INSTITUTION OF JUSTICE
(8-179 to 196)
Jha translates the next verse (8-179) as: The wise man (budha) shall entrust a deposit (nikshepa) to one who is born of good family (kulaja), is endowed with character (vrttasampanna), cognizant of law (dharmajna) and truthful (satyavadi), has a large following and is wealthy (dhani) and honourable (Arya). Buhler translated it as: A sensible man should make a deposit (only) with a person of (good) family, of good conduct, well acquainted with law, veracious, having many relatives (mahapaksha), wealthy and honourable (Arya). Burnell too translates the term, budha, as a wise man.
The budha was an unattached intellectual belonging to the social periphery and like the free men, naras, did not belong to any organized clan (kula) or community (jati) or corporation (sreni) or guild (samgha). He had no lands and might have had only liquid assets. If he wanted to keep them in the safe custody of some one he had to approach an Arya or Vaisya born in a respectable family. The budha was advised to deposit them with a rich man who had a large following and was capable of protecting it. The state did not have the facility to keep them. In the periphery, the state was virtually non-existent. The editors of Manusmrti would not advise him to deposit these assets with the Brahmans who were weak or with the Shudra workers or even with Kshatriyas as the latter had to go away often for battles. Vrttasampanna meant one having economic means to make good the value of what was deposited if it were lost.
In whatever manner a person (manava) shall deposit anything in the hands of another, in the same manner ought the same thing to be received back (by the owner); as the delivery (was, so must be) the re-delivery. (Jha) (8-180) Burnell translates this verse as: In whatever condition a man has deposited anything in any ones hand, in just the same condition, he must receive it back again; as the delivery, so the receipt. In the previous verse Manusmrti dealt with the issue raised on behalf of the budhas, the unattached intellectuals of the periphery whose abodes were insecure. Here it deals with the manavas who were citizens of the world and had no definite abode in any state. The manavas were cross-regional cadres whether they were intellectuals or soldiers or traders or artisans.
Such a person (manava) who deposits his goods with another is one with no settled abode and goes from one country to another on his mission or purpose. While the budha needed a person who would keep the article safe in his custody for his abode in the periphery was not safe; the manava had no abode and could not carry his goods with him as he travelled far and wide. The person with whom these were deposited whether sealed or not was not permitted to use them and had to protect them against deterioration and return them to the depositor in the same condition to the satisfaction of the latter.
It is implied that the depositor had to pay fees for keeping them safe. The depositor might not have had his own witnesses but that shortcoming was not to be used by the administrator or the judge or the king to allow his plaint to fall. Justice has to be rendered whether the plaintiff was a subject of that country or not. In fact it was more necessary to ensure that it was rendered when he was one without a country or abode of his own. The reliability of the trustee had to be tested before deciding the case.
When requested to restore the deposit, if the trustee does not restore it to the depositor, then, on the departure of the depositor, in the event of there being no witnesses, the investigator (pradvivaka) shall actually deposit with that trustee gold through spies or agents (pranidhi) of proper age and appearance, under some pretext and then ask him to restore it. If he returns the deposit exactly in the form and shape in which it was entrusted, then there is nothing in the charge brought against him. If however he should not restore that gold to them in the proper manner, he should be forced to restore both; such is the stand (dharana) of the code based on dharma. (8-181 to 184)
The next verse (8-185) according to Jha cautions the trustee: Deposits, open or sealed, should never be handed over to the next-of-kin; in the event of a mishap occurring, they become lost; though they do not become lost, if no mishap occurs. Buhler translated it as: An open or a sealed deposit must never be returned to a near relative (of the depositor during the latters lifetime); for if (the recipient) dies (without delivering them), they are lost, but if he does not die, they are not lost.
Jones translated this much-debated verse as: A deposit, whether sealed up or not, should never be redelivered, while the depositor is alive, to his heir-apparent or presumptive; both sorts of deposits, indeed, are extinct, or can not be demanded by the heir, if the depositor die, in that case; but not, unless he die, for should the heir-apparent keep them, the depositor himself may sue the bailee.
The deposit should be handed over only to the depositor, be he the rightful owner or not. Only if he is dead, it may be handed over to the legal heir. All other issues raised are diversionary. Since only a person who has no abode of his own and is often on the move from place to place normally seeks to keep a costly item with a trusted person, the latter shall be advised not to hand it over to any one without full verification.
If the depository restores it himself to the next-of-kin of the deceased depositor, he should not be harassed by the king (raja) or by the brothers (bandhu) of the depositor (on the ground that it is common property of the dayadas). (8-186) In doubtful cases, he should try to obtain it without resorting to trickery and in a friendly manner; or having ascertained his character, the investigator should settle the matter by gentle means. (8-187)
These clauses seem to have been introduced later to keep the system of trustees functioning without unnecessary harassment. In the case of all deposits, such should be the method of restoration; but in the case of a sealed deposit, the depository shall incur no censure unless he has (tampered with the seal and) taken out something. Neither the depositor nor his successor should cast unwarranted aspersions on the character of a trustee. (8-188)
The depository need not make good what has been stolen by thieves or carried away by floods or burnt in fire, if he has not extracted anything from the deposit whether sealed or open. It is not covered by insurance. (8-189) [It may be noted here that Kautilyan Arthasastra is more thorough and more rational in its examination of this aspect of the disputes arising out of economic transactions on this score. Vide my earlier treatise, Foundations of Hindu Economic State.]
