48

48. And among birds, those who seek their food by scratching with their feet, the web-footed ones, the Kalavihka, the water-hen, the flamingo, the

39. Gautama XVII, 27. Haradatta on Apastamba and Gau- tama explain jvavidh, ' the porcupine,' to be a kind of boar, and jalyaka, ' the hedgehog,' to be ' the porcupine.'

41-42. Gautama XVII, 36; Apastamba I, 5, 17, 38-39. 43. Apastamba I, 5, 17, 29. 44. ManuV, 11,17.

45. Gautama XVII, 30-31. 46. Apastamba I, 5, 17, 31. 48. Gautama XVII, 34-35; Vishmi LI, 28-31. I read man- dhala, ' the flying fox/ while Krzsh«apa«/ita gives maghara, a

Brahma;d duck, the Bhasa, the crow, the blue pigeon, the osprey, the A^ataka, the dove, the crane, the black partridge, the grey heron, the vulture, the falcon, the white egret, the ibis, the cormorant, the peewit, the flying-fox, those flying about at night, the woodpecker, the sparrow, the Railataka, the green pigeon, the wagtail, the village-cock, the parrot, the starling, the cuckoo, those feeding on flesh, and those living about villages (must not be eaten).

i. Man formed of uterine blood and virile seed proceeds from his mother and his father (as an effect) from its cause.

2. (Therefore) the father and the mother have power to give, to sell, and to abandon their (son).

3. But let him not give or receive (in adoption) an only son;

4. For he (must remain) to continue the line of the ancestors.

5. Let a woman neither give nor receive a son except with her husband's permission.

6. He who desires to adopt a son, shall assemble

reading which he cannot explain. The MSS. read as follows: B. E. maghara, Bh. F. madhaw, I. O. 913 (/i/Abh) andha (naktaw). Haradatta on Apastamba I, 5, 17, 33 explains plava, 'the water- hen,' to be a kind of heron, called also jaka/abila.

XV. 1-9. Vyavaharamayukha IV, 5, 16; Colebrooke V, Digest CCLXXIII; Dattakamimawsa IV, 14; V, 31-40.

3. Colebrooke, Mitakshara I, 1 1, 1 1; Dattakamima/rcsa IV, 2-3.

4. Dattakamimawsa IV, 4. I. e. to offer funeral sacrifices to his ancestors and to have sons who do it after him.

6. Colebrooke, Mitakshara I, n, 13, and note; Dattakami-

his kinsmen, announce his intention to the king, make burnt-offerings in the middle of the house, reciting the Vyahrztis, and take (as a son) a not remote kins- man, just the nearest among his relatives.

7. But if a doubt arises (with respect to an adopted son who is) a remote kinsman, (the adopter) shall set him apart like a.Sudra.

8. For it is declared in the Veda, ' Through one he saves many.'

9. If, after an adoption has been made, a legiti- mate son be born, (the adopted son) shall obtain a fourth part,

10. Provided he be not engaged in (rites) pro- curing prosperity.

ma/?zsa II, 51; Dattaka>£andrika II, 11. 'To the king/ i.e. to the person who holds the village, either to the king of the country or to the feudal chief (Thakor) who holds it under the sovereign. * Reciting the Vyahrztis/ i. e. saying with the first oblation Om bhvU svaha, with the second Om bhuva^ svaha, with the third Om sva^ svaha, and with the fourth Om bh., bh., sv. svaha; see Vyavaharamayukha IV, 5, 42. 'A not remote kinsman, just the nearest among his relatives/ i. e. a boy as nearly related as possible, in the first instance a Sapi/wfa, on failure of such a one, a Sama- nodaka or a Sagotra.

7. Dattakamimawsa II, 18; Dattaka/fcandrika II, 11. 'If a doubt arises/ i. e. if the adopter afterwards feels uncertain regarding the caste or other qualifications of his adopted son. ' Set him apart like a -Sudra/ i. e. shall neither have him initiated nor employ him for any sacred rites.

