CHAPTER THE EIGHTH.
On Judicature; and on Law, Private and Criminal
1. 'A king, desirous of inspecting judicial proceedings mud enter his court of justice, composed and sedate in his demeanour, together with Brahmens and counsellors, who know how to give him advice:
2. 'There, either sitting or standing, holding forth his right arm, without ostentation in his dress and ornaments, let him examine the affairs of litigant parties.
3. 'Each day let him decide causes one after another, under the eighteen principal titles of law, by arguments and rules drawn from local usages, and from written codes:
4. 'Of those titles, the first is debt, on loans for consumption; the second, deposits, and loans for use; the third, sale without ownership; the fourth, concerns among partners; the fifth, subtraction of what has been given;
5. 'The sixth, non-payment of wages or hire; the seventh, non performance of agreement; the eighth, rescission of sale and purchase; the ninth, disputes between master and servant;
6. 'The tenth, contests on boundaries; the eleventh and twelfth, assault and slander; the thirteenth, larceny; the fourteenth, robbery and other violence; the fifteenth, adultery;
7. ‘The fifteenth, altercation between man and 4 wife, and their several duties; the seventeenth, the law of inheritance; the eighteenth, gaming with dice and with living creatures: these eighteen titles of law are settled as the ground work of all judicial procedure in this world.
8. 'Among men, who contend for the most part on the titles just mentioned, and on a few miscellaneous heads not comprised under them, let the king decide causes justly, observing primeval law;
9. 'But when he cannot inspect such affairs in person, let him appoint, for the inspection of them, a Brahmen of eminent learning;
10. 'Let that chief judge, accompanied by three assessors, fully consider all causes brought before the king; and, having entered the court room, let him sit or stand, but not move backwards and forwards.
11. 'In whatever country three Brahmens, particularly skilled in the three several Vedas, sit together with the very learned Brahmen appointed by the king, the wise call that assembly the court of Brahma with four faces.
12. 'WHEN justice, having been wounded by iniquity, approaches the court, and the judges extract not the dart, they also shall be wounded by it.
13. 'Either the court must not be entered by judges, parties, and witnesses, or law and truth must be openly declared: that man is criminal, who either says nothing, or says what is false or unjust.
14. ;Where justice is destroyed by iniquity, and truth by false evidence, the judges, who safely look on, without giving redress, shall also be destroyed.
15. 'Justice being destroyed, will destroy; being preserved, will preserve: it must never therefore be violated. “Beware, O judge, lest justice being overturned, overturn both us and thyself.”
16. 'The divine form of justice is represented as Vrisha, or a bull, and the gods consider him, who violates justice, as a Vrishala, or one who slays a bull: let the king, therefore, and his judges beware of violating justice.
17. 'The only firm friend, who follows men even after death, is justice; all others are extinct with the body.
18. 'Of injustice in decisions, one quarter falls on the party in the cause; one quarter, on his witnesses; one quarter, on all the judges; and one quarter on the king;
19. ‘But where he, who deserves condemnation shall be condemned, the king is guiltless, and the judges free from blame: an evil deed shall recoil on him who committed it.
20. 'A Brahmen supported only by his class, and one barely reputed a Brahmen, but without performing any sacerdotal acts, may, at the king's pleasure, interpret the law to him: so may the two middle classes; but a Sudra, in no case whatever.
21. 'Of that king, who stupidly looks on, while a Sudra decides causes, the kingdom itself shall be embarrassed, like a cow in deep mire.
22. 'The whole territory, which is inhabited by a number of Sudras, overwhelmed with atheists, and deprived of Brahmens, must speedily perish, assisted with death and disease.
23. 'Let the king or his judge, having seated himself on the bench, his body properly clothed, and his mind attentively fixed, begin with doing reverence to the deities, who guard the world; and then let him enter on the trial of causes:
24. 'Understanding what is expedient or inexpedient, but considering only what is law or not law, let him examine all disputes between parties, in the order of their several classes.
25. 'By external signs let him see through the thoughts of men; by their voice, colour, countenance, limbs, eyes, and action:
26. 'From the limbs, the look, the motion of the body, the gesticulation, the speech, the changes of the eye and the face, are discovered the internal workings of the mind.
