The Minor Law-Books: Nârada and Brihaspati — SBE Vol. 33 (trans. Julius Jolly, 1889)

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.

a number of different headings, which will be quoted in the notes to this translation.

27. Supposing that the owner of a lost chattel casts his suspicion on a man who is constantly seen in the company of well-known thieves and other bad characters, or who lives with prostitutes, or is addicted to gambling, if he impeaches that man, it is called a charge founded on suspicion. If a man is impeached, after having been taken with the maner, the stolen goods having been found among his property, it is called a charge founded on fact. In a charge founded on suspicion, the decision must be referred to the gods (i.e. to an ordeal). In a charge founded on fact, the decision rests with the king’s judge. A.

2g. 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.

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31. There a king who acts justly must neglect error when it is brought forward, and seek truth alone, because prosperity depends on (the practice of) duty.

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. 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. 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. The connection (Agama) must be examined

31. ‘Brought forward,’ i.e. stated by the plaintiff. The king shall neglect it, i.e. not accept it as correct. A. YAg#avalkya II, 19.

32. The idea that fire is composed of seven rays or flames is derived, no doubt, from the seven rays of the sun-god Sfrya, who is represented down to the present day as riding in a chariot drawn by seven horses.

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. YAgfavalkya II,1; Vishwu III, 92, &c.

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; Yagziavalkya II, 1, &.

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; Yagziavalkya II, 1, &.

36. Agama, ‘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 mustp. 15 first of all ; then the title of law must be ascertained ; thereupon follows the cure; and the decision comes at the end. These are the four parts of a trial.

37. Avoiding carefully the violation of either the sacred law or the dictates of prudence, he should conduct the trial attentively and skilfully.

38. As a huntsman traces the vestiges of wounded deer in a thicket by the drops of blood, even so let him trace justice.

* 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. When it is impossible to act up to the precepts of sacred law, it becomes necessary to adopt a method founded on reasoning, because custom decides everything and overrules the sacred law.

41. Divine law has a subtile nature, and is occult be cured like an illness, by carrying it through the four parts of a judicial proceeding. A.

38. As deer in a thick forest is difficult to catch, even so justice is difficult of attainment. A huntsman traces the game by following up the drops of blood to the spot, though the soil may be covered by thick grass, where the wounded deer is seen by him. Similarly a king, following the course of the lawsuit, traces law to the point where justice shines forth clearly. A. Manu VIII, 44.

39. YAg#avalkya II, 21.

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 lawbooks. 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. Vasish/ha XVI, 4; Gautama XI, 23.

41. ‘The visible path’ means either ratiocination founded onp. 16 and difficult to understand. Therefore (the king) must try causes according to the visible path.

* 42, One who has never committed robbery may be charged with robbery. An actual robber, on the other hand, may be acquitted of the charge of robbery. Mazdavya was tried and declared to be a robber.

* 43. In the case of a woman, at night, outside of internal or circumstantial evidence, or it may mean a sound decision. A. Gautama XI, 24.

An actual robber, on the other hand, may be acquitted of the charge of robbery. Mazdavya was tried and declared to be a robber.

* 43. In the case of a woman, at night, outside of internal or circumstantial evidence, or it may mean a sound decision. A. Gautama XI, 24.

42. ‘Justice has been stated (in 41) to be difficult to attain, because a man may be suspected to be a thief merely on account of stolen chattels being found amongst his property. Thus the great sage Mandavya even was reproached with theft by an injudicious king, because, faithful to his vow of silence, he did not make a reply when he was charged with theft. Therefore it is necessary to adhibit great care in discerning righteous men from evil-doers.’ A. The history of M4zdavya is related in the Mah&bhérata I, 4306 foll. A gang of robbers (Dasyus) being pursued by a guard, dropped their booty in the habitation of Mandavya the ascetic, and hid themselves in his hermitage. Soon after, their pursuers arrived, and asked M4zdavya in which direction the robbers had proceeded. The saint made no reply, whereupon the guard took to searching the hermitage, in which they discovered both the robbers and the stolen chattels. The thing looking suspicious, they conducted both the saint and the robbers before the tribunal of the king, who ordered the saint to be tied to a stake. However, though tied to the stake and left without food, the saint remained alive. After some time, the king ordered him to be released, and asked his forgiveness for the ill-usage offered to him.

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.

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the village, in the interior of a house, and by enemies ; a sentence passed under any one of these various circumstances may be reversed.

