, he was going to give me a written deed recording its loss. So he actually did, and I have deposited that written deed in a certain box while living in that house.' If the debtor pleads an excuse of this sort, he must be allowed some delay to search for the document in question. If it is no longer in existence, the state- ments of those who saw it shall decide the matter. A.

143. 'The handwTiting,' another specimen of the handwriting of the party. ' The tenour of the document,' the names of the sub- scribing witnesses. * Peculiar marks,' flourishes in the handwriting of the scribe. 'Circumstantial evidence,' 'these two facts go together/ or ' they do not go together.' ' The probabilities of the case,' ' how has he go^hold of this document?' or 'is he nervous or is his manner of speaking composed and quiet?' By such expedients as these shall doubts regarding the genuineness of a document be removed. A. Vishwu VII, 12; Ya^navalkya II, 92.

144. If a document has passed by purchase or acceptance from the original owner, who signed it, into the possession of a stranger, who claims the loan recorded in it from the debtor, the judge must examine the document. Kalya«abha//a has composed three verses in explanation of the technical terms agama, saz?2bandha, and hetu. Sa;;zbandha, ' connexion,' according to him, may be founded on descent, caste, marriage, friendship, and social intercourse.

meant for a different purpose, it has to be examined, in case its genuineness should be suspected, by in- quiring into the connexion (previously existing between the two parties) and into the (probability of) title, and by resorting to reasonable inference.

145. An (obligation which has been stated in) writing can only be annulled by (another) writing, and an attested bond by witnesses. A writing is superior to witnesses; witnesses are not superior to a writing.

*i46. If a document is split, or torn, or stolen, or effaced, or lost, or badly written, another document has to be executed. This is the rule regarding documents.

* 147. In doubtful cases, when two parties are quarrelling with one another, the truth has to be

Agama, ' a title,' may be founded on inheritance, purchase, mort- gaging, seizure, friendship, and acquisition. Hetu, 'reasonable inference,' may be founded on reasoning and an efficient cause. A. For other explanations of the terms agama and hetu in an analo- gous passage of Yd^navalkya (II, 92), see the Mitakshara. The Mayfikha agrees with Kalya«abha//a.

145. If the debtor states that he has paid the debt, he must be able to produce an acquittance in the creditor's handwriting. In the same way, if the creditor pleads that the bond has been stolen, or lost, or burnt, &C.5 he must produce a certificate from the debtor stating its loss. Where, however, the bond was attested by sub- scribing witnesses, the debt has to be discharged in the presence of the same witnesses. A.

146. Where a document has met with any one out of the divers accidents mentioned in this paragraph, the party by whom it was executed may be compelled to give another document instead of it. Ya^Tiavalkya II, 91. Here ends the chapter on documents, the eighth section of the law of debt. A.

147. When the plaintiff and defendant in a lawsuit quarrel

gathered from (the deposition of) witnesses, whose knowledge is based on what has been seen, heard, or understood by them.

148. He should be considered as a witness who has witnessed a deed with his own ears or eyes; with his ears, if he has heard another man speaking; with his eyes, if he has seen something himself.

*i49. Eleven descriptions of witnesses are dis- tinguished in law by the learned. Five of them are termed appointed, and the other six not appointed.

*I50. A subscribing witness, one who has been reminded, a casual witness, a secret witness, and an indirect witness, these are the five sorts of appointed witnesses.

about a doubtful affair of any sort, the truth has to be ascertained by examining the statements of the witnesses, who have seen, or heard, or been present at, the transaction. A.

149. Definitions of the eleven witnesses are given in the following paragraphs. A.

150. *A subscribing witness,' i.e. one by whom a document is attested. ' A secret witness,' one who concealed in a house or room listens to the discourse of the parties. A. Katyayana defines the technical terms in this paragraph as follows: ' One adduced by the claimant himself, whose name is inserted in the deed, is a subscribing witness. A reminded witness is not entered in a deed. He is called a reminded witness who in order to insure the publicity of a transaction is reminded of it again and again by the claimant. One purposely brought near, and one who happened to be on the spot accidentally, are two witnesses not entered in a deed, by whom a claim may be corroborated. One who standing concealed is caused, for the purpose of establishing the claim, to hear distinctly the statements of the defendant, is termed a secret witness. One who subsequently corroborates the statements of other witnesses, whether from his own knowledge, or from hear- say, is called an indirect witness.'

'" 151. The witnesses not appointed by (the party) himself have been declared sixfold: viz. the village, a judge, a king,

■^'152. One acquainted with the affairs of the two parties, and one deputed by the claimant. In family quarrels, members of that family shall be witnesses.

153, They shall be of honourable family, straight- forward, and unexceptionable as to their descent, their actions, and their fortune. The witnesses shall not be less than three in number, unimpeachable, honest, and pure-minded.

1 54. They shall be Brahmans, Vai^yas, or Ksha- triyas, or irreproachable ^'udras. Each of these shall be (witness) for persons of his own order, or all of them may be (witnesses) for all (orders).

*i55. Among companies (of artizans, or guilds of

151, 152. The village or the co- villagers shall be witnesses in a transaction which has taken place within the village. The testimony of the judge shall be heard in regard to a cause tried in a court of justice. The king shall be witness concerning a transaction which has taken place in his presence. These, and one acquainted with the circumstances of both parties, the agent of the claimant, and members of a family in a lawsuit concerning that family, are the six kinds of witnesses not appointed. A.

J 53- 'Of honourable family,' belonging to a noble race. ' Straightforward,' habitually veracious. ' Less than three,' viz. one or two persons may be witnesses if both parties consent to it. In a dispute regarding landed property, more than three witnesses are required. ' Honest,' free from avarice. * Pure- minded,' imbued with the precepts of religion. A. Manu VIII, 62, 63; Vishwu VIII, 8; Apastamba II, 1 1, 29, 7; Gautama XIII, 2; Ya^navalkya II, 68, 69; VasishZ/^a XVI, 28.

154. Members of these four castes shall be witnesses for members of their own caste only. Or let members of any caste be witnesses for members of any other caste. A. Manu VIII, 62; Gautama XIII, 3; Ya^navalkya II, 69; VasishMa XVI, 29; Baudhayana 1, 19, 13.

