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Others hold that, just as the single eye of the crow operates in both sockets, so the epithet ‘versed in counsel’ is applicable to both, ‘Brāhmaṇas’ and ‘councillors,’ but in different senses: when qualifying the ‘councillors,’ being ‘versed in counsel’ connotes the knowledge of the details of the cases; and when qualifying the ‘Brāhmaṇas,’ it connotes impartiality.

The Brāhmaṇas and the Councillors are not to enter only; but they are to help, in the best manner they can, in the ‘investigating of suits’ (spoken of below). If this were not meant, then their ‘entering’ could only be intended to serve some transcendental purpose. Thus the sense is that the King shall not decide cases by himself alone, but in consultation with the councillors and Brāhmaṇas.

‘With a dignified demeanour’; — i.e., free from fickleness of speech, hand and feet. If he were fickle, there would be trouble.

The use of the term ‘pārthiva,’ ‘king,’ implies that the teaching here addressed is meant not only for one who is Kṣatriya by caste, but for others also, who may happen to be owners of land and a kingdom. Because unless he dues what is here laid down his sovereignty does not become duly established. — (1)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 600), which explains ‘mantrajñaḥ’ as ‘arthaśāstrajñaḥ’, ‘learned in the Science of Polity’, and deduces the sense that the person who tries cases should act up to the principles of the Science of Polity, in so far as they are not incompatible with the Dharmaśāstra, the Ethical Science.

It is quoted in Parāśaramādhava (Vyavahāra, p. 18), to the effect that having entered the court, the king shall carry on the work, in association with learned men and with councillors; — in Vyavahāramayūkha (page 2) in Nṛsiṃhaprasāda (Vyavahāra, p. 1b): — in Kṛtyakalpataru (3a), which has. the following notes — ‘Vyavahārān’, points of dispute between the plaintiff and the defendant, — ‘didṛkṣuḥ’, with a view to determine, — ‘pṛthivīpatiḥ,’ includes non-Kṣatriyas also, — ‘mantrajñaiḥ’, persons conversant with the method of doing business in due accordance with the exigencies of time and place, — this qualifies ‘brāhmaṇaiḥ’, ignorant Brāhmaṇas being prone to give hasty advice and thereby create trouble, — ‘mantribhiḥ’ stands for experienced councillors; — and in Vīramitrodaya (Vyavahāra, p. 4a).

Comparative notes by various authors:

(verses 8.1-2)

Gautama (13.26). — ‘The king or the judge ora Brāhmaṇa learned in the scriptures shall examine the witnesses.’

Vaśiṣṭha (16.2). — ‘Let the king or the minister transact the business on the bench.’

Viṣṇu (3.72). — ‘Let the king try causes himself, accompanied by well-instructed Brāhmaṇas.’

Do. (71.60). — ‘Near the Fire, Deities and Brāhmaṇas, he shall raise the right arm.’

Yājñavalkya (1.359). — ‘Every day, he shall look into cases himself, surrounded by members of the Assembly.’

Do. (2.1). — ‘The king shall try causes, accompanied by learned Brāhmaṇas, in strict accordance with legal scriptures, — being free from anger and avarice.’

Yama (Aparārka, p. 596). — ‘The king, assisted by the minister, free from all love and hatred, shall carefully look into the causes of contending parties.’

Nārada (Do. p. 599). — ‘The king composedly looking into cases himself obtains bright fame here and reaches the regions of Indra.’

Śukranīti (4.5.7, 9-13). — ‘Vyavahāra i s that which, by discriminating the good from the evil, ministers to the virtues of both the people and the king, and furthers their interests. The king should attentively look after law-suits, freeing himself from anger and greed, according to the dictates of the legal scriptures, — in the company of the Judge, the Minister, the Brāhmaṇa and the Priest. He should never singly try cases of two parties, or hear their statement. Neither the wise king nor the Councillors are to hold a trial in secret.’

Śukranīti (4.5.85). — ‘The King should enter the court modestly, together with the Brāhmaṇas and the Ministers versed in state-craft, — with the object of investigating cases.’