*44. Owing to the recondite nature of lawsuits, and the weakness of memory, the answer may be delayed at pleasure in lawsuits relating to a debt or other subject, with a view to ascertain the true facts.

*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.

* 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. Local arrest, temporary arrest, inhibition

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 rinadishu in the text.

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; Yagfavalkya II, 12, 16.

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 Viramitrodaya, 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.

[33] cp. 18 from travelling, and arrest relating to karman; these are the four sorts of arrest. One arrested must not break his arrest.

* 49. One arrested while crossing a river, or in a forest (kAntara), or in a bad country, or during a great calamity, or in another such predicament, commits no fault by breaking his arrest.

[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.]

*s1. If one arrested at a proper time breaks his arrest, he shall be punished. One who arrests improperly is (equally) liable to punishment.

* 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 ; ,

49. K4nt4ra, ‘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.

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.

50. A. observes that this verse, though it ought not to come in here, has been inserted from the original work (of Narada?). 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. Y4gviavalkya II, 305. Perhaps the word ‘(or)’ had better be omitted.

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.

52. Artizans, i.e. manual labourers, while engaged in their work. A.

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* 53. Cowherds engaged in tending cattle; cultivators in the act of cultivation; artizans, while engaged in their own occupations ; soldiers, during warfare ;

*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. 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. When he has proffered a charge, he must not

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.

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. Y4g#avalkya II, 9.

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. Y4g#avalkya II, 9.

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

Cc 2

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again alter it. He must not recede from his previous claim. By doing so he will lose his suit.

57- He must not lodge a false plaint. He is a sinner who proffers a false charge (against any one). Whatever fine is declared in a suit of this sort has to be paid by the claimant.

58. If'a man delays his answer under false pretences, or if he stands mute at the trial, or if he revokes his own former statements: these are the signs by which a loser of his cause may be known.

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. If a man being questioned does not uphold having first claimed, as being his due, a sum amounting to 20 Gadyanakas of gold, he says afterwards : This man has to give 50 drammas (drachmas) to my son, it is called ‘receding from one’s first claim and proffering another claim.’ A. Y4géavalkya II, 9.

58. Delaying one’s answer under false pretences is e.g. if a man says, ‘I am unwell just now,’ or ‘I am unclean just now. I make no answer.’ Likewise, if a man, after having been asked by the judges, does not speak, or if having made a statement previously he revokes it; by such signs as these a man may be known to have lost his cause. A.

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; Yag#avalkya II, 16.

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 ofp. 21 a statement duly made by himself (at a former stage of the trial); or if he ends by admitting what had been previously negatived by himself ;

61. Or if he is unable to produce any witnesses, after having declared that they are in existence and having been asked to produce them: by all such signs as these persons devoid of virtue may be known.

Or if he is unable to produce any witnesses, after having declared that they are in existence and having been asked to produce them: by all such signs as these persons devoid of virtue may be known.

*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.

the Code of Manu.) ‘He who, after having answered a question in the negative previously, makes an opposite statement afterwards.’ The meaning is as follows: He is cast, if, having been interrogated by the judges, ‘Can you adduce any witnesses or documents?’ he replies at first by saying ‘I have none,’ and goes on to say ‘I have witnesses and documents.’ A. The reading seems faulty. See Manu.

61. If a man says he has documents or witnesses, and the judges, having heard this, say to him, ‘If you have witnesses, show them,’ i.e. exhibit them; if thereupon he does not adduce them, he loses his suit. A. Manu VIII, 57.

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. Y4g#avalkya II, 20.

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64. False stateménts even have to be examined if they have been made in due season. That, on the other hand, which has been passed over in silence through inadvertency, fails to produce any result, even though it be true.

* 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. 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. When a member of a court of justice, actuated by wrath, ignorance, or covetousness, has passed an

64. YAg#avalkya II, 19.

67. When a member of a court of justice, actuated by wrath, ignorance, or covetousness, has passed an

64. YAg#avalkya II, 19.

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. Y4gfiavalkya II, 305.

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. Y4Agavalkya II, 4.

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.

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unjust sentence, he shall be declared unworthy to be a member of the court, and the king shall punish him for his offence.

* 68. That king, however, who is intent on doing his duty, must be particularly anxious to discover what is right and what is wrong, because there is a variety of dispositions among mankind.

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. 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.

68. The two following paragraphs show what is meant by ‘the diversity of men’s minds.’ A.

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.

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Therefore it is necessary to examine strictly even what a man professes to have seen with his own eyes. A.

