History of India/Volume 1/Chapter 20

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In India, as throughout the ancient world, legal equality was unknown. There was one law for the Brahman and another for the Sudra; the former was treated with undue leniency, the latter with cruel severity. If a Brahman committed one of the four or five heinous crimes enumerated in the law-books, that is, if he slew a Brahman, violated his guru's bed, stole the gold of a Brahman, or drank spirituous liquor, the king branded him on the forehead with a heated iron and banished him from his realm. If a man of a lower caste slew a Brahman, he was punished with death and the confiscation of his property, while if he slew a man of equal or lower caste, other suitable punishments were meted out to him.

Adultery has always been looked upon in India not only as a criminal offence, but as an offence of a heinous nature; but here again punishment for the offence was regulated by the caste of the offender. A man of the first three castes who committed adultery with a Sudra woman was banished; but a Sudra who committed adultery with a woman of the first three castes suffered capital punishment. Indeed, Brahman legislators have painted themselves worse than they really were. In order to point out the vast distinction between themselves and the Sudras, they prescribed monstrous punishments for the latter, which, it is safe to assert, always remained an empty threat, and were meant as a threat only. If a Sudra spoke evil of a virtuous person belonging to one of the first three castes, his tongue was to be cut out, and a Sudra who assumed an equal position with those castes was to be flogged. Similarly we are told that a Sudra who reviled a twice-born man or assaulted him with blows should lose the limb with which he offended; that if he listened to a recitation of the Veda, his ears should be stopped with molten lac or tin; that if he recited the Veda, his tongue should be cut out; and if he remembered Vedic texts, his body should be split in twain.

A Kshatriya abusing a Brahman must pay 100 karshapanas, and one beating a Brahman pays 200 karshapanas. A Vaisya abusing a Brahman is fined 150 karshapanas, and we suppose pays 300 for beating him. But a Brahman has to pay only 50 karshapanas for abusing a Kshatriya, 25 for abusing a Vaisya, and for abusing a Sudra—nothing!

Death or corporal punishment seems to have been the punishment for theft, at least in some cases; and the thief is directed to appear before the king with dishevelled hair, holding a club in his hand, and proclaiming his deed. If the king pardons him and does not slay him or strike him, the guilt falls on the king. The prerogative of mercy was the king's alone, but a guru, a priest, a learned householder, or a prince could intercede for an offender, except in the case of a capital offence.

The lawgiver Vasishtha reserves the right of self-defence in the case of a person attacked by an Atatayi, a class of criminals including incendiaries, poisoners, those ready to kill with weapons in their hands, robbers, and those who take away another's land or abduct another's wife.

Agriculture and trade were the means of the people's subsistence, and crimes relating to a cultivator's land or to an artisan's trade were punished with the utmost severity. We have seen that defence of land was one of the cases in which the right of self-protection was allowed, and false evidence given about land was regarded with the utmost detestation. By giving false evidence concerning small cattle, a witness commits the sin of killing ten men; by false evidence concerning cows, horses, and men, he commits the sin of killing a hundred, a thousand, and ten thousand men respectively; but by false evidence concerning land, he commits the sin of killing the whole human race.

A severe penance is ordained for the man who attempts suicide, and the relations of a suicide are prohibited from performing funeral rites for him. Such was the criminal law of the Hindus over two thousand years ago.

We now turn to the more complicated subject of civil law, which may be conveniently treated under five heads, the law of agriculture and pasture, the law of property, usury laws, the law of inheritance, and the law of partition. We begin with the law of agriculture and pasture. According to Apastamba:—

"If a person who has taken a lease of land does not exert himself, and hence the land bears no crop, he shall, if he be rich, be made to pay the value of the crop that ought to have been grown.

"A servant in tillage who abandons his work shall be flogged.

"The same punishment shall be awarded to a herdsman who leaves his work.

"And the flock entrusted to him shall be taken away.

"If cattle, leaving their stable, eat crops, the owner of the crops may make them lean (by impounding them); but shall not exceed that.

"If a herdsman who has taken cattle under his care allows them to perish or loses them, he shall replace them to the owners.

"If (the king's forester) sees cattle that have been sent into the forest through negligence, he shall lead them back to the village and restore them to their owners."

Again Gautama says:—

"If damage is done by cattle, the responsibility falls on the owner.

"But if the cattle were attended by a herdsman, it falls on the latter.

"If the damage was done in an unenclosed field near the road, the responsibility falls on the herdsman and on the owner of the field."

As in the present day, unenclosed fields were used as common property for grazing cattle and for obtaining firewood.

Some equitable provisions are laid down by

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Vasistha about the right of way and about the evidence necessary in disputes about immovable property.

"It is declared in the Smriti that there are three kinds of proof which give a title to property, documents, witnesses, and possession; thereby an owner may recover property which formerly belonged to him.

"From fields through which there is a right of way a space sufficient for the road must be set apart, likewise a space for turning a cart. "Near new-built houses and other things of the same description, there shall be a passage three feet broad.

"In a dispute about a house or a field, reliance must be placed on the depositions of neighbours.

