students in theology, and so forth. If there be a variance of opinion on the question, what is, or what is not ordained, the king, even though he enter on the inquiry, should not expressly declare the law, lest he excite the anger of the party that is foiled. First assuaging the wrath of these persons by mildness and gentle discourse, let him then inculcate their duty on them through the intervention of bráhmanas.1

"Among twice-born men, amidst whom a controversy has arisen concerning affairs relative to the order of a householder, 'whether this be the sense of the law, or that be its true interpretation,' the king, desirous of effecting his own good, should not with violence pronounce positively what the construction of the law is. Having shown them that honour which is their due respectively, he should with aid of other bráhmanas, after previously extenuating the presumption by his kindness, apprise them of that which is their duty.2

66 'Concerning affairs relative to the several orders, as that of student in theology, and so forth, let not the prince pronounce the law; let him not specifically declare it; let him not adjudge victory and defeat. By mildness or conciliatory discourse, soothing them, or appeasing their wrath and other passions, [let him apprise them of their duty]."'

§ 3. Members of a Court of Judicature.

"The king and his officers, the judges, the sacred code of law, the accountant and the scribe, gold, fire, and water, are the eight members of the judicature."

"A court consists of eight members, the scribe, the accountant, the sacred code, the sequestrator of the goods claimed, the judges, gold, fire, and water."

"The king, the appointed [superintendent of his courts], the judges, the law, the accountant, and the scribe, gold, fire, and water, and the king's own officer, are ten members of legal redress. A court of judicature is a body composed of these ten members; and such a court, wherein the king presides and attentively inspects the trial of causes, is a meeting sanctified by solemn acts of religion.

"The office of those several members is separately propounded: the chief judge is the organ of the court; the king is the dispenser of justice; the assessors investigate the merits of the cause; the law dictates the decision of the case, namely, judgment [in favour of the one party], and a fine imposed on the other; gold and fire

1 Vách. migr. in Tyau. Chint.

3 Lakshm. in Kalp.

5 Prajapati, cited in the Sm. Ch.

2 Kullúka Bh. on Manu, 8. 390, 391.

▲ Nárada, 1. 16.

serve for administering oaths; water for relieving thirst or appeasing hunger; the accountant should compute the sums; the scribe should record the pleadings; the king's officer should compel the attendance of the defendant and of the witnesses, and he should detain both the plaintiff and the defendant if they have given no sureties.

"Among these members of the judicature the king is the crown of the head; the chief judge is the mouth; the assessors are the arms; the law is both hands; the accountant and the scribe are the legs; gold, fire, and water, are the eyes; and the king's officer is the feet.1

"The court of judicature is a body in shape of an assembly, and composed of ten members; in which assemblage, likened to a body, the king presides as its soul. It is thus intimated, that as the soul animates the corporeal frame, so the king, presiding over the court and its members, and inspecting all its acts, both enjoys and confers the consequent benefits."

"In Nárada's enumeration, the king and his officers are considered as one member of the court; consequently there is no reason for supposing the number of nine.” 3

§ 4. The Sovereign Prince.

"The king, or a very learned bráhmana [entitled judge], shall decide the various sorts of law-suit.1

"Let a man of the royal tribe, who has received the investiture of sovereignty, or one of the sacerdotal class who is conversant with many sciences, ascend the tribunal without ostentation [in his dress or demeanour], and inspect judical proceedings."

"The king, associating justice with himself, and devoid of partiality or malice, should thoroughly investigate the affairs of contending parties."

"Divested of wrath and avarice, let the king inspect law-suits with the aid of learned priests, according to the sacred code of justice."

"The king should repair to the court of justice, sedate in his demeanour, and without ostentation in his dress; and sitting there, or standing, with his face turned towards the east, should examine the affairs of litigant parties; he should be attended by assessors, firm in the discharge of their duties, intelligent, sprung from a noble root, belonging to the highest class of regenerate men, skilled

1 Vrihaspati, cited in Kalpataru and Viramitrodaya. posed in the first-mentioned compilation.

3 Madhav.

5 Prajapati.

Some stanzas are trans2 Viramitr.

4 Vrih., expounded in Sm. Chand.
6 Nárada, or Yama.

7 Yajnavalkya, 2. 1.

in expounding the sacred code, and perfectly acquainted with moral
discipline. Thus calm and unostentatious, attended by the superin-
tendent of his courts of justice, by his ministers of state, by bráh-
manas, and by his own domestic priest, he should himself adjudge
the gain and loss of the litigants' causes. A prince who judges
the suits before him, abides accordingly hereafter in a region of bliss,
together with the chief judge, the ministers of state, the attending
brahmanas, his own domestic priests, and the assessors of the court.'
"The king himself should inspect forensic affairs, with the aid of
learned priests, or appoint a brahmana to try causes.2

"Let princes of the military class administer justice in their own
dominions respectively; but an eminent brahmana should act for any
other sovereign." 3

§ 5. The Chief Judge.

"Placing the sacred code of law before him, and abiding by the
advice of his chief judge, let the king try causes with composure in
regular order.

