III. Courts of Justice

The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com

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III. COURTS OF JUSTICE.

* 1. ¹ One who has not been authorized must not speak on any account at the trial. But authorized persons must deliver their opinion in an unbiassed spirit.

* 2. ² Whether unauthorized or authorized, one acquainted with the law shall give his opinion. He passes a divine sentence who acts up to the dictates of law.

3. ³ If he delivers a fair opinion, a member of the court will incur neither hatred nor sin. But if he speaks otherwise he at once incurs both.

* 4. ⁴ Let the king appoint, as members of a court

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of justice, honourable men, of tried integrity, who are able to bear, like good bulls, the burden of the administration of justice.

* 5. ⁵ The members of a royal court of justice must be acquainted with the sacred law and with rules of prudence, noble, veracious, and impartial towards friend and foe.

6. ⁶ Justice is said to depend on them, and the king is the fountain head of justice. Therefore the king should try causes properly, attended by good assessors.

7. ⁷ When lawsuits are decided properly, the members of the court are cleared from guilt. Their purity depends on the justice (of the sentences passed by them). Therefore one must deliver a fair judgment.

8. ⁸ Where justice is slain by injustice, and truth by falsehood, the members of the court, who look on with indifference, are doomed to destruction themselves.

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9. ⁹ Where justice, having been hit by injustice, enters a court of justice, and the members of the court do not extract the dart from the wound, they are hit by it themselves.

10. ¹⁰ Either the judicial assembly must not be entered at all, or a fair opinion delivered. That man who either stands mute or delivers an opinion contrary to justice is a sinner.

11. ¹¹ Those members of a court who, after having entered it, sit mute and meditative, and do not speak when the occasion arises, are liars all of them.

* 12. ¹² One quarter of the iniquity goes to the offender; one quarter goes to the witness; one quarter goes to all the members of the court; one quarter goes to the king.

13. The king is freed from responsibility, the

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members of the court obtain their absolution, and the guilt goes to the offender, when the guilty person is punished.

14. ¹⁴ He who, having entered the court, delivers a strange opinion, ignoring the true state of the case, resembles a blind man who regardless swallows fish together with the bones.

15. ¹⁵ Therefore let every assessor of the court deliver a fair opinion after having entered the court, discarding love and hatred, in order that he may not go to hell.

* 16 ¹⁶. As an experienced surgeon extracts a dart by means of surgical instruments, even so the chief

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judge must extract the dart (of iniquity) from the lawsuit.

* 17. ¹⁷ When the whole aggregate of the members of a judicial assembly declare, 'This is right,' the lawsuit loses the dart, otherwise the dart remains in it.

18. ¹⁸ That is not a judicial assembly where there are no elders. They are not elders who do not pass a just sentence. That is not a just sentence in which there is no truth. That is not truth which is vitiated by error.

Footnotes

36:1 III, 1. Courts of justice are generally thronged by a large attendance. Some of the persons present are intelligent, others are not, and others are wise in their own estimation only. Such persons, if unrestrained, would disturb the judges by interpreting idle speeches between the legal proceedings, and by quarrelling amongst themselves. Therefore, the first half of this paragraph relates to the punishment ordained for those who speak without authorization. Authorized persons, i.e. the judges who sit on the seat of judgment, shall strive to be just, i.e. they shall deliver a judgment in accordance with justice, and shall not show partiality for either of the parties. A.

36:2 Where all the assessors of the court pass an unjust sentence, from ignorance of the law, or from interested motives, there a Brahman versed in the sacred law and acquainted with legal proceedings, who happens to be present, shall point out the law to them, and restrain the judges from their sinful course. He shall speak, though he has not been appointed to deliver judgment. Law is called the voice of the deity. A.

36:3 That is called 'a fair opinion' which is not contrary to written law and to custom. A judge who delivers a sentence of this kind incurs neither enmity nor sin, i.e. he does not become unhappy either in this world or in the next. A.