155. Companies or guilds are of eighteen kinds. Labourers

merchants, other) artizans or merchants shall be wit- nesses; and members of an association among other members of the same association; persons living outside among those living outside; and women among women.

* 156. And if in a company (of artizans or guild of merchants) or in any other association any one falls out (with his associates), they must not bear witness against him; for they all are his enemies.

"'"157. The incompetent witnesses, too, have in this law-book been declared by the learned to be of five sorts: under a text of law, and on account of depravity, of contradiction, of uncalled-for deposi- tion, and of intervening decease.

* 1 58. Learned Brahmans, devotees, aged persons, and ascetics, are those incapacitated under a text of law; there is no (special) reason given for it.

*I59. Thieves, robbers, dangerous characters,

for hire shall be witnesses for other members of the same associa- tion. Outcasts shall be witnesses for other low-caste persons. Women shall be witnesses where two women quarrel with one another. In all these cases, the qualities of the witnesses need not be tested. A. Manu VIII, 68; Vasish/^a XVI, 30.

156. If in a company of traders any one member should con- tract an enmity towards the other members of it, they are unw^orthy to bear testimony against or about him, on account of their enmity towards him. Here ends the chapter on witnesses, the tenth section of the law of debt. A.

158. The reason why the persons referred to in this paragraph are excluded seems to lie in their entire renunciation of earthly interests, which renders them unfit to appear in a court of justice. See Manu VIII, 65, where ' one dead to the world ' is mentioned among the incompetent witnesses, and other parallel passages.

gamblers, assassins, are incompetent on account of their depravity; there is no truth to be found in them.

160. If the statements of witnesses, who have all been summoned by the king for the decision of the same cause, do not agree, they are rendered incom- petent by contradiction.

^'161. He who, without having been appointed to be a witness, comes of his own accord to make a deposition, is termed a spy in the law-books; he is unworthy to bear testimony.

■^162. Where can (any person) bear testimony if the claimant is no longer in existence, whose claim should have been heard? Such a person is an in- competent witness by reason of intervening decease.

'''163. If two persons quarrel with one another,

162. Supposing a man were to claim a certain sum from another and to name a witness, whom he states to have witnessed the transaction. If the soi -disant creditor should die, it would be im- possible to ascertain whether the statement of the witness is true or false. Therefore such a witness must not be admitted by- reason of intervening decease. A.

163. A claimant declares, 'This bull, which you have got, is mine. He was stolen by thieves, who took seven cows along with him. If they are found among your property, they may be known by a red mark on the forehead, or by their white feet, or by other signs.... I am able to adduce four witnesses who will declare them to be mine.' The opponent replies, ' Pra^apati (the Creator) has created many two-legged and four-legged beings closely resembling one another. If a superficial likeness is to be considered as evidence, I might take another man's wife into my house, because she has eyebrows, ears, a nose, eyes, a tongue, hand, and feet like my wife. This bull is born and bred in my own house. I am able to adduce four witnesses from the village in which he is being kept; their statements will establish the fact that he belongs to me.' In a dispute of this sort the witnesses of him who was the first to bring the suit into court will decide the suit. A. Yaj^jlavalkya II, 17; Vishwu VIII, 10.

and if both have witnesses, the witnesses of that party shall be heard which was the first to go to law.

*i64. If the claimant should be cast at the trial, his cause proving as the weaker one of the two, it is fit that the witnesses of the defendant should be heard.

^165. No one should converse in secret with a witness summoned by his adversary, neither should he try to estrange him from the cause of his oppo- nent by other means. A party resorting to such practices as these is cast.

166. If a witness dies or goes abroad after having been appointed, those who have heard his deposition may give evidence; for indirect proof (through a second-hand statement) makes evidence (as well as direct proof).

*i67. Even after a great lapse of time (the depo- sition of) a subscribing witness retains its validity;

164. Where the plaint is rejected and the defence acknowledged as correct, the witnesses of the defendant have to be examined. A, Ya^navalkya II, 17; Vishwu VIII, 11.

165. That man who holds secret conversations with a witness produced by his opponent, or who tries to intimidate him by threats, abuse, and the like, or to bribe him, loses his suit. A.

166. If a witness dies or goes abroad, indirect witnesses, i.e. those who have heard him speak of the matter, on his deathbed, or when he was about to start, either in answer to questions of the plaintiff, or of his own accord, shall be examined. A. Vish^m VIII, 12.

167. What follows here is intended to show how long the state- ments of each of the five appointed witnesses mentioned in par. 150 retain their validity. A subscribing witness may give valid evidence after the lapse of a very long period even. Such a witness should subscribe his name with his own hand, at the time when the document is being executed, as e. g. ' I, Devadatta, have witnessed this transaction.' If he is unable to write, he should cause another person to write in his own name. The document will make evidence, whenever the occasion arises. A.

I, i74» witnesses; circumstantial evidence. 85

if a man can write, he should write (his name) him- self; if he cannot (write himself), he should cause it to be written by another man.

* 168. (The deposition of) a witness who has been reminded (of the transaction) remains valid in this world up to the eighth year, that of a casual witness remains valid up to the fifth year.

* 169. (The deposition of) a secret witness remains valid up to the third year; (the deposition of) an indirect witness is declared to remain valid for one year only.

* 1 70. Or no definite period is fixed for judging a witness; for those acquainted with law have declared that testimony depends upon memory.

"^^171. A witness whose understanding, memory, and hearing have never been deranged, may give evi- dence even after a very considerable lapse of time.

13. Six Cases where Witnesses are unnecessary.

*I72. However, six different kinds of proceed- ings have been indicated in which witnesses are not required. (Other) indications of the crime com- mitted are substituted for the evidence of witnesses in these cases by the learned.

* 1 73. It should be known that one carrying a fire- brand in his hand is an incendiary; that one taken with a weapon in his hand is a murderer; and that, where a man and the wife of another man seize one another by the hair, the man must be an adulterer.

'''' 1 74. One who goes about with a hatchet in his

170, 171. Under this rule, the validity of any testimony is declared independent of length of time, and to depend on the competence of the witness alone. A.

hand and makes his approach may be recognised as a destroyer of bridges (and embankments); one carrying an axe is declared a destroyer of trees.