27. 'The property of a student and of an infant, whether by descent or otherwise, let the king hold in his custody, until the owner shall have ended his studentship, or until his infancy shall have ceased in his sixteenth year.
28. 'Equal care must be taken of barren women, of women without sons, whose husbands have married other wives, of women without kindred, or whose husbands are in distant places, of widows true to their lords, and of women afflicted with illness.
29. 'Such kinsmen, as by any pretence, appropriate the fortunes of women during their lives, a just king must punish with the severity due to thieves.
30. 'Three years let the king detain the property of which no owner appears, after a distinct proclamation: the owner appearing within the three years, may take it; but, after that term, the king may confiscate it.
31. 'He, who says "This is mine,” must be duly examined; and if, before he inspect it, he declare its form, number, and other circumstances, the owner must have his property;
32. 'But if he show not at what place and time it was lost, and specify not its colour, shape, and dimensions, he ought to be amerced;
33. 'The king may take a sixth part of the property so detained by him, or a tenth, or a twelfth, remembering the duty of good kings.
34. 'Property lost by one man, and found by another, let the king secure, by committing it to the care of trust-worthy men; and those, whom he shall convict of stealing it, let him cause to be trampled on by an elephant.
35. 'From the man who shall say with truth, "This property, which has been kept, belongs to me,” the king may take a sixth or twelfth part, for having secured it;
36. 'But he who shall say so falsely, may be fined either an eighth part of his own property, or else in some small proportion, to the value of the goods falsely claimed, a just calculation having been made.
37. 'A learned Brahmen, having found a treasure formerly hidden, may take it without any deduction; since he is the lord of all;
38. 'But of a treasure anciently reposited under ground, which any other subject or the king has discovered, the king may lay up half in his treasury, having given half to the Brahmens.
39. 'Of old hoards, and precious minerals in the earth, the king is entitled to half by reason of his general protection, and because he is the lord paramount of the soil.
40. ‘To men of all classes, the king must restore their property, which robbers have seized; since a king, who takes it for himself, incurs the guilt of a robber.
41. ‘A king who knows the revealed law, must enquire into the particular laws of classes, the laws or usages of districts, the customs of traders, and the rules of certain families, and establish their peculiar laws, if they be not repugnant to the law of God;
42. ‘Since all men, who mind their own customary ways of proceeding, and are fixed in the discharge of their several duties, become united by affection with the people at large, even though they dwell far asunder.
43. 'Neither the king himself, nor his officers must ever promote litigation; nor ever neglect a law suit instituted by others.
44. ‘As a hunter traces the lair of a wounded beast by the drops of blood; thus let a king investigate the true point of justice by deliberate arguments:
43. 'Let him fully consider the nature of truth, the date of the case, and his own person; and next, the witnesses, the place, the mode, and the time; firmly adhering to all the rules of practice:
46. ‘What has been practised by good men and by virtuous Brahmens, if it be not inconsistent with the legal customs of provinces or districts, of classes and families, let him establish.
47. 'When a creditor sues before him for the recovery of his right from a debtor, let him cause the debtor to pay what the creditor shall prove due.
48. ‘By whatever lawful means a creditor may have gotten possession of his own property, let the king ratify such payment by the debtor, though obtained even by compulsory means;
49. 'By the mediation of friends, by suit in court, by artful management, or by distress, a creditor may recover the property lent; and fifthly, by legal force.
50. 'That creditor, who recovers his right from his debtor, must not be rebuked by the king for retaking his own property.
51. 'In a suit for a debt, which the defendant denies, let him award payment to the creditor of what, by good evidence, he shall prove due, and exact a small fine, according to the circumstances of the debtor.
52. ‘On the denial of a debt, which the defendant has in court been required to pay, the plaintiff must call a witness who was present at the place of the loan, or produce other evidence, as a note and the like.
53. ‘The plaintiff, who calls a witness not present at the place where the contract was made, or, having knowingly called him, disclaims him as his witness; or who perceives not, that he asserts confused and contradictory facts;
54. 'Or who, having stated what he designs to prove, varies afterwards from his case; or who, being questioned on a fact which he had before admitted, refuses to acknowledge that very fact;
55. 'Or who has conversed with the witnesses in a place unfit for such conversation; or who declines answering a question properly put; or who departs from the court;
56. 'Or who, being ordered to speak, stands mute; or who proves not what he has alleged; or who knows not what is capable or incapable of proof; such a plaintiff shall fail in that suit.