36:4 As young bulls are able to carry a heavy burden, even so p. 37 competent judges are able to discharge the onerous duties of their responsible office. They must be men of ripe wisdom, acquainted with sacred law and with the ways of the world, and the king must have tested their qualifications. A. Vishnu III, 74, &c.

37:5 The law-books contain many utterances of the sages, which are obscure and difficult to make out. Therefore slow-minded persons, who are unable to understand them, and to refer their contents to each case in hand, must not be appointed. Well-descended persons shall be appointed, because they will avoid partiality from family pride. 'Veracious' persons have a natural abhorrence against untruthfulness. A. Yâgñavalkya II, 2.

37:6 'On them,' i.e. on the judges, whose qualities have been previously described. A. Vishnu III, 72; Manu VIII, 1; Yâgñavalkya II, 1, &c.

37:7 If the king decides lawsuits justly, the assessors obtain their own absolution through the just decision. A.

37:8 Identical with Manu VIII, 14.

38:9 Virtue is here compared to one wounded with a weapon, who goes to a physician in order to be cured by him. The judges are compared to physicians who, by means of a careful judicial investigation, deliver justice from the attacks of iniquity. If they do not extract the dart of iniquity, they are killed themselves by the dart of iniquity, which has been spared by them. A. Nearly identical with Manu VIII, 12.

38:10 Either the judicial assembly must not be entered at all, not even a single time, or an opinion conformable to justice must be delivered. A judge who remains silent, or who, when asked to pass a sentence, says what is contrary to justice, is criminal, i.e. a great sinner. A. Nearly identical with Manu VIII, 13.

38:11 Those judges who sit mute in the judicial assembly, being apparently engaged in meditating over an altogether different affair than that for which the parties have appeared before the tribunal, and who fail to declare at the proper time the victory of the one party and the defeat of the other, all such persons shall be looked upon by the king as equally criminal with those who pass a false sentence. A.

38:12 12, 13. These two paragraphs belong together. If the judges, p. 39 were to acquit the criminal, and unjustly to condemn the innocent party, the iniquity or sinful action committed by the unjust decree would go into four parts, i.e. a quarter of it would go respectively to the shares of the perpetrator of the deed, of the witnesses, of all the assessors of the court, and of the king. If, however, the guilty person alone is condemned, i.e. if the criminal party loses his cause, the king becomes free from guilt, the judges are free from responsibility, and the whole guilt falls on the perpetrator of the iniquitous deed. A. Medhâtithi, in commenting on the identical rule of Manu (VIII, 18), observes that the guilt goes to the king, in case the sentence had been passed by him in person. Otherwise it goes to his chief judge. Identical with Manu VIII, 18, 19, &c.

39:14 One whose eyesight is unimpaired, does not eat fish without having previously removed the bones, which would injure his mouth, his tongue, and his palate. A blind man, on the contrary, eats fish together with the bones, because he is unable to remove them. The case is similar with the eye of knowledge. A.

39:15 Considering all this, let a judge, after having entered the court of judicature, reject every kind of bias, and deliver a fair, i.e. an impartial opinion, in order that he may not go to hell burdened with the crime of a guilty person (acquitted by him). A.

39:16 As a skilful surgeon conversant with the art of extracting a dart, extracts it, though it may be difficult to get at and invisible, by the application of surgical instruments, of spells, and other manifold artful practices, even so a judge shall extract the dart of p. 40 iniquity which has entered a lawsuit, by employing the artful expedients of judicial investigation. A.

40:17 'The members of a judicial assembly' are those who have come together for the trial of a cause. A.

40:18 This paragraph, in the original, is a verse composed in the Trishtubh metre, and has the look of an old versus memorialis. Though the author of the Nârada-smriti has incorporated it in his work, its contents do not quite fit in with his own ideas regarding the constitution of a judicial assembly, and the prominent place which he assigns to the chief judge of the king.