One who is alleged to have appropriated a deposit and one who has not deposited anything but presents a false complaint shall be tested by all methods, by oath and ordeals as prescribed in the Vedas, as prevalent during the Vedic times. The Smrtis are seen to have hesitated to use them as the main method for ascertaining the truth. During the Vedic times the practice of examining the witnesses had not come to the fore and so too the practice of arriving at a verdict on the basis of higher probability.
The Vedic sages would rely on oath in the case of the cultured (higher ranks) and ordeals in the case of others. But the post-Vedic times saw a distrust of these methods and a preference for a logical system that would render justice to the full satisfaction of the open court. Where the latter failed the king and the civil administrator had to fall back on the practices of the Vedic times. (8-190)
He who does not restore a deposit and he who without making any deposit asks for it, both of these should be punished as thieves, or be made to pay a fine equal in value. It was a criminal offence and not a civil dispute.(8-191) In all cases the ruler of the agrarian hinterland (parthiva) was asked to make the appropriator of the deposit pay a fine equal in value to it. Similarly one who took a loan in friendship without any documentary evidence or witnesses but appropriated and denied having taken it was fined an amount equal to the loan.
Justice has to be rendered after investigation in which all the four methods, conciliation, gift, rift and threat (sama, dana, bheda and danda) could be used by the parthiva. He had sovereignty over the rural areas where the offence was committed. (8-192) He need not refer the matter to the king. The term upanidhi is used here in the sense of additional fund required to carry on a project when necessary. It had to be returned immediately if not used. It was not to be converted into a regular loan for the lender was a friend and not a recognized moneylender. It is sickening that medieval commentators were more interested in saving the skin of the Brahman who violated this rule than in interpreting correctly its intent.
Buhler translates the next verse (8-193) as: That man who by false pretences may possess himself of anothers property, shall be punished publicly by various (modes of) corporal (or capital) chastisement, together with his accomplices. Jha translates it as: The man, who may appropriate, by fraudulent means, the property of another person, should be punished publicly, along with his accomplices, with various modes of death.
Jones interpreted that the guilty may be punished by various degrees of whipping or mutilation or even by death. The editors of Manusmrti called for deterrent punishment but could not have sanctioned these inhuman methods. This does not deny that rulers often resorted to these methods. But they did so only when there was an affront to their dignity and rarely when economic offences were committed. The forms of fraud referred to here include tampering with weights and measures, substitution of articles, use of threat and false promises.
As much of a certain deposit has been entrusted in the presence of a number of men, so much should it be decided to be; the party misrepresenting it becomes liable to punishment (danda). (8-194) Jha translates the next verse (8-195) as: When a trust has been created (krta) privately and accepted also privately, then it should be restored also privately; as the delivery so the restoration.
This verse has been interpolated here though it pertains to deposits and private unrecorded loans. Privacy of such transactions had to be guarded and no violation of these could be examined in an open court. It is a compact (mitha) between two parties for services rendered or promised rather than an endowment. Often it was between a man and his mistress which both would like to be kept a guarded secret.
All compacts had economic constraints on the contracting parties. Breach of these came up before the court, which heard them in camera. Thus shall the king (raja) come to a decision regarding property given as deposit and that which is given as friendly loan, without causing any injury to the keeper of the deposit. (8-196) Here the latter had to honour the privacy of the agreement between two parties, which required that deposits were made with him by the two contracting parties promising whoever breached the contract would lose his share of the deposit to the other. The depository was a neutral umpire and he had to be protected by the king.
(8- 197 to 205)
If any one sells the property owned by another man, without being the owner and without the consent of the owner (svami), the judge shall not admit him as a witness for he is a thief though he may not accept that he is a thief. (8-197) That witness may not have been convicted of any charge and even his present act may not invite any indictment on the charge of theft. It may be treated as a social offence and not an economic offence for the owner has to prove that he is in legitimate possession of that property.
The issue pertains to purchase and sale of a property by two persons who are not in actual possession of it and which is in the physical possession of a third person who is yet to establish his right over it. The present deal is struck down and the seller is declared to be guilty of selling a stolen property. The seller however does not deem himself to be so. As the seller is guilty of having violated social norms by claiming to be the owner of a property not in his possession he is liable to be punished.
If the offender is a kinsman (sanvaya) of the owner he shall be fined six hundred panas (more than the middle level of fines) and if he is not a kinsman (niranvaya) nor has any excuse, he shall be guilty of theft. (8-198) In the previous verse the man who sold the property of another was debarred from being a witness, as only pious men (sadhus) could be reliable witnesses. Here such a witness is fined six hundred panas. The term, apasara, cannot be translated as excuse or as having access to a property. It would imply implicit ownership and access to a source of water that cannot be transferred to another in any deal of sale of land.
If a gift or a sale is made by one who is not the owner, it should be held to be as not made, such being the stand of the civil law pertaining to economic disputes. (8-199) One became the owner of a property by inheritance or purchase or partition (among kinsmen, dayadas) or by gift received. One cannot gift away what he has received as a gift unless it is established that he has received that property as a valid gift. Similarly what is sold as a property purchased by one has to be first proved to be a property legally purchased by him. In the case of inherited property, and partition, the codes of the clan prevailed and the court did not feature.
Jha translates the next verse (8-200) as: Where possession is evident, but no sort of title is perceptible, there title, and not possession shall be proof. Such is the stand (sthiti) (of the civil law). Jones translated it as: Where occupation for a time shall be proved, but no sort of title shall appear, the sale can not be supported; title, not occupation, is essential to its support; and this rule also is fixed.