57. 'Him who has said “I have witnesses,” and being told to produce them, produces them not, the judge must on this account declare nonsuited.
58. ‘If the plaintiff delay to put in his plaint, he may, according to the nature of the case, be corporally punished or justly amerced; and if the defendant plead not within three fortnights, he is by law condemned.
59. 'In the double of that sum, which the defendant falsely denies, or on which the complainant falsely declares, shall those two men, wilfully offending against justice, be fined by the king.
60. 'When a man has been brought into court by a suitor for property, and, being called on to answer, denies the debt, the cause should be decided by the Brahmen who represents the king, having heard three witnesses at least.
61. 'What sort of witnesses must be produced by creditors and others on the trial of causes, I will comprehensively declare; and in what manner those witnesses must give true evidence.
62. 'Married house-keepers, men with male issue, inhabitants of the same district, either of the military, the commercial, or the servile class, are competent, when called by the party, to give their evidence; not any persons indiscriminately, except in such cases of urgency as will soon be mentioned.
63. ‘Just and sensible men of all the four classes may be witnesses on trials; men, who know their whole duty, and are free from covetousness; but men of an opposite character the judge must reject.
64. ‘Those must not be admitted who have a pecuniary interest; nor familiar friends; nor menial servants; nor enemies; nor men formerly perjured; nor persons grievously diseased; nor those who have committed heinous offences.
65. ‘The king cannot be made a witness; nor cooks and the like mean artificers; nor public dancers nor singers; nor a priest of deep learning in scripture; nor a student in theology; nor an anchoret secluded from all worldly connexions;
66. ‘Nor one wholly dependent; nor one of bad fame; nor one who follows a cruel occupation; nor one who acts openly against the law; nor a decrepit old man; nor a child; nor one man only, unless he be distinguished for virtue; nor a wretch of the lowest mixed class; nor one who has lost the organs of sense;
67. 'Nor one extremely grieved; nor one intoxicated; nor a madman; nor one tormented with hunger or thirst; nor one oppressed by fatigue; nor one excited by lust; nor one inflamed by wrath; nor one who has been convicted of theft.
68. 'Women should regularly be witnesses for women; twice born men, for men alike twice born; good servants and mechanicks, for servants and mechanicks; and those of the lowest race, for those of the lowest;
69. 'But any person whatever, who has positive knowledge of transactions in the private apartments of a house, or in a forest, or at a time of death, may give evidence between the parties:
70. ‘On failure of witnesses duly qualified, evidence may, in such cases, be given by a woman, by a child, or by an aged man, by a pupil, by a kinsman, by a slave, or by a hired servant;
71. 'Yet of children, of old men, and of the diseased, who are all apt to speak untruly, the judge must consider the testimony as weak; and much more, that of men with disordered minds:
72. ‘In all cases of violence, of theft and adultery, of defamation and assault, he must not examine too strictly the competence of witnesses.
73. 'If there be contradictory evidence, let the king decide by the plurality of credible witnesses; if equality in number, by superiority in virtue; if parity in virtue, by the testimony of such twice born men as have best performed publick duties.
74. ‘Evidence of what has been seen, or of what has been heard, as slander and the like, given by those who saw or heard it, is admissable; and a witness who speaks truth in those cases, neither deviates from virtue nor loses his wealth;
75. ‘But a witness, who knowingly says any thing, before an assembly of good men, different from what he had seen or heard, shall fall headlong, after death, into a region of horrour, and be debarred from heaven.
76. ‘When a man sees or hears any thing, without being then called upon to attest it, yet if he be afterwards examined as a witness, he must declare it, exactly as it was seen, and as it was heard.
77. ‘One man, untainted with covetousness and other vices, may in some cases be the sole witness, and will have more weight than many women, because female understandings are apt to waver; or than many other men who have been tarnished with crimes.
78. 'What witnesses declare naturally or without bias, must be received on trials; but what they improperly say, from some unnatural bent, is inapplicable to the purposes of justice.
