* 1. 1 When mortals were bent on doing their duty alone and habitually veracious, there existed neither lawsuits, nor hatred, nor selfishness. * 2. The practice of duty having died out among mankind, lawsuits have been introduced; and the king has been appointed to decide lawsuits, because he has authority to punish. 3. 3 Documents and (the testimony of) witnesses are declared to be the two methods for clearing up doubtful matters, where two parties are quarrelling with one another. * 4. 4 Proceedings at law are of two kinds; attended by a wager, or not attended by a wager. A lawsuit
* 6. 6 The plaint is declared to be the essential part of a proceeding-at-law. If he succumbs with it, the defendant loses the whole suit. If he can prove the charge, he gains the suit. * 7. 7 Gatherings (kula), corporations (sreni), assemblies (gana), one appointed (by the king), and the king (himself), are invested with the power to decide
* 13. 13 Because it affects criminals, witnesses, the assessors of the court, and the king, to the amount of one quarter each, therefore it is said to reach four. * 14. Because it produces these four, justice, gain, renown, and esteem among men, therefore it is declared to produce four results. * 15. 15 Because it consists of these eight, the king,
* 17. Non-payment of wages, sales effected by another than the rightful owner, non-delivery of a sold chattel, rescission of purchase, * 18. Transgression of a compact, boundary disputes, the mutual duties of husband and wife, law of inheritance, heinous offences, * 19. Abuse, assault, games, and miscellaneous, these are (the eighteen titles of law) on account of which (judicial procedure) is said to have eighteen topics. * 20. 20 Their branches amount to one hundred and
* 28. Because it is based on the statements of the two litigants, therefore it is said to have two openings. There the accusation is called the plaint; the answer is called the declaration of the defendant. * 29. 29 Because it may be founded either on truth or on error, therefore it is said to have two issues. Truth is what rests on true facts. Error is what rests on mistake of facts. 30. Ordeals even are rendered nugatory by artful men. Therefore let no mistake be committed in regard to place, time, quantity, and so on.
32. 32 As seven flames rise from fire, even so will seven good things become manifest in a self-restrained king who passes just sentences at trials. 33. Religious merit, gain, fame, esteem among men, reverence on the part of his subjects, conquests, and an everlasting residence in paradise. 34. 34 Therefore let a king, after having seated himself on the judgment seat, be equitable towards all beings, discarding selfish interests and acting the part of (Yama) Vaivasvata, (the judge of the dead). * 35. 35 Attending to (the dictates of) the law-book and adhering to the opinion of his chief judge, let him try causes in due order, adhibiting great care. 36. 36 The connection (âgama) must be examined
* 39. 39 Where the rules of sacred law and the dictates of prudence are at variance, he must discard the dictates of prudence and follow the rules of sacred law. 40. 40 When it is impossible to act up to the precepts of sacred law, it becomes necessary tot, adopt a method founded on reasoning, because custom decides everything and overrules the sacred law. 41. 41 Divine law has a subtile nature, and is occult
* 43. 43 In the case of a woman, at night, outside of
* 45. 45 Let him answer at once in charges concerning a cow, landed property, gold, a woman, robbery, abuse, an urgent affair, a heinous offence, or a calumny. * 46. One who tries to right himself in a quarrel, without having given notice to the king, shall be severely punished and his cause must not be heard. * 47. A defendant who absconds when the cause is about to be tried, and he who does not take heed of what (the claimant) says, shall be arrested by the plaintiff until the legal summons has been declared. * 48. 48 Local arrest, temporary arrest, inhibition
[50. 50 Those causes which have been tried in the king's court, (or) by friends, connections, or relations, shall be tried anew, after a fine of twice the original amount (of the sum in dispute) has been imposed.] * 51. 51 If one arrested at a proper time breaks his arrest, he shall be punished. One who arrests improperly is (equally) liable to punishment. * 52. 52 One about to marry; one tormented by an illness; one about to offer a sacrifice; one afflicted by a calamity; one accused by another; one employed in the king's service;
* 54. One who has not yet arrived at years of discretion; a messenger; one about to give alms; one fulfilling a vow; one harassed by difficulties: a person belonging to any of these categories must not be arrested, nor shall the king summon him (before a court of justice). * 55. 55 One accused of an offence must not lodge a plaint himself, unless he have refuted the charge raised by the other party. Neither (is he allowed to accuse) one who has already been accused by a different party. It is wrong to strike one again who has already been struck (by another). 56. 56 When he has proffered a charge, he must not
59. 59 One who absconds after having received the summons, or who does not make any defence after having arrived in court, shall be punished by the king, because his cause is lost. 60. 60 If a man being questioned does not uphold
* 62. 62 When a lawsuit has been decided evidence becomes useless, unless a document or witnesses can be produced who or which had not been announced at a former stage of the trial. * 63. As the (fertilizing) power of rain is thrown away on ripe grain, even so evidence becomes useless when the suit has been decided.
