Gautama Dharmasūtra

by Gautama | 1879 | 41,849 words

The topics in this Dharmasūtra are devoted to the student, the order of a person's life (āśramas), the householder, occupations of the four classes, the king, impurity, ancestral offerings, women and marriage, property, inheritance and penances. Gautama's Dharmasūtra is believed to be the oldest of the four Hindu Dharmasastras, It survives as an i...

Chapter XII

1. A Śūdra who intentionally reviles twice-born men by criminal abuse, or criminally assaults them with blows, shall be deprived of the limb with which he offends.[1]

2. If he has criminal intercourse with an Āryan woman, his organ shall be cut off, and all his property be confiscated.[2]

3. If (the woman had) a protector, he shall be executed after (having undergone the punishments prescribed above).[3]

4. Now if he listens intentionally to (a recitation of) the Veda, his ears shall be filled with (molten) tin or lac.

5. If he recites (Vedic texts), his tongue shall be cut out.

6. If he remembers them, his body shall be split in twain.

7. If he assumes a position equal (to that of twice-born men) in sitting, in lying down, in conversation or on the road, he shall undergo (corporal) punishment.[4]

8. A Kṣatriya (shall be fined) one hundred (Kārṣāpaṇas) if he abuses a Brāhmaṇa,[5]

9. In case of an assault, twice as much.

10. A Vaiśya (who abuses a Brāhmaṇa, shall pay) one and a half (times as much as a Kṣatriya).[6]

11. But a Brāhmaṇa (who abuses) a Kṣatriya (shall pay) fifty (Kārṣāpaṇas),[7]

12. One half of that (amount if he abuses) a Vaiśya,[8]

13. (And if he abuses) a Śūdra, nothing.[9]

14. A Kṣatriya and a Vaiśya (who abuse one another shall pay the same fines) as a Brāhmaṇa and a Kṣatriya.[10]

15. (The value of) property which a Śūdra unrighteously acquires by theft, must be repaid eightfold.[11]

16. For each of the other castes (the fines must be) doubled.[12]

17. If a learned man offends, the punishment shall be very much increased.[13]

18. If fruits, green corn, and vegetables are appropriated in small amounts, (the fine is) five Kṛṣṇalas (of copper).[14]

19. If damage is done by cattle, the responsibility falls on the owner.

20. But if (the cattle) were attended by a herdsman, (it falls) on the latter.[15]

21. (If the damage was done) in an unenclosed field near the road, (the responsibility falls) on the herdsman and on the owner of the field.

22. Five Māṣas (are the fine to be paid) for (damage done by) a cow,[16]

23. Six for a camel or a donkey,

24. Ten for a horse or a buffalo,

25. Two for each goat or sheep.

26. If all is destroyed, (the value of) the whole crop (must be paid and a fine in addition).

27. If (a man) always neglects the prescribed (duties) and does that which is forbidden, his property beyond (the amount required for) raiment and food shall be taken from him (until he amends).[17]

28. He may take, as his own, grass for a cow, and fuel for his fire, as well as the flowers of creepers and trees and their fruit, if they be unenclosed.[18]

29. The legal interest for money lent (is at the rate of) five Māṣas a month for twenty (Kārṣāpaṇas).[19]

30. Some (declare, that this rate should not be paid) longer than a year.[20]

31. If (the loan) remains outstanding for a long time, the principal may be doubled (after which interest ceases).[21]

32. A loan secured by a pledge that is used (by the creditor) bears no interest;[22]

33. Nor money tendered, nor (a debt due by a debtor) who is forcibly prevented (from paying).[23]

34. (Special forms of interest are) compound interest, periodical interest,[24]

35. Stipulated interest, corporal interest, daily interest, and the use of a pledge.[25]

36. The interest on products of animals, on wool, on the produce of a field, and on beasts of burden (shall) not (increase) more than the fivefold (value of the object lent).[26]

37. The property of (a person who is) neither an idiot nor a minor, having been used by strangers before his eyes for ten years, (belongs) to him who uses it,[27]

38. (But) not (if it is used) by Śrotriyas, ascetics, or royal officials.[28]

39. Animals, land, and females are not lost (to the owner) by (another's) possession.[29]

40. The heirs shall pay the debts (of a deceased person).[30]

41. Money due by a surety, a commercial debt, a fee (due to the parents of the bride), debts contracted for spirituous liquor or in gambling, and a fine shall not involve the sons (of the debtor).[31]

