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

p. 268 p. 269

p. 270 p. 271

INTRODUCTION

TO THE

FRAGMENTS OF BRIHASPATI.

The fragments of Brihaspati are among the most precious relics of the early legal literature of India. Apart fromImportance of Brihaspati. their intrinsic value and interest, as containing a very full exposition of the whole range of the Hindu law, their close connexion with the Code of Manu gives them a special claim to consideration, and renders them a valuable link in the chain of evidence ¹ by which the date of the most authoritative code of ancient India has been approximately determined ².

The connexion between the Manu and Brihaspati Smritis appears first from the way in which Brihaspati refers to,He refers to Manu. and quotes from, the Code of Manu. In the chapter on Gambling and Betting, Brihaspati says (XXVI, I), 'Gambling has been prohibited by Manu, because it destroys truth, honesty, and wealth. It has been permitted by others, when conducted so as to allow the king a share (of every stake).' The observation that Manu disagrees with the other legislators as to the permissibility of gambling is perfectly just. See Manu IX, 221-228; Yâgñavalkya II, 199-203; Âpastamba II, 25, 12, 13; Nârada XVII, 1-8; Kâtyâyana XXV, 1. Brihaspati goes on to say (XXVI, 2) that 'Gambling shall take place under the superintendence of keepers of gaming-houses, for the purpose of discovering thieves.' This rule agrees almost literally with Yâgñavalkya II, 203, and the fact that Brihaspati does not refer to Yâgñavalkya by name, although he names Manu, can only be accounted for by his very particular veneration for the latter, as the fountain-head of Sacred Law.—On the

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subject of weights or coins, Brihaspati says (X, 10), 'The quantities beginning with a floating particle of dust and ending with a Kârshâpana have been declared by Manu.' The statements of Manu which are thus referred to by Brihaspati may be found, Manu VIII, 132-137.—In speaking of the Niyoga or appointment of a widow to raise offspring to her deceased husband, Brihaspati says (XXIV, 12), 'The Niyoga has been declared by Manu, and again prohibited by the same; on account of the successive deterioration of the (four) ages of the world, it must not take place (in the present or Kali age).' This text shows that the conflicting statements of Manu (IX, 57-68) with regard to the Niyoga, which have been the matter of so much comment among European philologists, had already struck his follower Brihaspati, and were ingeniously explained by him, in accordance with the practice of his own times.—In the chapter on Inheritance (XXV, 33), Brihaspati observes that out of the thirteen sons declared by Manu, a legitimate son of the body (aurasa) and an appointed daughter (putrikâ) are the only ones that represent real issue. It is true that Manu (IX, 158, 180) speaks emphatically of twelve sons only, but the appointed daughter or her son is not among these, and he advocates in strong terms the rights of an appointed daughter's son (IX, 127-140), and cuts down very much the rights of all the other substitutes for a son (IX, 180, 181). This shows that Brihaspati's rules on this head are perfectly in keeping with the teaching of Manu.—In the chapter on Sale without Ownership (XIII, 1) he refers to Manu (VIII, 197) by the name of Bhrigu.

Secondly, in a number of other instances, the Code of Manu, though not appealed to by name, is neverthelessIndirect references. distinctly referred to by Brihaspati. Thus, in the chapter on Inheritance (XXV, 79), he observes that 'those by whom clothes and so forth have been declared impartible have not decided properly.' The well-known versus memorialis concerning impartible property, the contents of which are further discussed in the sequel by Brihaspati, occurs both in the Code of Manu (IX, 219) and

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in the Vishnu-smriti; and it may be presumed either that the authors of these two works are the authorities referred to by Brihaspati, or that Manu is referred to in the pluralis majestatis, as is often the case with teachers. The reason why Manu is not referred to by name may be sought in the fact that Brihaspati does not care to openly avow his dissent from so eminent an authority.—In the chapter on Debts, Brihaspati remarks (XI, 4) that interest is divided into four species by some, into five by others, and by others again into six sorts. Four sorts of interest are mentioned by Manu, VIII, 153.—In the chapter on Inheritance (XXV, 35), he declares that an appointed daughter or her son has been pronounced equal to a legitimate son of the body. The rights of an appointed daughter, as shown before, are laid great stress upon by Manu, and he actually states that an (appointed) daughter is equal to a son (IX, 130).

