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CHAPTER VI.
THE CONSTITUTION AND LAW OF THE INDIANS
The requirements of the new doctrine extended throughout the whole circle of life. The establishment of the arrangement into castes struck deep into the sphere of the family, of civic society, and the state; the old rules for purification were enlarged to suit the new system, and changed into rubrics for expiation and penance, touching almost at every step upon daily life. The ethical notions of the old time had to make room for a new ideal of the life pleasing to God. How could the ancient customs of the tribes, which hitherto had been the rule and standard of family and inheritance, of meum and tuum, resist such a sweeping alteration of the social, religious, and moral basis of life? How could the traditional punishments of transgressions and offences continue in existence? Marriage and inheritance must be arranged so as to suit the system of the castes; punishment must be dealt out according to the rank of the castes, and the religious sin involved in each offence; the administration of justice must take account of the new religious system in which actions, hitherto regarded as permissible, were looked on as offences. The monarchy had new duties to fulfil towards the Brahmans and the new faith; the authority of the state, the power of inflicting punishment, must side with the true faith, with the interests of the priests, and the maintenance of the orders established by God. In the circles of the Brahmans there must have been a lively desire to establish the legal arrangement of the state on the basis of the divine arrangement of the world; to regulate the state in all its departments in a manner suitable to the nature of Brahman. The traditional observances and legal customs, the usages of the families, races, and districts, must be brought into harmony with the new doctrine; as an almost inevitable consequence, a rule was set up for correct morals, usages, and life, corresponding to the divine nature and will; a pattern was drawn of the manner in which individual family and state might act in every matter in accordance with the nature of Brahman. The commands resulting from the system of the divine order of the world were combined into one standard, set forth in a scheme universally accepted, and thus elevated above all doubt and contradiction, and in this way the Brahmans passed beyond the differences which could not but remain among them in respect to this or that point, and did actually remain in the schools of the priests, as the Brahmanas show. Moreover, unanimous prescripts, a comprehensive and revered canon of law and morals, were naturally an advantage to the position of the Brahmans; their status was thus rendered more secure and distinctive; and success was more certain.
The priesthoods of the various districts must have made a beginning by influencing and modifying in the spirit of the new doctrine the customs and usages of the land; they then proceeded to draw up the customs of family law, of marriage and inheritance, the rights and duties of the castes. In this compilation it was inevitable that the hereditary customs should be revised in the spirit of the priesthood. Collections of this kind serving as rules for certain departments of life have been preserved in certain Grihya-Sutras, i. e. books of household customs, and Dharma-Sutras, i. e. catalogues or tables of laws.221 Out of the oldest records of household customs and legal usages, altered and systematised in the spirit of the priests, out of the collections and revisions of the customs of law and morals made in various schools of priests, a book of law at last grew up for the Brahmans, which comprised both the civic and religious life, and in all relations set forth the ideal scheme, according to which they should be arranged in the spirit of the priesthood, i. e. in a manner suitable to the divine will. This book of the law bears the name of Manu, the first man, the progenitor of the race.