* 65. 65 If a man is of opinion that the suit has been decided and punishment declared in a way contrary to justice, he may have the cause tried once more, provided he should pay twice the amount of the fine inflicted. * 66. 66 If a verdict contrary to justice has been passed, the assessors of the court must pay that fine; because nobody certainly can act as a judge without incurring the risk of being punished (eventually). 67. 67 When a member of a court of justice, actuated by wrath, ignorance, or covetousness, has passed an
69. There are some who give false evidence from covetousness. There are other villainous wretches who resort to forging documentary evidence. 70. Therefore both (sorts of evidence) must be tested by the king with great care: documents, according to the rules regarding writings; witnesses, according to the law of witnesses. * 71. Liars may have the appearance of veracious men, and veracious men may resemble liars. There are many different characters. Therefore it is necessary to examine (everything). * 72. 72 The firmament has the appearance of a flat surface, and the fire-fly looks like fire. Yet there is no surface to the sky, nor fire in the fire-fly. * 73. Therefore it is proper to investigate a matter, even though it should have happened before one's own eyes. One who does not deliver his opinion till he has investigated the matter will not violate justice.
5:1 I, 1. Where the sun shines, there is no shade. Where there is shade, there the sun does not shine. Similarly, where virtue reigns, there are neither lawsuits, nor hatred, nor selfishness. On the other hand, where these three are, there virtue is not to be found. A. The object of this introductory portion is to show how far judicial procedure is connected with Dharma 'Virtue,' or 'Duty,' the principal subject of an Indian law-book. The Vîramitrodaya and other compilations attribute a further hemistich to Nârada, in which the happy age here alluded to is referred to the period 'when Manu, the father of mankind, was reigning on earth.' 5:3 Yâgñavalkya II, 22; Vasishtha XVI, 10; Vishnu VI, 23. 5:4 'A lawsuit attended by a wager' is where one of the parties promises in writing to pay a certain sum to the king, over and above the amount in dispute. 'A lawsuit not attended by a wager' is one devoid of a stipulation of this sort. Vîramitrodaya. This is apparently the correct explanation. Asahâya observes that the amount staked may be much smaller than the amount in dispute. 6:6 Yâgñavalkya II, 8. 6:7 Kula means an assemblage consisting of a few persons. Sreni denotes an assemblage of eminent merchants, &c. Gana denotes a fellowship, such as e.g. the Brahman caste. A. Other commentators take kula to mean a family meeting; sreni, a company of artizans; gana, an assembly of cohabitants. These three stages of private arbitration may be compared to the modern Panchayats of India. 7:11 Where both parties adhere strictly to truth in their statements, there is virtue or justice clearly enough, judicial procedure, written proof, and a royal edict being quite unnecessary in that case. Where either of the two parties is suspected to have made a false statement, judicial procedure has to be resorted to, which depends on the evidence given by witnesses. Documentary evidence (karitra) is where the statements of witnesses are consulted, written in their own hand, on a leaf, or on birch-bark, or on a strip of rind, or some other writing material. That suit, however, which has been decided by an edict from the king himself, is superior to all the rest, according to the saying, 'What has been decided in a village, goes into the town. What has been decided in the town, goes before the king. What has been decided by the king, though wrongly decided, cannot be tried anew.' A. The term karitra has been rendered in conformity with this interpretation, which is confirmed by the remarks of Kandesvara on this sloka. Other commentators and several MSS. of the Nârada-smriti read svîkarane or prasnakarane for pustakarane. These commentators explain the term karitra in conformity with a text of Brihaspati, Whatever is practised by a man, proper or improper, in accordance with local usage, is termed karitra (custom). 8:12 Because a lawsuit is decided by resorting, as the case maybe, to any one of the four means of success, viz. conciliation, division, bribery, and force, therefore it is said to have four means. Because it protects or guards the four castes and the four orders, therefore it is said to benefit four. A. The four orders are the four stages in the life of a twice-born man: student, householder, hermit, and ascetic. 