CHAPTER XII

THE GROWTH OF LAW AND LEGAL INSTITUTIONS

 

THE law-books, Dharma Shastras, and especially trained experts in law, Dharma-pathakas, are recognized in the didactic parts of the epic; and codes of law are assigned to various ancient worthies, among whom Manu generally, but not always, holds the chief place. The difference between the formal law-book, Shastra, and the Sutra, also concerned with Dharma, is due mainly to the gradual exclusion of irrelevant matter in the law-book. Whereas in the Sutra the term Dharma embraces all domestic duties, religious and ethical, with slight attention paid to formal law, in the completed Shastra law itself is the sole subject discussed. But this difference marks only the extremes, the primitive Dharma Sutra and the law-book of the fifth century AD. Between the two comes a number of works bearing the title of law-book but still retaining in large measure the characteristics of the Sutra. Likewise the formal distinction between a prose Sutra and a metrical law-book is bridged by a period when legal works were partly prose and partly verse. In the end, it was found more convenient to versify the rules as the Hindus versified all knowledge, and the metre chosen for this purpose was the later shloka, which ousted both prose and the older trishtubh metre still used in early Sutras and shastras. The name also is not absolutely fixed. The Sutra is sometimes called shastra. Vishnu’s law-book, for example, is both Sutra and Shastra, as well as Smriti, a general term for traditional teaching.

As the Dharma Sutras emanated from Vedic schools, so, though less surely, it may be said in general that the law-books at first represented certain schools of Brahmanical teaching. The law-books of Vishnu and of Yajnavalkya are thus exponents of Yajurveda schools; but in the end the popular works of this class lose all connection with any one school and become universally authoritative. There are not many of the long list of later law-books which really deserve the name. As time went on, a large number of works appeared, claiming as their authors sages of old, or divine beings, but they are all without historical value and usually are sectarian tracts inculcating special religious observances. Besides these pseudo-law-books may be mentioned the later legal works, Dharma Nibandhas, of the eleventh century and later, and the learned commentaries, like the Mitakshara, which have become as authoritative as the text itself. But these later law-books do not come into our present purview. They belong to the age of the later Puranas and subsequent literature. The great law-books which we have to examine revert to the beginning of the Puranic age or before it. Whatever is of value in the later works is taken from the older, which are still authoritative.

By far the most important of these is the law-book of Manu or the Manava Dharma Shastra, a work closely connected with the law-book of Vishnu, which has no less than 160 verses of Manu, and with the didactic chapters of the epic, which contain numerous verses found in the code. Moreover, the epic recognizes Manu as a law-giver and refers to the Dharma Shastra of Manu. The relationship between the two works is made doubtful for the reason that we do not know when the later parts of the epic embodying these allusions may have been composed. An analysis of all the passages in the epic referring to Manu shows that the law-book was probably unknown to the early epic but that it was not unknown to the later epic. This indicates at least that the fabulous age ascribed to the law-book by the Hindus and by early European scholars may be disregarded in favor of a much later date. On the other hand, the present tendency is to exaggerate the lateness of the law-book and bring it down even to the third or fourth century AD. Professor Jolly thinks that the code and the epic belong to about the same time, not later than the second or third century. The code in any case may not have been identical with the work known today as Manu’s law-book, for all these metrical works have suffered, as has the epic, from unnumbered additions.

Nevertheless, from the contents of the extant law-book of Manu some noteworthy data may be extracted which seem to show that the work is earlier than any other Dharma Shastra. There is not the slightest allusion to any sectarian cult; documents are not cited in the rules on evidence; widow-burning is not recommended; there is no recommendation of the cult of idols (service, etc.), though idols are known as objects of veneration; the position of the law-giver in regard to titles of law, evidence, ordeals, etc., is more primitive than that of any other author of a Dharma Shastra and even than that of Vishnu in the Dharma Sutra. The law-book of Vishnu belongs to the third century AD, and that of Yajnavalkya to the fourth century, and the advance on Manu in order, method, and detail of legal matters of these law-writers is very great. Hence, as in the case of the epic, it is probable that the date now currently assumed is too late, and that the Manava Code belongs rather to the time of our era or before it than later.