9. Colebrooke, Mitakshara I, 11, 24. Dattakamimawsa X, 1; Dattaka&tndrika II, n j V, 17. For the explanation of the term 1 a fourth part/ see Colebrooke, Mitakshara I, 77.

10. 'Rites procuring prosperity/ i.e. »Sraddhas, expiatory rites, &c. See also above, III, 71, and Gautama XI, 17. According to KrzshwapaTzaTita the estate is in this case to be divided equally between the legitimate son and the adopted son. An entirely

[V, 18. EXCOMMUNICATION AND READMISSION. J J

ii. He who divulges the Veda (to persons not authorised to study it), he who sacrifices for ^udras, (and all those) who have fallen from the rank of the highest caste (shall be excommunicated by the ceremony of) emptying the water-vessel.

12. A slave or the son of a wife of a lower caste, or a relative not belonging to the same caste, who is destitute of good qualities, shall fetch a broken pot from a heap of vessels unfit for use, place Kusa grass, the tops of which have been cut off, or Lohita grass (on the ground), and empty the pot for the (outcast, overturning it) with his left foot;

13. And the relatives of the (outcast), allowing their hair to hang down, shall touch him who empties (the pot).

14. Turning (when they leave) their left hands towards (that spot), they may go home at pleasure.

15. Let them not afterwards admit the (excom- municated person) to sacred rites.

16. Those who admit him to sacred rites become his equals.

17. But outcasts who have performed (the pre- scribed) penance (may be) readmitted.

18. Now they quote also (the following verse):

different explanation, 'Provided (the estate) may not have been expended in acts of merit,' is given Dattaka/fcandrika V, 17-18. It is doubtlessly erroneous, for ' the estate ' is nowhere mentioned in the preceding Sutras.

12. Gautama XX, 4. 'For the (outcast)/ i. e. pronouncing his name, and saying, ' I deprive N. N. of water.'

13. Gautama XX, 5. Krzsrmapara^ita takes the Sutra differently, but his explanation is refuted by the parallel passage of Gautama and Haradatta's commentary thereon.

' Let him walk before those who readmit him, like one gamboling and laughing. Let him walk behind those who excommunicate him, like one weeping and sorrowing.'

19. Those who strike their teacher, their mother, or their father may be readmitted in the following manner, either after being pardoned by the (persons offended) or after expiating their sin.

20. Having filled a golden or an earthen vessel (with water taken) from a sacred lake or river, they pour (the water) over him, (reciting the three verses) 1 Ye waters are ' &c.

21. All the (other ceremonies to be performed on the) readmission of one who has bathed (in this manner) have been explained by (those ordained on) the birth of a son.

1. Now (follow the rules regarding) legal pro- ceedings.

2. Let the king (or) his minister transact the business on the bench.

3. When two (parties) have a dispute, let him not be partial to one of them.

20. Gautama XX, 10-14. I read ' puwyahradat/ instead of ' purwahradat,' as the MSS. and Knsh«apa«^ita have. The passage of the Veda referred to occurs Rig-veda X, 9, 1.

21. I. e. the person readmitted shall receive all the various sacraments just like a new-born child.

XVI. 2. Vishmilll, 72-73. Kr2*sh«apa«</ita gives a second expla- nation of the Sutra, which also appears admissible, ' Let the king transact the business on the bench, taking counsel (with learned Brahma«as as assessors);' see Vishmi III, 72.

3. Translated as above the Sutra is nearly equivalent to Gautama

4. Let him reason properly regarding an offence; finally the offence (will become evident thereby).

5. He who properly reasons regarding an offence, in accordance with the sum of the science of the first two castes, is equitable towards all created beings.

6. And let him protect what has been gained;

7. (Likewise) the property of infants (of the) royal (race).