79. ‘The witnesses being assembled in the middle of the court-room, in the presence of the plaintiff and the defendant, let the judge examine them, after having addressed them all together in the following manner:
80. “What ye know to have been transacted in the matter before us, between the parties reciprocally, declare at large and with truth; for your evidence in this cause is required.”
81. 'A witness, who gives testimony with truth, shall attain exalted seats of beatitude above, and the highest same here below: such testimony is revered by Brahma himself;
82. ‘The witness who speaks falsely, shall be fast bound, under water, in the snaky cords of Varuna, and be wholly deprived of power to escape torment, during a hundred transmigrations: let mankind, therefore, give no false testimony.
83. 'By truth is a witness cleared of sin; by truth is justice advanced: truth must, therefore, be spoken by witnesses of every class.
84. ‘The soul itself is its own witness; the soul itself is its own refuge; offend not thy conscious soul, the supreme internal witness of men!
83. The sinful have said in their hearts: "None sees us,” Yes; the gods distinctly see them; and so does the spirit within their breasts.
86. 'The guardian deities of the firmament, of the earth, of the waters, of the human heart, of the moon, of the sun, and of fire, of punishment after death, of the winds, of night, of both twilights, and of justice, perfectly know the state of all spirits clothed with bodies.
87. 'In the forenoon let the the judge, being purified, severally call on the twice born, being purified also, to declare the truth, in the presence of some image, a symbol of the divinity, and of Brahmens, while the witnesses turn their faces either to the north or to the east.
88. 'To a Brahmen he must begin with saying, “Declare;" to a Cshatriya, with saying “Declare the truth;" to a Vaisya, with comparing perjury to the crime of stealing kine, grain, or gold; to a Sudra, with comparing it in some or all of the following sentences, to every crime that men can commit.
SECT. IX. Of the Modes of Examining Witnesses.
He who means to question a Witness, having bathed himself, shall put his Questions in the Tenth Ghurrie of the Day: The Witness also, having bathed himself, and turned his Face towards the Eastern or Northern Quarter, shall deliver his Evidence: The Examiner shall ask the Witness (if a Bramin) with Civility and Respect, saying, "Explain to me what Knowledge you have of this Affair;" and to a Chehteree he shall say, "What do you know of this Affair? speak the Truth;" and to a Bice he shall say, "What do you know of this Affair? if you give false Evidence, whatever Crime there is in dealing Kine, or Gold, or Paddee, or Wheat, or Gram, or Barley, or Milliard, and such Kind of Grain, shall be accounted to you;" and to a Sooder he shall say, "What do you know of this Affair? speak; if your Evidence is false, whatever Crime is the greatest in the World, that Crime shall be accounted to you."
-- A Code of Gentoo Laws, Or, Ordinations of the Pundits, From a Persian Translation, Made From the Original, Written in the Shanscrit Language, by Nathaniel Brassey Halhed
89. “Whatever places of torture have been prepared for the slayer of a priest, for the murderer of a woman or of a child, for the injurer of a friend, and for an ungrateful man, those places are ordained for a witness who gives false evidence.
90. 'The fruit of every virtuous act, which thou hast done, O good man, since thy birth, shall depart from thee to dogs, if thou deviate in speech from the truth.
91. “O friend to virtue, that Supreme Spirit, which thou believed one and the same with thyself, resides in thy bosom perpetually, and is an all knowing inspector of thy goodness or of thy wickedness.
92. “If thou beest not at variance, by speaking falsely, with Yama, or the subduer of all; with Vaivaswata, or the punisher; with that great divinity who dwells in thy breast, go not on a pilgrimage to the river Ganga, nor to the plains of Curu, for thou hast no need of expiation.
93. “Naked and shorn, tormented with hunger and thirst, and deprived of light, shall the man who gives false evidence, go with a potsherd to beg food at the door of his enemy.
94. “Headlong, in utter darkness, shall the impious wretch tumble into hell, who, being interrogated m a judicial inquiry, answers one question falsely.
95. “He, who in a court of justice gives an imperfect account of any transaction, or asserts a fact of which he was no eye-witness, shall receive pain instead of pleasure, and resemble a man, who eats fish with eagerness and swallows the sharp bones.
