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Y ājñavalkya (2.35). — ‘If some one else finds a treasure, the King shall take the sixth part of it; if he has not reported it to the King and is found out, he should be compelled to deliver the treasure and also pay a line.’

Agnipurāṇa (222.14). — (See under 38.)

VERSE 8.40 [Stolen Property]

Section IX - Stolen Property

दातव्यं सर्ववर्णेभ्यो राज्ञा चौरैर्हृतं धनम् ।
राजा तदुपयुञ्जानश्चौरस्याप्नोति किल्बिषम् ॥४०॥

dātavyaṃ sarvavarṇebhyo rājñā caurairhṛtaṃ dhanam |
rājā tadupayuñjānaścaurasyāpnoti kilbiṣam ||40||

Property stolen by thieves should be restored by the king to men of all castes; by retaining such property, the king imbibes the sin of the thief. — (40)

Medhātithi’s commentary (manubhāṣya):

When any property is stolen by thieves, the king should recover it; but he should not use it himself; he should restore it to the persons that may have been robbed.

The use of the term ‘all’ implies that stolen property shall be restored to Caṇḍālas also.

If we read ‘caurāhṛtam’ (in place of ‘chaurairhṛtam’), the compound should be expounded as ‘chaurebhyaḥ āhṛtam’ — i.e., recovered from thieves — in accordance with Pāṇini 2.1.32. If we adopt the (third) reading ‘chaurahṛtam,’ the compounding would be in accordance with Pāṇini 2.1.30.

What is meant is that if the property stolen by thieves is incapable of being recovered, it should be made good by the king out of his own treasury.

The second half of the verse — ‘By making use, etc.’ — should be construed as follows: — The participle ‘upayuñjānaḥ’ — derived from the root ‘yuja’ with the preposition ‘upa’ — should be taken to indicate figuratively non-restoration; the sense being that ‘if the king does not restore to the person concerned the property that is his due, and if he uses that property for his own purposes’, then it is said to be ‘retained’ by him; and ‘by retaining such property the king imbibes the sin of the thief,’ — ‘kilviṣa’ meaning sin. — (40)

Explanatory notes by Ganganath Jha:

This verse is quoted in Mitākṣarā (on 2.36), which adds: — (a) If the king recovers the stolen property from the thieves and keeps it for himself, he takes the sin of the thief, (b) if he ignores the theft, then the sins of the people fall upon him; (c) if, having tried his best to recover the stolen property, he fails to do so, he should make good the loss out of his own treasury.

Comparative notes by various authors:

Gautuma (10.46-47). — ‘Having recovered property stolen by thieves, he shall return it to the owner; — or he shall pay its value out of his own treasury.’

Āpastamba (2.26.8) (2.268?). — ‘The King’s officers should ho made to repay what is stolen within the boundaries of their charge.’

Viṣṇu (3.66-67). — ‘Having recovered the goods stolen by thieves, let him restore them entire to their owners, to whatever caste they may belong. If he is unable to recover them, he must pay their value out of his own treasury.’

Yājñavalkya (2.36). — ‘The King should give to the people, what has been stolen by thieves; if he does not give it, he incurs the sin of stealing.’

Vyāsa (Aparārka, p. 641). — ‘If the King is unable to recover what has been stolen by thieves, he shall make it good out of his own treasury.’

Nārada (6.16 et seq.). — ‘He on whose land robbery has been committed must trace the thieves to the best of his power; or else, he must make good what has been stolen, unless the footmarks can be traced from that ground into another man’s ground. When the footmarks, after leaving that ground, are lost and cannot be traced any further, the neighbours, inspectors of the road and governors of that region shall be made responsible for the loss. When a house has been plundered, the King shall cause the thief-catchers, the guards and the inhabitants of that region to make good the loss, if the thief is not caught.’

VERSE 8.41 [Knowledge of Law, Custom and Usage necessary for the King]

Section X - Knowledge of Law, Custom and Usage necessary for the King

जातिजानपदान् धर्मान् श्रेणीधर्मांश्च धर्मवित् ।
समीक्ष्य कुलधर्मांश्च स्वधर्मं प्रतिपादयेत् ॥४१॥

jātijānapadān dharmān śreṇīdharmāṃśca dharmavit |
samīkṣya kuladharmāṃśca svadharmaṃ pratipādayet ||41||

The king knowing his duty shall determine the law for each man, after haying duly examined the provincial laws pertaining to each caste, the law’s of guilds, as also the laws of families. — (11)

Medhātithi’s commentary (manubhāṣya):

Kuru, Kāśī, Kaśmīra and other regions with fixed boundaries are called ‘provinces,’ and laws obtaining in those are called ‘provincial’; by which are meant those laws that are observed by the people living in the province and called after it. Or, the term ‘province’ may stand for the inhabitants of the provinces, just as the men on the platform are called the ‘platform,’ when it is said that ‘the platforms are crying’; and the laws observed by these people would, in that case, he called ‘provincial’; — the nominal affix ‘aṇ’ being added in accordance with Pāṇini 4.3.120.