8:13 If unjustly decided, it brings evil on the four persons mentioned in this sloka. If justly decided, it confers good on them. A. 8:15 The several functions of the eight (or ten) 'members' of a judicial proceeding are thus described in a sloka attributed to Brihaspati. ‘The chief judge publishes the sentence. The king passes it. The assessors investigate the facts of the case. The law-book dictates the judgment, i.e. the victory of the one party, and the fine imposed on the other party. Gold and silver serve the purpose of administering ordeals. Water is used for relieving thirst or appeasing hunger. The accountant has to compute the sums. The scribe has to record the proceedings. The attendant must compel the defendant and the witnesses to appear in court, and detain both plaintiff and defendant, if they have given no sureties.’ According to Asahâya, the term 'the king's righteous officer' has to be referred to the king's chief judge, and by 'law-books' 9:20 20-25. The 132 divisions of the eighteen titles of law are stated as follows by Asahâya:— 1. Recovery of a debt. 1. Which debts have to be paid, and which not, &c.; 2. debts (in general); 3. property; 4. means of livelihood of a Brahman in times of distress; 5. modes of proof; 6. lending money at interest; 7. usurers; 8. sureties; 9. pledges; 10. documents; 11. incompetent witnesses; 12. witnesses for the plaintiff; 13. witnesses for the defendant; 14. six cases where witnesses are unnecessary; 15. validity of testimony, how long retained; 16. false witnesses; 17. exhorting the witnesses; 18. valid evidence; 19. invalid evidence; 20. what has to be done, where both witnesses and documents are wanting; 21. ordeal by balance; 22. ordeal by fire; 23. ordeal by water; 24. ordeal by poison; 25. ordeal by sacred libation. 2. Deposits. 1. Nyasa (common deposits); 2. aupanidhika (sealed deposits); 1. The common undertakings of partners in business; 2. sacrifices offered by officiating priests; 3. tolls. 4. Resumption of gift. 1. What may be given; 2. what may not be given; 3. valid gifts; 4. invalid gifts. 5. Breach of a contract of service. 1. Service; 2. impure work; 3. conduct of a student; 4. rules of conduct for an apprentice; 5. rules of conduct for a manager; 6. fifteen sorts of slaves; 7. emancipation from slavery; 8. legal position of a slave; 9. release of a slave by the favour of his master. 6. Non-payment of wages. 1. The wages of servants; 2. cowherds and the rest; 3. fee of a public woman; 4. questions arising in regard to the payment of rent. 7. Sales effected by another than the rightful owner. 1. Sale without ownership; 2. treasure-trove. 8. Non-delivery of a sold chattel. 9. Rescission of purchase. 1. Time; 2. worn clothes; 3. loss on metals (caused by working them); 4. preparing cloth. 10. Transgression of a compact. 11. Boundary disputes. 1. Quarrels regarding a field; 2. quarrels regarding a house; 3. quarrels regarding a garden; 4. quarrels regarding a well; 5. 1. Examination of a man's virile potency; 2. gift of a maiden in marriage; 3. the offence of insulting an officiating priest; 4. the right time for giving a maiden in marriage; 5. the offence of casting a blemish on an unblemished maiden, or suitor; 6. marriage forms; 7. rule regarding incontinent females and other (unchaste women); 8. what constitutes legitimate issue; 9. illicit intercourse; 10. punishment of adultery; 11. incest; 12. intercourse with cattle, and other crimes of this sort; 13. raising issue where there is no husband; 14. the offspring of adulterous intercourse; 15, 16. authorised and unauthorised intercourse of a woman with one not her husband; 17, 18. rule regarding bad wives and husbands; 19. conduct prescribed for a woman whose husband is absent; 20. definition of a rendezvous, 13. Law of inheritance. 1. Definition of heritage; 2. its distribution; 3. indivisible property; 4. what constitutes strîdhana; 5. descent of strîdhana after the death of the proprietress; 6. rules regarding the property of brothers; 7. division of the property between parents and sons; 8. case of a daughter whose father is unknown, &c.; 9. case of a father unauthorised (to raise issue); to. share of a son suffering from a chronic or agonising disease, or otherwise (incapable of inheriting); 11. division among the sons of a reunited coparcener; 1. What constitutes a heinous offence; 2. punishments ordained for heinous offences; 3. robbery; 4. distinction between articles of inferior, middling, and superior value; 5, 6. the two kinds of robbers; 7. seizure of robbers; 8. granting food or shelter (to thieves), &c.; 9. thieves; to. punishment of heinous offences and larceny; 11. tracing a thief by the foot-marks; 12. confiscation of the property of thieves or others, when the stolen goods have not been recovered. 15, 16. Abuse and assault. 1. Abuse; 2. assault; 3. punishments ordained for both offences. 17. Gambling with dice, and betting on animals. 18. Miscellaneous. 