XI, 5. But the phrase 'when two parties have a dispute' may also indicate, as Kr/sh«apa«^ita suggests, that the king or judge shall not promote litigation, see Gautama XIII, 27. As Krz'srma- pa/zdTita states, the Sutra may, however, mean also, ' When one case is being argued, let him not begin another (without finishing the first);' see Manu VIII, 43. Owing to the particular nature of the Sutra style and the inclination of the Brahmanical mind to double- entendres, I do not think it improbable that the author may have intended, both in this and in the preceding Sutras, that his words should be interpreted in two ways.

4. Gautama XI, 23-24. I divide the words of the text, as follows, 'yathasanam (i. e. yatha-asanam) aparadhohi; antena aparadha^,' and interpolate syat at the end of the first clause.

5. Kr*'sh#apa7z^ita wrongly divides this Sutra into two, and wrongly adopts the reading of MSS. B. and E., consequently he obtains a sense only by the most astonishing tricks of interpreta- tion. I read with MSS. Bh. and F., yathasanam aparadhohyadya- varwayor vidyantata^, to which the reading of I. O. 913 adya- varwayor vidhanata^ points also. The meaning of the expression, 1 according to the sum of the science of the first two castes,' I take to be according to the rules of sacred learning and of the mimawsa, which is peculiar to the Brahma/zas and of logic (anvikshiki) and polity (da^^aniti), which are peculiar to or at least recommended to the particular attention of the Kshatriyas.

. 6. I read with MSS. Bh. and F., sa^pannaw ka. rakshayet. I con- sider this Sutra to contain an admonition addressed to the king for himself; see Manu VII, 99. Krz'sh^apaw^ita and B. read sapattraw £a rakshayet, ' Let him protect that which is attested by writings,' i. e. the donations of former kings, attested by writings; see Vish/m III, 83.

7. Knsh»apaMta thinks that the rule refers to the property of

8. (Likewise the property) of persons unfit to transact legal business (minors, widows, and so forth).

9. But if (a minor) comes of age, his property must be made over to him.

10. * It is declared in the Smnti that there are three kinds of proof which give a title to (property, viz.) documents, witnesses, and possession; (thereby) an owner may recover property which formerly be- longed to him (but was lost)/

11. From fields through which (there is a right of) road (a space sufficient for the road) must be set apart, likewise a space for turning (a cart).

12. Near new-built houses (and) other things (of the same description there shall be) a passage three feet broad.

13. In a dispute about a house or a field, reliance (may be placed on the depositions of) neighbours.

14. If the statements of the neighbours disagree, documents (may be taken as) proof.

the infant children of a hostile king who has been conquered and slain. It is, however, not improbable that it has a wider sense, and exhorts the king to look after the property of the children of his predecessor and of deceased feudal barons. 8-9. Gautama X, 48; Vishmi III, 65.

1 1. Kr*sh7zapa#dita quotes in illustration of this Sutra the follow- ing passage of -Sarikha and Likhita: 'In a field through which (there is a right of) road, (space) for the road must be set apart, and on the king's high-road a space sufficient for turning a chariot.'

12. Arthantareshu, 'near other things (of the same descrip- tion),' means, according to Kr/sh#apa«dita, ' near pleasure-gardens and the like.' No doubt, buildings of all kinds, fenced or walled gardens, and so forth are meant. I read tripadamatram.

13. Manu VIII, 258, 262; Yag-ftavalkya II, 150, 152, 154.

15. If conflicting documents are produced, reliance (may be placed) on (the statements of) aged (inhabi- tants) of the village or town, and on (those of) guilds and corporations (of artisans or traders).

16. Now they quote also (the following verse): 1 Property inherited from a father, a thing bought, a pledge, property given to a wife after marriage by her husband's family, a gift, property obtained for performing a sacrifice, the property of reunited co- parceners, and wages as the eighth.'

17. Whatever belonging to these (eight kinds of property) has been enjoyed (by another person) for ten years continuously (is lost to the owner).

18. They quote also (a verse) on the other side: 'A pledge, a boundary, and the property of minors, an (open) deposit, a sealed deposit, women, the property of a king, (and) the wealth of a.Srotriya are not lost by being enjoyed (by others)/

1 9. Property entirely given up (by its owner) goes to the king.