The compound ‘Jātijānapadāḥ is to be compounded as ‘jāteḥ-jānapadāh’; the meaning being ‘those provincial laws that pertain to each caste’; and these have to be maintained by the king.

‘Having examined,’ — i.e., duly considered the following points — (a) are these law’s contrary to the scriptures or not? (b) are they the source of trouble to some people or not?

After having duly considered all this, he shall ‘determine’ — cause to be observed — those laws that are found, on examination, to be not incompatible (with the scriptures or with the people’s convenience); as it is going to be declared later on (verse 46) — ‘What may have been practised by the good, etc., etc.’

Or, the compound ‘Jātijānapadāḥ’ may be expounded in such a manner as to make ‘jāti’ the qualification of ‘janapada’; the term ‘jāti’ in this case would indicate eternality, and would be only a laudatory epithet to ‘provincial laws’; the idea being that ‘just as genus is something eternal, so are the provincial laws also, in so far as they are not contrary to the scriptures’; all such visibly useful acts as the feeding of cattle, the storing of water in reservoirs and so forth being such as ought to be performed at all times.

Thus the meaning is that when the men of a certain village have laid down the rule that ‘cattle should not be taken to graze at such and such places,’ then if some one, for some purpose of his own, breaks this rule, — he shall be punished by the king.

Or, the term ‘jānapada’ may stand for those born in the province; i.e., the inhabitants of the province; and the compound ‘jātijānapadāḥ’ being expounded as ‘jātyā jānapadāḥ,’ and ‘jāti’ standing fot birth, — it would signify the eternal relationship between the province and the men born there; and the term ‘jātijānapadāḥ dharmāḥ’ would stand for those laws whose beginning cannot be traced, and which relate to the duly qualified persons among those born and living in a particular province. And though in this case the proper nominal affix to use would have been ‘cha’ (giving the form jānapadīya), according to Pāṇini 5.2.114, yet it is the ‘aṇ’-affix that has been used; this anomaly being permissible as a ‘Vedic anomaly.’

Or, it may be that the term ‘jātijānapadāḥ’ though directly denoting the inhabitants, has been applied here to their laws, — the two being regarded as identical; so that the phrase serves to restrict the scope of the law referred to, — this restriction being deduced from the men themselves; the sense thus is that the laws referred to pertain only to the men of certain localities, and not to all the Ārgas, — the former being such as have a morality akin to that of the lower animals, and not entitled to the performance of any other duties, they perform only such acts as are in keeping with their own customs; such, for instance, as the marrying of their own mother and so forth; — and as such in the performance of such acts, these men shall not be prevented by the king having his sway over the whole world (thence also over the barbarians); because such practices ane permitted by their ‘tribal custom,’ sanctioned by the geographical position oi the locality inhabited by them. Nor could such practices he regarded as ‘contrary to the scriptures’; because the incompatibility of scriptures has a meaning only for persons entitled to the scriptural acts, and not to lower beings.

An objection is raised — “In Manu (10.63), such duties as h armlessness, truthfulness, absence of anger, purity and control of the senses have been laid down in reference to the irregularly mixed castes; and barbarians also belong to the same category as those castes; so that if such men would not he committing something wrong in marrying their mother, or in not using water after urinating, what sort of ‘control of the senses’ or ‘purity’ would there be for them?”

This has been already answered. Purity and other duties pertain to the inhabitants of the whole of Āryāvarta; and so far as the four castes are concerned, there is no restriction of place regarding the duties pertaining to them.

Some people have held that the restriction as to the locality of the ‘laws’ pertains to some transcendental results; — as we shall point out later on.

There are people following a common profession; such, as tradesmen, artisans, money-lenders, coach-drivers and so forth; and the laws governing these are ‘guild-laws.’ E.g., certain principal tradesmen offer to the king his royal tax fixed upon verbally by their declaring before the king — ‘we are living by this trade, let the tax thereupon be fixed at such and such a rate, be our profits more or less’; now on the king agreeing to this, they join together and lay down certain rates among themselves, which are calculated to bring thorn larger profits and likely to be detrimental to the interests of the kingdom, — e.g., (a) ‘Such and such a commodity should not be sold during such and such a time,’ (a) ‘such and such is to be the tax payable either to the king or towards the celebration of some religious festival,’ and so forth. And if any one transgresses such rules, he shall be punished for acting against ‘guild-laws.’

