Hindu Law and Judicature Part 1

Hindu Law and Judicature.

by Yajnavalkya.

PREFACE.

The immediate incentive to this undertaking was, a knowledge, or at least a strong impression, that a connected and explanatory translation of the rules of jurisprudence[1] in the Dharma Sastra of Yajnavalkya was a practical want.

Such impression was coincided in, and therefore proved correct, by a long list of local subscribers eminently qualified, by position and experience, to decide.

Dr. Roer is responsible for the fidelity of the rendering, so far as depends on knowledge of the Sanscrit language and literature, of Hindu mythology and philosophy. Mr. Montriou has aided, so far as enabled by juridical acquirements and experience. The language of translation has, therefore, been a joint labour, often the result of much and anxious discussion, and, if not unfrequently but a choice of doubtful alternatives, yet, always a choice made with pains and circ.u.mspection.

The text we have generally followed is Stenzler's[2] which is based on and selected from two MSS. in the royal library at Berlin and two editions published in Calcutta.[3]

We have not neglected constant comparison with Stenzler's German translation as well as with the several detached pa.s.sages as translated by Colebrooke and W. Macnaghten.

Words within brackets ( [ ] ) are not in the original text.

References to, and extracts from, the standard commentary upon Yajnavalkya, the Mitakshara, necessarily form the staple of our notes.

All such extracts are distinguished by the initial (_M._), and the author of the commentary we invariably refer to as, the Commentator.

At the same time, we have not blindly or implicitly followed this commentator. In some sense all Hindu glosses are untrustworthy guides.

They a.s.sume the text to be the language of inspiration; and, as the several Dharma Sastras not merely differ, but often dispose of the same subject in a contradictory manner, Pandits deem it their duty to reconcile all discrepancies, how forced soever their interpretations may be. In pa.s.sages so dealt with, we have endeavoured to give the plain meaning of the original text.

We gratefully acknowledge the obliging a.s.sistance, in research, enquiry, and suggestion, occasionally afforded, in the progress of our task, by Babus, Chandra Saikhur Dev[4] and Shyamachara?a Sircar.[5]

E. R.

W. A. M.

August 1858.

FOOTNOTES:

[Footnote 1: _vyavahara._]

[Footnote 2: Yajnavalkya's Gesetzbuch, Sanscrit and Deutsch, Berlin and London, 1849.]

[Footnote 3: 1. Sanhita of Yajnavalkya, edited by Sri Bhavanicharana Vandyopadhyaya: 2. The text published in the Mitakshara Dharma Sastra, Calcutta, 1812.]

[Footnote 4: Formerly head superintendent of the legal and zemindarry affairs of the maharajah of Burdwan.]

[Footnote 5: Joint chief translator and interpreter H. M. Supreme Court.]

Of the above list, twenty (distinguished by one cross) are in Yajnavalkya's list:[7] seventeen of these are named by Parasara, _viz._ all except Yama, Brihaspati and Vyasa, instead of whom he gives Kasyapa, Gargya and Prachetas: the _Padma Pura?a_ gives those named by Yajnavalkya, with the exception of Atri, and seventeen others, (distinguished by two crosses) three of whom, Prachetas, Kasyapa and Gargya, are on Parasara's list, and the remaining fourteen, not before mentioned: Madhusudana Saraswati names the same nineteen of Yajnavalkya's list, also Devala, Narada, Pai?hinasi: Rama Krish?a, in his gloss to the _Grihya Sutras_ of Paraskara, mentions thirty-nine, of whom nine (distinguished by three crosses) are new ones. There is also a Dharma Sastra attributed to Sankha and Likhita jointly, thus making forty-seven in the whole. The professor considers all to be extant; and has himself met with quotations from all, except Agni, Kuthumi, Budha, Sa?yayana, and Soma.

To those may be added several recensions of the same Dharma Sastras, of which professor Stenzler speaks to having read of twenty-two.

The entire forty-seven are independent sources of and authorities upon Hindu law.

The Digest of Jagannat'ha Tarcapanchanana, as translated by Colebrooke, is a valuable repertory of texts; but, detached and isolated as they necessarily are, those texts can with difficulty be appreciated or applied.

Yajnavalkya is second in importance to Manu alone: and, with the commentary, is the leading authority of the Mithila school.

The resident of British India needs not to be informed, that the orthodox Hindu regards his Dharma Sastras as direct revelations of the Divine will: still less need such an one be told, that, among this people, law is entirely subservient to the mysterious despotism of cast,[8] a religious, rather than a political ordinance.

