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satyamarthaṃ ca sampaśyedātmānamatha sākṣiṇaḥ |
deśaṃ rūpaṃ ca kālaṃ ca vyavahāravidhau sthitaḥ ||45||

When engaged in judicial proceedings, the king shall keep his eye upon the truth, upon the object, upon himself, the witness and upon the place, the time and the aspect. — (45)

Medhātithi’s commentary (manubhāṣya):

‘When engaged in’ — dealing with — ‘judicial proceedings’ — the king shall attend, not only to the mere letter of the suit itself, but also to truth, etc.

(a) ‘Keep his eye upon the truth’; — even though the plaintiff or the defendant, through shyness, may not have stated his case fully, yet if the king is enabled, — either on the strength of other proofs, or by means of the ‘inference’ mentioned above, — to find out what the actual facts of the case are, then he shall, by all means accept them, — and not reject them, simply because the party concerned did not state them in full. This is what has been thus declared — ‘Having sifted all fraud, the king shall decide the case on facts.’ (Yājñavalkya, Vyavahāra 19.)

(b) ‘Keep eye upon the object’; — the term ‘artha,’ ‘object,’ denotes wealth or purpose. The meaning thus is that if he obtains a large amount of wealth (as the legal fee), then he shall even give up all other business of state and not hesitate to take up the ease brought up; in fact he shall begin the investigation at once. Or, the meaning may be that if some one tells him that the witnesses in the case, or some member of the Court, have received large amounts in bribe from such and such a party, — then he should examine this statement in the following manner. — ‘If the cause of the suit is insignificant, the acceptance of a large bribe is not possible; — but if the cause is worth much, and the members of the court and the witnesses are in poor circumstances, then it is just possible’; and the truth shall he found out by other means. This is to be done by making (c) ‘himself’ the ‘witness’ (d). That is to say, with a view to tracing out the bad characters in his kingdom, he shall get spies to find out the truth.

Or ‘having an eye upon himself’ (e) may mean that he must attend to his own circumstances, — i.e., he should see whether his treasury is depleted or full.

Under this construction ‘witness’ is an independent word (and not in apposition to ‘himself,’ as in the former interpretation).

(e) ‘Having an eye upon the place’; — in certain places even a small object becomes great, while in another even a great object becomes small. This is what is meant by ‘having an eye upon the place.’

(f) Similarly he should have his eye upon the time also.

(g) ‘Aspect’ stands for the nature of the cause; he shall find out whether it is important or unimportant.

Others have explained the verse as follows: — ‘He shall find out the real nature of (a) the truth and (b) the object of the suit, by making (c) himself the witness (d); that is to say, he shall find out that truth is more important than any object, since it accomplishes very important ends and is useful in both worlds, and hence he should always have recourse to truth, and ignore the object, which is devoid of essence. (e) ‘Place,’ in this case stands for heaven and the other regions, obtainable by means of truth; (f) ‘time’ for a prolonged stay in other regions, and (g) ‘aspect’ for the beauty of the celestial damsels. And the reverse of all this is obtained by the renouncing of truth and the following of other objects. — (45).

Explanatory notes by Ganganath Jha:

‘Artham’ — The value of the suit and the motive behind it’ (Medhātithi); — ‘such suit as deals with things of value, like cattle, gold and the like’ (Kullūka); — ‘money realisable by fine’ (Nārāyaṇa); — ‘the aim’ (Nandana).

‘Ātmānam sākśiṇam’ — ‘Looking upon himself as the witness’; or ‘looking upon his own position, and that of the witness adduced’ (Medhātithi); — Kullūka and others have the latter explanation only.

‘Deśam kālam’ — ‘Considerations of the place and time of the offence committed’ (Medhātithi and Rāghavānanda); ‘what is befitting the time and place’ (Kullūka); — ‘customs of the country and what is befitting the time’ (Nārāyaṇa); ‘place of offence and age of the offender’ (Govindarāja); ‘Heavy and continued residence there’ (‘others’ in Medhātithi).