‘Laws of families’; — ‘Family’ means race; some remote ancestor of well-known fame may have laid down the rule — ‘whenever any of my descendants earns wealth, he shall not make use of it without having first given something out of it to Brāhmaṇas’; — and such rules are what are meant by ‘laws of families’; or such rules as ‘priests and bridegrooms shall be selected out of those same families out of which they have been selected by one’s forefathers, provided that suitable men are available therefrom.’ One who acts against such laws shall be punished by the king.

These have been reiterated here with a view to preclude the idea that such laws govern only particular groups of men and as such cannot he regarded as ‘Equity’ proper.

The transgression of these laws does not fall within the category of ‘Breach of Contract,’ as we shall show later on. — (41).

Explanatory notes by Ganganath Jha:

‘Jānapada’ — ‘Of districts’ (Medhātithi, and Kullūka Govindarāja); — ‘of the inhabitants of one and the same village’ (Nārāyaṇa).

The customs here referred to are those that are not repugnant to the Scriptures (Medhātithi, Govindarāja, Kullūka and Rāghavānanda).

This verse is quoted in Smṛticandrikā (Vyavahāra, p. 65), which has the following notes: — ‘Śreṇi-dharma’ customs established among such communities as those of the tradesmen and artisans, e.g., ‘such and such things are not to be sold on such a day’, — ‘Kuladharma;’ e.g., ‘in this family the piercing of the ears is to be done in the fifth year’in Kṛtyakalpataru (p. 6b); — and in Vīramitrodaya (Vyavahāra, p. 9b), which has the following notes: — ‘Jātijānapada’, laws relating to tribes, castes and to localities, — ‘Śreṇī’ stands for the corporation of persons belonging to the same profession, — ‘Svadharma’, the law promulgated by the king himself.

Comparative notes by various authors:

Gautama (11.10, 11, 20, 21). — ‘Those who leave the path of duty, he shall lead back to it; — for it is declared that he obtains a share of the spiritual merit gained by his subjects. The laws of countries, castes and families, which are not opposed to the scriptures, also have authority. Cultivators, traders, herdsmen, money-lenders and artisans have authority to lay down regulations for their respective classes.’

Āpastamba (2.15.1). — ‘The above considerations dispose also of the law of custom which is observed in countries or families.’

Bodhāyana (1.2.1-8). — ‘There is a difference of opinion regarding live practices in the South and in the North. He who follows those practices in any other country than where they prevail, commits sin; for each of those practices, the custom of the country should he the authority. Gautama declares that this is wrong; and one should not take heed of any of these practices, because they are opposed to the traditions of the cultured.’

Vaśiṣṭha (1.17). — ‘Manu has declared that the peculiar laws of countries, castes, and families may he followed in the absence of revealed texts.’

Do. (19.7). — ‘Let the King, paying attention to all the laws of countries, castes and families, make the four castes fulfil their particular duties.’

Viṣṇu (3.3). — ‘To keep the four castes and the four orders firm in the practice of their several duties.’

Yājñavalkya (1.360). — ‘Families, castes, guilds, corporations and the provinces, — when those deviate from the paths of their duty, the King should check them and bring them round to the right path.’

Śukranīti (4.5.89-91) — ‘The King should perform his duty by carefully studying the customs that are followed in countries and are mentioned in the scriptures, as well as those that are practised by castes, villages, corporations and families. Those customs that have been introduced in the country, caste or race should be maintained in the same condition; for otherwise the people get perplexed.’

Nārada (1.7). — ‘Families, guilds, corporations, one appointed by the King and the King himself are invested with the power to decide law-suits, — each succeeding one being superior to the one preceding in order.’

Bṛhaspati (1.26-30). — ‘Cultivators, artisans, artists, money-lenders, persons belonging to particular religious sects and robbers should adjust their disputes according to the rules of their own profession. The King shall cause the disputes of ascetics and of persons versed in sorcery and witchcraft to be settled by persons familiar with the three Vedas, and not decide them himself, for fear of rousing their resentment. Relatives, companies of artisans, assemblies, and other persons duly authorised by the King should decide law-suits among men, excepting causes concerning violent crimes; Meetings of Kindred, companies of artisans, assemblies and chief judges are declared to he the resorts for the passing of sentences, — to whom he whose cause has been previously tried may appeal in succession.’