Thirdly, Brihaspati, even when not expressly referring to Manu, presupposes throughout an acquaintance with Comments on Manu.his Code, and a very large portion of his Smriti is devoted to the interpretation of technical terms or to the elucidation or amplification of the somewhat laconic enunciations of Manu. Thus, for example, in the chapter on Debts (XI, 5-11), he explains, comments on, and amplifies the four sorts of interest mentioned by Manu (VIII, 153). In the same chapter (XI, 55-58) he interprets the curious terms used by Manu (VIII, 49) to denote the various modes of recovering an outstanding debt. In the chapter on Sale without Ownership (XIII, 2), he explains the technical term asvâmin, 'another person than the owner,' which had been first used by Manu. From the general maxim of Manu (VIII, 2, 11) that the allotment of shares among partners in any undertaking shall be arranged in the same way as for a company of officiating priests, Brihaspati (XIV, 20-32) has developed a series of elaborate rules regarding partnership in tillage, workmanship, trade, musical performances, and robbery. In the same way, the threefold law of breach of promised obedience, non-payment of wages, and disputes between the owner of cattle and his servants has been

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developed by Brihaspati (XVI, 1,2) from Manu's two titles of non-payment of wages and disputes between master and servant. An analogous course of development may be observed in the chapters on Ordeals, Resumption of Gift, and Violation of Agreements, as compared to the scanty provisions of Manu (VIII, 114-116, 212-214, 218-221) on the same subjects. In the chapter on Boundary Disputes, Manu's technical term maula, 'an original inhabitant of a place,' is interpreted by Brihaspati (XIX, 12). It would be easy to multiply examples. One more analogy between the Manu and Brihaspati Smritis seems to be specially deserving of notice. Both agree in arranging the whole field of legal controversies under eighteen heads, and it appears from the introductory verses to several chapters (XII, I; XIII, 1; XV, 1; XVI, 1; XVII, 1, &c.) that Brihaspati was anxious to discuss the eighteen titles of law in the same order as Manu. Nevertheless, he applies an interesting new principle of division to the eighteen titles of law by distinguishing fourteen titles relating to civil law, and four titles relating to criminal law (II, 3-9), and introduces a number of subdivisions (II, 2, 10; XVI, 1-3; XXII, 1, 2).

Fourthly, Brihaspati declares emphatically that any Smriti text opposed to the teaching of Manu has no validity (XXVII, 4).

Under these circumstances the tradition preserved in the Skanda-purâna that there are four versions of the Code of Result.Manu, by Bhrigu, Nârada, Brihaspati, and Aṅgiras, acquires a peculiar significance. Taking the version attributed to Bhrigu to be identical with the Code of Manu, the soi-disant composition of Bhrigu, it is impossible to doubt its connexion with the Nârada. ¹ and Brihaspati Smritis. It is but natural to find, therefore, that Nârada and Brihaspati agree very closely inter se, as e.g. in adding a title called 'Miscellaneous' to Manu's eighteen titles of law (Brihaspati XXVII, 1), in enumerating and describing three sorts of proof, eleven or twelve kinds of witnesses, eight or ten 'members of a lawsuit,' four parts of a judicial proceeding, four sorts of answer in a suit,

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various 'defects of a plaint,' three kinds of officiating priests, four species of gifts, four divisions of violence (sâhasa), five modes of recovery of a debt, &c. Many other analogies between the two works may be gathered from a mere cursory comparison of their contents; they agree particularly in the use of many technical terms. One of these, the designation of a gold coin by the Roman or Greek term dînâra, i.e. denarius (X, 15), is an important test for the date of both works, and compels us to refer the earlier date of the composition of Brihaspati's law-book to the first century A.D., the period to which belong the earliest Indian coins corresponding in weight to the gold denarius of the Romans ¹. As regards the lower limit, one might feel inclined to assign an earlier date to Brihaspati than to Nârada, on the ground of his being a faithful follower of Manu in a far higher degree than is Nârada, who differs from Manu on such important points as the names and order of several titles of law, the legitimacy of the Niyoga, &c. ² Nevertheless, the enlightened views of Brihaspati on the subject of women's rights ³, and the advanced character of his teaching generally, render it probable that his learned composition belongs to a somewhat more recent period than the Nârada-smriti.

