20. If he has actually committed adultery, the organ shall be cut off together with the testicles.
21. But (if he has had intercourse) with a (mar-
riageable) girl, his property shall be confiscated and
he shall be banished.
22. Afterwards the king must support (such women and damsels),
23. And protect them from defilement.
24. If they agree to undergo the (prescribed)
penance, he shall make them over to their (lawful)
guardians.
to make their magic charms efficacious.' — Haradatta. Probably, however, Apastamba means to exclude all heretical hermits, of whom India has had plenty at all times.
18. The ornaments would indicate that he was bent on mis- chief. Compare above, I, 11, 32, 6.
19. ' The punishment must be proportionate to his property and the greatness of his offence. The term " with a bad purpose " is added, because he who has been sent by his teacher (to such a place) should not be punished.' — Haradatta. Manu VIII, 354; Ya^. II, 284.
24. ' I. e. a married woman to her husband or father-in-law, an unmarried damsel to her father or to her brother.' — Haradatta.
l64 APASTAMBA. 11,10,27.
Pra^na II, Patala 10, Khanda 27.
1. If (adulteresses) have performed (the pre-
scribed penance), they are to be treated as before
(their fault). For the connexion (of husband and
wife) takes place through the law.
2. (A husband) shall not make over his (wife),
who occupies the position of a ' gentilis,' to others
(than to his 'gentiles'), in order to cause children to
be begot for himself.
3. For they declare, that a bride is given to the
family (of her husband, and not to the husband
alone).
4. That is (at present) forbidden on account of the weakness of (men's) senses.
5. The hand (of a gentilis is considered in law to
be) that of a stranger, as well as (that of any other
person except the husband).
6. If the (marriage vow) is transgressed, both (husband and wife) certainly go to hell.
7. The reward (in the next world) resulting from
observing the restrictions of the law is preferable
to offspring obtained in this manner (by means of
Niyoga).
8. A man of one of the first three castes (who
commits adultery) with a woman of the ^Sudra caste
shall be banished.
27. 2. This Sutra refers to the begetting of a Kshetra^a son, and gives the usual rule, that only the Sagotras in the order of the grade of relationship, a brother-in-law, a Sapmdd., &c., shall be employed for this purpose.
4. ' For now-a-days the senses of men are weak, and therefore the peculiar (law formerly) in force regarding gentiles is so no longer, lest husbands should be set aside under the pretended sanction of the ^Sastras.' — Haradatta.
Ii, 10, 27- Civil and Criminal Law. 165
9. A K^udra (who commits adultery) with a
woman of one of the first three castes shall suffer
capital punishment.
10. And he shall emaciate a woman who has
committed adultery with a (^'{idra, by making her
undergo penances and fasts, in case she had no
child).
11. They declare, that (a Brahmaz/'-a) who has
once committed adultery with a married woman of
equal class, shall perform one-fourth of the penance
prescribed for an outcast.
12. In like manner for every repetition (of the crime), one-fourth of the penance (must be added).
13. (If the offence be committed) for the fourth
time, the whole (penance of twelve years must be
performed).
14. The tongue of a SAdra. who speaks evil of
a virtuous person, belonging to one of the first three
castes, shall be cut out.
15. A K^udra who assumes a position equal (to
that of a member of one of the first three castes),
in conversation, on the road, on a couch, in sitting
(and on similar occasions), shall be flogged.
16. In case (a vSudra) commits homicide or theft,
appropriates land(or commits similar heinous crimes),
his property shall be confiscated and he himself
shall suffer capital punishment.
9. Manu VIII, 374; Ya^n. II, 286. According to Haradatta, this refers to a <Sudra servant who seduces a woman committed to his charge. In other cases the punisliment prescribed, II, 10, 26, 10, is to take effect. The same opinion is expressed by Gautama.
1 1. This refers to the wife of a 6'rotriya, as Haradatta states according to Gautama. The penance is three years' chastity.
15. In conversation, i. e. addressing Aryas familiarly, with tvam, ' thou/ &c.
1 66 APASTAMBA. II, 11,28.
17. But if these (offences be committed) by a
Brahma;ea, he shall be made blind (by tying a cloth
over his eyes).
18. He shall keep in secret confinement him who
violates the rules (of his caste or order), or any
other sinner, until (he promises) amendment.
19. If he does not amend, he shall be banished.
20. A spiritual teacher, an officiating priest, a
Snataka, and a prince shall be able to protect (a
criminal from punishment by their intercession),
except in case of a capital offence.
PrA^-NA II, PaTALA 11, KHAiVDA 28.
1. If a person who has taken (a lease of) land
(for cultivation) does not exert himself, and hence
(the land) bears no crop, he shall, if he is rich, be
made to pay (to the owner of the land the value of
the crop) that ought to have grown.
2. A servant in tillage w^ho abandons his work shall be flogged.
17. Haradatta states expressly that the eyes of a Brahma«a must not be put out by any sharp instrument. He should be kept bUndfold all his life.
20. ' The intercession is to take effect in this manner : that mutilation is commuted to a fine, a fine to a flogging, a flogging to a reprimand.' — Haradatta.
28. I. This Sfttra shows that the system of leasing land against a certain share of the crops, which now prevails generally in Native States, and is not uncommon in private contracts on British terri- tory, was in force in Apastamba's times.