Buhler translated it as: Where possession is evident, but no title is perceived, there the title (shall be) a proof (of ownership), not possession; such is the settled rule. Where one is seen to be enjoying the advantages of use of a land or other property (sambhoga), another who claims it should be able to produce a valid title deed for getting it back. If he does not he cannot get it. But this does not mean that the one using the land without title becomes its owner.
If the claimant produces the title deed, he shall get that property despite the other being in possession of it and is using it for a period of time. Many claimants could not produce title deeds and lost their claims. [Those who actually possessed and used the lands lost them to the new colonial state, as they could not produce the deeds while those who presented the title deeds could not easily establish them and they too lost those lands. It needs to be borne in mind that the text of Manusmrti was doctored by the British to suit their purposes while ruling India.]
The court said: He who obtains a property (dhanam) in the market in the presence of a number of witnesses, acquires that property with a clear legal (nyaya) title by purchase. (8-201) Jones read it as: He, who has received a chattel by purchase in open market, before a number of men, justly acquires the absolute property, by having paid the price of it, if he can produce the vendor. Burnell translated it as: When a man gets any property by a sale in the presence of his family, he receives property (which) by this (open) purchase is clearly and legally his. Kulasannidhi may mean in the presence of the clan.
A property that was claimed by an individual as his personal property and not as his family property, as he had purchased it, was not allowed, as all purchases had to be made in the presence of members of the clan. They had to vouch that he was purchasing it for himself and from his personal income and that they had permitted him to do so. Here was a dispute between the purchaser and his clan.
The issue of receipt for sale became a practice only far later. It is not sound to interpret the above expression as in the presence of witnesses or in the presence of other merchants. What was obtained by purchase was treated as legally valid property and others (including the other members of ones clan,(kula) could not dispute it.
If the source of acquisition of property is traced and the conduct of the buyer has been cleared (by the evidence given by the representatives of his clan) of doubts, the king (raja) cannot punish (danda) him. There is no theft committed by the purchaser and he is let off. The officials (at the lower level) might have attached the property of that purchaser and the purchaser would get it back. (8-202)
The king did not want to antagonize any clan and could not hold all the representatives of the clan guilty by overruling their evidence. Medhatithi was not to the mark when he interpreted: In the case of a public sale, there is no punishment, but the loss of the price paid remains.
The property that is sold by the vendor and purchased by a member of a clan openly from his personal property and hence not shown as the property of his clan may be restored to the original owner but the purchaser would not be fined and would not suffer any loss. The vendor would however be liable to be punished for theft and deceit. Any commodity that is mixed up with another should not be sold; nor what is without substance; nor what is deficient; nor what is at a distance; nor what is concealed. (8-203)
While these fraudulent practices are justly stopped, the later editors are seen to introduce unsound clauses, invoking the name of Manu. After one damsel (kanya) has been shown, if another be given to the bridegroom then he should marry both of them for the same single price (sulka); so has Manu ordained.
The editors of Manusmrti were opposed to the very idea of paying bride-money to the parents of the girl. This practice amounted to sale and purchase of girls and was treated as asura marriage and was banned. The very act of sale and purchase of girls was reprehensible and punishable.This clausewe would hold is an unauthorized interpolation and needs to be expunged from the text. (8-204)
The giver of a girl who is insane or leprous or has suffered copulation does not deserve punishment (danda), if he has previously declared her defects. (8-205) This clause has no place in this context as marriage though it has an economic note is not to be treated as a source of economic dispute. The early post-Vedic Smrtis covered marriage under other heads and did not place it under civil law which dealt basically with economic transactions, property, profit, interest, deposits, pledges, contracts, wages etc. It is advisable to treat marriage and disputes arising from it as separate from economic disputes proper.
THE CLERGY AND ITS FEES
(8- 206 to 211)
If a priest appointed for a sacrifice abandons his work (svakarma) in the middle, his associates shall pay him only such share as may be in keeping with the work actually done by him. (8-206) They did not refuse to pay him anything from the fees the group had charged for that religious programme.
He who abandons his work after the fees have been received (in advance) and without performing his share of the work, the master who has employed the group is not to be put to a loss. The others should get the work of the delinquent priest completed by appointing another priest (and paying him from their own share). (8-207)
Not all priests were honest but the delinquency of some was to be suffered by the honest lest those who performed the religious rites lost faith in the entire system. The priests raised the question whether in connection with a rite where specific fees were prescribed for each part should one man take all these or should they all share them. (8-208) These verses are obviously recent introduction in the text of Manusmrti. These do not show the clergy in good light. It is seen to be devoid of all sense of decency and moral responsibility and to be totally worldly in approach with no tinge of spiritualism attached to these rites and their role.
At fire-laying, the adhvaryu shall take the chariot and the Brahman, or the hotr, the horse; and the udgatr shall take the cart when the Soma is purchased. The sacrifice performed by the king or a rich person was an occasion for the vultures to gather the loot and the latter had no sense of social responsibility. (8-209)
From among all the spoils collected, the chief priests took half the share; the priests of the second rank got one-fourth, those of the third rank got one-sixth and those of the fourth rank got one-eighth (or less). Religious hierarchy! (8-210)
These priests would recommend that their own noble practices be treated as a model for all men (manavas) who came together from different places for a common economic activity (karma). The allotment of shares (amsakalpa) in the duty (kartavya) should follow this faultless rule (vidhi) of effort (yoga) and reward.(8-211)
It may only be said that it is fortunate that this arrangement was not recommended to corporations and guilds, which had permanent members or to the agriculturists. This rule must not have been in force in clans and communities that had permanent social structures and had each its own clergy dependent exclusively on it. The clergy on the prowl of easy victims is a universal feature. But not all among religious men are so blatantly materialistic. Did the clergy corrupt the economic society? Has it been always a part of the economic society?