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* 74. Thus a king, constantly trying lawsuits with attention, will acquire widespread and brilliant renown in this life and the abode of Indra after his death.

II. Tue Puarnt.

1. The claimant, after having produced a pledge the value of which has been well ascertained, shall cause the plaint to be written. (He must have been impelled) to proffer his claim, by the nature of the claim, and must be intent on promoting the victory of his cause.

* 2, The defendant (creditor), immediately after having become acquainted with the tenour of the plaint, shall write down his answer, which must correspond to the tenour of the plaint. ~ * 3, Or let him (the defendant) deliver his answer on the next day, or three days, or seven days later.

II, 1. The term suniskitabaladh4nas, which has been taken to mean ‘after having produced a pledge the value (or competence) of which has been well ascertained,’ is by no means clear, and admits of several different interpretations. Thus it might be rendered, ‘after having carefully explored the nature of the wrong offered to him.’ A. does not explain this obscure term ‘ Impelled by the nature of his claim;’ not by the king, or by an enemy, but merely by his own cause. ‘Intent on promoting the victory of his cause,’ i.e. absolutely determined not to embark in any other undertaking, previous to having gained his cause. A.

2. The creditor is called plaintiff. The debtor is called defendant. The defendant, after having heard the tenour of the plaint which has been tendered in writing by the plaintiff, shall write an answer, i.e. make a reply, which corresponds to the tenour of the plaint. A. Read pratyarthi in the text.

3. The defendant may tender his written answer on the next day, or three days, or seven days after he has heard the accusation. The plaintiff, on the other hand, is not allowed any time to reply to the statements of the defendant. His victory (or defeat) is

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The plaintiff no doubt duly obtains his victory at once, when the trial has reached the third stage (the examination of the evidence).

* 4, An answer is fourfold ; a denial, a confession, a special plea, and that which is based on a plea of former judgment.

*5. A denial is fourfold (being couched in any one out of the four forms hereafter mentioned). ‘This is false,’ or ‘I do not know anything about it,’ or ‘I was not present at the transaction,’ or ‘1 was not in existence at the time when this event took place.’

6. A contradiction, the reverse, a retort, and a friendly counsel; in one out of these four forms should the answer be given, and it should be in conformity with the tenour of the plaint.

* 7, Before the answer to the plaint has been tendered by the defendant, the plaintiff may amend his own statements as much as he desires.

* 7, Before the answer to the plaint has been tendered by the defendant, the plaintiff may amend his own statements as much as he desires.

decided at once, by examining the proofs that have been adduced. A. YAg#avalkya II, 7.

4. A-special plea is when the defendant admits a fact, but qualifies or explains it so as not to allow it to be matter of accusation. A plea of former judgment is when the defendant pleads that the very same cause has been previously tried at the tribunal of this or that judge, and that his adversary has been cast. A.

6. This paragraph, says A., occurs in the original work, and has therefore been inserted in this place, though it is difficult of explanation and a mere paraphrase of the preceding paragraph. It has been rendered in accordance with his interpretation. ‘The reverse’ means confession. ‘A retort’ means a special plea. ‘A friendly counsel’ means plea of former judgment. A.

7. The plaintiff may go on altering and improving his written declaration, till the defendant gives in his answer. When, however, the plaint has been answered, he is no longer at liberty to make any further amendments. A.

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• * 8. These are called the defects of a plaint: (1) if it relates to a different subject ; (2) if it is unmeaning ;
• (3) if the amount (of the sum claimed) has not been properly stated; (4) if it is wanting in propriety ;
• (5) if the writing is deficient ; (6) or redundant; (7) if it has been damaged.

9. By whomsoever a claim is raised, whatever and from whomsoever it may have been claimed: from that very person must the claimant receive that very thing, and it must not be (claimed) mutually, or (claimed) from a stranger. Thus ‘a claim relating to a different subject’ may be of three kinds.

10, Thy friend here has thought in his mind, that Iam his enemy. On account of this great intolerance I have impeached thee here.

11. If he omits to state the amount of the thing (claimed), and forgets to aim at brevity(?): this fault of a plaint is called omission of the amount (claimed), and it should be avoided.

12, Let him avoid improper statements in the plaint (e.g. an accusation which is raised) by a plurality of persons against one single-handed; or

8. A. does not explain the rather obscure terms occurring in several of the following paragraphs. He confines himself to stating that they contain an accurate definition of the ‘seven defects of a plaint,’ as enumerated in paragraph 8, to which the defect described in paragraphs 15, 16 has to be added as an eighth.

g. The three kinds of ‘a claim relating to a different subject’ appear, therefore, to be these: where it proceeds from a different person than the creditor; where the amount of the sum claimed has not been stated correctly; and where the plaint has been addressed to a wrong person.