Bṛhaspati (2.26.28). — ‘When a decision is passed in accordance with local custom, logic or the opinion of traders, the issue of the case is over-ruled by it. When the King, disregarding established custom, passes sentence, it is called the edict of the king, and local custom is over-ruled by it. The time-honoured institutions of each country, caste and family should be preserved intact; otherwise the people would rise in rebellion.’

VERSE 8.42

Section X - Knowledge of Law, Custom and Usage necessary for the King

स्वानि कर्माणि कुर्वाणा दूरे सन्तोऽपि मानवाः ।
प्रिया भवन्ति लोकस्य स्वे स्वे कर्मण्यवस्थिताः ॥४२॥

svāni karmāṇi kurvāṇā dūre santo'pi mānavāḥ |
priyā bhavanti lokasya sve sve karmaṇyavasthitāḥ ||42||

For men following their respective occupations, — even though living at a distance, — come to be liked by the people, while they remain firm in their own duties. — (42)

Medhātithi’s commentary (manubhāṣya):

This verse shows that the aforesaid ‘local’ and other laws serve both visible (temporal) and invisible (spiritual) purposes.

‘Their respective occupations,’ — in accordance with the condition of their families; — the men who follow these‘come to be liked.’ As a rule it is only men living near each other that come to be liked; but the man who follows his own occupation is liked also when he is at a distance.

‘While they remain firm in their own duties’; — this stands for not encroaching upon the work of other persons; — the meaning of the verse being that — ‘those who do not encroach upon the work of others come to be liked by all men.’ — (42).

Explanatory notes by Ganganath Jha:

This verse is quoted in Kṛtyakalpataru (6b).

Comparative notes by various authors:

Śukranīti (4.5.92, 100). — ‘Those customs that have been introduced in the country, caste or race should be maintained in the same condition. Those whose customs have been received by traditions and have been practised by their own ancestors are not to he condemned for following them.’

Atrisaṃhitā (12). — (Same as Manu.)

VERSE 8.43 [General Rules regarding Judicial Proceedings]

Section XI - General Rules regarding Judicial Proceedings

नोत्पादयेत् स्वयं कार्यं राजा नाप्यस्य पूरुषः ?? ।
न च प्रापितमन्येन ग्रसेदर्थं कथं चन ॥४३॥

notpādayet svayaṃ kāryaṃ rājā nāpyasya pūruṣaḥ ?? |
na ca prāpitamanyena grasedarthaṃ kathaṃ cana ||43||

Neither the king himself nor any servant of his shall promote a suit; nor shall he suppress a suit that has been brought up by another person. — (43)

Medhātithi’s commentary (manubhāṣya):

‘Suit’ — object of dispute; — none such shall the king himself ‘promote’ — i.e., cause to be instituted; — for encompassing the injury of some hated persons, or for obtaining the wealth of some rich person, he shall not instigate his debtor or some other person who may have suffered at his hands, saying to him — ‘you should do such and such a thing, why do not you bring it up before me? — or, ‘you have been injured by him, I shall have you avenged’; — any such thing the king shall not say, even though his hate or greed for riches be great.

When a suit has been ‘brought up’ — presented before him — he shall not ‘suppress’ — hush up, ignore, it. The verb ‘nigiret,’ ‘swallow,’ is often used in the sense of ignoring; and the root ‘gram’ (used in the text) is synonymous with ‘ni-gira’ People make use of such expressions as — ‘everything that is said to-day he swallows up, and he does not answer it.’

Others explain the latter half of the verse as follows: — ‘He shall not appropriate — make his own — any artha, i.e., money, that is brought to him in any manner save through the suit.’ If the king were to inflict fines in an unfair manner, he would he incurring evil in the next world and bring trouble on his kingdom.

The following is yet another explanation offered by others: — ‘The king himself shall not promote a suit’; — i.e., even, though he may get at the offender directly, he himself shall not say anything, until the man has been brought before him by the man against whom the offence has been committed, in a regular suit. Because it is only after the man has been defeated in the suit brought by the other party that it is time for the king to perform his duty of inflicting the legal punishment. But this applies only to the non-payment of debts and similar subjects; as for thieves and criminals, — who are like ‘thorns’ in the kingdom, — these the king shall capture and punish, even when he catches them himself. The rest of the verse is as explained before.

‘Nor any servant of his’; — ‘servant,’ i.e., person holding an office under him. — (43)

Explanatory notes by Ganganath Jha:

‘Anyena’ — ‘By another’, — i.e., the plaintiff (Medhātithi), — ‘the plaintiff or the defendant’ (Kullūka).