42. An (open) deposit, a sealed deposit, an object lent for use, an object bought (but not paid), and a pledge, being lost without the fault of the holder, (shall not involve) any blameless person.[32]

43. A man who has stolen (gold) shall approach the king, with flying hair, holding a club in his hand, and proclaim his deed.[33]

44. Whether he be slain or be pardoned, he is purified (of his guilt).

45. If the king does not strike, the guilt falls on him.[34]

46. Corporal punishment (must) not (be resorted to in the case) of a Brāhmaṇa.[35]

47. Preventing (a repetition of) the deed, publicly proclaiming his crime, banishment, and branding (are the punishments to which a Brāhmaṇa, may be subjected).[36]

48. That (king) who does not do his duty (by inflicting punishment) becomes liable to perform a penance.[37]

49. (A man who) knowingly (becomes) the servant (of a thief shall be treated) like a thief,[38]

50. Likewise he who (knowingly) receives (goods) from (a thief or) an unrighteous man.

51. The award of the punishment (must be regulated) by a consideration (of the status) of the criminal, of his (bodily) strength, of (the nature of) the crime, and whether the offence has been repeated.[39]

52. Or a pardon (may be given) in accordance with the opinion of an assemblage of persons learned in the Vedas.

Footnotes and references:

1.

XII. Āpastamba II, 10, 27, 14; Manu VIII, 270, 279-283; p. 239 Yājñavalkya II, 215. Haradatta adds that an abusive word or a blow given in jest must not be punished in the manner prescribed above, as the word 'pāruṣya' presupposes criminal intent.

2.

Āpastamba II, 10, 26, 20; Mayūkha XIX, 7, where, however, ārya has been altered to ācārya. Haradatta adds that the two punishments are cumulative in the case of a Brāhmaṇī only. If the offence is committed with a Kṣatriyā, the offender is liable to the first only; if he sins with a Vaiśyā, to the second.

3.

Āpastamba II, 10, 27, 9; Manu VIII, 359; Yājñavalkya II, 286.

4.

Āpastamba II, 10, 27, 15; Manu VIII, 281.-The translation follows Haradatta, who is guided by the parallel passages. But for the latter, one would translate 'he shall be fined.'

5.

Manu VIII, 267; Yājñavalkya III, 204-207. Manu VIII, 136 states one Kārṣāpaṇa or copper Paṇa contains 80 Raktikās, which would correspond to 97-60 grammes of the metrical system.

6.

Manu VIII, 267.

7.

Manu VIII, 268.

8.

Manu VIII, 268.

9.

Manu VIII, 268. Haradatta adds that, as a Brāhmaṇa is declared to pay nothing for abusing a Śūdra, a Kṣatriya and a Vaiśya are liable to be fined for that offence, and that according to Uśanas a Kṣatriya shall pay twenty-four Paṇas, and a Vaiśya thirty-six.

10.

I.e. a Vaiśya shall pay one hundred Paṇas for abusing a Kṣatriya, and a Kṣatriya fifty for abusing a Vaiśya.

11.

Manu VIII, 337.

12.

Manu VIII, 337-338. I.e. a Vaiśya is to pay sixteen times the value of the stolen property, a Kṣatriya thirty-two times, and a Brāhmaṇa sixty-four times.

13.

Manu VIII, 338.

14.

Manu VIII, 330. Kṛṣṇala is another name for Raktikā, p. 241 used also by Yājñavalkya I, 362. It equals 0.122 grammes of the metrical system, Prinsep, Useful Tables, p. 97.

15.

-21. Manu VIII, 240; Yājñavalkya II, 162.

16.

-26. Manu VIII, 241; Yājñavalkya II, 159-161; Colebrooke III, Digest IV, 40. Haradatta, relying on Uśanas everywhere, reckons twenty Māṣas to the Kārṣāpaṇa.

17.

Āpastamba II, 11, 27, 18.

18.

Āpastamba I, 10, 28, 3; Colebrooke III, Digest IV, 22.

19.

Manu VIII, 140; Yājñavalkya II, 37; Colebrooke I, Digest 25. Haradatta states that a Kārṣāpaṇa contains twenty p. 242 Māṣas. Thus the monthly interest for 400 Māṣas being five Māṣas, the rate is 1¼ per cent for the month, or 15 per cent per annum.

20.

Colebrooke I, Digest 40; Manu VIII, 153.

21.

Manu VIII, 151; Colebrooke I, Digest 59.

22.