* 175. One whose looks are suspicious is likely to have committed an assault. In all these cases wit- nesses may be dispensed with; only in the (last- mentioned) case of assault careful investigation is required.

176. Some one might make marks upon his per- son through hatred, to injure an enemy. In such cases it is necessary to resort to inductive reason- ing, (ascertaining) the fact of the matter, and strata gems, in order to get a (reliable) test.

177. Those must not be examined as witnesses who are interested in the suit, nor friends, nor asso- ciates, nor enemies, nor notorious offenders, nor persons tainted (with a heavy sin).

* 178. Nor a slave, nor an impostor, nor one not admitted to ^'raddhas, nor a superannuated man, nor a woman, nor a child, nor an oil-maker, nor one

175. 'Suspicious looks,' as e.g. a sword smeared with blood. Viramitrodaya. In an analogous text of ASahkha, as quoted in the Viramitrodaya, &c., the possession of stolen goods is mentioned as a further manifest proof of crime.

177-187, 190. ManuVIII, 64-67, 71; Ya^Tiavalkya II, 70, 71; Vish^zu VIII, 1-5; Gautama XIII, 5. Asahaya observes that the rules regarding incompetent witnesses do not relate to cases of assault only, but to judicial proceedings of every sort.

177. 'AssociateSj'i.e. partners in business. ' Notorious offenders,' persons formerly convicted of perjury or other crimes. A. For different interpretations of some of the terms occurring in this section, see the notes to Professor Biihler's Manu, and to Burnell- Hopkins's Manu, VIII, 64, foil.

178. 'A slave,' one born in the house. 'An impostor,' a

intoxicated, nor a madman, nor a careless man, nor one distressed, nor a gamester, nor one who sacri- fices for a whole village.

■^^179. Nor one engaged in a long journey, nor a merchant who travels into transmarine countries, nor a religious ascetic, nor one sick, nor one de- formed, nor one man alone, nor a learned Brahman, nor one who neglects religious customs, nor a eunuch, nor an actor.

■^^*i8o. Nor an atheist, nor a Vratya, nor one who has forsaken his wife or his fire, nor one who makes illicit offerings, nor an associate who eats from the same dish (as oneself), nor an adversary, nor a spy, nor a relation, nor one connected by the same womb.

''''181. Nor one who has formerly proved an evil- doer, nor. a public dancer, nor one who lives by

fallacious person. ' One not admitted to -S'raddhas,' one who is not allowed to partake of obsequial feasts. * A superannuated man,' weak or decrepit persons. ' One distressed/ by a calamity. A.

179. 'One who neglects religious customs,' one who fails to perform his religious duties. ' A eunuch,' one incapable of be- getting offspring. A.

180. 'An atheist/ a heretic. 'A Vratya/ one for whom the ceremony of initiation has not been performed. ' His wife,' his legitimate spouse. ' His fire,' the sacred Vaitana fire. ' One who makes illicit offerings,' one who performs sacrifices for persons of bad fame. * An associate who eats from the same dish/ one with whom one keeps up commensality. 'A spy,' employed in the service of the king. ' One connected by the same womb,' a uterine brother.

181. 'One who has formerly proved an evil-doer/ one afflicted with an ugly disease, the consequence of wicked acts committed in a previous existence; or one guilty of robbery or other crimes. ' One who lives by poison/ one who buys or sells poison. * A snake-catcher,' one who catches venomous reptiles. ' A poisoner/ one who, actuated by hatred, gives poison to other people. ' An incendiary/ one who sets fire to houses, &c. Kinaja (a ploughman), ' a ^Siidra/ or ' a miser.' A.

poison, nor a snake-catcher, nor a poisoner, nor an incendiary, nor a ploughman, nor the son of a ^'udra woman, nor one who has committed a minor offence.

* 182. Nor one oppressed by fatigue, nor a fero- cious man, nor one who has relinquished worldly appetites, nor one penniless, nor a member of the lowest castes, nor one leading a bad life, nor a stu- dent before his course of study is completed, nor an oilman, nor a seller of roots.

'''183. Nor one possessed by a demon, nor an enemy of the king, nor a weather-prophet, nor an astrologer, nor a malicious person, nor one self- sold, nor one who has a limb too little, nor a Bhagavr/tti.

*i84. Nor one who has bad nails or black teeth, nor one who betrays his friends, nor a rogue, nor a seller of spirituous liquor, nor a juggler, nor an

182. 'A ferocious man,' one who perpetrates illicit acts of violence. ' One who has relinquished worldly appetites,' an ascetic. *One penniless,' one who has lost his whole wealth through gambling or other extravagance. ' A member of the lowest castes,' a ^aw^ala. ' One leading a bad life,' an infidel. A. The term m{ilika denotes ' a seller of roots,' according to A. The Virami- trodaya interprets it by * one who practises incantations with roots.'

183. A. explains varshanakshatrasu/^aka as a single term, de- noting ' an astrologer.' The Viramitrodaya, more appropriately, divides it into two terms: ' one who prophesies rain,' i.e. a weather- prophet, and ' an astronomer,' i. e. an astrologer. The term agha- jawsin, ' a malicious person,' is in the Viramitrodaya interpreted by * one who makes public the failings of other people.' ' One self- sold,' one who has entered the state of slavery for money. ' One who has a limb too little,' i. e. an arm or a foot. ' A Bhagavrz'tti,' one who lives by the prostitution of his wife, or one who suffers his mouth to be used like a female part (bhaga). A.

184. 'A cruel man,' a hard-hearted man; or Ugra is used as a proper noun denoting the offspring of a Kshatriya with a -S'udra wife. A.

avaricious or cruel man, nor an enemy of a company (of traders) or of an association (of clansmen).

* 1 85. Nor one who takes animal life, nor a leather manufacturer, nor a cripple, nor an outcast, nor a forger, nor a quack, nor an apostate, nor a robber, nor one of the king's attendants.

*i86. Nor a Brahman who sells human beings, cattle, meat, bones, honey, milk, water, or butter, nor a member of a twice-born caste guilty of usury.

