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VERSE 8.335

Section XLIV - Robbery (sāhasa)

पिताऽचार्यः सुहृत्माता भार्या पुत्रः पुरोहितः ।
नादण्ड्यो नाम राज्ञोऽस्ति यः स्वधर्मे न तिष्ठति ॥३३५॥

pitā'cāryaḥ suhṛtmātā bhāryā putraḥ purohitaḥ |
nādaṇḍyo nāma rājño'sti yaḥ svadharme na tiṣṭhati ||335||

Neither the father or the preceptor or the friend or the mother or the wife or the son or the priest is unpunishable for the King, when they do not keep within their duty. — (335)

Medhātithi’s commentary (manubhāṣya):

“It has been asserted that ‘the wife and the sou form one’s own body’; what would be the punishment inflicted upon one’s self?”

It would consist of expiatory rites, austerities and charities. Whoever does not perform his duty, or deviates from his duty, should be punished. — (335)

Explanatory notes by Ganganath Jha:

This verse is qüoted in Parāśaramādhava (Ācāra, p. 391); — in Vīramitrodaya (Rājanīti, p. 291), which adds that the father and mother must be exceptions to this rule, as is clear from the following Smṛti-text quoted by Vijñāneśvara: — ‘The following are unpunishable — Father, Mother, Accomplished Student, Priest, Wandering Mendicant, Anchorite, &c.’ Similarly the ‘very learned man’ should not be punished.

It is quoted in Vivādaratnākara (p. 628).

Comparative notes by various authors:

Mahābhārata (12.121.60).

Yājñavalkya (1.357). — ‘Even a brother, a son, revered person, father-in-law or maternal uncle, — none of these is unpunishable for the King, if he has deviated from his path of duty.’

Dakṣa (Aparārka, p. 590). — ‘If a man after having become a wandering mendicant does not remain firm in his duty, he shall be banished after having been branded with the sign of the dog’s foot.’

Nārada (7.17). — ‘Should a man, after entering the order of religious ascetics, violate the duties of his order, the King shall cause him to be branded with a dog’s foot and banish him immediately from his realm.’

Bṛhaspati (27.7). — ‘The King should punish elders, domestic priests, and persons commanding respect, with gentle admonition only.’

Smṛtyantara (Aparārka, p. 590). — ‘The mother and the father arc unpunishable; as also the Accomplished Student, the Domestic Priest, the Renunciate, the Ascetic, and people endowed with learning, character, purity and good conduct.’

Gautama (Vīramitrodaya-Rājanīti, p. 291). — ‘He who is very highly learned should not suffer corporal punishment, or imprisonment, or fine or banishment or blame.’

VERSE 8.336

Section XLIV - Robbery (sāhasa)

कार्षापणं भवेद् दण्ड्यो यत्रान्यः प्राकृतो जनः ।
तत्र राजा भवेद् दण्ड्यः सहस्रमिति धारणा ॥३३६॥

kārṣāpaṇaṃ bhaved daṇḍyo yatrānyaḥ prākṛto janaḥ |
tatra rājā bhaved daṇḍyaḥ sahasramiti dhāraṇā ||336||

When an ordinary man would be fined one ‘Kārṣāpaṇa,’ the king should be fined one thousand; such is the established rule. — (336)

Medhātithi’s commentary (manubhāṣya):

‘Ordinary man’ — a common person; who is not possessed of any special qualifications; — for a certain crime the King shall he fined a thousand times the fine that would be imposed upon an ordinary man; — the ‘kārsāpaṇa’ being mentioned only as a standard of fine.

Since punishment is meant to accomplish a visible purpose, it is only right that the king should punish himself also for any crime that he commits; as it is only by doing so that he can keep other men under check, and, in as much as he is very wealthy, he would not mind a small fine.

On the same principle the fine in the case of the king’s officers, — ministers, priests and others, — shall vary.

The fine imposed upon himself should be either given away to Brāhmaṇas, or thrown into water as an offering to Varuṇa; since it is going to be declared that Varuṇa ‘holds the sceptre over kings’ (9.245). — (336)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 654), which adds that the ‘rājās’ meant here are the subsidiary kings.

