Hindu Law and Judicature Part 10

302. Whoso speaks what is offensive to the monarch, or reproaches the monarch, or divulges the monarch's counsel, shall have his tongue excised and be banished.

303. Whoso makes sale of garments [used to wrap] the dead, or strikes his _guru_, or seats himself on the vehicle or on the seat of the monarch, shall pay the highest fine.

304. Whoso beats out both [a person's] eyes, a bearer of odious tidings to the monarch, also a Sudra holding himself out as a brahma?,--[each of these] shall be fined eight hundred _pa?as_.

305. Such law suits as have been decided unrighteously shall be re-investigated by the monarch: [in case of reversal of the judgment]

the judges and the winning party shall be amerced in double the amount of the fine decreed in the suit.

306. Should one defeated on the contest of his suit represent as though he were not defeated, he shall, when he comes [again to urge his suit, besides] being re-defeated, be fined double.

307. Should the monarch have inflicted any fine unjustly, he shall himself, after making invocation to Varu?a,[379] present thirty times the amount [of the fine] to brahma?s.

FOOTNOTES:

[Footnote 43: Various terms are used by our author to denote the head of the State (_e.g._ Raja, Protector of men, Lord of men, &c.) to suit the metre or fancifully. In translation we have thought it better to be uniform.]

[Footnote 44: What is understood by science is explained in the first book sl. 3.]

[Footnote 45: Manu, ch. 8, sl. 9.]

[Footnote 46: The original is, _smriti adi_ (the second word being equivalent to &c.), which the Commentator explains, as translated, law and usage, or custom.]

[Footnote 47: The &c. signifies, description of chattels, with their number, also particulars of place and time. (_M._)]

[Footnote 48: The Commentator has enabled us to supply the ellipsis, but he does not fully explain the author's meaning. It would seem, that in those primitive times, it was considered harsh or inexpedient to hara.s.s a defendant, or accused person with two legal proceedings, of any sort, at the same time. The sentence will, however, bear the sense, that no stranger or intervener shall be permitted to come in and interrupt the progress of a pending suit.]

[Footnote 49: The Commentator, observing that this prohibition would seem to be implied in the terms of the sixth sloka, explains (on the authority of Narada) that the latter refers only to the general object of the suit, _e.g._, that if his verbal complaint be of a loan of money, his recorded complaint shall not be of a loan of apparel--but that this clause, in the ninth sloka, ensures further uniformity in the description of the grievance and character of the suit, _e.g._, where one has originally complained of retention of 100 pieces of money lent, he shall not vary his complaint to a forcible taking of 100 pieces.]

[Footnote 50: These are expressed by one word, _kalaha_: but the Commentator notes its comprehensive character, as we have translated it. See the a.n.a.logous pa.s.sage in Manu, ch. 8, sl. 6, where an equally ambiguous word _parushya_ is similarly explained in the text itself.

The term rendered "slander" by Sir Wm. Jones is simply, reviling or verbal abuse.]

[Footnote 51: _sahasa_, explained by the Commentator, a.s.sault by means of poison, or any instrument destructive of life. The word has another and more particular signification, as infra sl. 230.]

[Footnote 52: Manu (ch. 8, sl. 59) inflicts a fine of double the debt upon the mendacious debtor.]

[Footnote 53: _parushya_, explained by the Commentator _kalaha_: see note [50].]

[Footnote 54: We have followed the Commentator in rendering these terms, which are very general and indefinite.]

[Footnote 55: _i. e._ restlessly before the Court.]

[Footnote 56: Manu ch. 8, sl. 25, 26.]

[Footnote 57: ibid, sl. 55, 56.]

[Footnote 58: Literally "put down," _i. e._ taken for granted, all question of it disposed of. See next note.]

[Footnote 59: This sloka is by no means unambiguous: but it is satisfactorily explained by the Commentator, who says: "What course is to be adopted where two parties simultaneously present themselves to the Court and tender proofs? _e.g._ A man acquired a field by gift, and, having for some time possessed it, departed with his family to another country: then, another person obtained a gift of the same field, and, having possessed it awhile, was likewise obliged to go to another country. Both parties return at the same time, claim the same field, and resort to a Court of law. Then arises the question,--whose proofs shall be taken? Yajnavalkya says (ut supra sl. 17); that is to say, where one sets up an older t.i.tle, saying--I was possessed of this field at such a date--his witnesses are the first to be examined; but should the other party urge--True, the field was acquired and enjoyed by him at the first, but the king bought it of him and granted it to me--or--Another got the field and gave it to me; in that case, as the proofs of him who has the older t.i.tle are of no consequence, and thus he is disposed of, the witnesses of the other claimant are to be examined. It is incorrect [to read the sloka as a.s.serting] that, where there is a denial [of a claim] the witnesses of the plaintiff shall be examined, and where a former judgment or something as a ground of defence is set up, in [either of] which cases the original claim is met, then the witnesses of the defendant shall be heard; inasmuch as all this is included in the rule,--(here the Commentator quotes the 7th sloka of the text). This view is clearly supported by Narada, _viz._ On a denial, proof is upon the plaintiff; where some ground of defence is stated, upon the defendant; upon an allegation of prior decree, the decree shall be the proof.--After this Narada proceeds:--When there are two claimants, if there be witnesses, the witnesses of the prior claimant shall be [first examined]--So we perceive, this [description of] law-suit is distinguished from all others." These quotations favor the supposition, that the science of special-pleading is not of European origin, and is traceable to a remote antiquity.]