With the Hindu, all religious tenets and aspirations are centred in the idea of BRAHMa, the one, pervading, illimitable substance, without multiple, division or repet.i.tion. This idea has two modes or phases, 1st. as representing the absolute, self-included Brahma; 2nd. as representing Brahma in connection with, relative to, the world. In the latter, Brahma is creator of the world, or, the very world, a semblance or a development of the former, the absolute idea. Man's highest aspiration and aim is, to know Brahma absolutely: to have attained this knowledge implies a total renunciation of worldly concerns, to coalesce with, to be ultimately absorbed in, reunited with, Brahma. Brahma?as are held to possess, to represent, this knowledge. Again, Brahma is the creator, the preserver, also, the objects created and preserved. Kshattriyas represent Brahma, the preserver: Vaisyas, Brahma the preserved. The dogma is otherwise explained: in the secondary or relative notion, Brahma is _Sattwa_, _Rajas_, _Tamas_, _i. e._ goodness, activity, darkness,--respectively represented by the Brahma?a, Kshattriya, and Vaisya casts.

When the Hindus dwelt in the country of the five rivers, and were wors.h.i.+ppers of the powers and phenomena of material Nature, as of Indra, Vayu, Agni &c., cast was necessarily unknown, for the notion of Brahma was undeveloped.

The divisions or cla.s.ses among them were conventional; there were princes, priests, and peasants or cultivators.

But cla.s.s distinction had not then crystallized into cast, into immiscible, uncongenial yet co-ordinate elements of a so called revealed const.i.tution.

So soon however as the idea of Brahma had attained fixity in the Hindu mind, and simultaneously with it, cast was developed, as we find it (but imperfectly) in the earliest records of Hindu philosophy, the Upanishads.

Thus, cast governs and is antecedent to law, which must bend and adapt itself to cast, as the overruling, intrinsic, unalterable condition of Hinduism, of Hindu life. There is one law, one phase of obligation for the twice-born, another for the Sudra. In Manu, cast is not so fully and severely developed: Manu permits to the Brahma?a four wives, of whom one may be a Sudra, necessarily permitting, therefore, a transition or quasi-amalgamation between the highest and the lowest in the scale. Yajnavalkya permits this Brahma?ical communion with the Kshattriya and Vaisya, but not with the Sudra.

Later promulgators of law,[9] restrict the Brahma?a to his own cla.s.s.

But although cast, once developed, admitted not of change, juridical rules, subservient to cast, might and did progress: civil laws and procedure became more comprehensive and exact, the criminal code more regulated, lenient, and enlightened. And as universally, (for such is human,) breaches and occasional disregard of rules have, silently though surely, worked a change, or caused exceptional accessions to the rules themselves.

The rule of the Sastras, that kingly power should belong to the Kshattriya alone, was, even in the halcyon days of Hindu polity, repeatedly set aside. Chandragupta, a Sudra, and his dynasty, held sway over India from 315 to 173 B. C.: afterwards came Brahma?ical kings, the Kanwas, from 66 to 21 B. C.: whilst the mighty Gupta kings, from 150 to 280 A. C., were Vaisyas.

The code of Manu presents a disarranged ma.s.s of regulations, in so much that some have supposed the disorder to have been designed.

That conclusion, however, is repelled by the comparatively succinct arrangement of Yajnavalkya and other sages. It is more consistent to suppose, that Manu, as originally promulgated, was, from time to time, added to, with an accidental disregard of method.

_achara_, ritual, comprises the distinctive cast-ceremonies, domestic and social usages, rites of purification, of sacrifice.

_Vyavahara_, may be called the juridical rules, embracing as well substantive law as the procedure and practice of legal tribunals.

_Prayaschitta_, expiations, are the religious sanctions, or penalties of sin; the divine visitation upon offenders, and the mode in which the sinner may avert, by atonement, the consequences of divine vengeance.

The date of Yajnavalkya's Dharma Sastra is not definitely or satisfactorily fixed. From internal evidence, it is doubtless much subsequent to Manu.

The data for conjecturing the period of Yajnavalkya are;

1. Reference is made to Buddhist habits and doctrines, _viz._ the yellow garments, the baldhead, the Swabhava (B. I. sl. 271, 272, and 349).

Hence, this Dharma Sastra must have been promulgated later than B.

C. 500.

2. Reference is made to a previous Yoga Sastra promulgated by Yajnavalkya (B. III, sl. 110). Now, the Yoga philosophy was first shaped into a system by Patanjali who, according to La.s.sen, probably flourished about 200 B. C.

3. Mention is made of coin as _na?aka_ (B. II, sl. 240). Now, the word _nano_ occurs on the coins of the Indoscythian king, Kanerki, who, according to La.s.sen, reigned until 40 A. C.