96. “The gods are acquainted with no better mortal in this world, than the man, of whom the intelligent spirit, which pervades his body, has no distrust, when he prepares to give fevidence.
97. “Hear, honest man, from a just enumeration in order, how many kinsmen, in evidence of different sorts, a false witness kills or incurs the guilt of killing:
98. 'He kills five by false testimony concerning cattle in general; he kills ten by false testimony concerning kine; he kills a hundred by false evidence concerning horses; and a thousand by false evidence concerning the human race:
99. 'By speaking falsely in a cause concerning gold, be kills the born and the unborn; by speaking falsely concerning land, he kills every thing animated: beware then of speaking falsely in a cause concerning land!
And the Crime of false Witness is the same as if a Man had murdered a Bramin, or had deprived a Woman of Life, or had assassinated his Friend; or of One, who, in return for Good, gives Evil; or who, having learned a Science or Profession, gives his Tutor no Reward; or of a Woman, who, having neither Son, nor Grandson, nor Grandson's Son, after her Husband's Death, celebrates not the Seradeh to his Memory; or of a Son, who celebrates not the Seradeh for his Father and Mother; or of him, who, having received a Kindness, is always mentioning the Faults of his Benefactor, and conceals the Benefit received; or of him, who forsakes any One of the Four Isrum, or Modes of Life: (The Four Isrum are a Berhemcharry, a Sinassee, a Ban Perust, and a Householder; of these the Berhemcharry, the Sinnassee, and the Ban Perust, have already been explained in the Chapter of Daye Bhag, and a Householder is he who hath a Wife, a Son, a Brother, and Grandson; or, if he hath not these, who nevertheless keeps a House.) Whatever Crime is incurred in such Actions as above-mentioned, the same Crime is incurred by giving false Witness.
In an Affair concerning Kine, if any Person gives false Evidence, whatever Guilt is incurred by the Murder of Ten Persons, he becomes obnoxious to the Punishment due to such a Crime, besides the Guilt already explained.
In an Affair concerning a Horse, if any Person gives false Evidence, Guilt is as great as the Guilt of murdering One Hundred Persons.
Besides Kine and Horses, in an Affair concerning any other Animal that hath Hair upon its Tail, if any Person gives false Evidence, whatever Guilt is incurred by the Murder of Five Persons, that Guilt shall be imputed to him.
In an Affair, concerning a Man, if any Person gives false Evidence, whatever Guilt is incurred by the Murder of One Thousand Persons, he becomes amenable to the Punishment of such Guilt.
In an Affair concerning Gold, if any Person gives false Evidence, whatever Guilt would be incurred in murdering all the Men who have been born, or who shall be born in the World, shall be imputed to him.
In an Affair concerning Land, if any Person gives false Evidence, whatever Guilt would be incurred by the Murder of all living Creatures in the World, he shall be liable to the Punishment due to such Guilt.
-- A Code of Gentoo Laws, Or, Ordinations of the Pundits, From a Persian Translation, Made From the Original, Written in the Shanscrit Language, by Nathaniel Brassey Halhed
100. 'The sages have held false evidence concerning water, and the possession or enjoyment of women, equal to false evidence concerning land; and it is equally criminal in causes concerning pearls and other precious things formed in water, and concerning all things made of stone.
101. 'Marking well all the murders which are comprehended in the crime of perjury, declare thou the whole truth with precision, as it was heard, and as it was seen by thee.” [/b]
102. 'Brahmens who tend herds of cattle, who trade, who practise mechanical arts, who profess dancing and singing, who are hired servants or usurers, let the judge exhort and examine as if they were Sudras.
103. 'In some cases, a giver of false evidence from a pious motive, even though he know the truth, shall not lose a seat in heaven; such evidence wise men call the speech of the gods.
104. 'Whenever the death of a man, who had not been a grievous offender, either of the servile, the commercial, the military, or the sacerdotal class, would be occasioned by true evidence, from the known rigour of the king, even though the fault arose from inadvertence or errour, falsehood may be spoken: it is even preferable to truth.
Wherever a true Evidence would deprive a Man of his Life, in that Case, if a false Testimony would be the Preservation of his Life, it is allowable to give such false Testimony; and for Ablution of the Guilt of false Witness, he shall perform the Poojeeh Sereshtee; but to him who has murdered a Bramin, or slain a Cow, or who, being of the Bramin Tribe, has drunken Wine, or has committed any of these particularly flagrant Offences, it is not allowed to give false Witness in Preservation of his Life.