Manu VIII, 143; Colebrooke I, Digest 79.

23.

Colebrooke I, Digest 79. 'Likewise the debt of a debtor who, being desirous to pay, is imprisoned by the king or others in a prison or the like, and who is thus unable to pay, does not increase from that day.'--Haradatta.

24.

For this and the next Sūtra, see also Colebrooke I, Digest 35-45, in the notes on which latter text the various explanations of these terms, found here, have been fully discussed. 'If a large or a small interest is taken on condition that the loan is to be repaid on a certain date, and that, in case of non-payment, 'it is to be trebled or quadrupled, that is called periodical interest'--Haradatta.

25.

'Where the lender and the borrower, having regard to the country, the time, the object, and the condition (of the borrower), agree between themselves (on a certain Tate), e.g. of ten per cent per mensem, that is called stipulated interest. Corporal interest is that which is payable by bodily labour. Thus Bṛhaspati says, "Corporal interest is that connected with work." But Vyāsa explains it thus, "Corporal interest is that which arises from the work (or use) of a (pledged female quadruped) to be p. 243 milked, or of (a male) to carry burdens." Kātyāyana explains the daily interest (lit. the interest resembling the growth of the lock on the head), "That which is taken daily is called daily interest." . . . 'E.g. for a Prastha of grain lent a handful of grain is taken daily.'--Haradatta.

26.

Colebrooke I, Digest 62. Haradatta mentions also another explanation of the Sūtra: 'Another (commentator) says, " If products of animals and the rest have been bought, and the price is not paid at once, that may increase fivefold by the addition of interest, but not, to a greater sum."'

27.

Manu VIII, 147-148; Yājñavalkya II, 24.

28.

Haradatta adds that in the case of a Śrotriya and of an ascetic, the owner may allow the use of his property for a long time, desiring to acquire merit by doing so, and that fear may prevent him from opposing the king's servants. Hence prolonged possession by such persons does not necessitate the conclusion that the owner had given up his rights. As ascetics cannot possess any property, the Sūtra must refer to their occupying an empty house which has an owner.

29.

Manu VIII, 149; Yājñavalkya II, 25. The translation given above agrees with an explanation of the Sūtra which Haradatta mentions, but rejects. He himself prefers the following: 'Animals, i.e. quadrupeds; land, i.e. a field, a garden, and the like; females, i.e. female slaves and the like. No long possession of animals and the rest is necessary in order to acquire the rights of ownership over them. Even after a short period they become the property of the possessor. For how (would it be possible that) a person, who himself wants butter-milk and the like, should allow a cow which he himself has bought, and which gives daily a Drona of milk, to be milked in the house of another person?' &c. &c.

30.

Manu VIII, 162; Yājñavalkya II, 51.

31.

Manu VIII, 159-160; Yājñavalkya II, 47, 54; Colebrooke I, Digest 202. Taking into account the parallel passages of Manu and Yājñavalkya, Haradatta very properly restricts this rule to a bail for the personal appearance of an offender. In explanation of the expression 'a commercial debt' he gives the following instance: 'If a person has borrowed money from somebody on the condition that he is to repay the principal together with the gain thereon, and if he dies in a foreign country, while travelling in order to trade, then that money shall not be repaid by the son.' The instance explaining the term 'fee' (śulka) is as follows: 'If a person has promised a fee (to the parents of a woman) and dies after the wedding, then that fee does not involve his son, i.e. need not be paid by him.' The word śulka is, however, ambiguous, and may also mean 'a tax or toll.'

32.

Manu VIII, 189; Yājñavalkya II, 59-66; Colebrooke II, Digest I, 29. Haradatta declares the meaning to be, that in case the bailee was guilty of no negligence and took the same care of the deposits &c. as of his own property, neither he nor his heirs need make good the value of those which were lost or destroyed.

33.

Āpastamba I, 9, 25, 4.

34.

Āpastamba I, 9, 251, 5.

35.

Manu VIII, 124; Macnaghten, Mitākṣarā III, 4, 9.

36.

Manu IX, 239, 241; Āpastamba II, 10, 27, 8, 17-19; Macnaghten loc. cit. Karmaviyoga, 'preventing (a repetition of) the deed,' may also mean 'suspension from (his priestly) functions.'

37.

Āpastamba II, 11, 28, 13.

38.

-50. Manu IX, 278; Yājñavalkya II, 276.

39.

Manu VII, 16; VIII, 126; Yājñavalkya I, 367.