*i87. Nor one who neglects his duties, nor a Kulika, nor a bard, nor one who serves low people, nor one who quarrels with his father, nor one who causes dissension. These are the incompetent witnesses.

*i88. The slaves, impostors, and other incompe- tent witnesses who have been enumerated above, shall be witnesses nevertheless in suits of a speci- ally grave character.

■^4 89. Whenever a heinous crime, or a robbery, or adultery, or one of the two kinds of insult has been committed, he must not inquire (too strictly) into the (character of the) witnesses.

* 1 90. A child also cannot be (made a witness), nor a woman, nor one man alone, nor a cheat, nor a relative, nor an enemy. These persons might give false evi- dence.

185. ' One who takes animal life,' a butcher. * A forger,' one who falsifies documents or coined money. 'A quack,' one who practises incantations and the like with mysterious formulas, medi- cines, &c. ' An apostate,' one who has left the order of religious mendicants. ' An attendant of the king,' a menial. A.

187. 'A Kulika,' a judge; or the head of a caste or guild. * One who causes dissension,' one who causes friends or others to fall out with one another. Viramitrodaya.

189. ManuVIII, 72; Yaj^navalkya II, 72; Gautama XIII, 9; Vishwu VIII, 6.

'"'191. A child would speak falsely from Ignorance, a woman from want of veracity, an impostor from habitual depravity, a relative from affection, an enemy from desire of revenge.

*i92. By consent of both parties, one man alone even may become a witness in a suit. He must be examined in public as a witness, though (he has been mentioned as) an incompetent witness.

*I93. One who, weighed down by the conscious- ness of his guilt looks as if he was ill, is constantly shifting his position, and runs after everybody;

* 1 94. Who walks irresolutely and without reason, and draws repeated sighs; who scratches the ground with his feet, and who shakes his arm and clothes;

*I95. Whose countenance changes colour, whose forehead sweats, whose lips become dry, and who looks above and about him;

*I96. Who makes long speeches which are not to the purpose as if he were in a hurry, and without being asked: such a person may be recognised as a false witness, and the king should punish that sinful man.

* 197. He who conceals his knowledge (at the time

192. One agreeable to both parties shall be examined in an assembly of honourable men. A. Manu VIII, 77; Y%-?lavalkya II, 72; VishwuVIII, 9.

193-196. These rules relate to the trial of a cause by the judge. The time for examining the witnesses having arrived, he should examine their miens and gestures. Incompetent witnesses are not only those previously mentioned, but those here described are equally incompetent. A. ]\Ianu VIII, 25, 26; Ya^wavalkya II, 13-15; Vishnu VIII, 18.

197. One who has made a certain statement in the hearing of others, and makes a different statement at the time of the trial, shall receive specially heavy punishment; for he is a greater criminal than a false witness. A. Ya^?iavalkya II, 82.

T, 202. FALSE witnesses; EXHORTATION. 9 1

of trial), although he has previously related (what he knows) to others, deserves specially heavy punish- ment, for he is more criminal than a false witness even.

''^198. (The judge), after having summoned all the witnesses, and bound them down firmly by an oath, shall examine them separately. (They should be men) of tried integrity and conversant with the cir- cumstances of the case.

199. Let him cause a priest to swear by Truth, a Kshatriya by his riding animal and weapons, a Val^a by his cows, grain, or gold, a K^udra by all sorts of crimes.

*200. By ancient sacred texts, extolling the excel- lence of Truth, and denouncing the sinfulness of Falsehood, let him Inspire them with deep awe.

201. He who gives false testimony as a witness will enter his enemy's house, naked, with his head shorn, tormented with hunger and thirst, and de- prived of sight, to beg food with a potsherd.

202. Naked, with his head shorn, with a potsherd (for a begging-bowl), standing hungry before the door

198-228. ManuVIII, 79-101; Ya^navalkya II, 73-75; Vish/m VIII, 19-37; Gautama XIII, 12-23; Apastamba II, 11, 29, 7-10; Baudhayana I, 19, 10-12; VasishMa XVI, 32-34. Bohtlingk's Indische Spriiche.

199. Identical with ManuVIII, 113. See, too, ManuVIII, 88. The commentators of the Code of Manu give various explanations of the latter verse. It may mean that a false witness is threatened with the guilt of all offences committed against riding animals, cows, grain, &c.; or with the guilt of stealing riding animals, &c.; or with their loss; or that the judge shall exhort witnesses to touch a cow, &c.

201, 202. Manu VIII, 93; Vasish/^a XVI, 33.

of his adversary, shall he constantly meet his enemies who give false testimony.

203. A perjured witness shall spend his nights in the same manner as a wife who has been superseded (by another), or as a man who has been worsted in playing at dice, or as one whose body is weighed down by a heavy burden.

204. A witness who wavers in giving evidence is sure to be fettered with a thousand bonds from the chain of Varu;ea.

205. After the lapse of a hundred years, the cord is taken off him. When he is free from the cord, the man becomes a woman.

206. Thus is a man liberated from this fixed bond- age. *Now I will state, in order, how many kinsmen a false witness kills,

*207. If his evidence concerns, respectively, (small) cattle, cows, horses, human beings, gold, and land. Listen to me, my friend.

203. This sentiment shows that the condition of a superseded wife under Hindu law must have been far from enviable. This is equally shown by the custom of presenting a certain sum to her on her supersession by another wife. See Vishwu XVII, 18; Ya^Tia- valkya II, 143.

204. The snaky 'bonds of Varuwa' seem to be an equivalent for dropsy, a disease attributed to the influence of the ancient divinity Varu;^a. See Professor Biihler's note on Manu VIII, 82.

207. ' Kills,' i.e. sends to hell. This interpretation is given by the majority of Manu's commentators. According to others, it means ' causes to fall from heaven and to be reborn in the wombs of animals,' or 'incurs a guilt as great as if he had killed.' See Professor Biihler's note on Manu VIII, 97. The idea that a man, by telling a falsehood, ruins his kinsmen as well as himself, belongs to the remotest antiquity, and recurs in the Zendavesta. See Vendidad IV, 24 seq.; Jolly, translation of Book VIII of the Code of Manu, note.