10. This is an instance of an unmeaning or frivolous accusation, A. ;

11. The reading of this paragraph is uncertain.

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10. This is an instance of an unmeaning or frivolous accusation, A. ;

11. The reading of this paragraph is uncertain.

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(a cause which) is opposed to (the interests of) the city or kingdom (in which he lives).

13. A plaint in which a mere dot is omitted, or where a word or a syllable has been obliterated, or where too little or too much has been written, or which is absurd; such a plaint should be carefully avoided.

14. He should (equally) avoid a plaint which has been destroyed or damaged (by an accident), or which has been soiled by water, oil, or other (liquids), even though the purport and meaning of the plaint be quite plain.

*15. A plaint, though otherwise established, is not correct, if it is contrary to established law and usage.

16. A claim which is proffered in this form—‘I gave this to him while he was in a state of intoxication with fragrance (through a smell of perfume) ’— cannot succeed, because it is contrary to established usage.

* 17, Where different words are (subsequently) inserted (in the plaint), and where the sense becomes different (in consequence), there the judicial investigation becomes confused, and the evidence itself is thrown into confusion.

*18, When the claimant, in a passion, and actuated

17. A. illustrates this rule by the following example. The claimant has claimed a certain sum. At the time of the trial he names a larger sum than he did before. Thus the judicial investigation becomes confused.

18. If a man actuated by one of the three passions, sexual desire, wrath, and covetousness, mentions some special (important) circumstance at the trial, the scribe shall enter it at once in writing on a board, or leaf, or Bhfrga-bark, or box, or wall. A. This rule seems to relate to incidental statements, which escape one of the parties through inadvertency. Thus in the well-known drama Mrikkhakafika, the wicked prince SamsthAnaka, when informing thep. 28 by one of the immoral motives, such as partiality, makes some special statement, it shall at once be completely reduced to writing on a board or other (writing material).

19. Other statements than those (taken down at first)regarding the plaintiffon a board or other (writing material) shall be removed, after careful consideration, by persons versed in law, (when reporting on the trial) for the information of the king’s judge.

20. Let such persons reduce to writing the statements of each party, and whatever else has been written on the board, together with the names of the

20. Let such persons reduce to writing the statements of each party, and whatever else has been written on the board, together with the names of the judge that Vasantasena has been murdered, adds, ‘ not by myself.’ The judge pounces upon the latter statement, suspicious as it looks, and causes the scribe to put it down in writing on the floor. The prince, perceiving that he has committed himself, effaces the writing with his foot. The custom of writing the statements of the parties on the floor is repeatedly referred to in the Indian dramas. From what Brzhaspati says, it would seem that in the time of this law-writer the statements of the parties had first to be written on a board, and then on a leaf, after all the required corrections had been entered. Narada seems to refer to the same custom in paragraphs 19 and 20.

According to Dr. Burnell, the boards referred to in the law-books must have been a sort of black wooden boards. See Burnell, South Indian Palzography, 2nd ed., p. 87.

20. In translating this paragraph, the obscurity of which is only surpassed by the preceding paragraph, I have deviated from the interpretation proposed by the commentator.

A. takes this paragraph as containing four independent clauses: 1. what has been stated or admitted by both parties; 2. whatever else has been written on the board; 3. the depositions of the witnesses; 4. what each party has conceded to the other. These four things should be reduced to writing by the persons entrusted with the judicial investigation. ‘Whatever else has been written on the board,’ i.e. whatever the plaintiff amends or adds, while the plaint is being reduced to writing. Such statements, as shown in the next paragraph, are called Pratydkalita.

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witnesses, as well as those statements in which both parties concur.

21. Additional statements of the plaintiff (or defendant), which are not contained in the writings of both parties, shall be (subsequently) entered into his (their) declaration. They are called Praty4kalita (‘ what is interposed’).

* 22, If one deputed by the claimant, or chosen as his representative by the defendant, speaks for his client in court, the victory or defeat concerns the party (himself and not the representative).

* 23. He deserves punishment who speaks in behalf of another, without being either the brother, the father, the son, or the appointed. agent; and so does he who contradicts himself at the trial.

* 24. He who forsakes his original claim and produces a new one, loses his suit, because he confounds two plaints with one another.

