The Minor Law Books (SBE33): Fragments of Brihaspati: I. Constitution of a Court of Justice

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BRIHASPATI.

I. CONSTITUTION OF A COURT OF JUSTICE.

1. 1 In former ages men were strictly virtuous and devoid of mischievous propensities. Now that avarice and malice have taken possession of them, judicial proceedings have been established.

2. 2 A judicial assembly is declared to be of four sorts: stationary, not stationary, furnished with (the king's) signet-ring, and directed (by the king). The judges are of as many sorts.

3. A stationary (court meets) in a town or village; one not stationary is called movable; one furnished with (the king's) signet-ring is superintended by the chief judge; one directed (by the king) is held in the king's presence.

4. 4 The king, his chosen representative (the chief judge), the judges, the law (Smriti), the accountant and scribe, gold, fire, water, and the king's own officer are ten members of legal procedure.

5. A court of justice is composed of these ten members; and a judicial assembly of this sort, in which the king examines causes attentively, is comparable to an act of religion.

11 That judicial assembly is equal (in sanctity) to a sacrificial meeting in which there sit seven or five or three Brahmans, who are acquainted with the world, with (the contents of) the Veda, and with law.

12. 12 In a controversy he examines the (plaint in) question and the answer; he speaks gently at first

13 Men qualified by the performance of devotional acts, strictly veracious and virtuous, void of wrath and covetousness, and familiar with (legal) lore, should be appointed by the ruler as judges (or assessors of the court).

14. 14 Two persons thoroughly familiar with grammar and vocabulary, skilled in (the art of) computation, honest, and acquainted with various modes of writing, should be appointed by the king as accountant and scribe (respectively).

15. 15 A veracious man, who pays obedience to the judges, should be appointed (by the king) as his own officer, to summon and to keep in custody the witnesses, plaintiff, and defendant.

16. The king should sit facing the east; the judges, facing the north; the accountant, facing the west; and the scribe, facing the south.

17. 17 The king should cause gold, fire, water, and codes of the sacred law to be placed in the midst of them, also (other) holy and auspicious things.

18. 18 In the middle of his fortress, he should build a house, with water and trees adjacent to it, apart (from other buildings), and let him use as court of justice (a room situated) on the eastern side of it, properly constituted and facing the east,

19. Furnished with garlands and with a throne,

20 Let the king try causes, attended by three judges, after having entered the excellent judicial assembly, in a sitting or standing posture.

21. 21 The king having risen early in the morning and performed ablutions according to rule, and having shown due honour to Gurus (persons entitled to respect), astronomers, physicians, deities, Brahmans, and domestic priests,

22. And having saluted the Gurus and the rest, should enter the court-room, decorated with flowers, ornaments, and (fine) clothes, with a cheerful countenance.

23. 23 Having entered the judicial assembly in the forenoon, together with the seniors, ministers, and attendants, he should try causes and should listen to (the expositions of) the Purânas, codes of law, and rules of polity.

24. 24 Let the king or a member of a twice-born caste officiating as chief judge try causes, acting on principles of equity, and abiding by the opinion of the judges, and by the doctrine of the sacred law.

25 For persons roaming the forest, a court should be held in the forest; for warriors, in the camp; and for merchants, in the caravan.

26. 26 Cultivators, artizans (such as carpenters or others), artists, money-lenders, companies (of tradesmen), dancers, persons wearing the token of a religious order (such as Pâsupatas), and robbers should adjust their disputes according to the rules of their own profession.

27. (The king) should cause the disputes of ascetics and of persons versed in sorcery and witchcraft to be settled by persons familiar with the three Vedas only, and not (decide them) himself, for fear of rousing their resentment.

28. 28 Relatives, companies (of artizans), assemblies (of co-habitants) and other persons duly authorized by the king, should decide lawsuits among men, excepting causes concerning violent crimes (sâhasa).

29. (Meetings of) kindred, companies (of artizans), assemblies (of co-habitants), and chief judges, are declared to be resorts for the passing of a sentence, to whom he whose cause has been previously tried may appeal in succession.

30. When a cause has not been (duly) investigated by (meetings of) kindred, it should be decided after due deliberation by companies (of artizans); when it has not been (duly) examined by companies (of artizans, it should be decided) by assemblies (of co-habitants); and when it has not been (sufficiently) made out by such assemblies, (it should be tried) by appointed (judges).

33 They who are ignorant of the customs of the country, unbelievers, despisers of the sacred books, insane, irate, avaricious, or troubled (by pain or illness) should not be consulted in the decision of a cause.

34. 34 A Brahman is the root of the tree of justice; the sovereign prince is its stem and branches; the ministers are its leaves and blossoms; just government is its fruit.

35. Renown and wealth are the sap of its fruit; a dignified station, invincibility, esteem among men, and an eternal residence in paradise is enjoying its fruit.

36. Having recognised these advantages in (the pursuit of) justice, a king should be equitable towards litigants, and should pass a just sentence, discarding avarice and other (evil propensities).

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Footnotes

277:1 I, 1. Vîram. p. 5.

277:2 2-10. Smritik.

2, 3. Aparârka. pratishthitâpratishthitâ mudritâ sâsitâ tathâ | katurvidhâ sabhâ proktâ sabhyâs kaiva tathâvidhâh || pratishthitâ pure grâme kalâ nâmâpratishthitâ | mudritâdhyakshasamyutâ râgayuktâ ka sâsitâ || The Smritikandrikâ reads sâstritâ, 'governed by the science of law,' for sâsitâ, 'directed.'

277:4 4-10. Vîram. pp. 41, 42.

278:11 M. Macn. I, 1, 11.

278:12 Vîram. p.37. If the reading be correct, a double etymology of the term prâdvivâka, 'a judge,' is propounded in this text: (2) he who asks or examines (prikkhati) and afterwards decides (vadati); (2) he who speaks gently at first (prâg vadati). There is another reading, pravadati for prâg vadati, under which the former etymology is the only one propounded in this text. It is beyond doubt the true etymology.

279:13 Aparârka. sâdhukarmakriyâyuktâh satyadharmaparâyanâh | akrodhalobhâh sâstragñâh sabhyâh kâryâ mahîbhugâ ||

279:14 14, 15. Vîram. p. 42.

279:15 15, 16. May. p. 4 (Mandlik).

279:17 Smritik. hiranyam agnim udakam dharmasâstrâni kaiva hi | tanmadhye sthâpayed râgâ punyâni ka hitâni ka ||

279:18 18, 19. Vîram. p. 10. The epithet lakshanyâm, 'properly constituted,' 280:20 Smritik. râgâ kâryâni sampasyet sabhyair eva tribhir vritah | sabhâm eva pravisyâgryâm âsînah sthita eva vâ || Nearly identical with Manu VIII, 10.

280:21 21, 22. Smritik. prâtar utthâya nripatih saukam kritvâ vidhânatah | gurûñ gyotirvido vaidyân devân viprân purohitân || yathârham etân sampûgya sapushpâbharanâmbarah | abhivâdya kagurvâdîn sumukhah praviset sabhâm ||

280:23 May. p. 5.

280:24 Smritik. râgâ kâryâni sampasyet prâdvivâko281:25 May. p. 4.

281:26 26, 27. Vîram. p. 30.

281:28 28-32. Vîram. p. 40.

282:33 Smritik. desâkârânabhigñâ ye nâstikah sâstravargitâh | unmattakruddhalubdhârtâ na prashtavyâ vinirnaye ||

282:34 34-36. Vîram. p. 14. Read bhogo