1. Protection of the (four) castes and (four) orders by the king in person; 2. dignity of a king; 3. maintenance of Brahmans by the king; 4. authorisation from the king to bestow one's property (on Brahmans); 5. description of the various modes of subsistence permitted to a Brahman; 6. eight things worthy of reverence. It should be noted that Asahâya himself, in the sequel of his commentary, does not adhere strictly to this division, and gives 13:29 The issue of a lawsuit, like its beginning, may be twofold. Either a just decision is given, in accordance with fact, or the decision is erroneous. A. 14:31 'Brought forward,' i.e. stated by the plaintiff. The king shall neglect it, i.e. not accept it as correct. A. Yâgñavalkya II, 19. 14:32 The idea that fire is composed of seven rays or flames is derived, no doubt, from the seven rays of the sun-god Sûrya, who is represented down to the present day as riding in a chariot drawn by seven horses. 14:34 'Discarding selfish motives,' i.e. free from love or wrath (sine ira et studio). 'The part of Yama,' the king of righteousness, i.e. the distribution of the rewards and punishments due to good and bad actions. A. Yâgñavalkya II, 1; Vishnu III, 92, &c. 14:35 While consulting the law-book, he should take heed at the same time of whatever is brought forward by the assessors of the court conjointly with the chief judge. He should abide by the opinion delivered by the latter. He should try causes in due order, i.e. so that the four feet of a judicial proceeding follow one another in due succession. A. Manu VIII, 1, 8, 9; Yâgñavalkya II, 1, &c. 14:36 Âgama, 'the connection,' i.e. the relation of the case in hand to the entire system of law; 'the title of law,' its appertaining to a subdivision of this or that title of law; its 'cure,' i.e. it must 15:39 Yâgñavalkya II, 21. 15:40 According to A., this verse inculcates the superiority of custom to written law. Thus both the practice of raising offspring to a deceased or disabled brother, and the remarriage of widows (see twelfth title of law) are specially sanctioned in the sacred law-books. Yet these two customs are opposed to established practice. Therefore subtle ratiocination is required. A. quotes a verse to the effect that the immemorial usages of every province, which have been handed down from generation to generation, can never be overruled by a rule of the sacred law. Vasishtha XVI, 4; Gautama XI, 23. 15:41 'The visible path' means either ratiocination founded on 16:43 'In the case of a woman,' i.e. if the lawsuit has been instituted by a wife or daughter; or if it has been decided by a woman. 'At night,' as the night is the proper time for sleeping, and not the proper time for attending to judicial business; for it is obviously impossible to try a cause at night. 'Outside of the village,' means 'in the wood.' A lawsuit, when decided in one of these places (or special circumstances), is not finally decided and settled; the cause has therefore to be tried anew. Such is the meaning of this rule. A. 17:44 Owing to the recondite nature of lawsuits, and on account of the weakness of men's memory, which renders them unable to remember distinctly any event that has occurred long ago, the defendant in a lawsuit must be allowed sufficient time to prepare his answer. A. Read rinâdishu in the text. 17:45 45, 46. The first rule constitutes an exception to the preceding one. In the cases here mentioned the answer should be tendered at once. A. Gautama XIII, 40, 41; Yâgñavalkya II, 12, 16. 17:48 Local arrest is in this form: 'If you move from this place, the king will arrest you.' Temporary arrest is in this form: 'You must not leave this house for a certain period.' Inhibition from travelling consists of a prohibition not to undertake a journey on which one has determined. Arrest relating to karman is in this form: 'You must not persevere in performing this or that karman (religious ceremony).' Thus according to A. and Vîramitrodaya, p. 55. When placed under arrest of any one out of these four kinds, the person arrested must not break the arrest. Otherwise he will become guilty of an offence against the king. A. 18:49 Kântâra, 'a fearful forest,' 'a bad country,' a dangerous place, 'a great calamity,' a public disaster or a heavy affliction and the like. One who breaks an arrest which has been put on him in one of the places or on one of the occasions hitherto mentioned, does not commit a criminal offence by doing so. A. 18:50 A. observes that this verse, though it ought not to come in here, has been inserted from the original work (of Nârada?). It means, according to him, that both those lawsuits which have been decided by the king in person, and those which have been decided by friends, connections, or relatives, shall be tried anew, in case the double amount of the fine ordained has been paid. Yâgñavalkya II, 305. Perhaps the word '(or)' had better be omitted. 