‘Rūpam’ — ‘Aspect of the case’ (Medhātithi, Kullūka and Nandana); — ‘looks of the parties’ (Narāyaṇa and Rāghavānanda); — ‘beauty of the celestial damsels’ (‘others’ in Medhātithi),

This verse is quoted in Kṛtyakalpataru (p. 5a), which has the following notes: — ‘Satyam paśyet’, the meaning is that even though the statements of the two parties are not clear enough to justify a decision, yet if, by inference and other means, the king is able to form some decision, he should fix upon that; — ‘artham’, gold, cattle and other kinds of property; — ‘ātmānam’, he should look upon himself as participating in the effects of the trial; — ‘rūpam’, form of the object in dispute, i.e., its importance or otherwise.

Comparative notes by various authors:

Yājñavalkya (2.19). — ‘The King shall investigate suits, by setting aside mistake or casuistry by facts.’

Nārada (1.29-31). — ‘Truth rests on true facts; Error is what rests on mistake of facts. Ordeals even are rendered nugatory by artful men; therefore let no mistake be committed in regard to place, time, quantity and so on. A king who acts justly must reject error when it is brought forward and seek truth alone; because prosperity depends on due performance of duty.’

VERSE 8.46

Section XI - General Rules regarding Judicial Proceedings

सद्भिराचरितं यत् स्याद् धार्मिकैश्च द्विजातिभिः ।
तद् देशकुलजातीनामविरुद्धं प्रकल्पयेत् ॥४६॥

sadbhirācaritaṃ yat syād dhārmikaiśca dvijātibhiḥ |
tad deśakulajātīnāmaviruddhaṃ prakalpayet ||46||

What may be found to have been observed in practice by the good and the righteous twice-born men, that he shall ordain for countries, families and castes, — provided that it is not antagonistic. — (46)

Medhātithi’s commentary (manubhāṣya):

‘Good’ — those who eschew what is forbidden; — ‘righteous’ — those who do what is enjoined. Though either one of these two words would have sufficed to express what is meant, yet they have both been used; that is the reason why we have explained them as having two different meanings. — What is practised by such persons, and in support of which we do not find any Śruti or Smṛti texts, — ‘that he shall ordain’ — cause to be acted up to — ‘for countries, families and castes’; — ‘provided that it is not antagonistic’ — to directly perceptible Śruti and Smṛti texts.

Verse 41 has declared the authoritative character of ‘provincial laws, laws of families, etc., etc.’; and the present verse adds the qualification that such laws shall be not opposed to the scriptures. Local and king-made laws also, even when they pertain to temporal affairs, are to be obeyed only when they are not contrary to the scriptures. For instance, in some places the debtor is made to repay the debt by selling himself; and this is contrary to the Smṛti text — ‘by service also the debt may be liquidated, etc.’ (Manu, 177); as is shown under that verse. Further, under 2.6, the authority of Practice (usage) has been explained as based only upon the fact of its being connected with (observed by) cultured men; and no man can be called ‘cultured’ if he acts contrary to the scriptures. Hence the present Terse is meant to be applicable to such practices as do not pertain to spiritual matters.

Another writer explains the text as follows: — What is practised by the good and righteous twice-born men in one country, the king should introduce in another country also, if it is found to ho not antagonistic to Śruti and Smṛti texts. E.g., the bull-sacrifice and other similar acts that are well known among the people of the North should be made to be performed by the people of the East, South and West also. Because from usage, we deduce the corresponding Smṛti, and from this latter the corresponding Śruti; so that if the text thus deduced on the strength of the practice of the northerners were in some such form as that such and such a sacrifice shall he performed by the udīcyas, people of the north’ — then since the nominal affix conveys several such meanings, — such as (a) birth, (b) source, (c) origin, (d) destination and (e) supplement, — all which fall within one or other of the two categories of ‘distinctive’ feature and ‘modification,’ — none of these as denoted by the nominal affix in the term ‘udīcya’ could help to mark off any people that could be called ‘udīcya’ ‘northerner’; so that the meaning of the said deduced text would come to be that every man should perform the act in question; specially as the exact denotation of names of countries is always vague. Even if the text deduced were in the form — ‘the act is to be done by one who is born in the north, or who lives in that country,’ — then this would not be compatible with facts; since as a matter of fact, a man, even though horn in a particular country, does not follow its usage when he lives elsewhere, or even though a man may be living in a certain country, he does not adopt its practice if he is not born there. If again, the terms used were ‘the native or inhabitant of such and such a country,’ then also, in as much as nativity and habitation are always uncertain, this also would not be right; neither nativity nor habitation is fixed to the same extent as one’s caste or qualities or race. Thus there being no such term as would infallibly single out the performers of the acts in question, they should he taken as to be performed by all men; so that there is no such thing as ‘local usage.’ The same reasoning holds good regarding ‘family usage’ also.