FEES, GIFTS, WAGES, RESCISSION AND
BREACH OF CONTRACT BY EMPLOYEES
What were given to the priests were not fees for performing rites but were gifts, it was claimed. The editors of Manusmrti did not agree. Even if the wealth was a gift given for a pious social purpose (dharmartha) to one who asked for it, if it is not used subsequently for that purpose that gift becomes void. (8-212) The taking back of what has been given and also not giving what has been promised are both reasonable, the commentators say.
According to Narada, what is given in ignorance is as good as not given. It could be recovered from the recipient if he did not use it for the purpose promised. It would mean that a priest who took fees in advance and claimed them to be gifts that could not be revoked was not allowed to go scot-free. Religious acts had an economic purpose, which was governed by civil laws. The delinquent priest could not escape the clutches of civil law.
Promising a gift is not a contract. The master, who had promised a gift to a priest if he would officiate at a sacrifice sponsored by the former, could go back on it if the latter was found to have defaulted. The gift promised but not given does not constitute a debt, which that priest could claim for recovery through a civil court. Such attempt was treated as inspired by greed and that priest could be fined a gold coin, suvarna, and asked to expiate for theft if he had already received the fee as gift but not delivered the goods, not performed the rites, as promised. (8-213)
The later editors of Manusmrti were aware of the decline that had set in among the clergy. It was the king (raja) and the state who could stave it off.
The regional administration could levy fines for violation of civil contracts and collect them in the standard cooper currency, karshapana or in the silver currency, rupam. Suvarna, gold, was not currency; it was wealth, dhanam, and only the king could ask for payment in gold. It was penalty payable for social and political offences. The clergy was not out of the jurisdiction of the state though it tried its utmost to keep itself out of the reach of the civil administrators who dealt with economic offences.
Jha translates the next verse (8-214) as: Thus has been fully explained the lawful (dharmya) non-misappropriation of gifts; after this I am going to describe the non-misappropriation. A rescission of a gift made or promised is not misappropriation of public funds or appropriation of the property of another and is valid if the purpose for which the priest received it was not met.
This rule too can be extended to other situations and commitments that are not rites, even as the distribution of the gifts or fees for performance of rites was the model that was to be followed by all free men who came together for carrying out a specific economic undertaking. A civil court cannot adjudge what falls within the ambit of social and moral law. (We would hesitate to call this as religious law.)
Jha translates the next verse (8-215) as: If a hireling (bhrta) without being ill (anarttha) does not perform the stipulated work, through arrogance (darpa), he should be fined (danda) eight krshnalas and should not receive his wages. It was a breach of contract between the agricultural worker or artisan and his employer if the former after being hired (and having received a sum in advance) failed to honour the contract and had no valid reason, ill health or distress.
Was krshnala a currency bearing the icon of a ruler named Krshna? If so the penalty would be eight copper or silver coins of different values and weights depending on the amount and value of the work agreed to. This possibility may be considered without assigning a later date to this verse.
Some commentators have interpreted that the worker who had defaulted was not eligible for any wages for the work done. This verse does not seem to imply that. It deals only with the arrogant worker who refuses to honour the contract. But if he is ill and on recovering completes the work as originally stipulated he shall receive his wages for it, even after a long time. (8-216) Manusmrti does not adopt an anti-labour approach.
It does not permit rescinding a contract with a worker if he is genuinely in distress and it allows him extension of time for completion of the work. But it would protect the interests of the employer also. When a worker whether in distress or not does not get the stipulated work done, he shall not receive his wages, even though the work be only slightly incomplete. (8-217) Undue advantage of the leniency shown should not be taken. The worker has to complete the work as specified and in all respects if he has to be paid all the wages.
After explaining the social laws (dharma) regarding non-payment of wages the editor proceeds to expound the laws (dharma) relating to men who break a convention (samaya). (8-218) It was the social convention that certain men should do a specified social work at the stipulated time and that no one else would be called in to do that work and that these men would get that work done. This social convention or contract was not to be breached.
Buhler translates the verse (8-219) as: If a man belonging to a corporation (samgha) inhabiting a village (grama) or a district (desa), after swearing to an agreement, breaks it through avarice (lobha) (the King) shall banish him from his realm (rashtra).
Jha translates it as: If a man, after having entered into a compact under oath with a village, a country or confederation, should break it, through greed, him the king shall banish from his kingdom. Jones read it as: The man, among the traders and other inhabitants of a town or district who breaks a promise through avarice, though he had taken a oath to perform it, let the king banish from his realm.
The work had been given to a guild (samgha) of workers and its members were permitted to stay in the village or the district where it was to be carried out. Such guilds of workers were free to move from one country to another in search of work. They had to promise to get that work done within the stipulated time before receiving the wages agreed upon. If any of its members refused to do the work agreed upon unless he was paid more, the king had the right and duty to banish him from his rural hinterland (rashtra). [The rashtra had many regions, desas. It is wrong to treat rashtra and desa as denoting the same concept.]