Kātyāyana (Smṛticandrikā-Vyavahāra). — ‘The King shall be accompanied by those permanent members who are experienced, having hereditary connections, the best of the twice-born, expert in the sacred law and in the science of polity.’

Kātyāyaṇa (Parāśaramādhava--Vyavahāra, p. 17). — ‘That place is called Dharmādhikaraṇa, Court, where the truth regarding suits is investigated in pursuance of the legal scriptures. — The king shall enter the court after having finished all his daily duties, and after having duly honoured, with flowers and ornaments, his preceptor, astrologers, physicians, deities, Brāhmaṇas and Priests.’

Do. (Vīramitrodaya-Vyavahāra, p. 14). — ‘If the King looks into lawsuits, with the assistance of the Judge, the Minister, the Brāhmaṇa and the Priest, he attains heaven.’

Do. (Vyavahāratattva, p. 2). — ‘Accompanied by the Judge, the Minister, the Brāhmaṇa and Priest, the King himself shall determine their victory or defeat.’

Bṛhaspati (1.4-5). — ‘The king, his chosen representative Judge, other Judges, the Law, the Accountant and the Scribe, Gold, Fire, Water, and the Bailiff are the ten components of the Court; in which the King examines causes with due attention.’

Do. (1.20 et. seq.). — ‘Let the King try causes, attended by these Judges, after having entered the Court, in a sitting or standing posture. Having risen early in the morning and performed ablutions according to rule, and having honoured the elders, astrologers, physicians, deities, Brāhmaṇas and domestic priests.’

Do. (27.25). — ‘Let the King every day examine in common with learned Brāhmaṇas, the suits preferred by litigants, as also those instituted by the King himself.’

VERSE 8.2

Section I - Constitution of the Court of Justice

तत्रासीनः स्थितो वाऽपि पाणिमुद्यम्य दक्षिणम् ।
विनीतवेषाभरणः पश्येत् कार्याणि कार्यिणाम् ॥२॥

tatrāsīnaḥ sthito vā'pi pāṇimudyamya dakṣiṇam |
vinītaveṣābharaṇaḥ paśyet kāryāṇi kāryiṇām ||2||

There, either seated or standing, raising his right hand, subdued in dress and ornaments, he shall look into the suits of the suitors. — (2)

Medhātithi’s commentary (manubhāṣya):

‘Sealed’ — sitting on the judgment-seat.

‘Standing’ — not moving, nor seated.

‘Sitting’ and ‘standing’ constitute the only two possible alternatives, to be adopted in accordance with the gravity of the business. If the suit is an important one, and there is much to be said (by the parties), he shall he seated; whereas if the suit is a light one, and there is not much to be said, he shall remain standing. in either case, moving about is absolutely precluded. While moving, his attention would be fixed upon the path he is treading, so that he could not rightly grasp what is being said by the two parties.

Others have explained that the rule here laid down is with a view to some transcendental results; and that what is meant is that when the parties consist of ascetics or Brāhmaṇas, and these remain standing, the King also shall remain standing, but on their being seated, he also shall be sealed.

‘Raising his hand’ — i.e., holding the hand high. This (if taken literally) would militate against what the Sūtra-kāras have said regarding the upper garment being always under the right arm. Hence all that the text means is that the hand shall he lifted up, and not allowed to be in contact with any other person near at hand. In fact, this is to be done only when the King is disallowing a certain question. This shows that he is alert and carefully watching the proceedings of the case. For as a rule, whenever a man is devoting great attention to any work, he holds his arms high. If, on the other hand, he sits at ease, the defeated party is likely to say — ‘The King does not pay attention to the case, hence the members of the court, not fearing him, have decided the case against us.’

‘Hand’ here stands for the arm; otherwise if one were to keep the hand only lifted up throughout the proceedings, this would be extremely painful. Nor is the advice offered with a view to any transcendental purpose.

‘Subdued in dress and ornaments’ — What was meant by ‘dignified demeanour’ in the preceding verse was that he should keep control over his external and internal organs in relation to their respective objects; and this was with a view to being easily accessible to even the most modest suitors. If he were too gaudy in his appearance, it would be difficult for the more modest suitors to retain their presence of mind.