VERSE 8.337-338

Section XLIV - Robbery (sāhasa)

अष्टापाद्यं तु शूद्रस्य स्तेये भवति किल्बिषम् ।
षोडशैव तु वैश्यस्य द्वात्रिंशत् क्षत्रियस्य च ॥३३७॥

ब्राह्मणस्य चतुःषष्टिः पूर्णं वाऽपि शतं भवेत् ।
द्विगुणा वा चतुःषष्टिस्तद्दोषगुणविद्द् हि सः ॥३३८॥

aṣṭāpādyaṃ tu śūdrasya steye bhavati kilbiṣam |
ṣoḍaśaiva tu vaiśyasya dvātriṃśat kṣatriyasya ca ||337||

brāhmaṇasya catuḥṣaṣṭiḥ pūrṇaṃ vā'pi śataṃ bhavet |
dviguṇā vā catuḥṣaṣṭistaddoṣaguṇavidd hi saḥ ||338||

In the case of theft, the guilt of a Śūdra is eightfold, that of the Vaiśya sixteen-fold, and that of the Kṣatriya thirty-two-fold; — (337) that of the Brāhmaṇa sixty-four-fold, or fully hundred-fold, or twice sixty-four-fold; when he is cognisant of the good or bad quality of the act. — (338)

Medhātithi’s commentary (manubhāṣya):

(verses 8.337-338)

‘When he is cognisant of the good or bad quality of the act’; — this points out the reason for what is here laid down; and from this it is clear that the penalty here prescribed is meant for the educated. Thus then, if for a guilt an ordinary man is fined one ‘Kārṣāpaṇa,’ the learned Śūdra incurs the ‘eight-fold guilt;’ — that is, that which is connected with the number ‘eight,’ or that which is folded, multiplied, eight times. In either case the term ‘eight-fold’ means that the educated Śūdra’s guilt is eight times that of the ordinary man.

That of the Vaiśya is double that of the Śūdra; since he is himself entitled to study the Veda and acquire the necessary knowledge, while the Śūdra can learn only a little through serving or associating with the Brāhmam.

As for the Kṣatriya, though, in the point of knowledge, he stands on the same footing as the Vaiśya, yet, in as much as the protecting of people forms part of his duty, his guilt is double that of the Vaiśya.

As regards the Brāhmaṇa, the author cannot be content with prescribing any amount of penalty, — ‘sixty-four, — hundred, — hundred and twenty-eight.’ Since it is his duty to expound the duties of men and instruct them, and thus guard them against evil.

What blame can attach to the common man, who is on the same level as the lower animals? Uneducated men cannot know the good or bad character of actions, and hence they are led to do what should not he done. If, however, the educated men were also to behave in the same manner, then alas! the world would be doomed! As there would be no third man to teach men their duty, — it having been declared that — ‘only two men are known in the world — the King and the learned Brāhmaṇa.’ For the king, a heavy punishment having been already prescribed in the preceding verse, the present verse lays it down for the Brāhmaṇa.

Thus all that the present verse enjoins is heavier punishment (for the Brāhmaṇa), and the exact numbers are not to be taken literally. Because so far as the Brāhmaṇa is concerned, it has been declared that there can be no limit to his punishment. Nor would it be right to lay down any option — ‘this or that’ — in this case [as it would be if the words were taken literally ]; as there would be nothing to determine which of them it should be in any particular case; since both the options being equally authoritative, it would be impossible to find any case in which the lower penalty could be imposed. What king is there, for instance, who would accept only a sixty-four-fold fine, and give up one the double of that figure? Further, one would have been admissible in the case only if punishments were meant to serve a transcendental purpose; as a matter of fact however, they are not meant to serve any transcendental purpose, as we have already explained. Says Gautama (12.17) — ‘For the educated there should be heavier punishment.’ For these reasons the very indefiniteness of the assertion deprives it of injunctive force. Nor would it he right to take the option as determined by the qualifications of the culprit; as this has been already laid down under verse 232, et seq.

Further, the fact of the present passage being an injunction is indicated by the purpose served by it; and as that purpose is served by its being taken as prescribing heavier punishment in general, there can be no justification for its being taken literally and hence laying down options. — (337-338).