"If the statements of the neighbours disagree, documents may be taken as proof.

"If conflicting documents are produced, reliance must be placed on the statements of aged inhabitants of the village or town, and on those of guilds and corporations of artisans or traders."

This brings us to the law of property. Property is divided into eight classes, thus:—

"Property inherited from a father, a thing bought, a pledge, property given to a wife after marriage by her husband's family, a gift, property obtained for performing a sacrifice, the property of re-united copartners, and wages as the eighth.

"Whatever belonging to these eight kinds of property has been enjoyed by another person for ten years continuously is lost to the owner.

"A pledge, a boundary, the property of minors, an open deposit, a sealed deposit, women, the property of a king, and the wealth of a Srotriya, are not lost by being enjoyed by others.

"Property entirely given up by its owner goes to the king."

Women and females here mean female slaves. With regard to minors and widows, there are provisions to the effect that the king shall administer their property and shall restore it in the case of a minor when he comes of age.

We next turn to the usury laws of Ancient India. According to Vasishtha and Gautama, the interest for a money-lender was five mashas for twenty (karshapanas) every month.

The commentator Hara Datta reckons 20 mashas to the karshapana, so that the rate of interest comes to 1¼ per cent, per month, or fifteen per cent, per annum; and Krishna Pandita correctly states that this rate of interest applies to loans for which security is given. Gautama also says that after the principal has been doubled, interest ceases, and when the object pledged is an object used by the creditor, the money lent bears no interest at all.

Other articles might be lent at a much higher percentage of interest, apparently when no security was given, as is clear from the following rules:—

"Gold may be lent, taking double its value on repayment, and grain trebling the original price.

"The case of flavouring substances has been explained by the rule regarding grain.

"As also the case of flowers, roots, and fruit.

"He may lend what is sold by weight, taking eight times the original value on repayment"; and Gautama says: "The interest on products of animals, on wool, on the produce of a field, and on beasts of burden, shall not increase more than fivefold the value of the object lent."

Gautama likewise names no less than six different forms of interest, compound, periodical, stipulated, corporal, and daily, in addition to the use of a pledge. He lays down the rule that the heirs shall pay the debts of the dead, but provides that money due by a surety, a commercial debt, a fee due to the parents of the bride, immoral debts, and fines shall not devolve on the sons of the debtor.

We thus come to the most important portion of the civil law, the law of inheritance.

To leave male issue was considered a religious duty by the ancient Hindus, and in the older law-books several kinds of sons are recognized, some of whom were legitimate or quasi-legitimate, and might therefore inherit, while others were considered unlawful and were debarred from all rights to their fathers' estates. At an early time, however, a reaction appears to have set in against the recognition of sons legitimate and illegitimate, even to escape the torments of hell after death. Apastamba, who lived a century or more after Baudhayana, protests against the recognition of heirs and sons of various kinds, and explains away ancient customs by stating that what had been allowed in ancient times could not be permitted among the sinful men of the present time. He made a clear sweep, moreover, not only of niyoga, or the appointment of a wife to raise issue, but also of the adoption or the purchase of a son, and modern Hindus recognize no kinds of sons except legitimate sons, or those adopted in the absence of legitimate issue.

Lastly, we come to the subject of the law of partition. The law of primogeniture never obtained in India, but so long as the joint family system remained in vogue, the property of the father was inherited by the eldest son, who supported the rest as a father. It would seem, however, that to live in a joint family under the eldest brother was never the universal custom in India, and even Gautama, the earliest of the Sutrakaras whose works are extant, considers a partition among brothers preferable. According to Gautama, the eldest son got as an additional share a twentieth part of the estate, some animals, and a carriage; the middlemost son received some poor animals, and the youngest obtained sheep, grain, utensils, a house, a cart, and some animals; while the remaining property was divided equally. As an alternative, he allowed the eldest two shares, and the remaining sons one share each; or he would permit each to take one kind of property by choice, according to seniority; or the special shares might be adjusted according to their mothers.

Vasishtha permitted the eldest brother to take a double share and a little of the kine and horses; he allowed the youngest to take the goats, sheep, and house; while the middlemost received utensils and furniture. If a Brahman had sons by Brahman, Kshatriya, and Vaisya wives, the first obtained three shares, the second two, and the third one.

Baudhayana allowed all the children to receive equal shares, or the eldest son might take one-tenth more than his brothers. Where there were sons born of wives of different castes, the sons were to receive four, three, two, and one shares respectively, according to the order of the castes.

Apastamba differed in this respect from his predecessors, and protested against the unequal division of property, declaring that all sons who were virtuous should inherit, but that he who spent money unrighteously should be disinherited, though he were the eldest son.

The separate property of a wife, that is, her nuptial presents and ornaments, was inherited by her daughters.

Such were the laws of the Philosophic Age. They show unmistakably the vast distance of time between this and the Epic Period, and show also the culture, the training, and the practical method of dealing with intricate subjects which were the peculiar features of this epoch. Criminal offences and civil cases were no longer tried according to the vague and varying opinions and feelings of learned men and priests, but were arranged, condensed, and codified into bodies of laws which learned men were called upon to administer.