II. General Rules of Procedure
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The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
II. GENERAL RULES OF PROCEDURE.
1. 1 This legal procedure is declared, however, to be divided into a number of branches. Hear, now,
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its various divisions which may become the causes of lawsuits.
2. I will proclaim in due order, according to truth, (the titles of law) beginning with the recovery of a debt and ending with (the title of) gambling with dice and betting on animals, as well as the subdivisions of the titles of law.
3. 3 When a master pays wages to the labourers hired by him, for the purpose of doing work, and the labourers do not work, a lawsuit will arise in consequence.
4. When any man injures (another), or when he refuses to give what he ought to give: such are the two principal motives for going to law. Their subdivisions are manifold.
5. 5 Lawsuits are of two kinds, according as they originate in (demands regarding) wealth or in injuries. Lawsuits originating in wealth are (divided again) into fourteen sorts; those originating in injuries are of four sorts.
6. Lending money at interest; deposits (and treasure-trove); (the title) called invalid gifts; concerns of a partnership; non-payment of wages; disobedience; disputes concerning land; sale without ownership;
7. Revocation of sale and purchase; breach of
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agreements; the law between wife and husband; theft; the law of inheritance; and gambling with dice.
8. These are the fourteen titles of law that originate in (demands regarding) wealth. There are again various subdivisions of them, owing to the diversity of lawsuits.
9. The two kinds of insult; violence; and criminal connexion with the wife of another man: these have been declared by Brihaspati to be the four titles of law originating in injury.
10. 10 Each of them embraces again several different kinds, according as they are of a superior, middling, or of the lowest description. Thus are those four subdivided each in its turn.
11. Those who understand the eighteen titles of law, as proclaimed in the law-books, to be at the root of all lawsuits, are intelligent men indeed.
12. 12 No sentence should be passed merely according to the letter of the law. If a decision is arrived at without considering the circumstances of the case, violation of justice will be the result.
13. The issue of a lawsuit may convert a thief into an honest man, and an honourable man into an
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offender. Mândavya acquired the reputation of a thief in consequence of a decision passed without considering the circumstances of the case.
14. Dishonest men may seem honest, and honest men dishonest, so that wrong notions may be easily created; therefore sentences should be passed after due consideration of the circumstances only.
15. 15 By killing an aggressor, a man does not commit sin by any means. He who takes the life of one approaching with intent to murder him is no offender.
16. 16 If one abused returns the abuse, or if one struck strikes again, and kills the assailant, such a man commits no offence.
17. 17 He who refrains from killing an aggressor who abuses him aloud, and is ready to murder him, (because the aggressor) is a virtuous man (otherwise) and practices regularly the recitation of the Veda, obtains the same reward as for performing a horse-sacrifice.
18. 18 The judgment in a doubtful matter is declared to be of four sorts, according as it is based on moral law, or on the issue of the case, or on custom, or on an edict from the king.
19. 19 Each of these has been declared to be twofold by the sages, owing to the diversity of legal affairs.
20. 20 When the matter in dispute has been decided according to equity, after due deliberation, and
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thoroughly examined by means of oaths (or ordeals), it should be known to be a judgment based on moral law.
21. When the defendant admits the accusation, or furnishes clear evidence of his innocence through performing an ordeal, it should be known to be another sort of a decision based on moral law.
22. 22 A sentence founded on an examination of the evidence is termed (a decision based on) the issue of the case. When (the defendant) tells a lie, or makes no answer, it is also termed (a decision based on the issue of the case).
23. 23 When a sentence is passed according to the inference (to be drawn from circumstantial evidence), it is termed (a decision based on) custom. When it is passed according to local usages, it is termed another sort (of a decision based on custom) by the learned in law.
24. A decision based on an edict from the king is ordained, first, for those cases in which no evidence is forthcoming. When the law-books or the judges are at variance with one another, the second sort (of this species of decisions) is said to be applicable.
25. 25 When a sentence is passed exclusively according to the letter of the law, it should be considered
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as (a decision based on) the issue of the case. Moral law is overruled by it.
26. When a decision is passed in accordance with local custom, logic, or the opinion of the traders (living in that town), the issue of the case is overruled by it.
27. Where the king, disregarding established usage, passes a sentence (according to his own inclination), it is (called) an edict from the king, and local custom is overruled by it.
28. 28 The time-honoured institutions of each country, caste, and family should be preserved intact; otherwise the people would rise in rebellion; the subjects would become disaffected towards their rulers; and the army and treasure would be destroyed.
29. The maternal uncle's daughter is taken in marriage among the twice-born inhabitants of the South. In the central country (Madhyadesa), they become labourers or artizans, and eat cows.
30. The inhabitants of the East are fish-eaters, and their women engage in promiscuous intercourse. In the North the women take intoxicating drinks, and in their courses have intercourse with men.
31. The people of Khasa marry the widow of a brother who has died. These men are not subject to the performance of a penance or to punishment on account of any such offence.