[Footnote 60: Supra sl. 11.]

[Footnote 61: _e.g._ that the defendant has got possession of gold and silver and apparel, &c. (_M._)]

[Footnote 62: Supra, sl. 6. The Commentator excludes from the operation of the harsh rule in this 20th sloka, an heir, who is supposed to deny his ancestor's debt or liability through ignorance; but he attempts to justify the rule itself by experience of human conduct.]

[Footnote 63: This Sastra teaches a system or science of ethics such as moralists now-a-days designate as Machiavellian or jesuitical; in which right or wrong have a relative but little intrinsic meaning.

The Artha Sastra is to be found in the writings of Usanas, of Brihaspati and others.]

[Footnote 64: A special-pleading signification is given to this dogma by the Commentator: _viz._

"In questions of debt, &c., though the prior act have been proved, yet a second act may be more important; _e.g._ if one prove that another by borrowing has incurred debt, and the other prove that the money borrowed has been repaid." (_M._)]

[Footnote 65: The word in the original is, acceptance: but this is evidently used as the concluding act of the transaction referred to, _scil._ gift.]

[Footnote 66: _e.g._ if one, for a consideration, pledge a field to another, and then pledge the same field to some one else, also for a consideration--the first act is the valid one. (_M._)]

[Footnote 67: Sir Wm. Jones and other learned persons would seem to have restricted the term here used (_pashyati_) to personal knowledge by sight; but it comprehends every mode of personal and actual observation or discovery.]

[Footnote 68: who has no legal connection with it. (_M._)]

[Footnote 69: The Commentator quotes Narada, _scil._ "The guilty one who holds possession without t.i.tle, for even many hundred years, should be punished by the monarch as a thief"--and he endeavours to reconcile with this the law of Yajnavalkya, by confining the latter to the fruits or profits of the land withheld. But this construction cannot be admitted. There is a curious doc.u.ment germane to the subject of this sloka copied in the official notes of Sir Robert Chambers (Chief Justice of the Calcutta Supreme Court) in July 1791. It is a letter from Sir William Jones to the Governor of Bombay upon the Hindu t.i.tle by adverse possession or prescription. Sir William writes, that the doctrine of the Mitakshara is; "An absolute property may be acquired in land by continued and undisputed possession for twenty years, in the presence of the owner, provided that the possessor came in by a fair t.i.tle, either by descent or purchase; if he had no fair t.i.tle, the intermediate profits only are irrecoverable, but the property is not lost." And he concludes; "I only add for your further satisfaction, that, if three descents have happened since the first possession, without a fair t.i.tle, property is lost, even though the owner was absent; but if three descents have not been cast, an adverse possession for a hundred years gives an absolute property in the land to the possessor, unless the owner was under some legal disability."

These may have been the modifications of a later age: they are not to be found in Manu or in Yajnavalkya. Manu ch. 8, sl. 147, &c.]

[Footnote 70: any thing delivered for safe-keeping, its quality and quant.i.ty being made known. (_M._)]

[Footnote 71: explained infra, sloka 65.]

[Footnote 72: The word literally or usually means "takes away"; and the Commentator explains--where a pledgee retains and refuses to give back the pledge, relying upon his long possession. The &c. refers to the other exceptions in sloka 25.]

[Footnote 73: The Commentator considers the force and intent of this qualification to be, to make the fine commensurate with the usurper's means, with a view rather of enhancing it to the wealthy than of moderating it to the poor, who are perhaps less likely to offend in this wise.]

[Footnote 74: gift, sale, &c. (_M._)]

[Footnote 75: as proof of ownership, (_M._) Manu, ch. 8, sl. 200.]

[Footnote 76: for three generations. (_M._)]

[Footnote 77: Possession is proof when attended with five incidents; a t.i.tle, length of time, continuance, absence of counter-claim, knowledge of the adverse party. (_M._)]

[Footnote 78: This qualification is the Commentator's.]

[Footnote 79: Between this and the succeeding sloka another is introduced in the text of the Calcutta edition; _viz._ Possession accompanied by a clear t.i.tle is proof; possession unaccompanied by a clear t.i.tle is no proof.--We have omitted this, because the Commentator quotes it as a saying of Narada, and because it is not found (as vouched by professor Stenzler) in either of the M.S.S. in the Berlin Royal Library.]

[Footnote 80: _scil._ as directed in sloka 2.]

[Footnote 81: By a community (_puga_) is meant, the body of inhabitants of any village or place, without reference to cast or occupation. (_M._)]