* 25. A verbal error does not annul the claim in

21. A. infers from the use of the term ‘both parties’ that a
Pratydkalita statement may proceed from the defendant as well as
from the plaintiff, though the plaintiff alone is specially mentioned.
A. adds that this rule applies equally to all those kinds of statements,
which are mentioned in paragraph 20.

A. adds that this rule applies equally to all those kinds of statements, which are mentioned in paragraph 20.

22. This rule applies equally where a party is prevented from appearing before the court by illness, and where the party is not a good speaker, and has appointed an agent or attorney for that reason. A.

• 23. This prohibition relates to those who, from love, anger, or
• - avarice, meddle with the affairs of strangers, and pretend to act in their behalf at court. A.

24. If a claimant, on finding himself unable to prove his claim at the trial, proffers a different claim, he must be pronounced the losing party, on account of the confusion caused by him. A.

25. An erroneous statement does not necessarily cause the defeatp. 30 actions of any kind. So if the case relates to cattle, or to a woman, or to land, or to a debt, he is liable to punishment, but his claim is not annulled.

26. Where the defendant denies the charge, the claimant has to prove his accusation, unless the denial should have been in the form called Pratyavaskandana.

* 27. What the claimant has fully declared word for word in the plaint that he must substantiate by adducing evidence at the third stage of the trial.

* 28. Proof is said to be of two kinds, human and divine. Human proof consists of documentary and oral evidence. By divine proof is meant the ordeal by balance and the other (modes of divine test).

29. Where a transaction has taken place by day, of the plaintiff. This is particularly the case in one of the following important actions: a case relating to a cow, female buffalo, or other cattle; a case relating to a woman; a case relating to landed property, i.e. a house, field, &c.; and a case relating to one of the twenty-five subdivisions of the law of debt. In any case he is not defeated, merely on account of an erroneous statement contained in the suit. He does not lose the suit instituted by him, though he is liable to punishment. A. The Mit&kshard (p. 23) has a long gloss on this rule of Narada, from which it appears that the ‘erroneous statements’ here referred to are statements made through inadvertency, and that this rule applies to civil, as opposed to criminal actions. Read vaksale in the Sanskrit text.

26. An answer in the form called Pratyavaskandana is where the defendant admits the facts adduced by the plaintiff, but explains them so as not to be matter of accusation.

24. The claimant must prove, at the judicial investigation, whatever he has committed to writing in the plaint. A.

29. The divers kinds of divine test will be declared below. In the case of all those transactions which take place during day-time eye- and ear-witnesses are present. Documentary evidence, likewise, is generally available in such cases. Therefore, divine proof should not be resorted to. Where a transaction is known to havep. 31 in a village or town, or in the presence of witnesses, divine test is not applicable.

Documentary evidence, likewise, is generally available in such cases. Therefore, divine proof should not be resorted to. Where a transaction is known to havep. 31 in a village or town, or in the presence of witnesses, divine test is not applicable.

* 30. Divine test is applicable (where the transaction has taken place) in a solitary forest, at night, or in the interior of a house, and in cases of violence, or of denial of a deposit.

31. Where the defendant has evaded the plaint by means of a special plea, it becomes incumbent on him to prove his assertion, and he is placed in the position of a claimant.

* 32. One who takes to flight after having received the summons; one who remains silent ; one who is convicted (of untruth) by (the deposition of) the witnesses; and one who makes a confession himself : these are the four kinds of Avasannas (losers of their suit).

* 33. One who alters his former statements ; one taken place in the presence of witnesses, divine proof is also not applicable. A.

3o. In all the places and occasions mentioned in this paragraph human proof is not applicable, wherefore divine test has to be resorted to. A.

31. Where the defendant has recourse to the mode of defence called Pratyavaskandana, i.e. where he admits the charge, but adduces a special circumstance to exonerate himself, the plaint becomes purposeless. To the defendant, however, belongs the onus probandi in regard to the special circumstance mentioned by him. He is, therefore, reduced to the position of a claimant, in that it is incumbent on him to prove his assertion at the time of the judicial investigation (kriya). A.

32. One who, though summoned by the king’s officers, absconds through fear of the accusation brought against him; one who stands mute in the assembly when he is asked to make his declaration; one who is cast by the depositions of the witnesses ; and one who confesses to be in the wrong himself: these four persons are non-suited. A. Y4gfiavalkya II, 16; Manu VIII, 55-58.