207-209. Nearly identical with Manu VIII, 97-99, &c.

*2o8. He kills five by false testimony concerning (small) cattle; he kills ten by false testimony con- cerning kine; he kills a hundred by false testimony concerning horses; (and he kills) a thousand by false evidence concerning a human being.

*209. He kills the born and the unborn by giving false evidence (in a cause) concerning gold; he kills everything by giving false evidence concerning land; beware, then, of giving false evidence with regard to land.

210. Truth is said to be the one unequalled means of purification of the soul. Xruth is the ladder by which man ascends to heaven, as a ferry (plies) from one bank of a river to the other.

211. If truth and a thousand horse-sacrifices are balanced against one another (it will be found that) truth weighs more heavily than a thousand horse- sacrifices.

212. A tank is better than a hundred wells, an offering better than a hundred tanks, a son better than a hundred offerings, and truth better than a hundred sons.

213. It is truth which makes the earth bear all beings, truth which makes the sun rise. It is through truth that winds blow, and that the w^aters flow.

214. Truth IS the greatest gift, truth is the most efficacious kind of austerity, truth is the highest duty in the world, thus it has been revealed to us.

215. The gods are truth simply, the human race is falsehood. He whose mind is persistent in truth, obtains a divine state in this world even.

216. Speak truth and discard falsehood. It is through truth that thou shalt attain heaven. By

Uttering a falsehood thou wilt precipitate thyself into a most dreadful hellish abode.

*2i7. And in the hells the merciless attendants of Yama, endowed with great strength, will cut off thy tongue and strike thee with swords, constantly,

*2 1 8. And attack and pierce thee with spears, while thou art wailing helpless. When thou art standing, they will fell thee to the ground and fling thee into the flames.

*2 19. After having sustained thus for a long while the acute tortures of hell, thou shalt enter in this world the horrid bodies of vultures, crows, and other (despicable creatures).

*2 20. Having discovered these evils with which falsehood is attended, and knowing, on the other hand, the advantages resulting from veracity, thou must speak truth and (thereby) save thyself. Do not ruin thyself wantonly.

221. Neither relatives, nor friends, nor treasures, be they ever so great, are able to protect those who are about to be plunged into the tremendous darkness (of hell).

222. Thy ancestors are in suspense, when thou hast been appointed to give evidence (reflecting in their minds): ' Will he conduct us (into heaven) or will he precipitate us (into hell)? '

223. Truth is the self of man. Everything de- pends on truth. Therefore thou must be intent on acquiring bliss by thy own effort, by speaking truth.

224. Whatever lies between that night in which thou wast born, and that night in which thou art to die (thy whole life in fact) has been spent in vain by thee, if thou givest false evidence.

225. Those places of abode which are destined

for the murderer of a Brahman, and those which await the murderer of a woman or child, and the regions awaiting an ungrateful man, are reserved for a false witness,

226. There is no higher virtue than veracity, nor heavier crime than falsehood. A man must speak truth therefore, particularly when he has been ap- pointed to give evidence.

* 227. There are two ancient verses (which run as follows): ' If a man is base enough to speak falsely in regard to the affairs of a stranger, what may not such a wretch be expected to do, fearless of hell, where his own welfare is concerned?

* 228. All affairs are connected with speech, have speech for their root, and depend on speech. He who steals a good speech (by violating truth) is capable of committing any theft (or other crime).'

229. Where there is conflicting evidence, the

plurality of witnesses decides the matter. If the

number of witnesses is equal (on both sides), the

testimony of those must be accepted as correct,

228. 'Theft 'is a very wide term under the Hindu law. The Code of Manu includes in the denomination of theft, forgery of documents and of coins, unlawful sales, and dishonesty generally. For hitaw one might read hi i2im, ' For he who steals speech.' Manu IV, 256.

229. Manu VIII, 73; Y^^navalkya II, 78; Vish«u VIII, 39. 229, 230. Where witnesses endowed with a good memory are

found on both sides in equal numbers, evidence based on recollec- tion is incapable of influencing the decision of the suit. The witnesses must not be examined, and the above rule comes into force, that the witnesses become incompetent, because they do not agree with one another. A. See par. 161.

whose veracity is not liable to suspicion. If the number of such witnesses is equal (on both sides) (the testimony of these must be accepted), who are possessed of a superior memory..

230. Where, however, an equal number of wit- nesses possessed of a good memory is found on both sides, the evidence of the witnesses is entirely valueless, on account of the subtle nature of the law of evidence.

231. But wherever a litigant has been abandoned by his own witnesses through the act of fate, the sages have declared that he cannot be absolved by (the performance of) an ordeal even.

■^'^ 232. Where, the time forgiving testimony having arrived, a witness does not make a consistent state- ment with reference to the questions under notice, his testimony is as good as unglven.

^^233. If the witnesses were to disagree with one another as to place, time, age, matter, quantity, shape, and species, such testimony is worthless like- wise.

^ 234. If the witnesses wrongly name too low or too high a sum, this too must be known to make no evidence. This is the rule of witnesses.

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

* 235. When, owing to the negligence of the creditor, both a written contract and witnesses are missing, and the opponent denies his obligation, three different methods may be adopted.

* 236. A timely reminder, argument, and, thirdly, an oath, these are the measures which a plaintiff should adopt against his adversary.

* 237. He who does not refute his (adversary's) statements, though he has been reminded again and again, three, or four, or five times, may be compelled to pay the debt in consequence.

* 238. If the defendant has rejected a demand (to pay), he shall aggress him with arguments relative to place, time, matter, the connexions (existing be- tween the two parties), the amount (of the debt), the contents (of the written contract), and so forth.

* 239. If arguments also are of no avail, let him cause the defendant to undergo one of the ordeals, by fire, water, proof of virtue, and so forth, (which may seem) appropriate to the place, to the season, and to the strength (of the defendant).

236. 'A timely reminder,' timely appeals to the debtor and to the witnesses who have attested the loan. ' Argument,' arguing that the sum in dispute has been previously repaid, or the obligation acknowledged by the debtor. Thirdly, he may attack the defendant with an oath or ordeal, such as e.g. by causing him to swear by his own good actions, or to undergo the ordeal of sacred libation, &c. A. The term 'a reminder' is not correctly explained byAsahaya, as the rule under notice refers to those cases where witnesses are missing.