The law-book of Vishnu, which because of its Sutra form might be thought to be earlier than Manu, is so largely interpolated that in its present condition it must rank decidedly as secondary to that code. It appears to have been an expansion of a Sutra belonging to the Kathaka school of the Yajurveda enlarged in the hope of making it a general code favoring the cult of Vishnu. It mentions books under the modern name pustaka, recognizes the burning of widows, knows the names of the days of the week, evidently borrowing here from Greek sources, acknowledges the Hindu Trinity, recommends the Tirthas or pilgrimages, which are decried by Manu, and in the matter of debts and legal procedure is later than that code. At the same time it contains much ancient material, especially in regard to legal penalties, the rights of kings, inheritance, etc. A large part of the work is not legal, but treats of sacrifice, impurity, sin and atonement, etc.

The codes of Yajnavalkya and Narada are probably to be referred to the fourth and fifth centuries, respectively. The former was a learned pundit, probably of Mithila, whose work is so closely connected with that of Manu and at the same time is so clearly a condensation of this code, that it may be taken as certain that the author desired to better an original rather than make a new work. Yajnavalkya pays more attention to legal matters and improves on his model in his views regarding the rights of women, whom he permits to inherit equally with men. He elaborates the subjects of trade and ownership, and recognizes written documents in evidence where Manu relies on ocular witnesses. He recommends the use of several new ordeals in testing truth, and shows a more conservative social feeling in objecting to the union of a Brahman priest and a slave-woman.

Of Narada, who belongs to the fifth century and seems to have been from Nepal, it may be said that he is the first to give us a legal code unhampered by the mass of religious and moral teaching with which and out of which the earlier works on Dharma arose, a code which in its fine sub-divisions of the titles of law, as well as in its elaborate treatment otherwise of slaves, inheritance, witnesses, ordeals, etc., is the first in which law itself is the subject-matter. Narada’s evident posteriority to Manu and Yajnavalkya does not show that it was an independent work, rather that it was based on these prior works. In addition to these legal lights it is necessary to mention only Brihaspati, who, as he extols Manu as the first of law-givers, also proves himself to be a sort of commentator rather than an original writer. His work is in fact a brief for Manu, and proves that in his day (about 600 or 700 AD) Manu was recognized as the original and greatest law-giver. His citations from Manu also show that our text has not changed essentially since his day.

Civil and Criminal Law

We have already seen that the four castes are regarded as the frame of social life, and that the young student, after spending several years with a priestly preceptor, the length of time depending partly on caste and partly on aptitude, marries and becomes a householder, with numerous religious duties to perform. Twelve years of study is regarded as the minimum, forty-eight years as enough even for the most studious priest. Megasthenes tells us that the Hindus studied for nearly this length of time, but it is clear that only priests practised such zeal. The epic warriors are supposed to have finished their education by their sixteenth year, and the fact that a few words of a hymn are admitted as substitution for this part of the education (consisting in memorizing verses) shows that for practical purposes a smattering of Veda was deemed enough in the case of all except the priest.

The early law-books devote no little space to the early youth and conduct in later life of the orthodox Aryan. Manu, for example, gives six of his twelve books to rules of life before he comes to discuss royal life and legal matters. Noteworthy is the early date at which a man retires from practical life. As the youth marries early, in the warrior caste as early as sixteen, though Manu recognizes twenty-four or thirty as the usual (priestly?) age, it may happen that he becomes a grandfather before he is forty, by which time, to be sure, the Hindu is often grey. Now it is expressly said that when a man becomes grey and a grandfather he is to enter the third ashrama or stage of life and become a hermit, either accompanied with his wife or not, as he chooses. Severe asceticism marks this period of life (it is described in full by Manu, Book 6), and probably it was reserved generally for the priestly caste; some law-givers omit it. It is likely that instead of this stage many priests became mendicants. The act of renouncing the world is introduced by a sacrifice of worldly goods and other ceremonies prescribed by the Sutras and law-books. But the latter, in distinction from the former, if indeed they devote much time to such matters at all, now turn to that part of Dharma or Right which is included under the head of Royalty and Vyavahara. The latter term means law in the modern sense, business intercourse legally interpreted, legal procedure.