It has been shown above that the victory of the Brahmans, the new faith and code of morals, was first won in the regions between the Yamuna and the Ganges, in the land of the Bharatas, Panchalas, Matsyas, and Çurasenas. As it was there that the pre-eminence of the Brahmans was first completely acknowledged, it was there that they were first able to exercise an influence on the customs and ordinances of law; there also that the need of a comprehensive regulation of life upon the Brahman view was most strongly felt. "The land between the Sarasvati and the Drishadvati was created by the gods (devata); and therefore the sages give it the name of Brahmavarta" – so we are told in the book of the law. The custom of Brahmavarta (achara), preserved unbroken in this land, is for the book of the law the right custom, the correct law. Hence it follows that the rules given in that book rest on the observances which grew up in this region under the predominating influence of the Brahmans. The book further tells us that on the borders of Brahmavarta is Brahmarshideça, i. e. the land of the Brahmanic saints; this includes the land of the Kurus (Kurukshetra) and that of the Panchalas, Matsyas, and Çurasenas. From a Brahman born in this land all men are to learn their right conduct upon earth. The "land of the middle" (Madhyadeça), according to the book, extends from Vinaçana in the west to Prayaga, i. e. to the confluence of the Yamuna and the Ganges; but the law is to prevail from the Vindhyas to the Himalayas, from the western to the eastern sea, over the whole of Aryavarta (i. e. the land of the Aryas): "wherever the black gazelle is found, an efficacious sacrifice can always be offered." In that land the Dvijas are to dwell; "but the Çudra who cannot obtain sustenance there may dwell elsewhere."222
The book of the law naturally declares the revelation (Çruti), the threefold Veda, to be the main source of law. The second source is immemorial tradition or the custom (Smriti) of the good, which is found in its typical form in Brahmavarta; in the third degree are the utterances of the old priests and sages, who are in part quoted by name and cited – Vasishtha, Atri, Gautama, Bhrigu, and Çaunaka.223 But the book of the law is also not inclined utterly to reject the ancient observances and customs; on the contrary, all usages of families, races, and districts remain in force, provided that they are not contradictory to this code.224 The Brahmans were wisely prepared to content themselves with this looser form of unity; by thus sparing local life, they might hope to gain the ascendant more easily and readily in the points of chief importance. This regard for local law is counterbalanced by the fact that the book includes in its sphere religious duties, morals, and worship, and the entire arrangement of the state; in all these departments it lays down the scheme on which they are to be regulated in the spirit of the priesthood. The book is as copious on the doctrine as on the practice; it contains the punishments of heaven as well as those on earth; the arrangement of expiations and penalties as well as of regulations for the trade of the market; the principles of a vigorous management of the state, and the description of hell; the rules for living the Brahman's life and conducting war successfully; the decision of the judge on earth and beneath it. It is not content with establishing rules of law, or commands of moral duty, it includes among its ordinances moral maxims, a number of proverbs and rules of wisdom; it not only shows how heaven is gained but also the proper demeanour in society; a compendium of diplomacy follows the system of regenerations. Hence this book gives striking evidence of the mixture characteristic of the Indian nature, a mixture of superstitious fancy and keen distinction, of vague cloudiness and punctilious systematising, of soaring theory and subtle craft, of sound sense and over-refinement in reflection.
If from these indications about the customs of Brahmavarta and the Brahmans of Brahmarshideça we can determine with tolerable certainty the region in which the book of the law has grown up, it follows from the introduction in which the holy Bhrigu recites the law as "Manu had revealed it to him at his prayer," and from the close where we are again told that this is "the law announced by Bhrigu,"225 that the collection of Brahmanic rules contained in this book have been preserved in the form and revision received in the school derived from Bhrigu, and connected with the old minstrel race of the Bhrigus.226 It is more difficult to find the date at which the germ of this collection of law may have been brought to completion. Even if we set aside the introduction and the close which are in no connection with the body of the work, the book is still wanting in unity: it contains longer and shorter rules on the same subject, is sometimes milder, sometimes more severe; a fact in favour of the gradual origin of the book, which indeed, as has been observed, is necessitated by the nature of the case.