This verse is quoted in Mitākṣarā (on 22.5), where Bālambhaṭṭī offers the following explanations of the second half of the verse: — (a) The king should not entertain any suit illegally brought up by any one; — or (b) he shall not ignore a suit brought forward by any one; — (c) (if we adopt the reading ‘na cāprāpitam’) ‘he shall not admit into the proceedings any facts not presented by either of the two parties to the suit.’ The Subodhinī reproduces the same explanations.

It is quoted in Aparārka (p. 605), which adds the following notes: — ‘Kāryam’ here means ‘suit,’ ‘dispute’; — any proved fact that may be adduced during the hearing of the suit, the king should not ignore or set aside; — in Kṛtyakalpataru (13b), which explains ‘na graset’ as ‘he should not ignore’; — and in Vīramitrodaya (Vyavahāra, 15b).

Comparative notes by various authors:

Gautama (13.27). — ‘The litigant shall humbly go to seek the judge.’

Pitāmaha (Smṛticandrikā-Vyavahāra, p. 61). — ‘The King shall not himself or through his officers, promote law-suits; nor through anger or through greed or through affection, shall he suppress a suit; nor shall he, on his own account, institute suits not brought up by the parties concerned.’

Nārada (Do.). — ‘The King shall not, either for asserting his power or through greed for making money out of it, create law-suits among people who have no disputes among themselves.’

VERSE 8.44

Section XI - General Rules regarding Judicial Proceedings

यथा नयत्यसृक्पातैर्मृगस्य मृगयुः पदम् ।
नयेत् तथाऽनुमानेन धर्मस्य नृपतिः पदम् ॥४४॥

yathā nayatyasṛkpātairmṛgasya mṛgayuḥ padam |
nayet tathā'numānena dharmasya nṛpatiḥ padam ||44||

Just as the hunter discovers the foot-print of the deer by the drops of blood, so should the king discover the right by means of inference. — (11)

Medhātithi’s commentary (manubhāṣya):

It has been said above that the king himself shall not, in a hurry either haul anyone up or punish him for any offence; and the reason for this lies in the consideration that it is quite possible that the act that the king regards as an ‘offence’ might have been done in joke. Now the question arises — how is it to be ascertained whether the act has been done in joke or through malice and such other causes?

It is in answer to this question that it is said that ‘this is to be ascertained by means of inference.’ — Just as the ‘hunter’ — fowler — ‘discovers’ — gets at — ‘the foot-print’ of the deer that has been wounded and disappeared from view by means of the drops of blood flowing from the wound, — in the same manner the king should discover the root-cause of the suit — which may be not perceptible, — by means of inference.

The term ‘dharma,’ ‘right,’ here stands for the real facts of the case.

The restriction of ‘inference’ as a means of finding out truth, already mentioned before (in verse 3), is for the purpose of emphasising the point. — (44)

Explanatory notes by Ganganath Jha:

Cf. 12.104; also the Mahābhārata 12.132.21.

‘Padam’ — ‘Footsteps’ (Medhātithi and Govindarāja) — and ‘lair’ (Kullūka and Rāghavānanda).

This verse is quoted in, Parāśaramādhava (Vyavahāra, p. 30); — in Smṛticandrikā (Vyavahāra, p. 56); — and in Kṛtyakalpataru (5a).

Comparative notes by various authors:

Gautama (11.23-24). — ‘Reasoning is a means of getting at the truth; coming to a conclusion through that, he shall decide properly.’

Āpastamba (2.29.6). — ‘In doubtful eases they shall give their decision after having ascertained the truth by inference, ordeals and the like.’

Vaśiṣṭha (16.4-5). — ‘Let him reason properly regarding an offence; finally the offence will become evident thereby.’

Nārada (1.38). — ‘As a huntsman traces the vestiges of a wounded deer in a thicket by the drops of blood, even so let the King trace justice.’

Do. (1.40). — ‘When it is impossible to act up to the precepts of sacred law, it becomes necessary to adopt a method founded on reasoning.’

Bṛhaspati (1.32). — ‘The insight of kings surpasses by far the understandings of other persons, in the deciding of the highest, lowest and middling disputes.’

Mahābhārata (12.132.21). — ‘Just as of a wounded deer, one foot-print leads to another through the blood-mark, so oven shall the King trace the steps of justice.’

VERSE 8.45

Section XI - General Rules regarding Judicial Proceedings

सत्यमर्थं च सम्पश्येदात्मानमथ साक्षिणः ।
देशं रूपं च कालं च व्यवहारविधौ स्थितः ॥४५॥

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