There is no formal distinction between civil and criminal law till the term vyavahara is divided by later writers into ‘cases of property’ and `’cases of hurt’. The first enumeration of legal titles is found in Manu and is as follows : (1) Recovery of debts; (2) Deposits and pledges; (3) Sale without ownership; (4) Partnership; (5) Resumption of gifts; (6) Non-payment of wages; (7) Breach of contract; (8) Annulling of sale and purchase; (9) Disputes between the owner and tender of cattle; (10) Disputes regarding boundaries; (11) Assault; (12) Defamation; (13) Theft; (14) Robbery (with violence); (15) Adultery; (16) Duties of man and wife; (17) Partition (inheritance); (18) Gambling (with dice) and betting (on cock­fights, etc.). In this category, criminal law is represented by the titles eleven to fifteen and eighteen, while the first nine and the sixteenth and seventeenth titles belong to civil law. There is also no distinction between laws affecting things and persons, and, to follow the indictment of Mill in his History of India, ‘Non­payment of wages stands immediately before breach of contract, as a separate title, though it ought to be included under that head’. But the eighteen titles are remarkable as the first attempt to separate different cases; to demand that Manu should have given us a perfect or even a perfectly clear list is unreasonable.

The titles and the arrangement of Manu are followed by later writers, though with sub-divisions. Thus Brihaspati, after giving the eighteen titles says that they ‘are divided owing to diversity of lawsuits’; and other writers give ten chief crimes (killing a woman, mixture of caste, adultery, robbery, causing illegitimate birth, abuse, insults, assault, procuring abortion) headed by disobedience of the king’s commands. It is, too, only later writers who assert that a lawsuit cannot be instituted mutually between father and son, or man and wife, or master and servant. Although the titles begin with civil cases, there is no doubt that primitive procedure had to do with criminal cases before civil cases were known. Thus the earliest trials are for theft and perjury, and it is probable that theft was the first crime to be recognized legally. We have seen that even in the Sutras the thief is brought before the king and punished by him, and theft is the chief crime mentioned in the Vedas (more particularly theft of cattle, or robbery). There are a thousand forms of theft, according to Brihaspati, who makes theft one of the kinds of ‘violence’, of which there are four—homicide, theft, assault on another’s wife, and injury (either abuse or assault). Thieves are of two sorts, open and concealed, ‘and these are sub-divided a thousand fold, according to their skill, ability, and mode of cheating’. Those who cheat at dice or cheat a corporation are to be punished as impostors. The punishment for breaking into a house to steal is impalement; highwaymen are hanged from a tree by the neck; kidnappers are burned in a fire of straw; one who steals a cow has his nose cut off; for stealing more than ten measures of grain the thief is executed; for less he is fined eleven times what he has stolen. The proof of theft is possession of the stolen property, or a track leading to the house of the suspected man; but excessive expenditure, intercourse with sinners, and other signs may make a man suspected; then he may have to clear himself by oath or ordeal.

Ordeals

Manu recognizes only two ordeals. Later authors add several more and some admit the application of an ordeal to the plaintiff as well as to the defendant. The oath of a witness is virtually an ordeal, as the oath invokes divine power, which punishes the guilty. The oath is taken according to the caste of the witness. For example, a farmer swears by his cattle, etc. Or one may simply swear that a thing is so, and if his house burns up within a week it is a divine conviction of perjury. Later authors also prescribe that in ordeals a writing be placed on the head of the suspected man containing the accusation and a prayer, so that the divine power may understand the matter. The two earliest ordeals are those of fire and water. As the Sutras do not notice ordeals, except for a general recognition of them as ‘divine’ proofs on the part of the late Apastamba, and as the later writers Yajnavalkya and Narada describe five ordeals, adding the plough­share, scales, and poison, it is reasonable to conclude that Manu stands in time, as in description, midway between the two sets of authors and is the first to describe ordeals already known and practised. This is the judgment of Buhler and of Jolly, but the implication that the mention of daiva in older literature makes probable the existence of all the forms of ordeal mentioned only in later literature is not safe. Fire and water were first used, then come the elaborate trials with balance, etc., till eventually there are nine formal ordeals.

The nine ordeals are as follows, arranged in the order chosen by Brihaspati: the balance, fire, water, poison, sacred libation, grains of rice, hot gold-piece, ploughshare, and the ordeal by Dharma and Adharma. When Professor Jolly says that no one of these can be judged later than any other on the ground that the growth from two to five and then to nine ordeals does not necessarily imply that one named later did not exist before the two named first, he exaggerates the probabilities. Is it likely, for example, that the ordeal by Dharma and Adharma is as old as that by fire and water?