"Let the king or a twice-born man, as chief judge, try causes;
setting the members of the judicature before him, and abiding by
the doctrine of the law, and by the opinion of the assessors."

"When the king cannot inspect forensic affairs in person, let him
appoint, for the inspection of them, a bráhmana of eminent learning.
"By a prince, whom urgent business (or disease, or other cogent
reason) prevents from trying causes in person, a brahmana,
thoroughly acquainted with all [civil and religious] duties must be
appointed, together with assessors, [to examine all causes]."

"When the king is prevented [by the exigency of affairs] from
superintending the decision of causes, let him appoint a learned
brahmana, perfectly conversant with sacred literature, patient,
sprung from a good family, impartial, deliberate, firm, awed by the
dread of another world, virtuous, diligent and placid.

"Of him who neglects employing regenerate men, and inspects
forensic affairs with persons of the servile tribe, the kingdom totters,
and his wealth and power pass away.9

6

"[The king should administer justice,] or appoint a bráhmaṇa to
try the causes.10

"A brahmana, supported only by [the profession of] his class, or

one barely reputed a bráhmaṇa, may at the king's pleasure interpret the law to him; but not a súdra by any means. Of that king, who stupidly looks on while a súdra decides causes, the kingdom itself shall be embarrassed, like a cow in deep mire.1

"He [the judge] interrogates, and is therefore the interrogator (prát); and he discriminates, and is consequently the discriminator (viváka).2

"Because, having inquired the transactions relative to the matter in dispute, he carefully investigates the merits of the suit, with the assessors; therefore is he called the chief judge."

"He inquires the question whereon the law-suit is founded, and is thence named the interrogator; and because he examines into it, he is termed the chief judge.

"In a controversy, he inquires the question which is agitated, and the answer which is given: having interrogated the parties with gentleness, he pronounces judgment, and therefore he is called the chief judge."

"The most momentous of all obligations is the declaration of the truth to the judge [who interrogates]."

"Being conversant with the eighteen topics of litigation, and with the thousand and eight subdivisions thereof, and being skilled in logic and other sciences, and perfectly acquainted with scripture and jurisprudence, he inquires the law relative to the controversy, and investigates the matter in question, and is therefore called the chief judge."

"A person, not austere, but gentle and tender, the hereditary servant of the state, wise, cheerful, and disinterested, should be appointed by the king for the trial of causes.

"When the king tries causes in person, this officer is his colleague in the administration of justice; but when he is unable to inspect judicial affairs himself, by reason of other urgent business, or through want of health and ease, the chief judge is his representative."

"The denomination of chief judge is a derivative term. He interrogates the plaintiff and the defendant, and is thence named the interrogator. With the assessors he discriminates or investigates the consistency and contradiction of the allegations on both sides, and is therefore called the investigator. He is both interrogator

(prát) and investigator (viváka), and he is for that reason entitled chief judge (práḍ-viváka).1

"The judge interrogates the plaintiff and the defendant, and is therefore termed interrogator. Investigating with the assessors what is affirmed by the parties, he pronounces judgment, and is thence denominated the pronouncer (viváka). Vyása, using the word investigate, indicates this derivation of the term; he who discriminates is the discriminator (viváka). But Gautama defines it thus he pronounces after investigation, and is therefore entitled the (viváka) pronouncer of judgment.2

"He asks the plaintiff, what is your complaint? and the defendant, what is your answer? and he is consequently the interrogator. Having heard them, he distinguishes or pronounces the gain or loss of the cause, according to right and wrong, and is therefore pronouncer.3

"He inquires the charge, and is consequently the interrogator; he awards ordeal suitable thereto, and is therefore awarder. He both interrogates and awards, and is thence so entitled. He should inquire the transaction, and then examine into what is alleged by the two parties.*

"He questions both parties, the plaintiff and the defendant, and is therefore the interrogator: and he specially pronounces judgment, and is consequently the adjudicator. Thus the appellation is etymologically significant. It is exhibited by Nárada in a different manner explanatory of the learning which he should possess. Thus by stating the derivative sense of the term, both legislators do virtually propound the duties of the chief judge." 5

§ 6. The Assessors.

"Let the king, accompanied by three assessors at the least, enter the court-room; and there, either sitting or standing, try causes." “Let the chief judge, accompanied by three assessors, enter the court-room; and either sitting or standing, try the causes brought before the king. In whatever place, three brahmanas, skilled in the vedas, sit together with the learned bráhmana appointed by the king; the wise call that assembly a court of judicature."

"Wherever seven, or five, or even three, bráhmaņas, versed in sacred and profane literature, and acquainted with the law, sit

1 Mitákshará on Yajnavalkya, 2. 3.

3 Raghunandana in Vyavahára-tattwa. 5 Smriti-chandriká.

7 Manu, 8. 10, 11.

VOL. II. [ESSAYS I.]

2 Viramitrodaya.

4 Same in Divya-tattwa.

6 Vrihaspati, cited in Sm. Chand.

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