2. It should bear the year, month, half month, and day, with the designation of the debtor, by his name, class, and the like.* The epithet allusive to memory is suggested by a text of MENU. It conveys, that this instrument is written for the sake of assisting memory. 17. MENU :-Even in the space of six months men forget occurrences : therefore where letters and writings anciently invented by the beneficent Creator, (19) By the custom of the country, instruments are now written in the dialect of the Yavanast(20); but among eminent Brahmanas and others, writings are also drawn in another language. In some written contracts for auspicious rites, as marriage and the like, the word "swasti" is first written: its intent is a prayer; may this rite be auspicious! This is noticed by the way. 18. YÁJNYAWALCYA:-When the transaction is completed, the borrower should sign his name with his own hand; adding, "what is above written has the assent of me, son of such a one." This suggests, that the debtor's name should be written above the contract. We do not determine whether additional matter, as titles and the like, and omissions, as leaving out the name of the party's father or the like, be founded on practice, or on the reason of the law, or, in the last instance, originate in indolence. • The first hemistich is not here cited. I insert it from a subsequent quotation in Book V, collated with the code of YÁJNYAWALCYA. (19) From the frequent allusion to "writing" made in the laws of MANU, YÁJNYAWALCYA &c., it would appear that this art has been practiced among the Hindus in very remote ages. It is however remarkable that in the history of early Indian literature, no traces are found of the existence of the materials connected with writing. The ordinary modern words for book, paper, ink, writing, &c., are said not to be discovered in any Sanskrit work of genuine antiquity. The Brahmans, observes professor MÜLLER, “never speak of their granthas or books. They speak of their Véda, which means "knowledge." They speak of their Sruti which means what they have heard with their ears. They speak of Smriti which means what their fathers have declared unto them. We meet with Brahmanas, i. e., the sayings of Brúhmans; with Sutras, i. e., the strings of rules; with Vedangas, i. e., the members of the Véda; with Pravachanas, i. e., preachings; with Sastras, i. e., teachings; with Darsanas, i. e., demonstrations; but we never meet with a book or a volume, or a page." The words for ink (masi, kali, mela, gola) and pen (kalama), have all a modern appearance; and as to Kayastha, the name of the writer-caste, proceeding from a Kshatriya father and a Súdra mother, it does not even occur in the list of mixed tribes given by MANU. Vide MÜLLER, "History of Ancient Sanskrit Literature," pp. 497-524, for an interesting account of the "Introduction of Writing among the Hindus."-EDITOR. + The Muslemáns. (20) The term Yavana, meaning a foreigner, was applied originally by the early Hindu writers to the Ionians or Greeks; and probably also to Græco Bactrians: but in later times to the Arabs and Mahommedans, and likewise to Europeans. In a passage in the Harivan cited by Professor MAX MÜLLER, the following notice is found descriptive of the customs peculiar to several foreign nations; "The Sakas have half their head shorn; the Yavanas and Kambojas the whole; the Paradas wear their hair free; and the Pahlavas wear beards." ("History of Ancient Sanskrit Literature," page 54.) The " Yávanas" alluded to in the above passage evidently refers to the Greeks, whilst the Sakas and Pahlavas seem to point out to the Scythians and Persians,-EDITOR. SECT. II.] "Half a month" (16); a side of the month, that is "a fortnight." (21) "His class;" the sacerdotal "By his name ;" by the name of the debtor. or other class. "And the like;" the Veda which he follows in solemn rites, and so forth. 19. YÁJNYAWALCYA declares the form of attestation :-And the witnesses should sign their names all together in their own handwriting, after writing the name of their fathers and so forth; adding, "I, son of such a one, am witness to this writing." the omission of the name of the If the instrument be in the handshould add at the bottom of that Here it is, in substance, expressed, that witness's father is founded only on usage. writing of another person, the writer of it instrument," written, at the request of both parties, by me, such a one, son of such a one." 20. YÁJNYAWALCYA:-Let the writer next subscribe, at the end of the writing, "this has been written, at the request of both parties, by me, such a one, son of such a one." But the practice is for the scribe merely to sign his name with the letters (standing forë). All this is only mentioned to obviate the supposition, that the forms of writings, which occur in practice, are not directed by Sages.