The ordeal by ploughshare is especially for those suspected of stealing cattle; the piece of heated gold is reserved for cases involving a theft ‘over four hundred’ ; that by poison, for one worth a thousand, etc. All such restrictions are late emendations and additions. In the fire-test one carries a hot iron ball, and if unburned is innocent. In the water-test, one plunges under water and to prove innocence must remain under as long as it takes for a dart, shot at the moment of diving, to be brought back. These two are alterations of old material, in which the accused walks through fire, as in epic tests, or is thrown into water to see if he drown. The balance is an easy ordeal and hence is used in the case of priests and women. It consists in seeing whether the accused weigh less or more the second time the test is made; if heavier, one is guilty. Probably the weight of sin weighs one down. So in the Mahabharata, when a truth-telling man lies, his chariot begins to sink.

Another method of exacting justice, used generally in the case of debt, was called ‘the custom’ and consisted in what is now known as dharna. The guilty man (debtor) is besieged in his own house by his opponent, who fasts on him till the guilty one yields or the accuser dies. This method of punishing an injurer is well known in the epics, where fasting to death against a person is an approved form of retaliation. The one who has committed the offence (or owes the money) usually yields in order to prevent the ghost of the dying creditor from injuring him.

The punishment for murder, as already noticed, is at first a compensation paid to the relatives or the king (perhaps both) and later paid to the priests. The compensation is reckoned at a hundred cows (with a bull). This is in the case of a man; in the case of a woman, the punishment is no more than if a slave is killed. Mann treats the compensation as a penance (paid to a priest) instead of a ‘royal right’, as in the earlier Sutra period. The custom of appraising death at so much a head for which compensation is exacted existed into modern times and is mentioned by Tod in his Annals of Rajasthan.

Treason of all kinds is punishable by death, whether it consist in attacking the king or falsifying an edict or bribing the ministers of the king or helping his foes. Instead of other penalties, the guilty man, especially a priest, may be outcasted, that is, formally thrown out or banned from society, for in losing his caste he loses all social rights; though in certain cases through established ceremonies he may be taken back. One who is outcast loses all right to primogeniture, inheritance, etc.

Punishments

Except for treason, all crimes are judged relatively, that is, there is no absolute penalty, but one conditioned by the social order of the criminal or the victim of the crime. Thus in cases of defamation, if a warrior defame a priest, he is fined one hundred panas; if a man of the people-caste do so, one hundred and fifty; if a slave, he shall be corporally punished; but if a priest defame a warrior, fifty; if he defame a man of the people, twenty-five; if he defame a slave, twelve, and this last fine is that imposed upon equals defaming equals within the Aryan castes. But if a slave insult a ‘regenerate’ (Aryan), his tongue is to be cut out. Especially is this the case in relations between the sexes, for though the rule of death for adultery is general (the woman is devoured by dogs in a public place and the man is burned alive), yet its antique provisions are really preserved only out of respect for tradition, the real law being that the offending man shall be fined and the woman have her hair cut off and be treated with contempt, unless the crime be one that outrages caste-sentiment. Thus a slave who has intercourse with a guarded high-caste woman may be slain; a Vaishya shall lose his property; a warrior be fined a thousand and be shaved with urine. The old general rule of the Sutras to the effect that the woman be eaten by dogs and the man killed is preserved under the form, explicit in the later works but already implied by Manu, that this be the punishment if ‘a wife who is proud of the greatness of her family’ (that is a woman of high caste) commit adultery, while Narada restricts the ferocious penalty to the impossible case of a priest’s wife deliberately going to a low-caste man and seducing him.

The general lex talionis is similarly confined to thieves or robbers, though another restriction limits it to intercourse between low and high caste (if a man of low caste injure a man of high caste the limb corresponding to the one hurt shall be cut off). In one particular, however, the rule of increased fines is reversed, for in any case where a common man would be fined one penny the king is fined a thousand, probably on the principle that he who knows more should suffer more.