It might be an indigenous guild or a guild from outside. The latter could stay in a particular village or district only if it had work there. As the members of the guild needed employment and wages they would sometimes accept lower wages. This might not be acceptable to all its members. The dissenting worker would be banished from the state so that he did not instigate others to ask for more.
[A samgha was a guild of workers or artisans whose members had equal status and equal rights. It could be a political oligarchy too. Sreni was a corporation of traders and workers whose members were not all of the same status.] Having caught such a breaker of compact, the king shall make him pay six nishkas of four suvarnas each and also one silver shatamana. (8-220) Some have interpreted that there were three offences registered against the dissident worker, calling for imposing three fines, four suvarnas, six nishkas and one shatamana. It has been suggested by some that the penalty mentioned here is alternative to banishment.
This is the social law (dharma) of punishment (danda) which the ruler of the agro-pastoral terrain (prthvipati) shall follow in the case of those who violated the compact between the villages (grama) and communities of local origin (jatisamuha). (8-221) The guilds might not have all been outside the jurisdiction of the king (that is, outside the rashtra).
Many of the local guilds were economic communities based in the rural areas. Their refusal to honour the conventions regarding payments would have led to social and political unrest. The prthvipati had to impose a heavy fine of 24 suvarnas (gold coins) that would be lodged in the state treasury and impose another heavy fine payable in silver to the regional administration in lieu of banishment.
If after having bought or sold anything, one should repent it, he may return or take back that thing within ten days. (8-222) Traders must have found this permission irksome and have from time to time introduced exemptions to this general rule to suit their convenience. Of course no purchaser or seller would have succeeded if the article had been used or damaged in the interim. But after ten days, he shall neither return or take it back; he who takes it back, as well as he who returns it, should be fined six hundred panas by the king. (8-223)
Once again traders have tried to introduce exemptions to this prohibition. The fine was more than the middle amercement of 500 panas. It indicates that the state was worried about the impact of this unsatisfactory trade on the income of the state and its economic health. To the extent that this rule is made applicable only to purchase and sale of lands, animals, vehicles and goods, it is a reasonable one.
But the later editors of Manusmrti have tried to bring marriage under the laws governing economic transactions. If a man gives a non-virgin as a virgin (kanya), without mentioning her defects, he should be punished by the civil administrator (nrpa) himself with a fine of 96 panas.
Normally these cases of deceit were handled by the clans and did not constitute civil offences.The nrpa was in charge of the activities of free men who were not under the social control of any clan or community. He steps in to check such malpractice by these free men and he uses the rules applicable to economic transactions to rebuke them.
The women under the care of these free men (naras) lacked supervision and often went astray. Such a free woman was referred to as nari rather than as stri. The latter term was used to refer to the respectable housewives belonging to established families and clans who were anxious that their girls were married off when they were yet virgins.
As the free man, nara, was only eager to get his sister or daughter married, the administrator did not levy heavy fines. Of course the man who found out her defect after the marriage would have sent her back to her guardian. He had been duped and he could not be fined for breaking any contract. (8-224)
There were men, manavas, who were not settled in any area and were constantly on the move. If any of them falsely accused that the virgin given to him in marriage was not a virgin, he was fined one hundred panas. Most of the free men, naras, in the jurisdiction of the nrpa could not get their sisters and daughters married to youths of the same area. They had to give them in marriage to these manavas who were not under the social control of any clan or under the political control of any state.
The stateless person, manava who was found guilty could be only got rid of after imposing a token fine. [Of course if he had paid bride-money he would forfeit it and it would be left to the bride to go away with him or not.] (8-225) The penalty of a hundred panas would be levied on any such person who rejected a girl as a non-virgin when she was a virgin.
The naras, nrs, free men were not required to give only virgins in marriage. When non-virgins were given in marriage, the chants (mantras) pertaining to panigraha (accepting the handing over by taking the hand of the bride) were not recited. These are instituted only for virgins. Hence the manavas had to note that the chants that were prescribed in the codes, sastras', could not be recited at the marriages performed by free men, nrs, who were free to give away their daughters in marriage as virgins or as non-virgins.
It has to be pointed out here that the western Indologists of the 18th and 19th centuries and their Indian adherents of the 19th and 20th centuries failed to distinguish the implications of the concepts, nara and manava, and nari and stri.
The manavas did not abide by, codes of clans, communities and regions (kuladharmas, jatidharmas and desadharmas). They abided by the codes prescribed for classes (varnas) and stages of life (asramas) by the Manava Dharmasastra that were based on an acceptable common minimum prescriptions and proscriptions and allowed a wide range of options and preferences.
The manavas were cautioned against speaking ill of the girls whom they married from among the naras. The free men and women, naras and naris, belonged to the lower ranks of the erstwhile Vedic sector of Gandharvas and Apsarases who were not subject to restrictions on sexual relations introduced by Dharmasastra. They were free to have pre-marital sex with any one but this did not mean that they were promiscuous.
The free men, naras, had accepted Manava Dharmasastra but without giving up the rights that they enjoyed as individuals. In other words, acceptance of class (varna) orientation was not made obligatory for these free men. This social background has to be kept in mind while interpreting these verses. The medieval commentators and their followers of the modern era had lost sight of this picture of the early post-Vedic society. (8-226)
Buhler translates the next verse (8-227) as: The nuptial texts are a certain proof (that a maiden has been made a lawful) wife; but the learned should know that they (and the marriage ceremony) are complete with the seventh step (of the bride around the sacred fire). It is implied that after the seventh step, the marriage cannot be rescinded.