-- A Code of Gentoo Laws, Or, Ordinations of the Pundits, From a Persian Translation, Made From the Original, Written in the Shanscrit Language, by Nathaniel Brassey Halhed
105. 'Such witnesses must offer, as oblations to Saraswati, cakes of rice and milk addressed to the goddess of speech; and thus will they fully expiate that venial sin of benevolent falsehood:
106. 'Or such a witness may pour clarified butter into the holy fire, according to the sacred rule, hallowing it with the texts called cushmanda, or with those which relate to Varuna, beginning with ud; or with the three texts appropriated to the water gods.
107. ‘A man who labours not under illness, yet comes not to give evidence in cases of loans and the like, within three fortnights after due summons, shall take upon himself the whole debt, and pay a tenth part of it as a fine to the king.
108. 'The witness, who has given evidence, and to whom, within seven days after, a misfortune happens from disease, fire, or the death of a kinsman, shall be condemned to pay the debt and a fine.
109. ‘In cases, where no witness can be had, between two parties opposing each other, the judge may acquire a knowledge of the truth, by the oath of the parties; or if he cannot otherwise perfectly ascertain it.
110. 'By the seven great Rishis, and by the deities themselves, have oaths been taken, for the purpose of judicial proof; and even Vasisht’ha, being accused by Viswamitra of murder, took an oath before the king Sudaman, son of PlYAVANA.
111. ‘Let no man of sense take an oath in vain, that is, not in a court of justice, on a trifling occasion; for the man, who takes an oath in vain, shall be punished in this life and in the next:
112. [b]‘To women, however, at a time of dalliance, or on a proposal of marriage, in the case of grass or fruit eaten by a cow, of wood taken for a sacrifice, or of a promise made for the preservation of a Brahmen, it is no deadly sin to take a light oath.
113. 'Let the judge cause a priest to swear by his veracity; a soldier by his horse or elephant, and his weapons; a merchant by his kine, grain, and gold; a mechanick, or servile man, by imprecating on his own head, if he speak falsely, all possible crimes;
114. 'Or, on great occasions, let him cause the party to hold fire, or to dive under water, or severally to touch the heads of his children and wife:
115. 'He, whom the blazing fire burns not, whom the water soon forces not up, or meets with no speedy misfortune, must be held veracious in his testimony on oath.
116. ‘Of the sage Vasta, whom his younger half brother formerly attacked, as the son of a fertile woman, the fire, which pervades the world, burned not even a hair, by reason of his perfect veracity.
In a Case where there are many Witnesses, if, at the Time of Examination, most of them give their Evidence for One Person, and One or Two of them depose in Favour of the other Party, the Evidence of the Majority is approved; if of the whole Number of Witnesses Half depose for One Side, and Half for the other, then the Evidence of any One of the Witnesses who is a Man of Science shall be credited; if they are all Men of Science, the Evidence of him among them who is the farthert advanced in Knowledge is approved; if the Knowledge of all of them is equal, the Testimony of him among them who regulates his whole Conduct by the Beids is approved; if they all regulate their Conduct by the Beids, and the Evidence of such Men is contradictory, then such a Suit as this cannot be decided by the Testimony of Witnesses; but the Purrikeh [Parikyah] must be performed.
-- A Code of Gentoo Laws, Or, Ordinations of the Pundits, From a Persian Translation, Made From the Original, Written in the Shanscrit Language, by Nathaniel Brassey Halhed
117. 'Whenever false evidence has been given in any suit, the king must reverse the judgement; and whatever has been done, must be considered as undone.
118. 'Evidence, given from covetousness, from distraction of mind, from terrour, from friendship, from lust, from wrath, from ignorance, and from inattention, must be held invalid.
119. ‘The distinctions of punishment for a false witness, from either of those motives, I will propound fully and in order.
120. If he speak falsely through covetousness, he shall be fined a thousand panas; if through distraction of mind, two hundred and fifty, or the lowest amercements; if through terrour, two mean amercements; if through friendship, four times the lowest;