33- Two out of the four ‘losers of their suit,’ who are referredp. 32 who shuns the judicial investigation ; one who does not make his appearance (before the tribunal); one who makes no reply; and one who absconds after receiving the summons: these five kinds of persons are called Hina (cast in their present suit).

34. Precious stones, such as rubies, golden ornaments, such as Dindras, pearls, coral, shells, and other (jewels and precious metals) shall be returned

34. Precious stones, such as rubies, golden ornaments, such as Dindras, pearls, coral, shells, and other (jewels and precious metals) shall be returned to in the preceding paragraph, may be said to have lost their cause for once and all, viz. one who is convicted of untruth by the deposition of the witnesses, and one who confesses his wrong himself. The two others, viz. one who remains silent and one who absconds, are liable to punishment, but they do not entirely lose their suit, as their cause may be tried anew. Similarly, the five persons mentioned in par. 33, though non-suited in the case in hand, may have their cause tried anew. ‘One who alters his statements,’ i.e. one who, from forgetfulness, says something different from what he had stated before. ‘One who shuns the judicial investigation,’ i.e. one who, from repugnance against judicial investigation, throws the proceedings into confusion. ‘One who does not make his appearance before the tribunal,’ i.ec.on account of a calamity which has befallen him through the king or through fate, &c. ‘One who makes no reply,’ i.e. one who does not give in his answer at once, and asks for delay to prepare it. ‘One who absconds’ from fear of an enemy. A. This interpretation has evidently been called forth by a desire to reconcile par. 33 with the preceding paragraph, as the persons called Hfna are partly identical with those designed as Avasannas. It may be doubted, however, whether par. 32 belongs to the original work of N&rada, as the identical rule is elsewhere attributed to Brzhaspati (see Viram., p. 102), and as it is certainly difficult to reconcile the two paragraphs with one another.

34. If the owner of the articles mentioned in this rule sells them for genuine, and the purchaser, putting belief in his statements, accepts them as such, and pays for them, but finds out afterwards that they are not genuine, the seller must take them back, and must give other articles in exchange for them which are really valuable, or he must make good their value to the purchaser. A. As for the meaning of the term Dinfra, which corresponds to the Latin denarius, see the Introduction.

p. 33

to their owner, in case they turn out to be imitations only.

35. If a man seizes perfumes, or garlands—other than those which have been given to him—or ornaments, or clothes, or shoes, which belong to the king, he deserves to be corporally punished.

* 36. The price or value of a commodity, wages, a deposit, a fine, what has been abandoned (by one and found by another), what has been idly promised, and what has been won at play; none of these articles yields interest, except under a special agreement to the purpose.

37- Men of the Sddra caste, who proffer a false accusation against a member of a twice-born (Aryan) caste, shall have their tongue slit by (the officers of) the king, and he shall cause them to be put on stakes.

38. A royal edict, a (private) document, a written

37- Men of the Sddra caste, who proffer a false accusation against a member of a twice-born (Aryan) caste, shall have their tongue slit by (the officers of) the king, and he shall cause them to be put on stakes.

38. A royal edict, a (private) document, a written

35- One who, from pride, seizes (or uses) one of the above articles, shall be corporally punished, if they belong to the king. A. The reading of this paragraph is quite uncertain.

36. ‘The price of a commodity,’ the price paid for a saleable commodity which has been sold. ‘A deposit,’ a trust. ‘A fine,’ an amercement which has been inflicted by the king’s judges. ‘What has been abandoned,’ what has been seized after its dereliction (by the original owner). ‘What has been idly promised’ to bards or other worthless persons.

37. If the SQdras, by whom this crime has been committed, are punished by the king, he becomes free from blame. Otherwise, the blame falls on him, as it is his duty to reward the honest, and to punish evil-doers. A.

38. The divers forms in which a plaint is instituted in each of these several cases (excepting a single case, a transaction of sale) are stated as follows by A.: ‘1. This man has not taken notice of a certain royal edict. 2. This man has (unduly) availed himself of a certain document relating to its owner. 3. This man, by virtue of a certain written title, has appropriated a slave girl belonging to

{33] Dp. 34 title, a grant, a pledge, a (promise reduced to) writing, _a sale, or purchase: one who brings a claim in regard to any one of these before the king is known as defendant among ‘those conversant with the rules (of legal pleading).

* 39. Where the deposition of the witnesses has been objected to, it becomes necessary first of all to clear the witnesses from suspicion. When the witnesses themselves have been cleared from suspicion, he may undertake to remove the doubts which have been raised against their deposition.