Jha translates it as: The marriage texts (panigrahanika mantra) are clearly conducive to wifehood (daralakshanam); and these are to be recognized by the learned as completed at the seventh step. This verse must have been a later addition.
Several rituals have come into force during the course of centuries and the claim that saptapadi, seven steps, must have been gone through to claim marriage as irrevocable after that, has come to stay. Following the instructions in the chants regulating the offering of a virgin and accepting of her hands are not adequate to make the marriage final. The groom was free to walk out on suspicion that the girl offered and accepted was not a virgin only as long as the seven steps had not been taken in the presence of the fire (agni). Agni represented the civil judge in the Vedic social polity and he had jurisdiction (only) over the commonalty.
The Gandharvas of the Vedic age did not accept these regulations. For them marriage was a voluntary agreement between two consenting adults irrespective of whether the girl was a virgin or not.The institution of seven sages who oversaw social activities had not yet come into existence then. The naras were the lower ranks of these educated and bold Gandharvas who later got absorbed in the Kshatriya varna.
The manavas belonged originally to the social stratum of commoners (manushyas). They had accepted the new social system introduced and supervised by the institution of seven sages. The seven steps were in token of the acknowledgment of their contributions.
Marriage became a permanent bond with the seven steps. When a manava who abided by the Dharmasastra opted to marry a girl from the ranks of free women, naris, it could be only with her consent and he was not free to abandon her on his own after having accepted her hands. There could be separation with only mutual consent even as marriage was with mutual consent. The rules of Brahma marriage (getting a girl married before she attained the age of consent) could not be applied to Gandharva marriages.
The remarks made by the later commentators comparing marriage with sale and purchase, are obnoxious. The rule relating to girls is that, even though in the case of other commodities, there is rescission, by mutual understanding, even after ten days, there can be no such revoking in the case of girls who have been married. Even in cases where girls are given in return for prices paid, they are to be treated as other commodity only until marriage has been performed; while in the case of one who is given away in a purely religious spirit, there can be no revoking at all, according to the texts. Manusmrti did not intend what the medieval and later annotators in this respect have attributed to it.
Yajnavalkya in a significant remark says that even though a girl may be betrothed, she may be taken back if a better bridegroom present himself but before the seventh step has been taken. There can be no abandoning of even a defective bride after the seventh step is taken. But this protection was available only if the girl was a virgin at the time of marriage.
Medhatithi notes: Marriage stands on the same footing as using; and just as the cloth that has been used and worn can not be returned to the seller even within ten days, so also the maiden who has been married can not be abandoned. Marriage was an act of sale and purchase only in the case of Asura marriage and even there money was paid to the bride or her parents not for securing the right to sex with her but to compensate for the expenses incurred by them till then and the loss of her services as a domestic help on her leaving them after marriage.
Buhler translates the next verse (8-228) as: If anybody in this (world) repent of any completed transaction, (the king) shall keep him on the road of rectitude in accordance with the rules given above. This was with reference to economic contracts between employers and employees and between buyers and sellers. This did not cover marriage.
Jha translates this verse as: Whenever any person should have repentance in regard to any compact that has been entered into, the king shall bring him to the righteous path, in the manner just prescribed. The path(dharma) prescribed by Dharmasastra for settling social and cultural disputes had to be preferred to the paths prescribed by civil law that covered vyavahara, economic disputes and state law, dandaniti, which covered defiance of the authority of the king and the judges and other officials. The delinquent had to be brought in line preferably through social and moral influence according to the legislation effected by Manava Dharmasastra without being required to pay fines or suffer corporal punishment.
Jones translated this verse as: By this law, in all business whatever here below, must the judge confine, within the path of rectitude, a person inclined to rescind his contract of sale and purchase. He implies by the term, karya, only economic transactions, while others would include in it all actions that have a purpose behind them. The purpose may be economic or political, social or cultural. Dharmasastra covers all these. Burnell translated this verse as: If any one feels regret at having performed any business whatever, (the judge) should by this rule set that man upon the path of duty (dharma)."
DISPUTES BETWEEN CATTLE-OWNERS AND COWHERDS
(8-229 to 242)
The editor then proceeds to expound the then prevalent social code (dharma) relating to disputes between owners (svamis) of cattle and their protectors (palas). In short it covered the relations between gosvamis and gopalas. (8-229)
Responsibility for the safe keeping (yogakshema) during the day rests with the keeper, and during the night with the owner, if in his own house; if otherwise the keeper should be responsible. (8-230) If the hired cattle-keeper (gopa) is one paid with milk (kshirabhrta), he shall with the owners (gosvami) permission, milk the best out of ten (cows); this shall be the wages of the keeper, if he receives no other wages. (8-231) Some commentators have omitted this verse. They might not have appreciated the move to permit every householder to own cattle and grant the status of an administrator to the gopa.
According to the socio-economic classification proposed by Manusmrti all those who owned cattle and lived by the milk that they yielded were included in the Vaisya varna and those who worked for wages in the ranches were included in the Shudra varna. Bhishma permitted all to own cattle and gave the gopas the status of Kshatriyas and treated the one-tenth share taken by them as akin to taxes collected by the king for protecting human beings. This arrangement took those who lived by animal husbandry away from the Vaisya varna and entitled all to be owners of cattle and exempted income from milk and purchase and sale of cattle from the purview of economic transactions.
According to Dharmasastra, gosvamis were Vaisyas who owned the cows and gopalas were paid employees, Shudras. Later, gosvamis claimed to be Brahmans, and gopalas to be Kshatriyas. There has never been an employer-employee relationship between the intellectuals and the rulers.