In the province of civil law the later law-books show the greatest advance over the earlier. For example, where trade is concerned, the Sutras know nothing of legal business partnership, apart from the united family and its obligation as a whole to pay debts. Manu has the idea of a partnership, but his whole discussion of the title concerns only the amount of fees payable to priests who together perform a ceremony; and he merely raises the question whether all the religious partners or the one who performs a special act shall take the traditional fee for that one part. He decides that the four chief priests out of the sixteen shall get a moiety, the next four half of that, the next set a third share, and the next a quarter (the commentators are not unanimous in appraising the amounts), and adds ‘by the same principle the allotment of shares must be made among men on earth who perform work conjointly’. In other words, except for stating that one should be paid in accordance with the work one does, Manu has nothing to say regarding ‘partnership’, the formal fourth title of the list.

Yajnavalkya on the other hand includes agriculture and trades in his rule. Narada, while retaining the matter concerning priestly partnership, expresses the axiom above in this way : ‘Loss, expense, profit of each partner are equal to, more than, or less than those of other partners according as his share (invested) is equal, greater, or less. Storage, food, charges, (tolls), loss, freightage, expense of keeping, must be paid by each partner in accordance with the terms of agreement,’ etc.. Finally Brihaspati begins his title ‘Partnership’ thus: ‘Trade or other occupations should not be carried on by prudent men jointly with incompetent or lazy persons or with such as are afflicted with illness, ill-fated, or destitute. Whatever property one partner may give, authorized by many, or whatever contract he may cause to be executed, all that is (legally) done by them all. Whatever loss has occurred through Fate or the king shall be borne by all in proportion to their shares. When artists practise their art jointly, they share according to their work. If a number of men in partnership build a house or a temple, or dig a pool, or make leather articles, the headman among the workmen gets a double share. So too among musicians: the singers share and share alike, but he who beats time gets a half share over’. And (still under the head of Partnership), ‘when freebooters return from a hostile country bringing booty, they share in what they bring after giving a sixth to the king, their captain getting four shares, the bravest getting three, one particularly clever getting two, and the remaining associates sharing alike’.

Interest, Wages, Property

Regarding the use of money, an old Sutra rule confirmed by Manu permits interest at fifteen per cent. annually, but for men (debtors) of low caste the interest may be sixty per cent.; yet this is where there is no security. The amount differs in any event according to caste, as already explained. No stipulation beyond five per cent. per mensem is legal. Debts unpaid shall be worked out by labor by men of low caste. These rules obtain from the Sutra age and vary scarcely at all. Megasthenes erroneously reports that the Indians do not take interest. Possibly he has in mind the provision that no Brahman shall be a usurer. Wages are often paid in kind; one fifth of the crop or of the increase in flocks goes to the man who cares for the work. The tender of cattle, in contrast to the epic rule, gets the milk of one cow out of ten. If a man work without food or clothing given to him he may take a third of the produce; other­wise a fifth. But Narada gives a general rule to the effect that the servant of a trader, a herdsman, and an agricultural servant shall respectively take a tenth part of the profit, whether from the sale of merchandise, the increase of flocks, or the grain-crop. This is also the provision of Yajnavalkya. The agricultural servant is a Shudra slave or a member of a mixed caste.

The family represented in the law-books as the usual family is one where all the brothers live together as heirs of the father, who may or may not, as he or they prefer, divide his property during his life-time. The eldest son has certain rights of primogeniture, but, as said above, they may be taken from him in case he is unworthy. The property of a childless wife belongs to her husband, unless she is married by a rite not countenanced by the law; in that case her property reverts to her parents. Woman’s property consists only in wedding-gifts, tokens of affection, and gifts from her brothers, father, and mother, as also what is given her after marriage by her husband. All this goes to her children at her death.

As the preferred family is the joint-family, so the village is possessed as a whole of its holdings in land. Thus the only full discussion in Manu regarding boundaries (the tenth title) has to do with boundaries between two villages. Yet it is clear from other passages that private ownership in land under the king was recognized. He who first cultivates wild land, owns it. There is also a Sutra rule: Animals, land, and females are not lost by possession of another, which appears to imply individual ownership in land. The land around a village on all sides for one hundred ‘bows’ (about 600 feet) is common; and if crops are grown there and cattle injure the crops, no damage can be exacted; but the fields appear to be private property as they are fenced in.