The Indians possess a series of books of law, which, like that called after Manu, bear the name of a saint or seer of antiquity, or of a god. One is named after Gautama, another after Vasishtha, a third after Apastamba, a fourth after Yajnavalkya; others after Bandhayana and Vishnu. According to the tradition of the Indians the law of Manu is the oldest and most honourable, and this statement is confirmed by a comparison of the contents and system of the rules contained in it with those of the other books.227 Not to mention the fact that a considerable number of the rules in the book of Manu are repeated verbally in the other collections, the legal doctrine of the Indians is seen even in the older of these collections, in the book of Vishnu, which belongs to the Brahman school of the Kathakas, in that of Gautama, and finally in that of Yajnavalkya, which with the book of Gautama is nearest in point of date to the book of Manu – in a far more developed state, and with much more straw-splitting refinement. The book which is named after Yajnavalkya of the race of Vajasani belongs to the eastern regions of the Ganges, the kingdom of Mithila. It is based on a doctrine which, unknown to Manu's law, came into existence in the fourth century B.C.; the system of mixed castes and trade law is far more developed in it than in Manu. We shall see below that this doctrine cannot be placed much further back than the year 300 B.C.,228 and it is assumed that the laws of Yajnavalkya in their present form may date from the third century of our era. If Manu's law is older than Yajnavalkya's, and the latter rests on a doctrine, the rise of which we can fix about the year 300 B.C., while Manu's doctrine is older, there are other indications to be gathered from Manu's work which enable us to fix the date more clearly. Manu's law, as we have seen, limits the habitations of the Aryas to the land north of the Vindhyas – from which we may conclude that this view belongs to a period when the Aryas had not yet set a firm foot on the coast of the Deccan. This extension of the Aryas to the south of the Vindhyas began, as will be seen below, after the year 600 B.C. Soon after this year we find the states on the Ganges completely arranged according to the Brahmanic law, and the prescripts of the laws of Manu; even in the first half of the sixth century we find a stricter practice in regard to marriages outside the order, and a severer asceticism than the law-book requires. The conclusion is therefore inevitable that the decisive precepts, which we find in the collection, must have been put together and written down about the year 600.229
The introduction belongs undoubtedly to a later period. Manu is seated in solitary meditation, and there come to him the ten great saints – the book mentions Marichi, Atri, Angiras, Pulastya, Pulaha, Kratu, Daksha, Vasishtha, Bhrigu, Narada230– and say: "Thou alone, lord, knowest the distinction of the pure and impure castes, the true meaning of this universal order, which is self-existent; deign to explain it to us with clearness and in order." Manu then first narrates to the saints the story of creation. The highest being first created the water, and cast into it procreative seed, which became an egg, bright as gold and gleaming like the sun, and in this egg the highest being was born in the shape of Brahman. Then Brahman caused the egg to divide and formed from it the heaven and the earth and the great waters. He then divided himself into a man and a woman, and the male half (Brahman Viraj) produced him, Manu, who fashioned all things and created the ten Rishis, and the seven Manus, who in turn created animals and plants. Then the highest being caused him (Manu) to learn the book of the law by heart: he imparted it to the great saints and taught it to Bhrigu, who would recite it. Then Bhrigu takes up the word and says: "Learn from me the law as Manu has revealed it at my prayer." Bhrigu then narrates how the seven Manus had created various beings each in his age, and recites the doctrine of the four great periods of the world (p. 70), of the origin of the four castes and the majesty of the Brahmans.231
It is no doubt a somewhat late form of Brahmanic cosmogony which is recited in this introduction. We hear no more of the Manu of the Rigveda, the progenitor of the Aryas; he is elevated in the priestly system to be the first being beside Brahman, and made the creator of the world. He is now called Manu Svayambhu, i. e. the self-existent Manu, and creates from himself the ten Rishis, the seven other Manus, who in their turn create living creatures and plants. The seven Manus are all denoted by special epithets – the seventh is known as the ancient Manu; he is called the son of Vivasvat, Vivasvata (p. 30). If Manu Svayambhu had already imparted the law to the great saints, to whose number Bhrigu belongs, and taught it especially to Bhrigu, it was unnecessary for the great saints to ask it from Manu once more. This difficulty is as little felt in the book as the still more striking contradiction that the collection, though emanating from the first Manu or Brahman, is based upon and even expressly appeals to the utterances of Vasishtha, Atri, Gautama, Bhrigu. This is further explained by the fact that the introduction is completely ignored in the text of the book.