“If this is so, then how is it that smṛti-writers mention ‘local usage,’ ‘family usage’ and ‘caste-usage’ as distinct from one another?”

It has been already explained that the restriction of the acts concerned is for temporal purposes; and in this sense the restriction regarding acts is quite reasonable.

‘Family’ is a part of ‘race.’ The duty that is laid down for the entire race, — such as people of the Vaśiṣṭha-race shall not mix with those of the Viśvāmitra-race,’ — are to be regarded as binding, since race-names are fixed for all time. — (46)

Explanatory notes by Ganganath Jha:

According to Medhātithi this verse permits the king to admit the authority of only such local and family customs and practices as are not contrary to Śruti and Smṛti, — Kullūka, Nārāyaṇa and Rāghavānanda, however, take it to mean that he is to accept as authority only such scriptural rules of conduct as are not contrary to local and family customs, — According to ‘others’ (mentioned by Medhātithi) what, the verse means is that ‘whatever virtuous practices the king finds being followed in one country, those he shall introduce in other countries also, if they are not contrary to scriptural texts.’

This verse is quoted in Smṛticandrikā (Saṃskāra, p. 25), which says that family and country customs are to be regarded as right, but only when they are not repugnant to Śruti and other authoritative sources of knowledge.

Comparative notes by various authors:

Gautama (11.20). — ‘The laws of countries, castes and families, which are not opposed to sacred texts, have authority.’

Āpastamba (2.15.1). — ‘The law of custom observed in particular countries and families.’

Kātyāyana (Smṛticandrikā-Vyavahāra, p. 58). — ‘Therefore the King shall decide suits according to the scriptures; in the absence of texts bearing upon the subject, he shall come to a decision on the basis of the custom obtaining in the land. That is called the custom of a land which has been followed for all time and which is not repugnant to Śruti or Smṛti.’

Pitāmaha (Smṛticandrikā-Vyavahāra, p. 58). — ‘Whatever is done by the elders, — be it right or wrong, — in accordance with the practice prevalent in the land or in the family, is called custom. For villages, corporations, cities, guilds, traders and army, suits should be dealt with according to custom; — so says Bṛhaspati. When the dispute lies between parties belonging to these same corporations, etc., their custom is the determining factor; but when it lies between them and others, then it is to be dealt with according to the scriptures.’

VERSE 8.47 [Non-payment of debt]

Section XII - Non-payment of debt

अधमर्णार्थसिद्ध्यर्थमुत्तमर्णेन चोदितः ।
दापयेद् धनिकस्यार्थमधमर्णाद् विभावितम् ॥४७॥

adhamarṇārthasiddhyarthamuttamarṇena coditaḥ |
dāpayed dhanikasyārthamadhamarṇād vibhāvitam ||47||

On being prayed by the creditor for the recovery of money from the debtor, he shall make the debtor pay to the creditor the money proved to be due. — (47)

Medhātithi’s commentary (manubhāṣya):

The rules that are applicable to all suits in common having been described, the author now proceeds to lay down those relating specifically to each of the several kinds of suits.

The man who receives money from another person on the understanding that at some other time he would re-pay it with interest is called the ‘debtor’; and he who lends the money on the understanding that he is doing it with a view to being repaid with interest is called the ‘creditor.’ These two are relative terms.