Provincial Government, War

The government of the country described in legal literature is not different from that of the Sutras, and in most respects agrees with the conditions represented in the epics, where government without a king is so well known as to be the object of the most severe condemnation; and it is regarded as essential that a king of good family should be at the head of the state. Slave-born kings are known in history but tabooed in law. The king is treated in the law-books under two heads, as general lord of the land and as judge and executioner.

As lord of the land the king is a Zeus Agamemnon, a human divinity incorporating the essence of the deities Indra, Vayu, Yama, Varuna, Agni, etc., that is of the gods who protect the world in the eight directions. In other words, his chief function as lord is to protect, and he protects as a great deity in human form. He has, to aid him, seven or eight councilors of hereditary office (‘whose ancestors have been servants of kings’), with whom he daily consults as to affairs of state and religion. His prime minister should be a learned priest; he should appoint officials over all public works, mines, manufactures, storehouses, etc. Various royal monopolies are mentioned (salt is one of them). His officers must be brave and honest, and he himself must be brave and lead his troops personally into battle, where he is to make it his duty to ‘kill kings’, for those kings go to heaven who seek to slay each other in battle and fight strenuously for that purpose. As overlord, the king receives a share of the booty won in battle, and it is his duty to distribute such booty as has not been taken singly among the soldiers. One military officer and a company of soldiers he should place as a guard over each village and town, to protect them. There should be a lord of one village, a lord of ten, (of twenty), of a hundred, and a lord (or lords) of a thousand. It is the duty of the lord of one village, gramika, to report all crimes to the dashapa or lord of ten, and the lord of ten shall report likewise to the lord of twenty, and he to the lord of a hundred, and he to the lord of a thousand. As much land as suffices for one family shall be the income of the lord of one village and so on to the lord of a thousand, who shall enjoy the revenue of a town. All these men (it is said) are probably knaves and must be spied upon continually through the agency of a general superintendent in every town, who shall scrutinize the conduct of all the governing lords, ‘for the servants of kings appointed to protect generally become rascals who steal the property of others’. The sum collected from his subjects by a just king (as taxes) is a fiftieth part of the increment on cattle and gold, and the eighth, sixth, or twelfth part of the crops; while common artisans pay tax by a day's work monthly.

These provisions (of Manu) are followed by Vishnu, who however omits the intermediate lords of twenty villages and recognizes only the decimal system throughout. Instead of a thousand villages, Vishnu speaks of the ‘whole country’, and probably the two expressions were synonymous. Vishnu also specifies eunuchs as guards of the king’s harem, not mentioned by Manu in connection with the palace. Another point which brings Vishnu into line with the Sutra authorities is found in his rule regarding taxes. He gives no such option as Manu, but specifies one-sixth as the tax on grain and seeds and one-fiftieth on cattle, gold, and clothes (all authorities exempt priests from taxation-laws).

The men of war, according to Manu, are to be selected for prominent places (in the van) from Kurukshetra, the Matsyas, Panchalas, and those born in Shurasena—all districts in the neighborhood of Delhi, Jaipur, Kanauj, and Muttra—a provision sufficiently indicative of the geographical origin of his code. It is interesting to note that both Manu and Vishnu state that when a king has conquered a foreign foe he shall make a prince of that country (not of his own) the king there, and he shall not destroy the royal race of his foe unless that royal race be of ignoble birth. He is to honor the gods and the customs of the conquered country and grant exemption from taxation (for a time).

In his capacity as judge the king tries cases himself or appoints a priest in his stead; but this latter provision is a later trait, though found in the Sutras. The earlier rule is that the king himself shall try cases daily and have built for that purpose a special hall as part of his palace in the inner city, and even, as we saw in the Sutra period, act as executioner. The fact that the king has also the pardoning power is implied in the provision that if the thief come before the king and the king smite him or let him go he is thereby purified, a provision which also brings up the intricate question of the relation between legal punishment and religious penance. For many of the legal punishments for gross crimes are set down not as such but as religious expiations, and it is said that the king has to see to it that these religious obligations are fulfilled. In some cases without doubt punishment as a matter of law began as a matter of priestly religious law. The business of the king as judge was not unremunerative, as every debtor who was tried and convicted paid a tenth of the sum involved into the royal treasury. According to Manu, if plaintiff or defendant is found guilty of falsification in regard to a contested sum, twice the sum itself shall be paid as a fine (to the king). The king’s chaplain has an important place in the court of justice; he is chief of the councilors who as a body may include members of other Aryan castes. If a deputy act for the king, later authorities state that he should carry a seal-ring of the king as sign of authority. The right of appeal is also admitted in later law-books, which assume that a case may come up first before a family, or corporation, when if the judgment is questioned the case may be tried by assemblies (of co-inhabitants or castes) and then by judges duly appointed. Yajnavalkya and Närada also say that, when a lawsuit has been wrongly decided, the trial must be repeated. According to Yajnavalkya appeal may be taken from corporations, etc., to the judge appointed by the king. Such a judge is one appointed to act for the king in his own city or in the provinces, a provision found also in epic literature. All the law-books acknowledge the importance of the law of family, gild or corporation, and assembly or greater corporation, of caste or co-inhabitants in making their own laws, which the king must not contravene.