237. If a debtor has again and again been addressed by his creditor, saying, * Thou owest me money,' and the debtor does not deny the correctness of the assertion, he shall be bound to pay the debt. Raghunandana's Vyavaharatattva.

238. Asahaya says that the various arguments mentioned in this verse shall be resorted to successively, arguments relative to time having to be proffered when arguments relative to place have failed, and so on.

239. The term japatha denotes both an ordeal and an oath in this place, though some of the commentators deny that ^patha may have the former meaning.

240. He whom the waters keep below the surface, and whom blazing fire does not burn, Is considered to refute the charge. In the opposite case he is deemed guilty.

*24i. Proof by ordeal takes place (if an offence has been committed) in a solitary forest, at night, in the interior of a house, and in the case of a heinous offence, or denial of a deposit.

* 242. (Ordeals) are equally (applicable) in the case of those women, whose morality has been impeached, in cases of theft and robbery, and in all cases of denial of an obligation.

* 243. Of the gods and 7?/shis even, the taking of oaths is recorded, Vasish//^a took an oath when he was accused of having assumed the shape of an evil spirit.

240. If a man who is performing the ordeal by water does not rise from water, and if blazing fire, which he is holding in his hand, does not burn him, he is freed from the charge, otherwise he is deemed guilty, i.e. criminal. A. ManuVlII, 115. It does not become quite clear whether the divine tests referred to in this para- graph are identical with the ordeals by water and fire as described further on. See the translations of Manu, and Professor Stenzler's and Dr. E. Schlagintweit's papers on Ordeals in Ancient India.

242. Where the conduct of a woman, i.e. her morals, is called into doubt; where theft or robbery is alleged to have been com- mitted; and where anything has been declared false, for all heavy charges in short, this rule regarding the performance of ordeals has been laid down. A.

243. The great sage Vasish//^a, being suspected of being an evil spirit, took an oath, and was cleared of suspicion thus. A. The story, to which allusion is made in this place, is told by the com- mentators of the code of Manu. Vijvamitra accused his rival Vasish/^a before King Sudas as having eaten up his hundred sons, in the shape of a Rakshasa (malignant spirit). Vasish//^a thereupon exclaimed, ' I will fall dead on the spot if I am a Rakshasa.'

*244. The seven ^/shis resolutely took an oath together with Indra in order to clear themselves mutually of suspicion, when each was suspected (by the rest) of having taken lotus fibres.

245. The perpetrator of a wrong action, or of a crime, shall be let off with one half of the punish- ment due to his offence, if he admits the charge or if he makes his guilt known of his own accord.

246. If, on the other hand, a criminal has cun- ningly concealed his crime, and is convicted of it, the members of the court of justice will not be satis- fied with his conduct, and the punishment inflicted on him shall be specially heavy.

244. The story here referred to occurs in the Pura;/as. The meaning is this: If the great sages even have taken oaths in order to clear themselves from suspicion, how much less should ordinary mortals refrain from taking an oath. A. According to Medhatithi and Govindara^a, the two earliest commentators of Manu, the seven i?/shis had mutually accused one another of the theft of lotus fibres. Indra took an oath when he was suspected with Ahalya.

245. One who has committed any wrong or sinful act to the detriment of any one whomsoever, or who has become guilty of robbery or other crimes, shall have to suffer one half only of the punishment ordained for his misconduct, if he acknowledges in a court of law the truth of the charge brought against himself by the injured party. The same rule obtains, if he has denounced himself guilty, though no plaint has been lodged against him. A.

246. If the perpetrator of a wrong act, or of robbery, &c., denies his guilt, on being examined in a court of justice, and is convicted afterwards by means of an ordeal or of another mode of proof, the assessors of the court will be incensed against and a heavy punish- ment inflicted on him, as e.g. he will have to pay twice as much as in ordinary cases. Here ends that section of the law of debt which consists of ' Rules for those cases where both documents and wit- nesses are wanting.' A.

^' 247. If no witness is forthcoming for either of the two litigant parties, he must test them through ordeals and oaths of every sort.

'"*■ 248. (Let him cause a Brahman to swear by) truth, (a Kshatriya) by his (horse or other) vehicle, and by his weapons, (a Vai^ya) by his cows, seeds or gold and so on, (or all) by venerable deities or deified ancestors, by their pious gifts or meritorious deeds.

249. Where a heavy crime has been committed, the ruler shall administer one of the ordeals. In light cases, on the other hand, a virtuous king shall swear a man with (various) oaths.

* 250. Thus have these oaths been proclaimed by Manu for trifling cases. In a suit concerning a heavy crime, divine test should be resorted to.

251. Holy Manu has ordained that five kinds of ordeals should be administered to those involved In a doubtful case (which has become the object of a lawsuit), especially if the matter under dispute is of a recondite nature.

* 252. The balance, fire, water, poison, and, fifthly, consecrated water, are the ordeals ordained for the purgation of high-minded persons.

248. In this rule are indicated the various oaths to be administered according to the caste and individual character of the offender. A. Manu VIII, 114.

249, 250. These two verses are intended to indicate the difference in point of apph'cability between an ordeal and an oath. A.

251. Holy Manu has said that those against whom a charge of an aggravated nature has been brought, shall have to undergo one out of the five ordeals, in order to clear themselves from suspicion, especially when a secret transgression is concerned. A.

252. In this paragraph the author proceeds to enumerate the five ordeals singly. A. Ya^Tiavalkya II, 95; Vishwu IX, 11.

* 253. (Those ordeals) have been ordained here by N^rada for the purpose of proving the innocence of criminals who are defendants in a lawsuit, (and) in order that right may be discerned from wrong.

^^ 254. During the rains let the (ordeal by) fire be administered. In the autumn season the balance is declared to be (the proper kind of ordeal). The (ordeal by) water should be applied in summer, and the (ordeal by) poison in the cold weather.

■^^255. The distressed shall not be caused to undergo the (ordeal by) water, nor shall poison be given to the bilious, nor shall the ordeal by fire be administered to persons afflicted with white leprosy, or with blindness, or with bad nails.