(22) If the debtor, or a witness, be illiterate, the following text directs the form to be observed in that case. (21) The Hindus class their years in cycles of sixty, each of which bears an appropriate name. These years are calculated according to the lunar system, which appears to have been the most ancient method of computing time in India. Each lunar month is divided into two portions called pakcha, of which one is named Sukla or Sudha "the bright half," the other Krishna or bahula, "the dark half;" and each of these two portions contain fifteen tithulu, which may be termed "lunar days;" reckoned from new moon to new moon, and not from full moon to full moon, as is the practice at Benáres. When the Saka year is employed, it denotes especially the Saka or Era of a prince of the South of India named SALIVAHANA, In documents executed by natives of commencing from the 79th year of the Christian æra. India among themselves, all these particulars are entered, as required in the text.-EDITOR. (22) The words Sásanam, patram, and chittu, are the same in meaning, though somewhat varied in use. The two former are Sanskrit, and the latter, adopted in the Tamil, evidently from the Hindi, Chitthi, whence the English Chit for a Note. These terms are ordinarily employed to denote any deed, instrument or writing, &c. There are various descriptions of documents, according to the nature of the transaction to which they relate. In common dealings the following are chiefly met with : Ottu Chittu, or patram, a mortgage deed. Udanpadiké Chittu, a deed of agreement. Mél-udanpadiké Chittu, a supplementary agreement implying the existence of some previous deed. Bhógapatram, a deed of temporary assignment. Bhú-dána patram, a deed of gift of land. Dharmadána-patram, an assignment of land for charitable purposes. Tavani Kriya-patram, a sale of land, &c., redeemable within a fixed period. 21. VYÁSA:-But a borrower, who is unlettered, should direct another person to subscribe his declaration of assent; or a witness, in the same predicament, should cause his name to be signed by another witness, in the presence of all the witnesses. When these and other local usages are observed, then an instrument in the handwriting of the party himself, and one in the handwriting of another person, are valid, and good evidence of contracts. Such is the meaning of the Sage, as expounded by authors. But in fact all this should be considered as intending such a document as may remove the doubts entertained by honest arbitrators or by the king. Else, if all the parties, the borrower, the lender, the witnesses, and the writer, be unacquainted with the forms of writings, and a creditor could not recover a debt, though really lent, notwithstanding the existence of an attested writing in any irregular form, there would be a failure of justice on the part of the king. Again; if the instrument were not subscribed by witnesses, but it be said by a witness, "I know this instrument," and the instrument be admitted in evidence by the arbitrators on any arguments, it is an attested instrument. This is mentioned by the way; the rest may be learnt under the title of Judicial Procedure but something has been said, in this place, to make known the sort of writing, by which a monied man, who advances a loan, may be secure from losing his cause, should a dispute afterwards arise. This we deem reasonable. "Before credible witnesses" (11): this is another case of written agreements; for the presence of witnesses is suggested by the form for drawing written contracts; and the sense of the text appears to be this: He should advance a loan, on receiving a pledge to be used by him, together with a The term Sasanam, in addition to its signification of a written engagement or contract, has reference especially to a royal order or edict, or a royal grant; which, when inscribed on stone is designated, Silásásanam; and when engraved on copper plates, Támrasásanam. Deeds of gift generally terminate with some apt quotation or aphorism relative to the use and benefit of donations, followed by imprecation on those by whom the grant is voided. The following Sanskrit stanza is the one commonly found at the end of documents of this description. Svadattá dvigunam punnyam paradattánu pálanam : Paradattápaháréna svadattam nishp’halam bhavét. Translation:-"The protection of that which has been given by another is more meritorious than one's own gift; and by seizing that which another has given, one's own gift becomes fruitless." It may as well be stated in this place that in order to constitute a sale or gift of land valid and complete, the vendor or donor should, according to special practice, convey his ownership in the soil, extending over eight particular incidents called Ashtabhógam, or "the eight rights." These are specified in the subjoined Sanskrit couplet : Nidhinikshépa páshánam siddha sádhya jalámritam ; Meaning the following particulars: 1 Nidhi, treasure trove. 2 Nikshépa, property deposited on the land not claimed by another. 3 Páshána, mountains, rocks, uncultivable or rocky land, and their contents and products, as mines, minerals, &c. 4 Siddhi, all cultivable land yielding produce. 5 Sadhya, the produce from such land. 6 Jalámritam, rivers, tanks, wells and their produce. 7 Akshini, privileges actually enjoyed. 8 Agámi, prospective rights and privileges. In many early as well as modern documents, the above eight rights are specifically mentioned, and absolutely aliened to the vendee or donee.