It is for this reason that gaudy dress and ornaments should be avoided. ‘Dress’ stands for the making up of the hair and clothes; ‘ornaments’ for ‘Karṇikā’ (the lotus-shaped Ear-ornament) and the rest. So ‘gaudy dressing’ would consist in the wearing of richly-coloured clothes and so forth. If the King is gaudily dressed and wearing brightly be-jewelled ornaments, it could be as difficult to look at him as at the sun, for ordinary people, specially for the accused (who would thus lose their presence of mind during the trial).

‘Look into.’ — This declares the purpose for which the King; is to enter the Court-room.

This teaching regarding the King himself ‘looking into’ the suits is with special reference to the inflicting of punishments; and applies to the entire investigation, ending with the full setting forth of the statements of both parties. And the intention is that by doing this he would be fulfilling his duty of ‘protecting’ the people. Such ‘looking into’ cases not being possible for other persons, no one else could be entitled to it. As for helping in the settling of doubtful points, this result of the investigation interests all persons; and as such like the rules relating to expiations, this also falls within the province of the learned Brāhmaṇa; specially as in connection with the latter it has been declared that ‘he shall speak out on difficult points of law.’ Similarly when a case is being investigated where the parties belong to the same profession, — such for instance as traders, cultivators, cattle-breeders, etc., — if other persons belonging to the same profession And that the points in dispute are such as would affect them all, then they are all entitled to take part in the investigation.

In this connection they declare as follows (Nārada, 1.8) — ‘(a) Families, (b) Guilds, (c) Tribes, (d) Authorised person, and (e) the King constitute the very foundation of case-proceedings; and among these the following is superior to the preceding.’

Of these,

(a) the term ‘families’ stands for the body of relations; the parties shall not deviate from the decision arrived at by these,

(b) If however one party should have no confidence in these, and should say — ‘these persons are more nearly related to you,’ — then the case shall he referred to the guilds, — this term ‘guild’ standing for a body of trailers and others who may he following the same profession; these persons are weightier than relatives; because the latter, through fear of relations, do not always exercise a check upon the person who deviates from the right path; while the members of a guild fight shy of any matter relating to themselves going before the King, as that would lend the King’s officers ah opportunity for interfering in the work of their guild; and hence they always take from the parties concerned sufficient security against their deviating from the decision arrived at, before they proceed to investigate a dispute; the understanding with the person standing security being that if the party deviate from the decision arrived at by the guild, he shall pay a stipulated line, or he should not let him deviate from it.

(c) ‘Tribes’ — consist of persons who always move about in groups; e.g., masons, temple0priests, and so forth. They would investigate the cases of disputes arising among themselves; and for the enforcing of decisions they shall appoint committees. The difference between these two (‘Guilds’ and ‘Tribes’) is that the former consists of persons following the same profession and they can act singly also, whereas Tribes always act collectively. And it is because the Tribes act collectively that the disputants are afraid of them. According to others however, the term ‘Families’ stands for neutrals; and such persons, even though not members of the same guild, are conversant with all the ins and outs of the case, and as such capable of coming to a decision,

(d) The term ‘authorised person’ stands for the Brāhmaṇa learned in the Vedas; it has been laid down that such Brāhmaṇas are entitled to speak on all disputed points of law. Such a person is superior to the foregoing, because of his learning.

(e) The King’s superiority rests upon his great power. It is for this reason that when a case has been decided by the learned King, there is no occasion for what is laid down in the following words — ‘If a party, even though legally defeated, thinks that he has not been justly defeated, he shall be fined twice the amount of the suit, and the case re-opened’ (Yājñavalkya, Vyavahāra, 306); this is what applies to other cases (decided by others), For in the case of these latter there may he some ground for asserting that ‘the judges have not decided rightly’; but when the King himself has decided it, what can he said against it?

Another explanation of the term ‘authorised person’ is that it stands for the Brāhmaṇa who has been appointed by the King to act as his substitute. Similarly the ordinary householder also would be an ‘authorised person,’ so far as his own household-affairs are concerned, — this being in accordance with the declaration that ‘the householder is master in his own house,’ which means that ho is free to deal with all disputes within his own household, up to the infliction of punishment, — specially with a view to proper discipline among his children and pupils; but he may deal with all cases, except the inflicting of bodily punishment, or the doing of acts conducive to depravity. What is meant is that in the case of minor offences the householder himself acts like the King, while in that of serious offences, it is necessary to report to the King.