32. 32 Thus has legal procedure with its manifold
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ramifications been represented by the sages. The sentence in a legal controversy has to be passed by the king or by a Brahman thoroughly versed in the Veda.
33. 33 Against whomsoever an accusation has been raised, whether founded on fact or on suspicion, let the king summon that man either through (a letter signed with) his seal or through an attendant.
34. 34 For one timorous, or idiotic, or mad, or over-aged, and for women, boys, and sick persons, a kinsman or appointed agent should proffer the plaint or answer (as their representative).
35. 35 When a man who has a family and relations does not appear before the court through pride after having been summoned, (the king or judge) should inflict on him punishment corresponding to the nature of the accusation.
36. 36 (The plaintiff) is not permitted to put under restraint a person engaged in study; nor one about to marry; nor one sick; nor one afflicted by sorrow; nor one insane; nor an infant; nor one intoxicated; nor a very old man; nor one charged with a crime; nor one engaged in the king's service; nor one performing a vow;
37. Nor a soldier at the time of battle; nor a husbandman at the time of harvest; nor one in a perilous situation; nor a (respectable) woman; nor one not his own master.
38. 38 A king thus obeying the dictates of law in passing sentences, acquires widespread renown in
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this world and becomes an associate of great Indra (after death).
39. 39 He who effects a perfect cure, by the application of surgical instruments smeared with the ointment of law, of persons blinded by ignorance, and whose eyes are veiled with a mist of doubt,
40. Obtains fame and royal favours in this world and a residence in heaven. Therefore should a decision be passed for those who are blinded by doubt.
41. 41 An officiating priest and one entrusted with the trial of causes are declared to be equal. In a sacrifice, the sacrificer acquires religious merit; in a lawsuit, (the parties obtain) defeat or victory.
42. 42 He who, divesting himself of avarice, hatred, and other (evil propensities), passes sentences according to the dictates of law, obtains the same reward as for the performance of a sacrifice.
Footnotes
282:1 II, I, 2. Vîram. p. 292.
283:3 3, 4. Smritik. prayakkhek ked bhritim svâmî bhrityânâm karma kurvatâm | na kurvanti ka bhrityâs ket tatra vâdah pravartate || himsâm yo kurute kaskid deyam vâ na prayakkhati | dve hi sthâne vivâdasya tayor bahutarâ gatih ||
283:5 5-9. Smritik. dvipâdo vyavahârah syâd dhanahimsâsamudbhavah | dvisaptakoऽrthamûlas tu himsâmulas katurvidhah || kusîdanidhyadeyâkhyam sambhûyotthânam eva ka | bhrityadânam asusrûshâ bhûvâdoऽsvâmivikrayah || krayavikrayânusayah samayâtikramas p. 284 tathâ | strîpumsayogah steyam ka dâyabhâgoऽkshadevanam || evam arthasamutthâni padâni tu katurdasa | punar eva prabhinnâni kriyâbhedâd anekadhâ || pârushye dve sâhasas ka parastrisamgrahas tathâ | himsodbhavapadâny evam katvâry âha brihaspatih ||
284:10 10, 11. Smritik. hînamadhyottamatvena prabhinnâni prithak prithak | visesha eshâm nirdishtas katurnâm apy anukramât || padâny ashtâdasaitâni dharmasâstroditâni tu | mûlam sarvavivâdânâm ye vidus tu parîkshakâh ||
284:12 12-14. Vîram. p. 18. See Nârada I, 1, 42, 71 (above, pp. 16, 23). For the story of Mândavya, who was falsely charged with theft, see ibid. p. 16, note 42.
285:18 Vîram. p. 8. See Nârada I, 1, 11 (above, p. 7).
285:19 19-24. Vîram. pp. 118, 119. I read, with Smritik., divyair vâ sodhitah in 21; pramânaniskito in 22; and pramânarahitâ in 24.
285:20 20, 21. The first kind is when the truth has been duly ascertained p. 286 and a sentence passed accordingly. The second kind is when no examination of the facts takes place, the question being settled either through a confession on the part of the defendant, or through the performance of an ordeal. Smritikandrikâ.
286:22 The evidence here referred to can be human evidence only, i.e. the deposition of witnesses, documents, or possession, divine test being referred to in the two preceding texts. Smritik.
286:23 'Inference,' such as when a man is caught with a firebrand in his hand. Smritik. See Nârada I, 18, 172-175 (above, pp. 85, 86).
286:25 25-27. Vîram. pp. 120, 121.
287:28 28-31. Vîram. p. 29; May. p. 5. I read prûrve for sarve in 30, with Mayûkha, Kalpataru, and other compilations. Baudhâyana I, 2, 1-7.
287:32 Smritik. evam kânekadhâ prokto vyavahâro manîshibhih | tasya nirnayakrid râgâ brâhmanas ka bahusrutah ||
289:39 39, 40. Raghunandana, p. 3. I read svargatim for sadgatim, with Smritik.
289:42 Smritik. lobhadveshâdikam tyaktvâ yah kuryât kâryanirnayam | sâstroditena vidhinâ tasya yagñaphalam bhavet ||
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