In the text we see the civic polity on the Ganges at an advanced stage. The monarchy which rose up from the leadership of the immigrant hordes, in conflict partly against the old inhabitants and partly against the newly-founded states, has maintained this supreme position, and extended it to absolute domination. It is in full possession of despotic power. The Brahmanic theory, so far from destroying it, has, on the contrary, extended and strengthened it. The Brahmans, it is true, demanded that the king should regulate worship, law, and morals according to their views and requirements; they imposed upon him duties in reference to their own order, but, on the other hand, they were much in need of the civic power to help them in carrying through their demands against the other orders. This doctrine of submission to the fortune of birth, of patient obedience, of a quiet and passive life, in connection with the reference to the punishments after death, and the evils to come, were highly calculated to elevate the power of the kings, and lull to sleep energy, independence of feeling and attitude, boldness and enterprise, in the castes of the Kshatriyas and Vaiçyas. The interest in another world and occupation with the future must thus have become more prominent than the participation in this world or care for the present. In such circumstances the world was gladly left to those who had once taken in hand the government of it. When the nation had gradually become unnerved by such doctrines and cares, the monarchy had an easy game to play. Its rule might be as capricious as it chose. In weaker nations, unaccustomed to action, the need of order and protection is so great that not only acts of violence against individuals but even the oppression felt by the whole is gladly endured for the sake of the security enjoyed in other respects by the entire population.
The book compares the kings with the gods. "He who by his beneficence spreads abroad the blessings of prosperity, and by his anger gives death, by his bravery decides the victory, without doubt unites in himself the whole majesty of the protectors of the world."232 Brahman created the king, the book tells us, by taking portions from the substance of the eight protectors of the world, and these the king now unites in his person.233 "As Indra is the bright firmament, so does the king surpass in splendour all mortal beings; as Indra pours water from heaven for four months (the Indians on the Ganges reckoned the rainy season at four months), so must he heap benefits on his people. Like Surya (the sun-god) the king beams into the eyes and hearts of all; no one can look into his countenance. As Surya by his rays draws the moisture out of the earth for eight months, so may the king draw the legal taxes from his subjects. As Vayu flies round the earth and all creatures and penetrates them, so should the power of the king penetrate through all. Like Yama in the under world, the king is lord of justice; as Yama when the time is come judges friends and enemies, those who honour him and those who despise him, so shall the king hold captive the transgressors. As Varuna fetters and binds the guilty, so must the king imprison criminals. Like Agni, the king is the holy fire: with the flame of his anger he must annihilate all transgressors, their families and all that they have, their flocks, and herds, and he must be inexorable towards his ministers. As men rejoice at the sight of the moon-god (Chandra), so do they take pleasure in the sight of the good ruler; as Kuvera spreads abundance, so does the gracious look of the king give blessing and prosperity.234 The sovereign is never to be despised, not even when he is a child; for a great divinity dwells in this human form."235 The king also represents, according to Manu, the four ages of the world. On his sleeping and waking and action depends the condition of the land. "If the king does what is good, it is Kritayuga (the age of perfection); if he acts with energy, it is Tritayaga (the age of the sacrificial fires); if he is awake, it is Dvaparayuga (the period of doubt); if he sleeps it is Kaliyuga (the period of sin)."236 We have already become acquainted with the deification of kings in a still more pronounced form in the inscriptions on the temples and palaces of Egypt. It will always be found where there is nothing to oppose the authority of the king but the impotence of subjects who possess no rights, when life and death depend on his nod, and above all where a divine order supposed to be gathered from the commands of heaven is realised on earth in the state, and there are no institutions to carry it out, but only the person of the king as the single incarnation of power.
However high the Brahmans placed the sanctity and dignity of their own order above that of the Kshatriyas, the book makes no attempt to bring the monarchy into the hands of the Brahmans. It lays down the rule that the kings must belong to the order of the Kshatriyas;237 and leaves the throne to them, without feeling the contradiction that by this means a member of a subordinate caste receives dominion over the first-born of Brahman. It was part of the conception of the Brahmans that each order had a definite obligation. The Kshatriyas must protect the other orders; and therefore the chief protector must belong to this caste. But the book does not even aim at confining the royal power of the Kshatriyas in narrower limits for the benefit of the Brahmans. The kings are merely commanded to be obedient to the law of the priests; the order of Brahmans is declared to be especially adapted for public offices, without excluding the rest of the Dvija from them. The king is further recommended to advise chiefly with Brahmans on affairs of state, and to allow Brahmans to pronounce sentence in his place.238 For the great sacrifices he must have a Brahman to represent him (Purohita); and for household devotion and daily ritual he must keep a chaplain (Ritvij).