'"' 256. An ordeal should never be administered to persons engaged in performing a vow, to those afflicted with a heavy calamity, to the diseased, to ascetics, or to women, if the dictates of justice are listened to.

257. Where no one declares himself ready to

253. The five ordeals have been proclaimed by the great sage Narada, for the justification of those impeached on account of their suspicious conduct, by showing where the wrong lies and where not. A.

254. The five ordeals should be administered, each of them, at those very seasons, and not at any other season. A. Vishwu IX, 25, 28, 30.

255. In the case of the persons here mentioned, the ordeals referred to should be avoided, on grounds of disease and of incapacity to undergo them. A.

256. * Persons engaged in performing a vow,' those who have performed the ceremony initiatory to a Soma sacrifice. A.

257. An ordeal should not take place, unless there should be a special reason for it, such as an accusation. Therefore an ordeal must not be administered, unless there be a plaintiff who declares himself ready to take the punishment on himself in case of defeat.

undergo punishment, an ordeal cannot take place. An ordeal shall be administered to litigants where there is reason for it, but not otherwise.

258. Therefore an intelligent, virtuous, righteous, and wise (king or chief judge) should abstain care- fully from administering any one out of the (five) ordeals, unless both parties consent to it.

* 259. The ordeal by water must not take place in the cold weather, nor the ordeal by fire in the hot season, nor must the (ordeal by) poison be admin- istered to any one during the rains, nor the (ordeal by) balance in stormy weather.

* 260. Wise legislators conversant with every law have proclaimed, after mature consideration, the following rules regarding the mode of performing the ordeal by balance, which may be administered in every season.

*26i. The two posts should be dug in every

A. Ya^Tzavalkya II, 96; Vish;m IV, 20, 21. The reading na di- vya/« (for na vina?) seems wrong. Or translate, ' but there is no ordeal for plaintiffs.'

258. A king or chief-judge, who is endowed with the qualities here mentioned, should administer an ordeal with the full approval of both parties in a cause, but not otherwise. A.

259. The times or seasons here referred to should be avoided in the case of the ordeal by water and of the other ordeals, because they are illegal. A. Vishwu IX, 24, 26, 28, 30.

260-284. Vish;m X; Ya^wavalkya II, 100-102.

260. 'After mature consideration,' after having duly considered that the ordeals by fire, water, and poison are subject to many interruptions or obstacles arising from time, locality, &c., wise men have devised this ordeal by balance, which may be performed during any season. That is the meaning. A.

261. The apparatus for performing the ordeal by balance, which is described in this and the following paragraphs, consists of the

case to the depth of two Hastas below ground. (The whole of) their length is ordained to amount to six Hastas in extent.

* 262. The beam of the balance should be four Hastas in length, and the height of the two posts (above ground) should be the same. The interme- diate space between the two posts should measure one and a half Hastas.

* 263. The beam of the balance should be made straight, of Khadira or of Tinduka wood, quadran- gular and (provided) with three Sthanas and with hooks (by which the strings supporting the scale are suspended) and with other (contrivances).

* 264. He should cause it to be made of Khadira wood or ^'i^/^sapa wood, or in default of such, of

following elements: i. Two wooden posts, supporting a trans- verse beam. The two posts should be fastened in the ground at a distance of one-and-a-half Hastas (i Hasta = about 18 inches), facing the west and east. The part above ground should be four Hastas long, and the part below ground two Hastas, the whole length of each post amounting to six Hastas. 2. The beam of the balance, by which the scales have to be suspended. The beam itself, which should measure four Hastas, and should be made of Khadira or other strong wood, should be suspended by means of an iron hook and chain in the middle of the transverse beam. 3. The beam of the balance should be surrounded in the middle and at the two extremities, by three Sthanas (belts?) by which two iron hooks should be fastened. 4. The two scales should be suspended at the two ends of the beam, by the iron hooks, and by four strings each. 5. Each of the two scales should move in a wooden arch (torawa), which serves the purpose of marking the position of the scales. See Mitakshara and Stenzler's paper on Ordeals (vol. ix of the Journal of the German Oriental Society), to which a drawing has been added for the purpose of illustrating the statements of the Smrz'ti writers regarding this kind of ordeal.

264. Wood of the Khadira tree is the most eligible sort of wood. Then comes Tinduka wood, and lastly 6iwsapa wood. A.

Sala, wood, (which must be) without notches and withered portions, and devoid of rents.

* 265. These kinds of timber should be used for preparing the beam of the balance, (which should be erected) either in the midst of a public assembly, or before the gates of the royal palace, or in sight of a temple, or in a cross-road.

266. (The balance) must be dug firmly into the earth, after having been covered with perfumes, gar- lands, and unguents, and after the performance of purificatory and auspicious ceremonies with sour milk, whole grain, clarified butter, and perfumes.

267. This ordeal should always be administered in the presence of the guardians of the world, who must be invoked to be present for the protection (of virtue and justice), and in sight of everybody (who cares to look on).

""'^ 268. It is ordained that all ordeals should be

265. The various places here mentioned are the favourite abodes of Dharmara^a (the king of justice), when he appears on earth. A. The Viramitrodaya and other compositions quote two verses of Katyayana, to the effect that ordeals should be administered to felons in sight of a temple; to those who have offended against the king, before the gates of his palace; to low-caste persons, in a cross-road; and to other offenders, in the midst of a public assembly, or court of justice.

266. It appears from the statements of other legislators, that the ceremonies to be performed on this occasion are perfectly analo- gous to those which have to take place on the occasion of preparing a sacrificial stake (yupa).

267. 'In sight of everybody,' not in a solitary spot. A. 268-270. This is a digression relative to certain exceptions to

the rule in pars. 257, 258. Y%wavalkya II, 96, 99; Vish«u IX, 22.

268. An ordeal is ordained, when the plaintiff declares himself ready to undergo punishment. Where, however, any outrage has been committed against the royal family, an ordeal should be administered even without a declaration of this sort. A.

administered in the forenoon, the person (to be tested) having fasted for a day and a night, taken a bath, and wearing his wet dress.