Explanatory notes by Ganganath Jha:

(verses 8.337-338)

These verses are quoted in Mitākṣarā (2.275), in support of the view that the fine imposed for theft should vary with the caste of the thief; whereon Bālambhaṭṭī notes two different readings (see Note I); — in Parāśaramādhava (Vyavahāra, p. 302): — and in Vivādaratnākara (342), which adds the following notes: — ‘Aṣṭāpādyam’ means ‘multiplied eight times,’ — ‘kilviṣam,’ the amount of fine imposed as punishment; the meaning thus is that the fine to be imposed upon a learned śūdra should be eight times that on an ignorant śūdra; similarly in the case of the Vaiśya and others also; — for the Brāhmaṇa the fine is to be either full one hundred, or twice 64; — the reason for this is ‘taddoṣaguṇaviddhi saḥ,’ — ‘because the Brāhmaṇa is fully cognisant of the evil character of theft — thus the fact of the culprit being cognisant of the evil being a ground for enhanced penalty in the case of the Brāhmaṇa, the same principle is to be applied to the case of the Śūdra and others also. That offence for which the legal penalty for the Śūdra, is one, for the Vaiśya, the Kṣatriya and the Brāhmaṇa, it should be double the amount of the preceding; so that the penalty for the ignorant Śūdra being one, that of the learned Śūdra is eight times — aṇd that of the learned Vaiśya 16, the learned Kṣatriya 32 and the learned Brāhmaṇa 64 times.

These are quoted also in Prāyaścittāviveka (p, 348), which says that all that is meant is to deprecate the act, and to show that the gravity of the offence is in proportion to the caste of the delinquent; — it explains ‘aṣṭāpādyam’ as ‘that which is multiplied by eight; aṣṭābhiḥ āpadyate guṇyate iti,’ — the single unit being meant for those lower than the Śūdra; — in Vivādacintāmaṇi (p. 144), which attributes them to Yājñavalkya, and says that ‘taddoṣaguṇavit’ is to be construed all through; so that the meaning is that the fine in the case of the Śūdra who is cognisant of the seriousness of the offence is to be eight times that of the ignorant man, and so on, the fine varying with the qualifications of the offender.

Comparative notes by various authors:

(verses 8.337-338)

Gautama (12.15-17). — ‘The value of property which a Śūdra unrighteously acquires by theft, must be repaid eightfold; — for each of the other castes, the fine shall be doubled; if a learned man offends, the punishment shall be very much enhanced.’

Nārada (Theft, 51-52). — ‘In theft, the crime of the Śūdra is eight times (that of the lowest caste); of the Vaiśya, sixteen-fold; of the Kṣatriya, thirty-two-fold; of the Brāhmaṇa sixty-four-fold — Knowledge also makes a difference; for knowing persons, the punishment is specially severe.’

VERSE 8.339

Section XLIV - Robbery (sāhasa)

वानस्पत्यं मूलफलं दार्वग्न्यर्थं तथैव च ।
तृणं च गोभ्यो ग्रासार्थमस्तेयं मनुरब्रवीत् ॥३३९॥

vānaspatyaṃ mūlaphalaṃ dārvagnyarthaṃ tathaiva ca |
tṛṇaṃ ca gobhyo grāsārthamasteyaṃ manurabravīt ||339||

Fuel for fire and trees, roots and fruits, and grass, for feeding cows, — the taking of these Manu has declared to be no theft. — (339)

Medhātithi’s commentary (manubhāṣya):

‘Vānaspatyam’ stands for trees, ‘vanaspati’; — the affix having the reflexive force. When this is taken ‘for feeding cows,’ it is not ‘theft.’

‘Roots and fruits’ — of trees; as also lotus-roots, corns and so forth.

Under verse 326 et seq., punishment has been prescribed in connection with ‘roots and fruits,’ along with ‘yarns’ and other things, — when taken for purposes other than the feeding of cows. Hence when the act is here said to be ‘not theft,’ it refers only to cases where they are taken ‘for feeding cows.’

According to another Smṛti-text however, punishment has got to be inflicted in a case where the man is not suffering from any actual shortage, and he takes the things through sheer childishness; specially when they are within an enclosure. Says Gautama (12.28) — ‘Fruits and flowers one may take as his own, of tre.es that are not enclosed.’

‘Fuel for fire’; — if the man who has set up the fire finds no trees near him, and finds that the fire would be extinguished, if he takes fuel for keeping it alive, there is no harm in this, he might supply the lire with fuel consisting of leaves; but in a village where leaves are not available in large quantities, if he takes some fuel, there can be no harm in this.

‘Grass for cows’; — the Dative in ‘gobhyaḥ’ means ‘for the sake of.’

In as much as the text specifies this, it would be wrong if the grass were taken for the purpose of making mats.

Some people hold that the term ‘grass’ itself indicates that it is meant for cows. But for them there would be no justification for the presence of the term ‘for cows,’ ‘goḥbyaḥ (gobhyaḥ?)’ (with the Dative); as in that case the Genitive would be the right form. — (339)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vidhānapārijāta (II, p. 252); — in Prāyaścittaviveka (p. 116), which says that what is meant is that the sin of the act is removed by the use mentioned, and not that it is not a case of ‘theft’; — and in Vivādacintāmaṇi (p. 147), which says that the ‘fruits’ meant should be such as do not belong to another person.