2. See Colebrooke, Digest, Book III, Text Ixviii, for this Sfatra and the following two. Another commentator, quoted by Hara- datta, connects this Siitra with the preceding, and refers it to a poor lessee of land, who cannot pay the value of the crop which was lost through his negligence. A third explanation refers the
ILii, 2S. CIVIL AND CRIMINAL LAW. 1 6/
3. The same (punishment shall be awarded) to a herdsman (who leaves his work) ;
4. And the flock (entrusted) to him shall be taken away (and be given to some other herdsman).
5. If cattle, leaving their stable, eat (the crops of
other persons, then the owner of the crops, or the
kixig's servants), may make them lean (by impound-
ing them) ; (but) he shall not exceed (in such
punishment).
6. If (a herdsman) who has taken cattle under
his care, allows them to perish, or loses (them by
theft, through his negligence), he shall replace them
(or pay their value) to the owners.
7. If (the king's forester) sees cattle that have
been sent into the forest through negligence (with-
out a herdsman), he shall lead them back to the
village and make them over to the owners.
8. If the same negligence (occur) again, he shall
once impound them (and afterwards give them
back).
9. (If the same fault be committed again) after that (second time), he shall not take care (of them).
10. He who has taken unintentionally the pro-
perty of another shall be reprimanded, in case (the
property be) fuel, water, roots, flowers, fruits, per-
fumes, fodder, or vegetables.
11. (If he takes the above-mentioned kinds of
property) intentionally, his garment shall be taken
away.
Sutra to a cultivator who neglects to till his land. G^agannatha's authorities, the ^intamawi and Ratnakara, agree with Haradatta's first explanation.
5. Manu VIII, 240; Ya^fi. II, 159-161.
6. Manu VIII, 232; Yagn. II, 164.
t68 apastamba. 11,11,29.
12. He who takes intentionally food when he is in danger of his life shall not be punished.
13. If the king does not punish a punishable offence, the guilt falls upon him.
PrAS-NA II, PaTALA 11, KHAiVDA 29.
1. He who instigates to, he who assists in, and
he who commits (an act, these three) share its
rewards in heaven and its punishments in hell.
2. He amongst these who contributes most to
the accomplishment (of the act obtains) a greater
share of the result.
3. Both the wife and the husband have power over (their) common property.
4. By their permission, others also may act for
their good (in this and the next world, even by
spending money).
5. Men of learning and pure descent, who are
aged, clever in reasoning, and careful in fulfilling
the duties (of their caste and order, shall be the
judges) in lawsuits.
6. In doubtful cases (they shall give their deci-
sion) after having ascertained (the truth) by infer-
ence, ordeals, and the like (means).
13. Manu VIII, 18, 308; Ya^n. I, 336.
29. 3. 'Though this is so, still the wife cannot spend (money) without the permission of her husband, but the husband can do (so without the consent of his wife). That may be known by Sutra II, 6, 14, 11, "They do not declare it to be a theft if the wife spends money for a good reason during the absence of her husband." ' — Haradatta.
4. ' Others, i. e. the sons and the rest.' — Haradatta.
5. Yagu. II, 2.
6. 'And the like, i.e. by cross-examination, &c.' — Haradatta.
Ii, Ii, ?9- Civil and Criminal Law. 1 69
7. A person who is possessed of good qualities
(may be called as a witness, and) shall answer the
questions put to him according to the truth on an
auspicious day, in the morning, before a kindled fire,
standing near (a jar full of) water, in the presence of
the king, and with the consent of all (of both parties
and of the assessors), after having been exhorted (by
the judge) to be fair to both sides.
8. If (he is found out speaking) an untruth, the king shall punish him.
9. Besides, in that case, after death, hell (will be his punishment).
10. If he speaks the truth, (his reward will be) heaven and the approbation of all created beings.
11. The knowledge which K^udras and women possess is the completion (of all study).
12. They declare, that (this knowledge) is a supplement of the Atharva-veda.
13. It is difficult to learn the sacred law from
(the letter of) the Vedas (only); but by following
the indications it is easily accomplished.
14. The indications for these (doubtful cases are),
' He shall regulate his course of action according to
the conduct which is unanimously recognised in all
countries by men of the three twice-born castes, who
7. Manu VIII, 87 seq.; Y%n, II, 68-75.
8. Manu VIII, 119 seq.
9. Manu VIII, 89 seq.
10. Manu VIII, 81 seq.
11. The meaning of the Sutra is, that men ought not to study solely or at first such 6'astras as women or ^SCidras also learn, but that at first they must study the Veda. See Manu II, 168. The knowledge which women and ^udras possess, is dancing, music, and other branches of the Arthajastra.
14. See above, I, 7, 20, 8 and 9.
170 APASTAMBA. 11,11,29.
have been properly obedient (to their teachers),
who are aged, of subdued senses, neither given to
avarice, nor hypocrites. Acting thus he will gain
both worlds.'
15. Some declare, that the remaining duties
(which have not been taught here) must be learnt
from women and men of all castes.
GAUTAMA,
INSTITUTES OF THE SACRED LAW,
GAUTAMA,
INSTITUTES OF THE SACRED LAW.
Chapter I.
1. The Veda is the source of the sacred law,
2. And the tradition and practice of those who know the (Veda).
3. Transgression of the law and violence are ob-
served (in the case) of (those) great (men) ; but both
are without force (as precedents) on account of the
weakness of the men of later ages.
4. If (authorities) of equal force are conflicting, (either may be followed at) pleasure.
5. The initiation of a Brahma;^a (shall ordinarily take place) in his eighth year ;
6. (It may also be performed) in the ninth or
I. 1-2. Apastamba I, i, i, 1-2.