From all this it follows that there is no basis for the doubt raised by some people regarding the right of the Brāhmaṇa and others to pronounce judgments, — on the ground that the injunction contained in the present verse that the King ‘shall look into the suits’ precludes all other persons, — or, for the great trouble that they have taken to establish that right. Because the right of the several persons pertains to different kinds of cases. The King’s right exteṇḍs up to the infliction of punishments, while that of the Brāhmaṇa and others extends only up to the pronouncing of judgments, — this latter right is distinct from the former. Then again, the motive of the King in looking into cases consists in the proper administration of his kingdom, while that of the others lies only in settling doubtful points for the benefit of other people. So that there is no possibility of cross-purposes arising.

The ‘suits of sailors’ consist in the settling of disputes. Whenever disputes arise between two persons, settlements should be brought about by the King by means of careful investigation. Otherwise if the parties come to an agreement themselves, where would he the supremacy of the King? — (2)

Explanatory notes by Ganganath Jha:

‘Raising his right arm’ — See 4.58.

This verse is quoted in Aparārka (p. 600); — the second half in Vyavahāramayūkha (p. 2); — in Parāśaramādhava (Vyavahāra, p. 18) in Nṛsiṃhaprasāda (p. 2a); — in Smṛticandrikā (Vyavahāra, p. 52), which says that ‘seated or standing’ is meant to predude lying down and walking; — in Kṛtyakalpataru (3a), which has the following notes: — ‘Vinīta’ is calm and dignified’ — ‘pāṇimudyamya’, taking the hand out of the upper wrapper, i.e., having gathered together his clothes, — ‘paśyet’ determine, decide, — ‘kāryāṇi,’ non-payment of debt and so forth; — and in Vīramitrodaya (Vyavahāra, p. 40).

Comparative notes by various authors:

(verses 8.1-2)

See Comparative notes for Verse 8.1.

VERSE 8.3

Section I - Constitution of the Court of Justice

प्रत्यहं देशदृष्टैश्च शास्त्रदृष्टैश्च हेतुभिः ।
अष्टादशसु मार्गेषु निबद्धानि पृथक् पृथक् ॥३॥

pratyahaṃ deśadṛṣṭaiśca śāstradṛṣṭaiśca hetubhiḥ |
aṣṭādaśasu mārgeṣu nibaddhāni pṛthak pṛthak ||3||

[He shall look into the suits] — day after day, one by one, — falling as they do under eighteen heads, — according to principles deduced from local usage and from the scriptures. — (3)

Medhātithi’s commentary (manubhāṣya):

The first half of the verse describes the means of forming a decision, and the second mentions the number of the heads of dispute.

The verb ‘shall look into’ of the preceding verse has to be construed with the present verse, — as also the noun ‘the suits’; the full sentence being ‘day after day he shall look into the suits’; i.e., every day he shall decide cases.

‘According to principles.’ — ‘Principles’ are the means of coining to a decision; and they are of two kinds — (l) in the shape of evidence and (2) in the shape of custom. The means leading to decisions that are in the shape of ‘evidence’ are in the form of witnesses and so forth; and those in the form of rules are such as — (a) ‘the investigation of a suit can be regarded as complete only when precise decision has been arrived at regarding its subject-matter.’ A single witness, who is true to his oath, and who has been cited by both parties, who have also vouched for his veracity, — even though he may not have been examined by the members of the court, — becomes a reliable means of arriving at the right decision; but no decision can ho arrived at on the strength of the words of any such single person as is not known to be truthful and has not been examined, as there is in the former ease; and hence such a single witness cannot he regarded as helping the forming of a decision, even though the persons investigating the case may be agreed upon it.