The keeper alone should make good what has strayed, or been destroyed by worms, or killed by dogs, or has perished in an unsafe place, if it was left without human (purusha) aid. (8-232) The herd had to be provided an able person to guide and protect it. This was the responsibility of the cattle-owner and not of the cowherd. The cowherd was not to suffer if the herd was not given a brave man who would protect it from dangers.
The keeper shall not have to make good what has been taken away by thieves openly, if he informs his own master (svasya svami) of it at the proper place and time. (8-233) This verse takes into account the situation where the owners were not local residents and the managers of the ranches were asked to appoint their own men to protect the cattle and were not given armed guards.
The manager had to prove that the cattle had died or had been killed by wild animals; otherwise he would be charged with having sold them clandestinely. On the death of the animals, he shall make over to the owner their ears, skin, tail-hairs, bladder and tendons and the concrete bile and also point out their marks. (8-234) When goats and sheep have been surrounded by wolves, and the keeper does not come forward, if the wolf forcibly kills any the blame shall lie with the keeper. (8-235) This rule applied to calves also.
Cows and bulls might be able to defend themselves from wolves but not the smaller animals. When however, they are grazing together in the forest, duly protected, if a wolf pounces on them and kills one, the keeper is not to blame. (8-236) This led to the need for separate and safe pasture-grounds near the villages. Around the village (grama) there should be a pasture-ground, 400 bows or three stick-throws in width; but three times that space around the town (nagara). (8-237) The civil administrator has to provide lands for pasture.
If the cattle damage the unfenced crops therein, the civil administrator (nrpati) shall not inflict punishment on the protectors of cows (pasuraksha). (8-238) It is the responsibility of the farmer to put up fence around his farm. The cowherd himself should not grow crops on the land meant for pasture. The cattle-pen should be fenced. One should set up an enclosure, which the camel cannot see and shut up every opening through which a dog or a boar could thrust its head. (8-239)
If the cattle attended by the keeper be found in an enclosed field or on the road-side or near the village, the keeper should be fined a hundred panas. But cattle without a keeper should be driven off. (8-240) Stray cattle were not to be taken away by any individual, not even by the administrator.
In the case of other fields (other than those on the roadside or near the village), the cattle-keeper shall be fined a pana and a quarter if his cow strayed into them; and in all cases the crop shall be made good to the owner of the field. Such is the stand taken by the Dharmasastra. [Gautama prescribed higher fines in the case of damage caused by stray horses and buffaloes, goats and sheep.] (8-241)
The editors claim that Manu has declared that no fine should be levied, if the cow had delivered a calf during the last ten days. Similarly no fine was to be levied on the keeper for letting free a stud (vrsha) or a dedicated cow (devapasu). (8-242) The cattle owned by the nobles(and sages) enjoyed immunity even as their owners and keepers did. Later, the cows offered to the temples were not tied to pegs and no one was permitted to chase them away. This verse might have been a later addition. Manu has been invoked to prevent the studs and the cows given away in dedication from being beaten and to prevent their keepers from neglecting their duty.
Jha translates the next verse (8-243) as: When there is transgression on the part of the farmer himself, his fine shall be ten times the royal share; half of that in the case of servants, if it is unknown to the farmer. Many farmers did not keep their cattle in the village pen.
Buhler reads it as: If (the crops are destroyed by) the husbandmans (own) fault, the fine shall amount to ten times as much as (the kings) share (bhaga); but the fine (shall be) only half that amount it if (the fault lay) with the servants and the farmer had no knowledge of it. The fine was equal to five or ten times the share of the crop due to the state as tax.
The farmer should not deceive the state the tax due to it by claiming that stray cattle including the studs and dedicated cattle had damaged his crops. The rules were meant to protect the crops and also the cattle. The rules were not to be misused to deny the state its share in the produce.
This is the rule that the righteous (dharmika) ruler (that is, one who followed the laws prescribed in the dharmasastra) of the agrarian and pastoral tracts (prthvipati) is to enforce in the case of transgressions by owners (svamis), by cattle (pasu) and by keepers (palas). (8-244) The king (rajan) who headed the state (rajyam) was not directly concerned with the protection of the cattle. This task was, according to the Prthu constitution that of the ruler of the agro-pastoral lands, prthvi.
DISPUTES CONCERNING BOUNDARIES OF FIELDS
(8-245 to 266)
Jones translates the verse (8-245) as: If a contest arises between two villages, or landholders, concerning a boundary, let the king or his judge, ascertain the limits in the month of Jyeshta, when the landmarks are seen more distinctly. Buhler read it as: If a dispute has arisen between two villages concerning a boundary, the king shall settle the limits in the month of Jyeshta, when the landmarks are most distinctly visible, Jha too reads in the same way. But neither the king nor the judge is assigned this duty. It is the responsibility of the prthvipati, the ruler of the agro-pastoral tracts to settle the dispute. The best period for this is early summer.
He shall plant boundary-trees, like nyagrodha, asvattha, kimshuka, shalmali, sala and tala, as also plants with milky juice and also thickets, bamboo of various kinds, the shami tree, creepers and mounds, reeds and kubjaka thickets; trees shall not be obliterated. Tanks, water-reservoirs, ponds and fountains should be built on boundary-lines; as also temples. (8-246ff). The last referred to the abodes of the 'devatas, the chieftains like yakshas who controlled the frontier economy and society.