269. Excepting cases of high treason, an ordeal shall not be administered, unless the plaintiff comes forward and declares himself ready to undergo pun- ishment in case of his being defeated.

270. The king may inflict ordeals on his own servants, even without the one party declaring him- self ready to undergo punishment. On the other hand, in the case of other persons accused of a crime, (he should administer ordeals) according to law (only).

*2 7i. After having well fastened the two scales by the hooks of the beam, he should place the man in the one scale and a stone in the other.

The essential features of the proceedings described in pars. 271-284 may be summarized as follows: i. The person to be tested by this ordeal should be placed in the one scale, and a basket filled with stones and sand placed in the other scale, as an equivalent. 2. The basket having been made precisely equal in weight to the man with the help of goldsmiths and other persons skilled in the practice of weighing, the position of the beam should be marked on each of the two arches. 3. After that, the man should be allowed to descend from the scale. The judge should admonish him, and he should get into the scale again, after a bill recounting the charge raised against him has been fastened on his head. 4. A Brahman should address the balance with prayers. 5. The man having descended once more from the scale, the result of the second weighing should be compared with the result of the first weighing. If he has risen, i.e. if he has proved lighter than the first time, he shall be acquitted; if the scale has gone down, or if it has remained in the same place as before, he must be pronounced guilty. 6. If any part of the balance has broken during the proceeding, he has to be acquitted.

271. The term 'a stone' seems to denote an equivalent here and in the next paragraph. The sequel shows that the equivalent consists of a basket filled with stones and other objects.

* 272. He should weigh the man on the northern side, and the stone on the southern side. There (in the southern scale) he should (place) a basket and fill it up with bricks, mud, and grains of sand.

273. In the first weighing, the weight (of the man) should be ascertained with the aid of experienced men, and the arch marked at that height which corresponds to the even position of the two scales.

* 274. Goldsmiths, merchants, and skilful braziers experienced in the art of weighing, should inspect the beam of the balance.

* 275. After having first weighed the man, and having made (on the arches) a mark for the beam, in order to show the (even) position of the scales, he should cause him to descend from the balance.

* 276. After having admonished him with solemn imprecations he should cause the man to get into the scale again, after having fastened a writing on

273-275. Goldsmiths, merchants, braziers, and other persons familiar with the art of weighing, should ascertain whether the man and the equivalent are precisely equal in weight, and whether the beam of the balance is quite straight, by pouring some water (on the beam of the balance?). A. According to the Pitamaha-smn'ti, the water shall be poured on the beam of the balance. If it does not trickle down from the beam, the beam may be supposed to be straight. The way in which the position of the scales and of the beam of the balance has to be marked on the two arches, may be gathered from the Ya^?lavalkya-smn'ti, which ordains that a line shall be drawn (across the arches).

276. He should cause the man to get into the scale once more, after having reminded him of his good actions and of the pre- eminence of truth, having invoked the deities, and having fastened on his head a bill recounting the charge, and containing an impre- cation. The whole proceeding must not take place in windy or rainy weather. A. The Viramitrodaya and other compilations quote another text of Narada, according to which no verdict should be given if the scales have been moved by the wind.

his head. There must be neither wind nor rainfall (at the time when this ordeal Is being performed).

277. When he has ascended (the scale), a Brah- man, holding the scale In hts hand, should recite the following: * Thou art called dha/a (a balance), which appellation Is synonymous with dharma (justice).

* 278. Thou knowest the bad and good actions of all beings. This man, being arraigned In a cause, is weighed upon thee.

279. Thou art superior to gods, demons, and mortals In point of veracity.

[Thou, Balance, hast been created by the gods In time out of mind, as a receptacle of truth.

* 280. Deign to speak truth, therefore, O propi- tious being, and deliver me from this perplexity. If I am an offender, take me down.

*28i. If thou knowest me to be innocent, take me upwards.] Therefore mayst thou deliver him lawfully from the perplexity in which he Is Involved.'

282. After having addressed him, (invoking) the guardians of the world and the gods, with these and other such speeches, he should cause the man who has been placed in the scale, to descend once more and should ascertain (the state of the matter).

'"'283. If he rises, on being weighed (for the second time), he is undoubtedly innocent. If his

277. This quibble is based on the fact that the two words Dha/a and Dharma commence with the same syllable.

279-281. The words enclosed in brackets cannot be genuine. They appear to be a quotation from the Ya^?lavalkya-smmi (II, loi, 102), which has been added as a marginal gloss by a copyist, and has subsequently crept into the text. Ya^?iavalkya puts this entire. address in the mouth of the defendant himself, whereas all the other Smn'ti writers put it in the mouth of a third person.

weight remains the same as before, or if he goes down, he cannot be acquitted.

* 284. Should the scales break; or the beam or the hooks split, or the strings burst, or the trans- verse beam split, (the judge) shall pronounce a formal declaration of his innocence.

21. The Ordeal by Fire. '''''285. I will propound, next, the excellent law re- garding the (ordeal by) fire. The interval between

284. It seems strange that the accidents mentioned in this para- graph should be viewed as proofs of innocence. Vishwu, Katyayana, and Vyasa rule that the proceeding shall be repeated in every such case. BrzTiaspati says that these accidents shall be taken as proofs of guilt. The reading mftrtita^ may be wrong (for puna^ sa? 'he shall cause the proceeding to be repeated'). See Vyasa.

285-303. Vish;/u XI; Ya^fiavalkya II, 103-107.

The essential features of the ordeal by fire are as follows: I. Eight concentric circles of equal breadth are marked on a piece of ground. 2. An iron ball is heated repeatedly by a blacksmith. 3. The hands of the defendant are examined, and all existing sores or scars coloured with dots. 4. His hands are wrapped up in leaves, in order to protect them against the hot iron. 5. A prayer addressed to Agni, god of fire, shall be recited and written on a leaf, which is fastened on the head of the defendant. 6. The iron ball is placed in his hands, and he is made to walk slowly through all the circles successively, taking one circle with each step. On reaching the last circle he may throw the ball on the ground.

7. His hands are examined once more. If they are found to con- tain any fresh sores or wounds, he is guilty; if not, he is innocent.