Customs also are of two kinds — general and special. These again are of two kinds — congruous and incongruous, in reference to places and times. As an instance of the ‘Congruous’ custom we have (a) the case where among certain people of the South, a childless woman, on the death of her huśand, goes up to the pillar of the court of justice, and while there, if, on being examined by the officers of the court, she is found to be untainted and possessed of the necessary qualifications, she obtains her inheritance; — or (b) the case where among the people of the North, if food is given to a person seeking for a bride, then she becomes betrothed to him even though the actual words ‘I shall give her to you’ may not he uttered. And as an instance of the ‘incongruous’ rule, we have (a) the case where in some countries grains are lent out during the Spring, and double the quantity is realised during the Autumn, — or (b) when an article is mortgaged on the understanding that it shall be enjoyed by the mortgagee, even if the total amount of debt accruing become double of the price of that article, and the total from the very beginning is paid in gold, yet the enjoyment of it remains unmolested; — now all this is ‘incongruous,’ being incompatible with the law that ‘the interest shall accumulate to only 80 per cent.’ (Yājñavalkya, Vyarahāra, 37), and that ‘the accumulated interest shall not exceed the double of the principal’ (Manu, 8.151).

These customs based upon the nature of the countries affected are what are mentioned in the text by the words ‘principles based upon local usage’; and as regards the ‘principles based upon scriptures,’ these are declared in the scriptures themselves. Of these latter some are rules that have been propounded by the writers themselves, while others only codify the actually existing state of things. As an instance of the rule propounded by the writers we have — (a) ‘Facts are ascertained in accordance with written documents, possession and witnesses,’ — as says manu (8.41) ‘Just as the hunter infers the position of the prey by means of the drops of blood (so should the king infer the facts of a case).’ Though no worldly usage can be regarded as authoritative as against the word of scripture-writers, yet in certain cases it becomes necessary to have recourse to the words of ordinary men of the world; e.g., ‘under such and such conditions such and such an ordeal should be had recourse to,’ ‘weight is to be attached to possession lasting for such a time.’ Such rules, even though based upon ordinary usage, are included under ‘principles based upon scriptures’ But among such rules, those are to be regarded as authoritative which are found to have some support in the scriptural texts; while those that are found to be without such support are not to be so accepted. For instance, there is the rule regarding the order of words in documents — ‘By me, entreated by both parties, who am the son of so and so, this has been written by so and so — thus exactly shall the scribe write down’ (Yājñavalkya, Vyavahāra, 88). In reality however, there would be no harm if the scribe were to write down his own name first — ‘I so and so, the son of so and so, am writing this.’ Because the only purpose for which he writes all this is with a view to show that the document has been written by such and such a person; so that so long as the name of the scribe is put down, there is nothing objectionable in it. If the scribe is known, from other sources, to be a trustworthy person, then what is written by him is regarded as reliable; so that if he were to omit the name of his family, and thus fail to indicate precisely who he is, whose reliability would the persons concerned investigate, on the basis of other sources of information? But if from his writing, or by some other means, the writer be recognised as a particular well-known scribe, then there would be no harm even if he were to omit his indicative characteristics. In this case, even if the scribe were to omit to write that ‘this has been written by me, so and so,’ there would be enough to indicate who the writer is. And it is in such cases that the examination of the scribe comes useful; and he becomes counted among ‘witnesses,’ specially when there are few other witnesses. When however there are many trustworthy witnesses ready at hand, there is not much use in investigating the trustworthiness of the scribe.