Family Law

There is one aspect of legal literature which is very significant of the origin of the completed codes. The laws, namely, frequently contradict one another either by implication or directly, not only the laws in general but those of the same code and even the laws placed in juxtaposition. An example of such contradiction is what may be found in Manu’s code respecting the sale of a daughter. Manu declares that if one girl has been shown to a prospective bridegroom and another is given, he may marry them both for the same price. In the same code (presumably the same Manu) says “Let no wise father take even a small price for his daughter...for small or great this would be a sale”; and finally: “If the giver of the price die after the price for a girl has been paid, she shall be given to the (bride­groom's) brother if she is willing”, and immediately after, “Even a slave should not accept a price in exchange for his daughter”, with a couple of verses following in the tone of the passage above, repudiating the sale of a daughter. Yet, under the head of the fifteenth title of law, it is stated that a low-caste man courting a woman of the highest caste deserves death (or corporal punishment); but one who courts an equal shall pay the price (and take her) if her father consents. It was an old provision that a fee or price (a yoke of oxen) should be paid to the father, and though this was softened down to a ‘fee’ or ‘tax’, yet the advanced code objects formally to this business transaction. At the same time the old provision is retained, because it was a part of hereditary traditional law. In the epic also, the rule against selling a daughter is recorded; but so strong is the feeling against violating family-law that the man who purposes to sell his daughter, because it is the custom in my family, is upheld in doing so by a saint, who even declares that the sale is justified by the ancients and by God. Here the girl is bought with gold and elephants and other costly things. On the other hand, as a matter of dignity, the father of an aristocratic girl, more particularly a princess, has in effect heavy expenses. Thus when king Virata weds his daughter he bestows upon his son-in-law seven thousand horses and two hundred elephants. The didactic epic says that a man who sells his daughter goes to hell; there is a general Sutra rule against selling any human being.

In regard to infant marriages the Sutras generally admit the advisability of marrying a girl when she is still too young to wear, clothes, that is, before she becomes adult, or shows signs of maturity. The later law and practice are all at variance on this point. One of the epic heroes marries at sixteen a princess still playing with her dolls but old enough to become a mother shortly afterwards. The epic rule is that a bridegroom of thirty should marry a girl of ten, a bridegroom of twenty-one a girl of seven. Arrian reports that Indian girls were married at seven. Sita is said to have married Rama at six. The rule of Manu is that a bridegroom of thirty shall marry a girl of twelve, one of twenty-four, a girl of eight; he also recommends that a girl shall not marry at all unless a suitable bridegroom appear; but again he countenances infant-marriages.

The rule in regard to the levirate, or the assignment of widows to another man to raise up sons for the deceased husband, is another instance of the way in which the codes were assembled out of contradictory material. In Manu there is a flat contradiction of the preceding provisions on this point. No remarriage and no assignment of widows are permitted in a passage directly following the injunction that a widow shall be so assigned, for the purpose of giving her dead husband a son to pay him the funeral feast, etc.