‘Money from the debtor’; — from the context it is clear that this phrase stands for what is due to the creditor; and the ‘recovery’ of this means its repayment to the creditor. The second ‘artha’ stands for purpose, ‘for.’ Thus the meaning of the whole is that — ‘when the king is prayed — petitioned to — by the creditor to the effect that he may be pleased to make the debtor repay what he had borrowed from him, — then the King shall make the debtor pay the money to the creditor.’

‘Dhanika’ is one who has money; and it is the creditor who is called, in ordinary parlance, ‘Dhanika.’ In view of the verb ‘make to pay.’ — the right case-ending to use would have been the Dative, yeṭ iṭ has not been used, because the man has not yet become the actual recipient. We have similar usage in such expressions as ‘ghnataḥ pṛṣṭham dadati’ (the man offers his back to the striker), ‘rajakasya rastram dadāli’ (makes over the clothes to the washerman); in neither of these cases have we the Dative ending, because there is no transference of ownership; and in the absence of such transference, the act of giving is not completed.

The question arising as to whether the King is to make the debtor pay simply because the creditor says it is his due, the answer is no, — he shall make him pay only what is proved to be due; — i.e., only when the King has assured himself, by indubitable proof, that, the man does really owe the amount; or ‘vibhāvitam’ may be taken to mean ‘admitted’; since the method to be employed regarding disputed debts is going to be laid down below, under verse 52.

“But how can ‘vibhāvita’ mean admitted?”

There is no force in this objection; it is quite possible that he may have forgotten about the debt, but on being shown his own writing (on the deed), he comes to admit it himself; so that though he did not admit it before, he comes to admit it afterwards; or it. may he that even though knowing all along that he did borrow the money, he might dissemble in the beginning (before the producing of the document). — (47)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 76), which adds the following explanation; — ‘when the debtor has received something, — and the creditor approaches the king for the recovery of that, then the king should have the creditor’s dues paid to him by the debtor; — if it is adhamarṇavibhāvitam, that is, if it is proved by the creditor that the amount claimed is really due from the debtor’; — and in Kṛtyakalpataru (80b).

The clear meaning, specially in view of verse 51, appears to be ‘if the debt is admitted by the debtor.’

Comparative notes by various authors:

Viṣṇu (6.20-22). — ‘If a creditor sues before the King and fully proves bis demand, the debtor shall pay as fine to the King a tenth part of the sum proved. The creditor, having received the sum due, shall pay a twentieth part of it. If the whole demand has been contested by the debtor, and even a part of it only has been proved against him, he must pay the whole.’

Matsyapurāṇa (Rājadharma, 227.4), — ‘The man who, having received a loan, does not repay it in due course, should be compelled to repay it, and should also he fined the first amercement.’

VERSE 8.48

Section XII - Non-payment of debt

यैर्यैरुपायैरर्थं स्वं प्राप्नुयादुत्तमर्णिकः ।
तैर्तैरुपायैः सङ्गृह्य दापयेदधमर्णिकम् ॥४८॥

yairyairupāyairarthaṃ svaṃ prāpnuyāduttamarṇikaḥ |
tairtairupāyaiḥ saṅgṛhya dāpayedadhamarṇikam ||48||

Having determined the means by which the debtor may be able to get his money, he shall, by those same means, make the debtor pay up. — (48)

Medhātithi’s commentary (manubhāṣya):

It is going to be laid down later on that when the debtor is forced to repay the creditor’s dues, a certain percentage has to be paid to the King by the debtor, by way of penalty; so that it might be possible for the King to fall into the temptation of decreeing, without having recourse to other possible means, the creditor’s suit and thereby adding to his own income; in order to guard against thiis, we have the present text.

The King shall make the debtor pay up, by those means, — going to be described — by which the creditor may receive his money; — ‘saṅgṛhya’ ‘having determined,’ i.e., having ascertained that ‘by such and such moans alone would the creditor receive his due.’ Or the root ‘graha’ in ‘saṅgṛhya’ may be taken as denoting persuasion.