Agreeably to the Brahmanic conception of the world, the maintenance of the established order is the especial duty of the king. He must take care that all creatures do what is required of them and perform their duties. He must also protect his subjects, their persons, property, and rights. He must reward the good and punish the bad. Justice is the first duty of the king. By justice the book understands chiefly the maintenance of authority and order by terror, by sharp repression and severe punishment. The power of inflicting punishment is regarded as the best part of the kingly office; the king must especially occupy himself with pronouncing judgment, and punish without respect of persons. The terror spread by punishment, and the apportionment of it in particular cases, are the principles of the law of penalties. The Brahmans had gained recognition for their doctrine mainly by the fear of the penalties of hell, and the regenerations; they thought that nothing but fear governs the world, and by that means only could order be maintained in the state. The more the Brahmanic doctrine drained the marrow out of the bones and the force out of the souls of the people, the more dependent and incapable of self-help the subjects were made by the severe oppression and tutelage of the kings, the more necessary it became, as no one could now defend or help himself, to have an effectual protection for persons and property, and this the book finds only in the power of punishment exercised by the king.
We find a complete theory of the preservative power of punishment, before which all distinctions of criminal and civil process disappear, and it becomes a matter of indifference whether an offence has taken place from a doubtful claim, from error, carelessness, or evil intention. "A man who does good by nature," so we are told in the book, "is rarely found. Even the gods, the Gandharvas, the giants, the serpents perform their functions only from fear of punishment. It is this which prevents all creatures from abandoning their duties, and puts them in a position to enjoy what is properly their own. Punishment is justice, as the sages say; punishment governs the world; it is a mighty power, a strong king, a wise expounder of law. When all things sleep, punishment is awake. If the king did not ceaselessly punish those who deserve it, the stronger would eat up the weak; property would cease to exist; the crow would pick up the rice of the sacrifice, and the dog lick the clarified butter. Only when black punishment with red eyes annihilates the transgressors, do men feel no anxiety."
The services rendered by the king in the exercise of justice and the maintenance of order and the system of caste thus attained, are naturally rated very highly by the book of law, in accordance with its general tendency. "By the suppression of the evil and protection of the good, the king purifies himself like a Brahman by sacrifice." "Then his kingdom flourishes like a tree that is watered continually;" through the protection which the king secures for the good by punishment, he acquires a portion of the merits of the good. The portion of these merits thus allotted to the king is determined by arithmetical calculations. "The king who collects the sixth part of the harvest and protects his people by punishment, obtains a sixth part of the merit of all pious actions, and the sixth part of all rewards allotted by the heavenly beings to the nation for their sacrifices and gifts to the gods, and for the reading of the holy scriptures. But the king who does not protect his people, and yet takes the sixth, goes into hell; as does also the king who punishes the innocent and not the transgressors. Even if the king has not himself pronounced the unjust sentence, a part of the guilt falls upon him. The fourth part of the injustice of the sentence falls on him who began the suit, a fourth on the false witnesses, a fourth on the judge, a fourth on the king. A pure prince, who is truthful, who knows the holy scriptures, and does not disregard the laws, which he has himself given, is regarded by the sages as capable of regulating punishment, of imposing it evenly, and thus he increases the virtue, the wealth, and prosperity of his subjects (the three means of happiness)." "To the prince who decides a case righteously, the people will flock like the rivers to the ocean, and when he has thus obtained the good-will of the nation" – so the book continues – "he must attempt to subjugate the lands which do not obey him."239