20. If it be otherwise, the king with his ministers and the citizens shall administer it.

16. In translating anvadheya by 'property given to a wife by her husband or his family after marriage/ I have followed Krishna.- pa^ita's explanation. It may, however, mean also 'a deposit to be delivered to a third person' (anvahita or anvadhi). Pratigraha, 'a gift/ is elsewhere explained as 'property promised, but not actually given.'

17. Ya^-navalkya II, 24; see also Vishmi V, 187; Manu VIII, 148.

18. Identical with Manu VIII, 149; Ya^avalkya II, 25.

20. ' If it be otherwise/ i. e. if the owner gave his property up temporarily only, e. g. went on a journey or a pilgrimage, leaving it without anybody to take care of.

21. A king will, be superior even to Brahman if he lives surrounded by servants (who are keen-eyed) like vultures.

22. But a king will not be exalted if he lives sur- rounded by servants (who are greedy) like vultures.

23. Let him live surrounded by servants (who are keen-eyed) like vultures, let him not be a vulture surrounded by vultures.

24. For through his servants blemishes become manifest (in his kingdom),

25. (Such as) theft, robbery, oppression, and (so forth).

26. Therefore let him question his servants before- hand.

27. Now (follow the rules regarding) witnesses:

28..Srotriyas, men of unblemished form, of good character, men who are holy and love truth (are fit to be) witnesses,

29. Or (men of) any (caste may give evidence) regarding (men of) any (other caste).

30. Let him make women witnesses regarding women; for twice-born men twice-born men of the same caste (shall be witnesses), and good.Sttdras for •Sudras, and men of low birth for low-caste men.

31. Now they quote also (the following verse): 'A son need not pay money due by a surety, any- thing idly promised, money due for losses at play or for spirituous liquor, nor what remains unpaid of a fine or a toll/

32. 'Depose, O witness, according to the truth; expecting thy answer, thy ancestors hang in suspense;

28. Vishnu VIII, 8; Ya^navalkya II, 68; Manu VIII, 62-63.

29. Ya^ftavalkya II, 69. 30. Manu VIII, 68. 31. VishmiVI, 41; Manu VIII, 159; Ya^avalkya II, 47.

(in accordance with its truth or falsehood) they will rise (to heaven) or fall (into hell).'

33. ' Naked and shorn, tormented with hunger and thirst, and deprived of sight shall the man who gives false evidence go with a potsherd to beg food at the door of his enemy.'

34. 'He kills five by false testimony regarding a maiden; he kills ten by false testimony regarding kine; he kills a hundred by false evidence regarding a horse, and a thousand by false evidence regarding a man.'

35. (Men) may speak an untruth at the time of marriage, during dalliance, when their lives are in danger or the loss of their whole property is immi- nent, and for the sake of a Brahma/za; they declare that an untruth spoken in these five cases does not make (the speaker) an outcast.

36. Those who give partial evidence in a judicial proceeding for the sake of a relative or for money, deprive the ancestors of their spiritual family and those of their natural family of their place in heaven.

34. Identical with Manu VIII, 98. Regarding the explanation of the words 'he kills/ see Manu VIII, 97, and Haradatta on Gautama XIII, 14.

35. Gautama XXIII, 29. Between this and the preceding Sutras the MSS. as well as Krz'shwapa^ita insert another one, which is so corrupt that I am unable to translate it. Krishnapan- dita's explanation is opposed to all rules of interpretation, and not worth giving.

36. This verse, too, is corrupt, though the general sense is not doubtful. I read sva^anasy^rthe yadi varthaheto^ paksharrayewaiva vadanti karyam — te jabdavawjasya kulasya purvan svargasthitaw- st^napi patayanti. ■ The ancestors of their spiritual family,' i. e. the teacher, the teacher's teacher, and so forth.

i. The father throws his debts on the (son) and obtains immortality if he sees the face of a living son.