Similarly there is another rule — ‘Documentary evidence is rebutted by documentary evidence, and witnesses (oral evidence) by witnesses; documentary evidence is superior to witnesses; hence witnesses are rebutted by documentary evidence.’ (Nārada, 1.145). For this rule also there is no foundation. For ‘documentary evidence’ is of two kinds: (1) written by the party himself, and (2) written by another person. The latter again is of two kinds — (a) written by a scribe who volunteers to do the writing, and (b) written by an authorised scribe. The document written by another person again is, in every way, of the nature of a witness; so that there is no ground for the distinction made by the rule, in the words ‘documentary evidence is superior to witnesses,’ specially because the ‘witness’ has been thus defined (by Yājñavalkya, Vyavahāra, 87) — ‘The witnesses shall, with their own hands, write down their names, preceded by the names of their father, adding that I, so and so, am a witness.’ Similarly, no reliability attaches to what has been written by a single man, just as it does not attach to a single witness. It might be argued that it is only when ‘witnesses’ set down their hands to something that they become ‘documentary evidence.’ But this difference cannot make the one ‘superior’ to the other. Because trustworthiness is the only ground for ‘superiority’; and this trustworthiness is equally yet to be examined in both cases. It is for this reason that in a case when there is a conflict between the two kinds of evidence, the judge should accept that which is the more numerous of the two. ‘Being authorised’ also cannot be regarded as a ground of distinction; because even so, the ‘superiority’ could only consist in the fact that it is only one who has been tested that is ‘authorised’; but as a matter of fact, all persons ‘authorised’ by the King are not necessarily thoroughly ‘tested.’ If some one happened to be possessed, of extremely high qualifications and were absolutely free from all defects, then he, even alone, could be accepted as sufficient corroboration. As for instance, the deeds of land-grants bestowed by the King are accepted as authoritative, even though written by a single Kāyastha scribe. In a case where there is documentary evidence written by the hand of the person who is not paying a debt, wherein he admits that ‘I have received so much from this person, and so much has to be paid to him,’ — if he should happen to deny it and say ‘I have not received anything from him,’ — then the party producing the aforesaid document wins the case outright, and there is no occasion for the appearance of any witnesses at all.

“It is only on the strength of the man’s writing that it is concluded that the debt is admitted by him, — and subsequently also the same man asserts, that he has not received anything; now between these two assertions, on what grounds is the latter rejects in favour of the former, and not the former in that or the latter, — both of them being equally open to doubt, by reason of mutual contradiction? In fact under such circumstances it is only right that other kinds of evidence should he called in.”

This would be so, if there were equality (between the two assertions). As a matter of fact, however, the assertion ‘I have not received anything’ may he due to the man’s avarice and such other causes; whereas the assertion ‘I have received such and such a thing’ could never he made by any sane person without having actually received it. In the case in question, even if the man were to say that he has repaid the debt, but did not obtain the written acquittance receipt, either because a writer was not at hand, or because being engaged in some other business he was in a hurry, — even so there would be no need and occasion for the calling of any further evidence, in the shape of witnesses, etc.

As regards the dictum quoted above (from Nārada), it cannot set aside a conviction derived from the very nature of things.

For instance, it is often found that people go on repaying debts due to rich persons, and yet do not have the payments noted on the back of the document, the idea in the man’s mind being either that ‘so much I have paid to-day, and tomorrow I shall bring in more and then have the total sum entered at the same time,’ or that ‘in a few days I shall repay the entire amount and then have the document torn off’; — but when pressed by the rich creditor, he may be unable to clear off the entire debt, and the only amount paid remains what had been on the first day, the creditor would deny even that payment on the ground that the receipt was not given; — now in this case if the court were to insist upon the dictum that ‘documentary evidence can be rebutted only by documentary evidence,’ — then how could it take into consideration at all the possibility of force or fraud (on the part of the influential creditor)? for there is no possibility of any documentary evidence; and in this case, even though there is documentary evidence on one side, yet, for the purpose of coining to a right conclusion, other forms of evidence are called in; and the same could be done in other cases also. For instance, in a certain case, one of the parties (the debtor) might say — ‘trusting this man, I executed this deed for the entire sum, and the creditor told me that I may receive a part of the sum that day, as for certain reasons he was not in a position to pay the whole sum then, and that he would pay the balance the next day; but the sum paid on the first day was all that he gave me, and the balance was never paid’; and in this case there is certainly an occasion for the calling in of other kinds of evidence. And if the debtor can produce witnesses in corroboration of his statement, then the document (produced by the creditor) becomes impugned, and it becomes necessary for the creditor to prove that he did pay the balance the next day. If the conversation between the parties (regarding the part payment) were held in private (and there be no witnesses to corroborate the statements one way or the other), — then there comes the occasion for having recourse to ordeals. If however there be no full confidence in ordeals, — on the ground of these being not always infallible, — then decision should he arrived at by means of oaths.

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