-EDITOR. written agreement: this is one case. He should advance it on receiving such a pledge before credible witnesses: this forms a second case. So likewise a loan made on a pledge to be merely kept in his hands, forms two cases (according as it is transacted by a written agreement, or before credible witnesses); hence arise four cases. Again; two cases arise also on loans made with a sufficient surety; and the possible cases are six in number. Alluding to this, MISRA has said; "any of these, by which confidence may be given, should be furnished." Consequently any one of these six modes, by which confidence may be given to the lender, should be adopted. Here a pledge to be used, or merely kept, as well as a surety, are intended to give confidence to the lender; and the writing and witnesses, to prove the truth of the loan, if a judicial proceeding be held at a subsequent time. 22. NÁREDA:-In this contract there are two things which give confidence to the lender, a pledge and a surety; and two which afford clear evidence, a writing and attestation. "Confidence;" assured expectation of thereafter receiving the loan advanced in some instances a surety, in others a pledge, give such confidence; for this coincides with the former text (11). But here the word pledge (ádhi) signifies both a pledge to be used and one to be kept. "Clear evidence" certain proof; sometimes a writing, sometimes attestation, sometimes both, are required, according to circumstances, for the sake of proof in case of dispute. : It should be here noticed, that both texts (11 and 22) are ethical precepts; for they exhibit causes of present evil. If, therefore, infringing these rules, a man deliver a loan without a pledge, or writing, or the like, he violates not his duty and if the debt be any how proved, the debtor shall be compelled by the king to repay it to his creditor. Hence the practice of advancing loans without pledge or writing, in some instances of extreme confidence. But excessive confidence should be nowhere reposed; for the Herivansa directs, "Place not confidence in what is unworthy of confidence, nor excessive confidence even in what is worthy of confidence:" and the adage expresses "mutable mind, mutable wealth." In like manner the text of CÁTYÁYANA and NAREDA* (8 and 10) are ethical precepts; for the text points out a present evil, "the lender cannot in general recover, &c." Consequently there is no breach of duty in lending anything even to women; on the contrary, it is a duty to support unprotected persons, even though it be done by advancing loans: and if the debtor be able to discharge it, the king should enforce payment of such a debt. But a man who infringes the rule, and institutes a suit on such a debt, incurs censure. To enlarge would be vain. Thus a loan should not be advanced by a money-lender, without confidence and means of proof and the meaning of the phrase, "in what form a loan should not be made," becomes evident. • It is not expressed in the original, which is the second text alluded to; I supply it from conjecture. CHAP. II. ON INTEREST. SECT. I.-On Legal Interest in general.(23) SUCH interest, as may be taken without a breach of duty on the part of the creditor, is a rule (dherma) for delivery by the creditor. Or the nature of a thing may be signified by the word dherma: as it is the nature of robbers to hurt living creatures, so it is the nature of a loan, that it should produce to the lender the principal sum advanced, and interest in addition thereto. Thus interest is signified by the term "rule for delivery." MENU propounds that interest. 23. MENU-A lender of money may take, in addition to his capital, the interest allowed by VASISHт'HA, an eightieth part of a hundred by the month,(24) "In "Allowed or declared by VASISHT HA;" this shows that it has been authorized by VASISHT'HA. Thus, such interest is allowed by all Sages, and is therefore legal: by taking it, a man does not violate his duty. addition to his capital;" actually increasing the creditor's capital, or calculated to do so such interest he may require. But if it be explained, "increasing the debtor's capital," the sense is, through the medium of moral worth by discharging the debt with interest, immoral conduct is avoided, and increase of moral worth attained; hence wealth is also increased. The purport is, that the money-lender may actually receive such interest; for CUL : (23) The Hindu Law permits interest to be taken (with some exceptions), and has prescribed the rates to be received with or without a pledge or surety. The legal rates, however, vary according to the caste or class of the borrower; and it will be observed in the course of the work, that considerable difference exists among commentators, as to the construction of the texts which respect the limitation of interest, and the invalidity, or immorality only, of various loans and contracts. Vide HARRINGTON'S Analysis of the Bengal Regulations, vol. 1, page 196; second edition; where much information will be found relating to the History of the Law of Loans, Interests, &c. By Act No. XXVIII of 1855, the question regarding the rate of interest to be levied on documents, has been set at rest; and a uniform rule introduced throughout the British Empire in India.-EDITOR. (24) This would be fifteen per cent. per annum, and with the security of a pledge; but it will be seen in the sequel that much higher interest, under other circumstances, is allowed.EDITOR. |