The administrator of the rural areas is asked to also set up hidden boundary marks for there are constant trespasses of the areas under the control of the social world (loka) of commoners by the free men (naras) who are ignorant of the boundaries.
Burnell translated this verse as And one should make other boundary marks, which are concealed; considering the constant mistakes occurring among men in this world, when they are settling a boundary. The term, naras referred to the men employed by the administrator. They were not attached to the clans that owned the lands. Often they committed errors and failed to honour the boundaries accepted by the clans concerned. (8-249)
He may use also stones, bones, cows hair, chaff, ash, pieces of pottery, dry cow-dung, bricks, cinders, pebbles, sand etc. which the earth may not eat up in course of time. He is asked to set them up secretly on junctions of boundaries. (8-250,251) By these signs shall the king (raja) determine the boundary between two contending parties; as also by long continued possession and by flowing streams of water, that is, canals. (8-252)
The king (rajan) could be appealed to when the civil administrator (nrpati) had been guided wrongly by his men (naras) who manned the administration or when the rural administrator (prthvipati) could not correct the ravages of time that had led to new disputes over boundaries.
If even on the inspection of the marks, there should be a doubt, the settlement of the dispute regarding boundaries shall be dependent entirely on witnesses. (8-253) Traditional and even continued possession cannot settle the dispute. The dispute w0uld be decided on the basis of the statements of the majority of the witnesses examined.
Witnesses shall be examined in regard to the boundary marks in the presence of an assembly of villagers and also of the two contending parties. All the members of the clan or clans residing in that village or in those villages should be present. (8-254)
The decision that they give unanimously on questioning in regard to the boundary shall decide the issue. It was not enough to go by the opinion of the majority of the witnesses. On the basis of the unanimous opinion, the king shall lay down the boundaries. He shall also record the names of all of them. (8-255) Royal edict was issued on the basis of the unanimous opinion of the villagers. It endorsed the unanimous opinion of the village assembly and did not supplant or supersede it.
Burnell and Hopkins point out that according to Medhatithi and Kulluka only the limits of the boundary and the names of the witnesses were recorded. These western scholars refused to accept that these were valid written documents. Ownership of lands did not accrue from them. This stand was taken (by the British rulers of India) to deprive many owners of their lands under the plea that mere acceptance of boundaries did not mean that they had right of traditional undisputed ownership.
Placing earth upon their heads, wearing garlands and red clothes, and being sworn by their respective meritorious deeds, they shall decide honestly and correctly (samanjasa). (8-256) If they decide in the right manner, they being truthful witnesses (satyasakshi) become purified (puyanta). But if they decide wrongly, they should be made to pay a fine of two hundred panas (each). This fear kept out false witnesses. (8-257)
In the absence of witnesses, four honest residents of the suburbs of that village (gramaseemanta) shall determine the boundary in the presence of the king (raja). (8-258) This was to ward off violent clashes between neighbouring villages. The so-called jury (panchayat) of five members drawn from five different classes, one each from the four varnas and one from the class of outcasts was a later development. [Still later the fifth member was replaced in some areas by a representative of the Muslims.] Manava Dharmasastra envisaged only a four-member committee of witnesses.
The witnesses called in should be the original (maula) residents of that area. If there were no such original residents of adjoining villages (samanta) coming forward to be witnesses in regard to the boundary, the king might examine the guards (purushas) of the cattle grazed (gocara) in the forest beside the village. These advance guards (purushas, whose services were available to the king) kept at bay the wild animals and would not fear to tell the truth. (8-259) The men in the service of the local administrator (nrpati) were referred to as naras. They were not so dynamic or intelligent or fearless as these purushas , the officers working directly under the king were.
Hunters, fowlers, cowherds, fishermen, root-diggers, snake-catchers, gleaners, and other foresters, on being questioned in fairness (dharmena, justly) declare the marks of the boundary lines between two villages. On that basis the king shall fix the boundary. (8-260,261).
The king (rajan) had to depend on these persons who were not residents of the agrarian villages to give a just verdict in the dispute between two or more villages. In the case of fields, walls, tanks, gardens and houses (falling within the same village), the decision given regarding the boundary-marks was based on the opinions given by the neighbours. (8-262)
In the case of free men (nrs) disputing the boundary-marks, if the neighbours depose falsely, all of them shall be severally punished by the king with the middle amercement (five hundred panas). These free men did not have the support of their clans and were at the mercy of their neighbours. Hence the latter were fined (but not heavily) and directly by the king.
Many of these free men were employed in the civil service supervised by the nrpati. These free men too had their personal lands. The king did not want them to quarrel among themselves or be harassed by the neighbours. (8-263) The medieval commentators had missed this aspect of administration.
If one by intimidation appropriates a house, a tank, a garden or a field he shall be fined five hundred panas; but only two hundred if he does in ignorance. (8-264) In the event of the boundary lines being unascertainable the king (raja) who knows and follows the Dharmasastra shall himself assign (pradise) to the contesting parties their lands (bhumi) on the basis of advantages. This is the stand of Rajadharma. (8-265)
Burnell was not precise when he translated this verse as: If it is impossible to settle the boundary-line, a king who knows the right should himself, (and) alone, in order to do them a kindness, point out the ground: so stands the law.
The king is the final and sole arbitrator. Thus has the socio-political law (dharma) relating to the demarcation of boundaries, been propounded (by the editors of Manusmrti). (8-266) The king has to be well versed in the Rajadharma as outlined by the Dharmasastra. It has prescribed his rights and duties, and their limits.
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