18:51 'A proper time' means 'a suitable time,' i.e. any other time besides the various occasions mentioned in paragraph 45. 'One who arrests improperly,' is either one who arrests on one of the prohibited occasions, or one who arrests without sufficient reason. A. 18:52 Artizans, i.e. manual labourers, while engaged in their work. A. 19:53 53, 54. 'One who has not yet arrived at years of discretion,' i.e. a boy. 'A messenger,' whether employed in the affairs of the king, or by a private person. 'One about to give alms,' at one of the 'Parvan' days (the days of the four changes of the moon). 'One fulfilling a vow,' performing a special religious observance. 'One harassed by difficulties,' i.e. one who has been befallen, at the time being, by a calamity from the king or from fate. All persons in any such situation must not be arrested. A. 19:55 The defendant, after having been accused by the plaintiff, must not proffer a counter plaint against the plaintiff, without having previously cleared himself of the charge raised against himself, because two different causes cannot be tried at one and the same time. Neither must a new plaint be lodged against one who has already been impeached by another, because one already hit must not be hit again. If a deer has been first hit by one huntsman, and is again hit by another hunter, the effort of the latter is to no purpose. The first huntsman may justly claim the deer, and not the second. A. Yâgñavalkya II, 9. 19:56 'He must not alter the charge,' as e.g. by claiming a larger or a smaller sum afterwards than he had done before If e.g. after 20:59 He who, after having been summoned by the king, makes off; or who, having decamped and having been seized with difficulty by the king's officers, does not make any reply to the questions put to him, shall be fined by the king, because he loses his suit. A. Manu VIII, 55, 56; Yâgñavalkya II, 16. 20:60 If, being questioned by the judges, he does not uphold, i.e. maintain, a statement previously made by himself. A. The commentators of Manu, in commenting on an analogous passage of the Code of Manu (VIII, 54), give the following example. A man has made a certain statement regarding the money in dispute. The judge asks him afterwards, 'Why did you tender or accept the money at night?' The man thereupon does not abide by his own former statement. (See Jolly, translation of the eighth chapter of 21:62 'This wicked debtor owes me money. He declines to restore it, though I can prove his obligation to pay me by witnesses and documentary evidence. Therefore I must cite him before the tribunal of the king.' If the claimant says so and does not produce evidence at the time when he proffers his claim, but produces it afterwards, it does not make evidence. If, however, a statement of this kind had been previously made, and the claimant, owing to some unfortunate accident, or to forgetfulness, &c., has merely failed to repeat it at the third stage of the trial (i.e. during the judicial inquiry), it may be renewed, and shall be examined by the judges, although the case had already been decided, and sureties been given and taken. A. Yâgñavalkya II, 20. 22:64 Yâgñavalkya II, 19. 22:65 A lawsuit is 'decided' at the time when the judges, after having come to a unanimous agreement about the verdict to be passed on the plaintiff and defendant, give them a written record of their respective victory and defeat. The 'punishment has been declared' when the judges, after passing the verdict, dictate a certain punishment, in accordance with the comparative heaviness or lightness of the offence committed. In both cases, if a man considers himself to have lost his cause through an unjust sentence, he may have the cause tried anew, if he pledges himself to pay twice the amount of the fine to the king's judge. A. Yâgñavalkya II, 305. 22:66 'Where an unjust sentence has been passed, the blame attaches to the assessors of the court. Therefore they have to pay that fine.' A. Yâgñavalkya II, 4. 22:67 'Wrath' is when he bears him an old grudge. 'Ignorance' means folly. That is done 'through covetousness' which is done in consideration of a bribe. 'He who passes an unjust sentence,' i.e. who says what is opposed to justice. Such an assessor has to be considered as 'no assessor of the court,' i.e. he is unworthy to sit in the court. A. 23:68 The two following paragraphs show what is meant by 'the diversity of men's minds.' A. 23:72 As the sky has the appearance of a level plain like the earth, yet there is nothing like earth about it; and as there is no fire in the fire-fly, although it sparks like fire; even so the utterances of men are often untrue, though they may have the appearance of true statements. Therefore it is necessary to examine strictly even what a man professes to have seen with his own eyes. A.I. LEGAL PROCEDURE.