Comparative notes by various authors:

Gautama (12.28). — ‘One may take as one’s own, grass for a cow, and fuel for his fire; as also flowers of creepers and trees and their fruit, if these be unfenced.’

Āpastamba (1.28.1-6). — ‘He who, under any condition whatsoever, covets and takes another man’s property is a thief; thus teach Kautsa and Hārīta, as well as Kaṇva and Puskarsādi. Vārsyāyani declares that there are exceptions to this law, in regard to some things; — e.g., seeds ripening in the pod, food for a draught-ox; if these are taken, the owner should not forbid it. To take even these in large quantities is sinful. Hārīta declares that in every case the permission of the owner must he obtained first.’

Yājñavalkya (2.166). — ‘Grass, fuel and flowers, the twice-born may take from all places.’

Smṛtyantara (Aparārka, p. 774). — ‘Grass, wood, flower or fruit — if one takes any of these without permission, he deserves to have his hand cut oil.’

Nārada (Theft, 22-24). — ‘For stealing, wood, cane, grass and the like...... vegetables, green roots, grass or flowers... a fine of five times the value of the article stolen.’

VERSE 8.340

Section XLIV - Robbery (sāhasa)

योऽदत्तादायिनो हस्तात्लिप्सेत ब्राह्मणो धनम् ।
याजनाध्यापनेनापि यथा स्तेनस्तथैव सः ॥३४०॥

yo'dattādāyino hastātlipseta brāhmaṇo dhanam |
yājanādhyāpanenāpi yathā stenastathaiva saḥ ||340||

If a Brāhmaṇa seeks, even by sacrificing and teaching, to obtain wealth from one who has taken what has not been given to him, — he is just like a thief. — (340)

Medhātithi’s commentary (manubhāṣya):

This text is in the form of a corollary. the meaning is that the Brāhmaṇa who derives his livelihood from thieves should he punished like a thief.

‘Even by sacrificing and teaching’; — the term ‘even’ indicates other acts also; so that accepting gifts and friendly presents, etc., also become included.

Of the Kṣatriya and other castes, the means of living are other than these; such as trade and the rest. So that to their case the rule would apply if they received the property of thieves in the course of such transactions.

The Brāhmaṇa has been specially mentioned, with a view to prevent the possibility of his entertaining such ideas as ‘I have acquired this by the lawful me ms of sacrificing for the man.’

‘Who has taken what was not given to him’ — i.e., the thief.

‘Seeks to obtain’ — wishes to acquire.

If even though he may not have actually received the sacrificial fee, yet, he should he punished like a thief, simply on the ground of his having associated and having had dealings with a thief. — (340)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 340), which explains ‘adattādāyin’ as the thief, and adds that ‘api’ includes also gifts and so forth; — and in Mitākṣarā (2.113), which remarks that if ‘proprietary right’ were something purely temporal, then there would be no justification for the penalty being inflicted on the Brāhmaṇa who acquires wealth by teaching and sacrificing for thieves, as laid down in the present text. Bālambhaṭṭī has the following notes: — ‘Adattādāyin’ means ‘one who takes (ādadāti) another’s property when it is not given (adattam) by him’; — in ‘yājanādhyāpanena’ (or ‘ — nāt’ as read in Mitākṣarā) we have the causative copulative compound; — ‘api’ includes gift also.

It is quoted in Vyavahāra-Bālambhaṭṭī (p. 992); — and in Vivādacintāmaṇi (p. 144).

Comparative notes by various authors:

Gautama (12.49-50). — ‘A man who knowingly becomes the servant of a thief shall be treated like a thief; — likewise he who knowingly receives goods from a thief or an unrighteous man.’

Kātyāyana (Vivādaratnākara, p. 340). — ‘Purchasers of stolen property and accepters of gifts from thieves, as also those who lend them cover, have been declared to be deserving of the same punishment as the thief.’

VERSE 8.341

Section XLIV - Robbery (sāhasa)

द्विजोऽध्वगः क्षीणवृत्तिर्द्वाविक्षू द्वे च मूलके ।
आददानः परक्षेत्रात्न दण्डं दातुमर्हति ॥३४१॥

dvijo'dhvagaḥ kṣīṇavṛttirdvāvikṣū dve ca mūlake |
ādadānaḥ parakṣetrātna daṇḍaṃ dātumarhati ||341||

If a twice-born person, running short of provisions while on a journey, takes two sugar-cane stalks, or two roots, from another man’s field, he does not deserve to be made to pay a fine. — (341)

Medhātithi’s commentary (manubhāṣya):

The text has used the term ‘twice-born person’ with a view to preclude Śūdras.