Accompanied by Brahmans and experienced councillors, the king is to repair without magnificence to the court of justice. After invoking the protectors of the world, he begins, standing or seated, with the right hand raised, and his attention fixed, to examine the case according to the rank of the castes. Like Yama, the judge of the under world, the king must renounce all thoughts of what is pleasing to him; he must follow the example of the judge of all men, suppress his anger, and put a bridle on his senses. If right wounded by wrong enters the court and the king does not draw out the arrow he is himself wounded. From the attitude of the litigants, the colour of their faces, and the tone of their voices, their appearance and gestures, the king must ascertain their thoughts and attain to truth, as the hunter reaches the lair of the wild beast which he has wounded by following up the traces of its blood. Beside these indications, witnesses are required for proof; and if these are not forthcoming, oaths or the "divine declaration." Respectable men of all the orders are allowed as witnesses, especially the fathers of families; if these are not to be obtained, the friends or enemies of the accused, his servants, or such as are in need and poverty, and are afflicted with sickness. In cases of necessity the evidence of a woman, a child, and a slave can be taken.240
The book repeatedly and with great urgency exhorts the witnesses to speak the truth, and threatens false witnesses with hell and a terrible series of regenerations. In the presence of the accuser and accused the king calls on the witness to tell the truth: to the Brahman he says, "speak;" to the Kshatriya, "tell the truth;" to the Vaiçya, he points out that false witness is as great a crime as theft of corn, cattle, and gold.241 "The wicked think," says Manu, "no one sees us if we give false witness. But the protectors of the world know the actions of all living creatures, and the gods see all men. The soul also is its own witness; a severe judge and unbending avenger dwells in thine heart. The soul is a part of the highest spirit, the attentive and silent observer of all that is good and evil." The false witness will not only come to misfortune in his life, so that, deprived of his sight, with a potsherd in his hand he will beg for morsels in the house of his enemy – for all the good that a man has done in his life at once departs into dogs by false witness – in a hundred migrations he will fall into the toils of Varuna, and at last will be thrown head foremost into the darkest abyss of hell. Even his family and kindred are brought into hell by the false witness. For further elucidation the book provides a scale; by false witness about oxen five, about cows ten, about horses a hundred, and about men a thousand members of the family of the false witness are thrown into hell.242
If no witnesses are forthcoming the king must endeavour to find out the truth by the oaths of the accuser or the accused, which in cases of special importance he may test and confirm by the "divine declaration." Even the Brahmans could not refuse the oath; for Vasishtha had sworn to the son of Pijavana (Sudas). The Brahman swore by his truthfulness; the Kshatriya by his weapons, his horses, and elephants; the Vaiçya by his cows, his corn, his grass; the Çudra, when taking an oath, must invoke all sins on his own head.243 If the king desires the "divine revelation" on the truth of the oath, the person taking it must lay his hand, while swearing, on the head of his wife, or the heads of his children; or after taking it, he must undergo the test of fire and water or fire; i. e. he is thrown into water and he must touch fire with his hand. If in the second case no immediate harm follows, if in the first the witness sinks like any other person, if in the third he is not injured by the fire, the oath is correct. Fire, so the book proceeds, is to be the test of guilt or innocence for all men; the holy Vatsa once demonstrated his innocence by walking through fire without a hair of his head being consumed.244 When we consider the inclination of the Indians to the marvellous, and their belief in the perpetual interference of the gods, it cannot surprise us that these regulations about the divine declaration – which are all that are found in the book of the law – became at a later time much more extended and complicated; it is also possible that the book has omitted certain hereditary forms of the divine sentence, such as the carrying of hot iron, though they continue to exist.245
When the king had thus come to a conclusion about the matter and its position by means of indications, evidence, oaths, and "divine declaration," when he had considered the extenuating or aggravating circumstances, e. g. special qualities in the criminal, or repeated convictions, and reflected on the prescriptions given by the law, he is to cause punishment to be inflicted on the guilty. The book acknowledges that the king alone is not sufficient for the burden of pronouncing justice; it is open to him to name a representative, and the necessary judges from the number of the twice-born; no exclusive right in this respect is reserved for the Brahmans, but they are especially recommended. "A court of law, assembled by the king, and consisting of a very learned Brahman and three Brahmans acquainted with writing, is called by the sages the court of Brahman with four faces." A Çudra can never be named by the king as his representative in a court of law. If such a thing were to happen, the kingdom would be in the unfortunate position of a cow which had fallen into a morass.246
