Hindu Law and Judicature Part 12

The Commentator adds another meaning or application of the latter words of this sloka, in which, reciting the first part, _viz._, pledging upon the guarantee of character, or, a pledge of religious merit, he goes on to say--It is here laid down, that one who receives on his word, _scil._ words ratifying a bargain of sale and purchase, &c., for instance, receiving a gold ring, &c., as earnest, shall be made to repay twice the value of the thing so given, on breach of the contract: if the party depositing the ring, &c., break off the bargain, he forfeits what he gave as earnest; if the other party break off, he is to be compelled to refund double the value of the earnest received by him.]

[Footnote 128: punishable as a thief. (_M._)]

[Footnote 129: to one of the family who is a fit person. (_M._)]

[Footnote 130: The Commentator implies, that where the usufruct has done more than this, still the transaction is closed by return of the pledge.]

[Footnote 131: Manu, ch. 8, sl. 180.]

[Footnote 132:90 ibid, sl. 189.]

[Footnote 133: _yachita_, _e.g._ ornaments, clothes, &c. lent on occasion of festivals. (_M._)]

[Footnote 134: _anvahita._ We have followed the Commentator in translating this indefinite term.]

[Footnote 135: This qualification too is the Commentator's. The term used _nyasa_ is simply, a deposit.]

[Footnote 136: which are those given in the presence of (_i. e._ personally to) the depositee. (_M._)]

[Footnote 137: such as gold &c. given to be worked (_M._)]

[Footnote 138: _tapaswi_, the third in rank of the Hindu religious orders.]

[Footnote 139: The four objects of living being, in the creed of the Hindu, virtue, wealth, pleasure, and final liberation of the soul.]

[Footnote 140: Manu, ch. 8, sl. 62, 63.]

[Footnote 141: The terms used are _jati_ and _var?a_ which are somewhat ambiguous; but the sense is evidently as rendered, and is so explained by the Commentator. Manu adds,--Women should be witnesses for women, ch. 8, sl. 68.]

[Footnote 142: _i. e._ if the regular and more appropriate witnesses are not available. (_M._)

After sloka 69 the Calcutta edition has the following:--Those learned in the Vedas, ascetics, the aged, devotees, and the like, are incompetent witnesses, because so declared by law; no other ground [of incompetency] is a.s.signed.

We do not insert this additional sloka for the reasons stated in note [79] supra.]

[Footnote 143: of not less than eighty years.(_M._)]

[Footnote 144: possessed of devils. (_M._) The expression used by the Commentator may be also translated--under planetary influence.]

[Footnote 145: which the Commentator explains _nirgranthi prabhritayah_, by which probably are indicated those of the Hindu community who disbelieve the Vedas, _e.g._ the Jains.]

[Footnote 146: the slayer of brahma?, and such heinous criminals.

(_M._) Manu ch. 11, sl. 54. See Note [155].]

[Footnote 147: of either party. Perhaps this might be rendered, partisans, or, allies.]

[Footnote 148: Said by the Commentator to allude to notorious liars.]

[Footnote 149: _scil._ as found in the other Smritis. The Commentator (quoting Narada) gives a more detailed account of persons excluded or exempt from giving testimony. Manu ch. 8, sl. 64--67.]

[Footnote 150: a fortiori two persons, (_M._)]

[Footnote 151: or, who knows the Dharma.]

[Footnote 152: The Commentator excludes from this enabling exception those under moral (not merely arbitrary or conventional) disability, as, criminals. Manu, ch. 8, sl. 72.]

[Footnote 153: also, murder. (_M._)]

[Footnote 154: _parushya_ and _sahasa_: v. supra in notes [9] et [11].]

[Footnote 155: Who these are is described by Yajnavalkya, in the third book, _scil._

sl. 227. The slayer of a brahma?, the drinker of what intoxicates, the thief, one who violates his _guru's_ bed, are great criminals--also, whoever a.s.sociates with such persons.

sl. 228. Grossly to revile one's _guru_, speaking reproachfully of the Vedas, to slay a friend, after reading from the Veda to forget it,--these [sins] are like to the murder of a brahma?.

sl. 229. To eat forbidden food, a crooked insincere mode of dealing, a mult.i.tude of lying words, kissing the mouth of a menstruous woman,--these [sins] are like to drinking intoxicating liquor.

sl. 230. To steal horses, jewels, men, women, land, cows, property pledged,--these [sins] are like to the stealing of gold.

sl. 231. To debauch a friend's wife, a maiden, a sister, a woman of the lowest grade, a female relative, a son's wife,--these [sins] are recorded as equivalent to violation of a _guru's_ bed.

sl. 232. To debauch a father's sister, or a mother's, the wife of a maternal uncle, a daughter-in-law, a step-mother, the sister or daughter of an _acharya_,

sl. 233. or his wife, or one's own daughter,--these are equal to violation of a _guru's_ bed. The penalty is death, the pudenda [of the criminal] being previously amputated. A like doom is for the woman, if she consented.

See Manu, ch. 9, sl. 235; ch. 11, sl. 54--58, sl. 170--180.

As to the _guru_ and _acharya_, the following is the 34th sloka of Yajnavalkya's first book:--He is a man's _guru_, who, after going through the ritual, imparts to him the Veda: he is _acharya_, who invests with the sacred cord and then imparts the Veda.]

[Footnote 156: Manu, ch. 8, sl. 89 &c.]

[Footnote 157: _guni_, referring not merely to personal qualities or eminence in virtue, but to possession of wealth, sons, and learning: so explained by the Commentator.]

[Footnote 158: Manu, ch. 8, sl. 73.]

[Footnote 159: The Commentator explains this to refer to the fine which would be payable on failure (supra sl. 11).]

[Footnote 160: out of the realm. (_M._) Manu, ch. 8. sl. 119-124.]

[Footnote 161: supra, sl. 73.]

[Footnote 162: The Commentator adds--If the brahma?, or any of the other casts, cannot pay the fine, he must suffer imprisonment and the labour proper to his cast. He explains the enormity of the offence described in this sloka to consist in the contempt of Court.]

[Footnote 163: _i. e._ if, by such untruth, the death be averted. If from testimony either way, the alternative of the death of the plaintiff or defendant must ensue, the witness should maintain silence, the monarch a.s.senting. In case the monarch do not a.s.sent, the testimony may be rendered of no avail by confusing the witness: if this cannot be effected, then let the truth be spoken; for by so doing one fault only is incurred, _viz._ causing the death, whereas from untruth would arise the sin of it as well as of the death. (_M._)]

[Footnote 164: Manu, ch. 8, sl. 104, 105.]