* 40. When a man has lost his cause through the dishonesty of witnesses or judges, the cause may be tried anew. When, however, a man has been cast through his own conduct, the trial cannot be renewed.

41. One convicted by his own confession, one myself. 4. This man raises the revenue of a certain village which has been granted to myself. The grant relates to myself only. 5. This property has first been pledged to me by the debtor. How can any one else enjoy it? 6. Why does not this man deliver this chattel to me, which has been promised to me in writing? 7. I have purchased this commodity from him, and paid for it. He does not make the commodity over to me. —Read Agfa.

How can any one else enjoy it? 6. Why does not this man deliver this chattel to me, which has been promised to me in writing? 7. I have purchased this commodity from him, and paid for it. He does not make the commodity over to me. —Read Agfa.

39. Where the defendant raises groundless objections against the trustworthiness of the depositions of witnesses, he is liable to punishment, like one who shuns the judicial investigation, and loses his suit in consequence. After the witnesses have been cleared from suspicion, their statements have to be examined in order to remove what looks suspicious in them. A.

40. Those who have lost their cause, either through the statements of their own witnesses, or through the decision of the judges, may have their cause tried anew, according to a rule previously laid down. If, however, a man has been convicted by his own conduct, or if the witnesses adduced by him should turn out to have been corrupted by him, the case cannot again be opened. A.

41. 1. One who pleads guilty; 2. one convicted by his ownp. 35 cast through his own conduct, and one whom the judicial investigation has proved to be in the wrong: (these three) deserve to have their final defeat declared at the hand of the judges.

42. Whenever the (false) assertions have been removed, the judges shall pass a decree. If they pass a judgment, before the false statements have been removed, they will cause evil in the next world and in this.

43. One condemned by the judges shall be punished by the king according to law. The victorious party shall receive a document recording his victory, and couched in appropriate language.

44. This has been formerly declared by the selfexistent Being to be the mouth of a lawsuit. If the mouth of a lawsuit is in order, the whole suit is in order, but not otherwise.

conduct, as e.g. by adducing false witnesses or forged documents ; 3. one convicted by the witnesses: those three shall not be punished till they have been condemned by the judges. A.

42. When the time for passing a decree has arrived, the judges shall carefully remove all mere assertions of either party. Should they omit to do so, they would be in danger of condemning an innocent man, and might produce evil in this world by causing loss of money, and in the next world by barring the way to paradise to themselves, as it is the duty of kings to restrain evil-doers and to protect the righteous. A.

43. According to Brzhaspati, the document of victory which has to be given to the victorious party shall contain an accurate record of the plaint, of the answer, and of the judicial investigation.

44. The general rules regarding judicial proceedings, which have been laid down in the preceding section, are declared to be the mouth of a lawsuit, because they are applicable to the trial of every suit. ‘The self-existent Being,’ ie. Brahman. A.

p. 36

III. Courts oF Justice.

44. The general rules regarding judicial proceedings, which have been laid down in the preceding section, are declared to be the mouth of a lawsuit, because they are applicable to the trial of every suit. ‘The self-existent Being,’ ie. Brahman. A.

p. 36

III. Courts oF Justice.

*1, One who has not been authorized must not speak on any account at the trial. But authorized persons must deliver their opinion in an unbiassed spirit.

* 2, Whether unauthorized or authorized, one acquainted with the law shall give his opinion. He passes a divine sentence who acts up to the dictates of law.

3. If he delivers a fair opinion, a member of the court will incur neither hatred nor sin. But if he speaks otherwise he at once incurs both.

*4. Let the king appoint, as members of a court

III, 1. Courts of justice are generally thronged by a large attendance. Some of the persons present are intelligent, others are not, and others are wise in their own estimation only. Such persons, if unrestrained, would disturb the judges by interpreting idle speeches between the legal proceedings, and by quarrelling amongst themselves, Therefore, the first half of this paragraph relates to the punishment ordained for those who speak without authorization. Authorized persons, i.e. the judges who sit on the seat of judgment, shall strive to be just, i.e. they shall deliver a judgment in accordance with justice, and shall not show partiality for either of the parties. A.

2. Where all the assessors of the court pass an unjust sentence, from ignorance of the law, or from interested motives, there a Brahman versed in the sacred law and acquainted with legal proceedings, who happens to be present, shall point out the law to them, and restrain the judges from their sinful course. He shall speak, though he has not been appointed to deliver judgment. Law is called the voice of the deity. A.