‘On a journey’ — i.e., not an inhabitant of the same village; — hut there also he should be one ‘who has run short of provisions’ — i.e., whose journey-rations have been exhausted.

‘Two sugar-cane stalks’ and ‘two roots’; — these are mentioned only by way of illustration, indicating small quantities of green vegetables, mudga -grains, leguminous grains and so forth. Says another Smṛti-text — ‘There is no prohibition regarding leguminous grains, cucumber and grass.’

‘From another man’s field’ — i.e., from a place belonging to another person; — even though it be within an enclosure. — (341)

Explanatory notes by Ganganath Jha:

This verse is quoted in Mitākṣara (2.275), to the effect that there is no punishment for way-farers stealing some little things on the way. Bālambhaṭṭī adds the following notes: — ‘Adhvāga,’ way-farer, — ‘kṣīṇavṛttiḥ,’ with his food-supply exhausted.

It is quoted in Parāśaramādhava (Vyavahāra, p. 314); — in Vivādacintāmaṇi (p. 146), which explains ‘kṣīṇavṛttiḥ’ as having no food for the journey; — and in Saṃskāramayūkha (p. 124).

Comparative notes by various authors:

See Manu, 11.16-17.

VERSE 8.342

Section XLIV - Robbery (sāhasa)

असन्दितानां सन्दाता सन्दितानां च मोक्षकः ।
दासाश्वरथहर्ता च प्राप्तः स्याच्चोरकिल्बिषम् ॥३४२॥

asanditānāṃ sandātā sanditānāṃ ca mokṣakaḥ |
dāsāśvarathahartā ca prāptaḥ syāccorakilbiṣam ||342||

One who enchains the unchained, or sets free the enchained, as also one who takes away a slave, a horse or a chariot, incurs the guilt of the thief. — (342)

Medhātithi’s commentary (manubhāṣya):

Sometimes horses and other animals, freed from their tethers, are found to be grazing in fields covered with fodder; if during the time the master of the Held or the keeper of the cattle happen to be asleep, and some one else ‘enchains’ — ties them up, — the presumption is that he is going to steal the cattle, and hence he deserves to be punished like a thief. But there is nothing wrong in a case where one ties up an animal that may have strayed either from the owner’s house or from the. herd, with a view to keeping it from harm.

The same penalty applies to one who puts a rope round the neck of the cow; also to one who ‘sets free’ those that are ‘enchained’ — tied up with chains in the feet.

Similarly one who ‘takes away slaves’ — those engaged to serve in return for maintenance, — by enticing them with such words as — ‘I shall pay yon more, why do you stick to this man?’

For the enticing away of persons of noble families, the ‘death-penalty’ has been laid down above under 323, and the present verso lays down that for enticing slaves and similar persons; and just as in the former case what is meant is that persons belonging to noble families should not be enticed away, nor forcibly carried away by stealth, — so in the present case also.

‘Who takes away horses and chariots’; — Verse 324 has referred to horses belonging to the king, the present refers to those belonging to the people. In the former case the punishment depends upon the Rājā’s wish, but in the present case ‘immolation’ is strictly laid down.

Though there are several forms of punishment for thieves, yet ‘immolation’ is what should be taken to be meant here, on the strength of what is laid down in other Smṛti texts, such as — ‘Those who entice away prisoners, horses and elephants and those who attach people by force should be impaled.’ In the present case however the general law relating to thieves — that of cutting off the limb whereby he does the act — may be applied.

Others take this verse to refer to ‘chariots with horses yoked to them,’ which includes the bullock-cart and the rest also.

Under this explanation, the exact punishment for the stealing of horses only, or chariots only, would have to be found out; specially as in other smṛti -texts, ‘immolation’ has been prescribed for the stealing of horses only. It may be that the same penalty may apply also to the case of stealing horses along with chariots.

According to those who explain the ‘haraṇa,’ ‘taking away,’ of the text as enticing away with inducements, the term ‘chariot’ has to be taken as standing for the chariot-maker; and this would include all kinds of mechanics. So that for enticing away a mechanic, the penalty would be the same as that in the case of the thief. Horses also are ‘enticed away with inducements’ by having a mare placed before them. — (342)

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