2. It is declared in the Veda, 'Endless are the worlds of those who have sons; there is no place for the man who is destitute of male offspring/

3. There is a curse (in the Veda), ' May our enemies be destitute of offspring.'

4. There is also (the following) passage of the Veda, ' May I obtain, O Agni, immortality by offspring.'

5. ' Through a son he conquers the worlds, through a grandson he obtains immortality, but through his son's grandson he gains the world of the sun/

6. There is a dispute (among the wise; some say), 'The son belongs to the husband of the wife;' (and some say), ' The son belongs to the begetter/

7. With respect to this (matter) they quote also on both sides verses like the following:

8. (Some say), Tf (one man's) bull were to beget a hundred calves on another man's cows, they would belong to the owner of the cows; in vain would the bull have spent his strength.'

XVII. 1. Identical with Vishmi XV, 45; Manu IX, 107; Cole- brooke V, Dig. CCCIV.

2. The latter part of the quotation occurs Aitareya-brahmawa VII, 3, 9-

4. Rig-veda V, 4, 10; Taittiriya-satfzhita I, 4, 46, 1.

5. Identical with Manu IX, 137, and Vishmi XV, 46.

6. The same point is argued Manu IX, 31-56. 8. Identical with Manu IX, 50.

9. (Others say), 'Carefully watch the procreation of your offspring, lest strangers sow seed on your soil; in the next world the son belongs to the begetter; (by carelessness) a husband makes (the possession of) offspring in vain.'

10. If amongst many brothers who are begotten by one father, one have a son, they all have offspring through that son; thus says the Veda.

11. If among many wives of one husband, one have a son, they all have offspring through that son; thus says the Veda.

12. Twelve (kinds of) sons only are noticed by the ancients.

13. The first (among these is the son) begotten by the husband himself on his legally married wife.

14. The second is the son of a wife (who is be- gotten) on failure of the (first) on a (wife or widow duly) authorised (thereto, by a kinsman).

12. Colebrooke V, Dig. CXCIII; Vishnu XV, 1. Elsewhere the expression pura«adrish/a^, ' noticed by the ancients/ has been taken to mean ' seen in the Purarca ' (' the holy writ,' Colebrooke).

13. Colebrooke V, Dig. CXCIII; Vishmi XV, 2.

14. Colebrooke V, Dig. CCXXX; Vishmi XV, 3.

15. Colebrooke V, Dig. CCIII; Mitakshara I, 11, 3; Vyava- h&ra Mayukha IV, 4, 43. The curious fact that VasishMa here calls the appointed daughter a son may perhaps be explained by a custom which, though rarely practised, still occurs in Ka^mir, and by which a brotherless maiden is given a male name. A his- torical instance of this kind is mentioned in the Ra^atararigim, where it is stated that Kalyawadevi, princess of Gau</a and wife of king Gayapi^a, was called by her father Kalyawamalla. When I collated this passage with the help of a Ka^mirian, I was told that a certain Brahmawa, still living in Srinagar, had changed the

1 6. It is declared in the Veda, 'A maiden who has no brothers comes back to the male ancestors (of her own family); returning she becomes their son.'

1 7. With reference to this (matter there is) a verse (to be spoken by the father when appointing his daughter), ' I shall give thee a brotherless damseL decked with ornaments; the son whom she may bear, shall be my son.'

18. The fourth is the son of a remarried woman.

19. She is called remarried (punarbhu)who leaving the husband of her youth, and having lived with others, re-enters his family;

20. And she is called remarried who leaving an impotent, outcast or mad husband, or after the death of her husband takes another lord.

21. The fifth is the son of an unmarried damsel.

22. They declare that the son whom an unmarried damsel produces through lust in her father's house, is the son of his maternal grandfather.

name of his only child, a daughter called Amri, to the corresponding masculine form, Amar^u, in order to secure to himself through her the same spiritual benefits as if he had a son. It seems to me not improbable that Vasish/^a's Sutra alludes to the same legal fiction, and that he recommends in the first instance that the l father is to make his daughter a son by changing her name, and next to secure for himself her son, by the verse quoted Sutra 17.