The term ‘uttamarṇika’ is the same as ‘uttamarṇa,’ ‘creditor’; i.e., he who has the ‘debt,’ ‘ṛṇa,’ to his ‘good,’ ‘credit,’ ‘uttama’; the word being formed with the affix ‘ṭhan,’ according to Pānini 5.2.115; similarly with the other term also (‘adhamarṇikah’). Money advanced for the earning of interest is called ‘ṛṇa,’ ‘debt’; and there are two parties to it, the giver and the receiver; for the giver the debt is to the good, ‘uttama,’ as in the matter of giving it and receiving it he is an independent agent; for the receiver on the other hand, it is to the bad, ‘adhama,’ because it is a source of trouble to him or account of his having to pay interest on it.

These explanations however are offered only by way of explaining the literal signification of the terms; in reality, they have their denotation as referring to the giver and receiver — fixed purely by conventional usage.

The next verse explains what are the ‘means’ referred to in this verse. — (48)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 67), which explains ‘Saṅgṛhya’ as ‘vaśīkṛtya, ‘compelling’; — and in Kṛtyakalpataru (78b).

Comparative notes by various authors:

Bṛhaspati (Smṛticandrikā-Vyavahāra, p. 382). — ‘The debtor who has admitted the loan should be made to pay by such methods as are conciliatory and so forth; also by such means as force, confinement in the house and the rest.’

VERSE 8.49

Section XII - Non-payment of debt

धर्मेण व्यवहारेण छलेनाचरितेन च ।
प्रयुक्तं साधयेदर्थं पञ्चमेन बलेन च ॥४९॥

dharmeṇa vyavahāreṇa chalenācaritena ca |
prayuktaṃ sādhayedarthaṃ pañcamena balena ca ||49||

He shall make the advanced money repaid by means of (a) good faith, (b) tactful transaction, (c) trick, (d) moral pressure, and (c) force, the fifth. — (49)

Medhātithi’s commentary (manubhāṣya):

(a) ‘Dharmeṇa,’ ‘by means of good faith’; — i.e., receiving little by little; — ‘so much to-day, so much to-morrow, so much the day after to-morrow; — just as it behoves him to maintain his family, so also is it his duty to help me, — I also am a member of his family and as such a sharer in his wealth,’ — the use of such language constitutes ‘good faith.’

(b) The man who has absolutely no property should be made to repay the debt by ‘tactful transaction’; on the same principle on which, for the purpose of drawing out water from the ear one puts more water into it, the creditor should advance to the debtor more money, in order to enable him to have recourse to agriculture or trade or some other means of acquiring wealth, and then receive from him the wealth thus obtained. The ‘vyavahāra’ that consists in filing a suit before the King is not what is meant by the term as used hero; since one should have recourse to this only when all other means have failed, and as such it is included under ‘force.’

(c) When, even though possessed of the requisite wealth, the debtor does not pay in a straight manner, he should be made to pay by means of ‘trick’; i.e., under some such pretext as that of a marriage-ceremony or some such occasion, he should borrow from him a bracelet or some such ornament, and not return it until the debt has been cleared off.

(d) ‘Moral pressure’; — by giving up food and constantly sitting at the man’s door and so forth.

(e) ‘Force’; — presenting one’self before the King’s court; where the King shall have the man called quietly and by inflicting some punishment make him pay up. The ‘bala’ of the text does not mean the creditor’s strength in the shape of his relatives and wealth, etc.; because of the maxim that the ‘force’ or ‘strength’ of the subject lies in the King, which has been propounded in connection with the present context.