3. That is called ‘a fair opinion’ which is not contrary to written law and to custom. <A judge who delivers a sentence of this kind incurs neither enmity nor sin, i.e. he does not become unhappy either in this world or in the next. A.

4. As young bulls are able to carry a heavy burden, even sop. 37 of justice, honourable men, of tried integrity, who are able to bear, like good bulls, the burden of the administration of justice.

* 5. The members of a royal court of justice must be acquainted with the sacred law and with rules of prudence, noble, veracious, and impartial towards friend and foe.

6. Justice is said to depend on them, and the king is the fountain head of justice. Therefore the king should try causes properly, attended by good assessors.

7. When lawsuits are decided properly, the members of the court are cleared from guilt. Their purity depends on the justice (of the sentences passed by them). Therefore one must deliver a fair judgment.

Therefore the king should try causes properly, attended by good assessors.

7. When lawsuits are decided properly, the members of the court are cleared from guilt. Their purity depends on the justice (of the sentences passed by them). Therefore one must deliver a fair judgment.

8. Where justice is slain by injustice, and truth by falsehood, the members of the court, who look on with indifference, are doomed to destruction themselves.

competent judges are able to discharge the onerous duties of their responsible office. They must be men of ripe wisdom, acquainted with sacred law and with the ways of the world, and the king must have tested their qualifications. A. Vishu III, 74, &c.

5. The law-books contain many utterances of the sages, which are obscure and difficult to make out. Therefore slow-minded persons, who are unable to understand them, and to refer their contents to each case in hand, must not be appointed. Welldescended persons shall be appointed, because they will avoid partiality from family pride. ‘Veracious’ persons have a natural abhorrence against untruthfulness. A. Y4gviavalkya II, 2.

6. ‘On them,’ i.e. on the judges, whose qualities have been previously described. A. Vishwu III, 72; Manu VIII,1; Y4gfavalkya II, 1, &c.

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

8. Identical with Manu VIII, 14.

p. 38

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

1o, Either the judicial assembly must not be entered at all, or a fair opinion delivered. That man who either stands mute or delivers an opinion contrary to justice is a sinner.

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

*1t2, One quarter of the iniquity goes to the offender; one quarter goes to the witness; one quarter goes to all the members of the court; one quarter goes to the king.

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

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

A judge who remains silent, or who, when asked to pass a sentence, says what is contrary to justice, is criminal, i.e. a great sinner. A. Nearly identical with Manu VIII, 13.

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

12,13. These two paragraphs belong together. If the judgesp. 39 members of the court obtain their absolution, and the guilt goes to the offender, when the guilty person is punished.

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

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

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

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

1g. Considering all this, let a judge, after having entered the court of judicature, reject every kind of bias, and deliver a fair, i.e. an impartial opinion, in order that he may not go to hell burdened with the crime of a guilty person (acquitted by him). A.

16. As a skilful surgeon conversant with the art of extracting a dart, extracts it, though it may be difficult to get at and invisible, by the application of surgical instruments, of spells, and other manifold artful practices, even so a judge shall extract the dart ofp. 40 judge must extract the dart (of iniquity) from the lawsuit.

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

*17, When the whole aggregate of the members of a judicial assembly declare, ‘This is right, the lawsuit loses the dart, otherwise the dart remains in it.

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

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

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

18. This paragraph, in the original, is a verse composed in the Trishfubh metre, and has the look of an old versus memorialis. Though the author of the Nférada-smrzti has incorporated it in his work, its contents do not quite fit in with his own ideas regarding the constitution of a judicial assembly, and the prominent place which he assigns to the chief judge of the king.

FIRST TITLE OF LAW.

Tue Law. or DEsrt.

1. Payment of a Debt.

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

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

The twenty-five sections into which the law of debt has been divided in this translation correspond in the main, though not throughout, to the headings proposed by Asah4ya in different portions of his work. Asah4ya, as pointed out before, is not consistent with himself in this respect. It is curious to note that the whole law of evidence, excepting the general rules laid down in the preceding chapters, has been inserted by Narada between the divers tules of the law of debt. He seems to have followed in this respect, as in other particulars, the example set to him by the earlier legislators, such as Manu and Y4gfiavalkya.

I, 1, 2. If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it according to their respective shares. If they remain united, they shall pay it in common, or the manager shall pay it for the rest, no matter whether he may be the senior of the family or a younger member, who, during the absence of the oldest, or on account of his incapacity, has undertaken the management of the family estate. A.

p. 3

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

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