Marriage : Suttee

These laws regarding women are on the whole the most self-contradictory in the later codes. As the position of woman is more or less indicative of the state of civilization, it is important to notice that the high regard paid to woman is confined to her function as a mother of sons. The bride must be a virgin (not a widow) and the remarriage of widows is generally not countenanced; but the codes do not sanction the custom of suttee till late, and the provisions for widows show that, though they probably lived miserably and without honor, they were not expected to die with their husbands. The Mahabharata and the Ramayana both recognize the custom of suttee, but only the former (and probably not in an early part) gives a case of a royal widow burning herself with her husband. It is perhaps the extension of a royal custom, as in the epic, which has made the rule general, so that later law and practice recommend suttee for all. A parallel would be the Self-choice or election of a husband by a princess, afterwards regarded as an election-rule in the case of other maidens. The mother is praised as equal to the father in honor, and in default of sons she may inherit, but if she bear only daughters or has no children she may be divorced. In general, a woman receives respect only as potential or actual mother of sons. Manu repeats with unction the dictum of the Sutras that a woman is never independent, and says that she may be slain for unfaithfulness and divorced for barrenness; he also regards women as too ‘unstable’ to be called as witnesses. The view that women are chattel is yielding in the Shastra to a more enlightened opinion. In the epics also the rigidity of the law is not upheld by the tenor of tales showing women in a very different light from that exhibited in the didactic parts of the epic. Even at a much later age women were students, as they were wise in antiquity, and the annals of the law itself testify to the ability of the sex, for in the eighteenth century one of the great legal commentaries on the Mitakshara, was written by a woman, Lakshmidevi. At what time the Purdah (‘curtain’) rule came to confine women to the house is uncertain; but probably not before foreign invasions had compelled the Hindu to adopt it. The epics and law-books speak of confining a woman as a punishment for ill-conduct, but Manu insists that ‘no man can really guard women by force’ . To go veiled is only a court-custom alluded to in both epics.

Deficient as are the legal text-books in arrangement and self-contradictory as are their enactments, they form a priceless heritage of a past which would otherwise have been largely lost to us, for they may be accepted as reflecting real and not artificial or invented conditions of life. Very material evidence has been furnished in the last few years as regards the trustworthy character of the information given by authors of the law-books. As remarked above concerning the Sutras, the idea that Brahman tradition is manufactured in order to glorify the Brahmans and that in the time of Buddha there were no castes, is rendered inadmissible by the fact that all Hindu literature acknowledges the main facts as stated in the epics and law-books. The fresh evidence on this point is supplied by the text of the Arthashastra called the Kautiliya, which may date from about 300 BC and is in accord with the Sutras and Shastras in all the chief points which these works have in common. This Arthashastra, which forms the subject of Chapter XIX in this work, recognizes castes and mixed castes and agrees with the Shastra of the law-givers in a multitude of instances, showing that the scheme of law arranged by the Brahmans was neither ideal nor invented but based upon actual lifer. Here for example is repeated almost verbatim the rule against debts between father and son; the kinds of marriage are the same; the antithesis between Arya and Shudra is maintained; the rule that the wage is one-tenth the gain ‘without previous agreement’ is identical with that of Yajnavalkya cited above, etc. As the Kautiliya is a manual of rules imposed by a practical statesman; it is impossible to suppose that the conditions it depicts are imaginary, yet the same conditions are found in the Sutras, etc. If it was indisputable that this work belonged to the third or fourth century BC, it would be of the utmost importance historically. As it is, some of the provisions of the Kautiliya agree with those of later rather than earlier law-books, and for the present it is not advisable to accept all its rules as belonging to the time assigned to the work as a whole.

We see in the law-books the king of a limited realm still more or less of a patriarch among his peoples; a people divided into general orders representing the military, priestly, and agricultural or mercantile classes, still mingling freely with each other, inter­marrying, but with due regard for the respect paid to the higher orders, and utterly devoid of the ‘caste’ rules later adopted in respect of food and marriage. The family is usually monogamous though it may be polygamous, and there are traces of the family-marriage, in which a wife marries a group of brothers. The menial work of house-life is carried on by slaves and half-breeds, who also do most of the village labor and serve as petty craftsmen. More skilled workers like chariot-makers are of almost Aryan rank and are not excluded from society. The laws are harsh and cruel as regards punishment (the worker in gold who defrauds the king, for example, is, according to Manu, ‘to be chopped to pieces with knives’), but a regard for truth and justice is the dominant trait of the law, which, if it may be personified, has at times a naive air of blandly but perplexedly seeking to steer a course between that which it thinks is right and ought to think is right, because the one has been reasoned out and the other has been handed down as part of ‘revelation’ or law divine.