16. ColebrookeV, Dig. CCIII, where the preceding Sutra has been placed after this. Compare Rig-veda I, 124, 5.

17. ColebrookeV, Dig. CCXVI; Mitakshara I, 11, 3; Daya- bhaga X, 4; Vyavahara Mayukha IV, 4, 43; Vishmi XV, 5.

19. Narada XII, 48 (Jolly), where, however, kaumara/fl patim has been wrongly translated by ' an infant husband.'

21. ColebrookeV, Dig. CCLIX; Vishmi XV, 10.

22. ColebrookeV, Dig. CCLIX; Vishmi XV, 11.

23. Now they quote also (the following verse): 1 If an unmarried daughter bear a son begotten by a man of equal caste, the maternal grandfather has a son through him; he shall offer the funeral cake, and take the wealth (of his grandfather).'

24. (A male child) secretly born in the house is the sixth.

25. They declare that these (six) are heirs and kinsmen, preservers from a great danger.

26. Now among those (sons) who are not heirs, but kinsmen, the first is he who is received with a pregnant bride.

27. (The son of a damsel) who is married pregnant (is called) a son received with the bride (sahod/fca).

29. (He) whom his father and his mother give (in adoption).

31. That is explained by (the story of) 5una^- sepa.

32. ' Hari^andra, forsooth, was a king. He bought the son of A^igarta Sauyavasi.

25. 'From a great danger/ i.e. 'from the danger of losing heaven through failure of the funeral oblations.'

26. Vishmi XV, 15. 28. Vishmi XV, 18. 29. Vishmi XV, 19. 30. Vishmi XV, 20.

32. The MSS. and editions read the last word of the Sutra as follows: B. vikriyya; Ben. ed. vikriya; Bh. E. F. vikradya; Calc. ed. and I. O. 913 vikrayya svayaw kritavan. I believe that, as the letters £a and va are constantly mistaken by the copyists the one for the other, the original reading was £ikraya. Regarding the story told in this Sutra and continued below, Sutra 35, see Max Miiller, History of Ancient Sanskrit Literature, pp. 408-416 and 573-588.

34. That is (likewise) explained by (the story of) 6una^epa.

35. ' vSunaAs-epa, forsooth, when tied to the sacri- ficial stake, praised the gods; there the gods loosened his bonds. To him spoke (each of) the officiating priests, "He shall be my son." He did not agree to their (request. Then) they made him make (this) agreement, "He shall be the son of him whom he chooses." Vii-vamitra was the Hotrz priest at that (sacrifice). He became his son/

37. (He is called so) who, cast off by his father and his mother, is received (as a son).

38. They declare that the son of a woman of the 6udra caste is the sixth. These (six) are kinsmen, not heirs.

39. Now they quote also (the following rule): ' These (last-mentioned) six (sons) shall take the heritage of him who has no heir belonging to the first-mentioned six (classes).

40. Now (follow the rules regarding) the partition of the (paternal) estate among brothers:

41. And (let it be delayed) until those (widows) who have no offspring, (but are supposed to be pregnant), bear sons.

36-37. ColebrookeV, Dig. CCXC; Vishmi XV, 24-25. 38. Colebrooke V, Dig. CCXCII; Dattaka&indrika V, 14; Vishmi XVII, 27; Manu IX, 178-179; Gautama XXVIII, 39.

40. ColebrookeV, Dig. L; Vyavah&ra Mayukha IV, 4, 37.

41. Colebrooke V, Dig. CXVII; Vyavahara Mayukha IV, 4, 37. 42-45. ColebrookeV, Dig. L; Dayabhaga II, 41; Gautama

44. The goats, the sheep, and the house belong to the youngest,

45. Black iron, the utensils, and the furniture to the middlemost.

46. Let the daughters divide the nuptial present of their mother.

47. If a Brahma^a has issue by wives belonging to the Brahma^a, Kshatriya, and Vaiiya classes respectively,

48. The son of the Brahma^a wife shall receive three shares,