Others have explained the verse ṭo mean that by the means here enumerated the King shall have the debt repaid; — and their reason for saying so lies in the fact that it occurs in the context dealing with the duties of the King. The sense of the verse thus is that ‘when the amount claimed has been either admitted by the debtor or decreed by the court, the King shall make him pay it up by these methods; — and he shall not, all at once, have the entire property of the debtor handed over to the creditor; since the kindly treatment of both parties constitutes the King’s duty: and if the debtor’s entire property were handed over to the creditor, his whole family would perish, and this would not be right. To this end we have the declaration — ‘Without absolutely ruining him, the debtor should he made to pay little by little, according to his income, specially so in the case of the Brāhmaṇa, — when the King is righteous.’ So that the man should be made to pay the principal along with a small amount as interest; but in the event of the man possessing wealth more than what is needed for the maintenance of his family, he should be made to pay the entire amount of the claim; and if this be not possible, then ‘the debt shall be liquidated by service, etc.’ (8.177).

In the former explanation, the creditor shall not have recourse to ‘trick’ or ‘moral pressure,’ without notifying the same to the King. — (49).

Explanatory notes by Ganganath Jha:

‘Vyavahāreṇa’. — ‘By business-transaction: advancing more money to the debtor with which, as capital, the latter would carry on some trade, with the profits of which he would gradually clear off the older debt also’ (Medhātithi); — ‘by law-suit’ (Govindarāja, Kullūka and Narāyāṇa; noted but rejected by Medhātithi); — ‘by threatening a suit’ (Nandana); — ‘by forced sale of property’ (Rāghavānanda).

Both Buhler and Hopkins represent Medhātithi as explaining this term to mean ‘forced labour’. But there is nothing in Medhātithi to show this. What Medhātithi means is quite clear, and it is made clearer by the illustration given by him of ‘karṇodaka’; it is a common practice in India that when water gets into the ear and cannot be easily got out, people pour more water into it, and along with this latter, the former water also flows out.

This verse is quoted in and Aparārka (p. 645), which adds the following notes: — ‘dharma:’ is ‘truth’, — ‘vyavahāra’, stands for such evidence as is documentary, oral and so forth, — ‘chala’ is trick, — ‘ācaritam,’ ‘custom of the country’, — ‘balam’ means oppression by starving and so forth.

It is quoted in Vivādaratnākara (p. 67); — and in Mitākṣarā (on 2.40), which adds the following notes: — ‘dharmeṇa,’ i.e., ‘by truthful persuasion’, — ‘vyavahāreṇa’, i.e., ‘by adducing witnesses, documents and other kinds of evidence’, — ‘chalena’, i.e., borrowing from him ornaments and other things under the pretext of some ceremonies &c. in the family, — ‘ācaritena’, i.e., by starving, — the fifth method being the application of ‘bala’, force, in the shape of keeping him chained and so forth; — by these methods is the creditor to recover the money that he had advanced on interest.

It is quoted in Parāśaramādhava (Vyavahāra, p. 191); — in Nṛsiṃhaprasāda (Vyavahāra, p. 19a); — and in Kṛtyakalpataru (78b).

Comparative notes by various authors:

Nārada (4.122). — (Same as Manu.)

Kātyāyana (Vivādaratnākara, p. 67). — ‘When the debtor is openly arrested and brought before the assembly of men and kept there till he pays — this, being in consonance with the custom of the country, is called Legal Proceedings. By beating, by arresting, by work, by law-suit, and first of all, by peaceful persuasion, — should the creditor obtain repayment of his dues.’

Nārada (1.122). — ‘By the mode consonant with religion, by legal proceedings, by fraud, by customary mode, and fifthly, by force, a creditor may recover what he has lent.’

Bṛhaspati (11.54 et seq.). — ‘When a debtor has admitted a debt, it may he recovered from him by the expedients of friendly expostulation, by moral suasion, by artful management, by compulsion and by confinement in the house. When a debtor is caused to pay by the advice of friends and kinsmen, by friendly remonstrances, by constant following, or by the creditor starving himself, it is termed Moral Suasion. When a creditor with a crafty design, borrows something from the debtor and withholds it as a pledge, and thereby enforces payment of the debt, it is termed Artful Management; — when the debtor is fettered and conducted to the creditor’s house, where he is compelled by beating and other forcible means, to pay the debt, it is called Compulsion; — when the debtor is made to pay by confining his son, wife, or cattle, or by sitting at his door, it is termed Confinement in the House.’

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