The fact that Brihaspati was considered an inspired writer by the very earliest commentators of law-books, such as e.g. by Medhâtithi (ninth century), proves him to have preceded those commentators by several centuries. An analogous result may be obtained by comparing the laws of Brihaspati with the corresponding portions of the Burmese The Dhammathats.Dhammathats, the Buddhist Indian originals of which, according to Dr. Forchhammer, were composed in the seventh, eighth, and ninth centuries. The coincidences between Brihaspati and the Dhammathats are both numerous and striking ⁴. It may be added that

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the judicial proceeding described in the well-known drama Mrikkhakatika corresponds to the rules laid down by Brihaspati, as has been shown elsewhere. For all these reasons, the composition of the Brihaspati-smriti cannot be referred to a later period than the sixth or seventh century A.D.

Hitherto, those texts of Brihaspati have been entirely left aside which relate to other parts of the sacred law than Civil Religious texts.and Criminal Law and Procedure. Hemâdri's Katurvargakintâmani, Devândabhatta's Smritikandrikâ, and most other standard Dharmanibandhas contain a number of texts of Brihaspati on Dâna, Vrata, Prâyaskitta, and all other parts of the religious law. However, an examination of these texts has yielded no definite result, and they are not sufficiently numerous by far to admit of reconstructing the purely religious portion of the ancient Brihaspati-smriti from them. Nor is it at all improbable that the legal texts of Brihaspati may have formed an independent work from the outset, just like the Nârada-smriti, or like the Burmese Dhammathats, in which forensic law was treated by itself, without any admixture of religious elements.

The legal texts attributed to Brihaspati are so numerous as to make up in their entirety a law-book which contains a Arrangement.full exposition of forensic law, hardly inferior in size to the Nârada-smriti. The principles on which the texts have been collected and arranged are the same as in the case of the Quotations from Nârada. The preservation of the introductory texts to several titles of law, and the occurrence of many long series of consecutive texts of Brihaspati in the Dharmanibandhas, facilitate considerably the task of arrangement, though the original position of many texts in Brihaspati's Dharmasâstra must needs remain doubtful. For the chapter on Inheritance the following other works have been used, besides those consulted for the Quotations from Nârada: G. Sarkar's translation of the Vîramitrodaya on Inheritance (V.); Dr. Burnell's Mâdhavîya and Varadarâga; Professor Baler's edition of the Uggvalâ of Haradatta; Haradatta's Gautamîyâ Mitâksharâ (MS.); Nandapandita's Vaigayantî (MS.).

Footnotes

271:1 Bühler, The Laws of Manu (Sacred Books of the East, vol. xxv), pp. cviii–cx.

271:2 What follows up to p. 275 has been reprinted, with modifications and additions, from a paper on 'Manu and Brihaspati,' in the first volume of the Vienna Zeitschrift f. d. Kunde d. Morgenlandes, pp. 275-280.

274:1 See above, Introduction to Nârada.

275:1 West and Bühler, Digest of the Hindu Law, I, p. 48; Jolly, Tagore Lect. p. 56.

275:2 See above, Introduction to Nârada.

275:3 Jolly, Tagore Lectures, pp. 193, 241.

275:4 Several coincidences between Brihaspati and the Wagaru, the earliest law-book of Burma, have been collected by Dr. Forchhammer, Jardine Prize Essay, pp. 55, 57, 58. For other examples, see Dr. Forchhammer's edition of the Wagaru, pp. 12 (gifts), 36 (twelve witnesses), &c.