All this supposes a promise of what may be given; but it does not apply to the promise of what is unalienable. Under the directions for an amercement where such property is given away, the king should not impose a fine, at the same time compelling the performance of an undue act; nor should he omit to punish such an act. Therefore, half the amercement for giving what is unalienable is incurred by promising what should not be given; or the king should compel the man to pay as much as he has promised, but has not delivered two punishments existing for the same offence, the lightest should be preferred.

In some instances it is directed not to give what has been promised.

47.

GÓTAMA:-A man shall not give, even what he has promised, to a person whom the law declares incapable of receiving.

His want of religious qualification is here the cause of his not being entitled to the gift. Viváda Retnácara and Viváda Chintámeni. 48.

MENU :-Should money or goods be given, or promised as a gift, by one man to another who asks it for some religious act, the gift shall be void if that act be not afterwards performed:

2. If the money be delivered, and the receiver, through pride or avarice, refuse in that case to return it, he shall be fined one suverna by the king, as a punishment for his theft.

Money or goods given, or promised, by one man to another who asks it for a sacrifice, should he not afterwards apply it to that purpose, shall be taken back if given, and shall not be delivered if promised only.

CULLÚCABHATTA.

If the donor give money to a priest for a sacrifice which he himself requires, and the priest, not performing that duty, apply it to his own use, at his own pleasure, then the money may be withdrawn: but it must not be resumed, if the man, asking it in these words, "I perform a sacrifice for myself, give me this money or these goods," and receiving the money or goods, do not perform the religious ceremony. Thus some interpret the law but that is not satisfactory; for his asking it would not be the consideration. Therefore, the construction is this: to another, who asks it for some religious act; that is, to a person who asks it, at the same time saying, “I will perform an act of religion."

According to CULÚCABHATTA, the sense of GÓTAMA's text is, "what he has promised to a person not qualified on religious grounds;" according to the Retnácara, it is, " promised to a person disqualified on religious grounds." Both should be admitted; for a person not qualified, or disqualified on religious grounds, is incapable of a gift for religious purposes, since texts declare marble transports not marble over the deep," and again, "wealth should not be distributed among women, nor among ignorant or dishonest men :" and this must be understood of cases where religious qualifications were supposed at the time of the promise, as will be mentioned (62, 3). But if wages, or the like, be the motives of the gift, the donor must deliver it even to a man not qualified on religious grounds.

The circumstance of his not applying what has been promised, to the religious use intended, may be known by publick report; for instance, some person declares, "this man, taking money or goods on this account, gives it to a harlot." If the receiver do not in that case surrender what has been given, or if he forcibly take what has been promised, he shall be fined one suverna by the king, and shall certainly be compelled to restore the thing. "As a punishment for his theft;" since it is thus declared that he shall be punished as a thief, it does not appear that he should be made to restore it by mild remonstrance and the like.

ART. II.-On Valid or Irrevocable Gifts.

49.

VRIHASPATI :-Things once delivered on the following eight accounts cannot be resumed, as wages, for the pleasure of hearing poets or musicians and the like, as the price of goods sold, as a nuptial gift to a bride or her family, as an acknowledgement to a benefactor, as a present to a worthy man, from natural affection, or from friendship. "As wages" as a recompense paid for work performed: so CHANDÉSWARA, with whom MISRA concurs. Sacrificial fees might, according to this exposition, be deemed wages; but the grounds on which they are not considered as such in forensick affairs, may be learned under the title of Nonpayment of Wages or Hire.

"For pleasure;" for the gratification of seeing dancers and the like. MISRA and CHANDESWARA.

"As the price of goods," paid to the vender. "As a nuptial gift or gratuity," delivered to the person who gives the bride; so explained by MISRA and CHANDESWARA: a nuptial gratuity is paid at an 'Asura marriage ;* and the pair of kine delivered at an 'Arsha marriage, though not strictly a gratuity, is comprehended in this term. "As an acknowledgement to a benefactor;" in return for benefits received: for instance, a man not receiving wages, but, from a motive of friendship, by his strength or abilities has accomplished some business for any person; what this person gives him, is an acknowledgement to a benefactor.

"As a present by a worthy man," versed in the sense of the scriptures, given by him for religious purposes to a Brahmana. So MISRA and CHANDESWARA. It is mentioned incidentally, lest gifts for religious purposes should be reckoned in the number of revocable gifts: but NAREDA does not specify a present by, or to, a worthy man. His text will be cited (50).

"From affection," towards sons and the rest; or from kindness to a friend. MISRA.

Or "worthy," may be interpreted the state of worthiness; what is given to a stranger endued therewith, though no benefit should have been received from him, is a present to a worthy man. "Affection;" kindness, friendship, and so forth; what is on that account given to a friend and the last term of the text may be interpreted tender regard, intead of friendship ; what is on that account given to sons and the rest. These three terms are also similar in rhetorick, as naines for love.

* See translation of MENU, Chap. III, v. 31.

Eee

50.

NÁREDA:-They who know the law of gifts, declare, that things once delivered as the price of goods sold, as wages, for the pleasure of hearing poets, musicians or the like, from natural affection, as an acknowledgement to a benefactor, as a nuptial gift to a bride or her family, and through regard, cannot be resumed.

By this is declared the seven-fold distinction of valid or irrevocable gifts : it has been already said, that such gifts are of seven sorts (2, 3).

"From natural affection, and through regard:" in these, worthiness may be comprehended; therefore the eighth distinction, noticed by VRĬHASPATI, is not excluded: or, a present to a worthy man may intend a gift for religious purposes, not mentioned by NAREDA, because he had premised civil donations. "In civil affairs, the law of gift is four-fold" (2, 2). It should not be objected, that presents for religious purposes are subject to civil cognizance; else how could the king compel delivery? The gift alone is religious; delivery is a matter of civil cognizance. Then the law concerning what may not be given and the like, should be admitted in the case of gifts for religious purposes? In some instances it may be admitted; in some it may be inconsistent with reasoning; in some it may contradict express laws. MISRA, considering kindness as influencing every gift, reduces the distinctions to seven. But CHANDESWARA explains a gift from natural affection" (49), a donation to sons or the like; "through regard," for religious purposes: and this, he adds, is intended by VRIHASPATI in the expression, a present by a worthy man: not distinguishing regard and 'kindness from pleasure, NÁREDA declares seven sorts; and VRIHASPATI, distinguishing them, propounds eight sorts: thus there is no inconsistency: or they may be reconciled, by saying it is not implied that one text curtails the other.' His meaning is, that, since NAREDA mentions natural affection in addition to regard and kindness, the number of seven sorts is complete: but as this might seem unsatisfactory, disparaging VRIHASPATI, who has not specified natural affection by the same term, he subjoins another mode of reconciling the texts, "it is not implied, &c." that is, NAREDA's mentioning seven scrts does not imply an exclusion of others; and VRIHASPATI'S distinctions are comprehended in the seven sorts of irrevocable gifts. An ample exposition of these opinions would be a mere display of skill; it is not of much use to the thorough examination of the subject.

A nuptial gift or gratuity is a general term, and may comprehend what is now given to a bridegroom on his marriage to the daughter of a Rád'hiya Brahmana.* Even a nuptial gift of money, received from the kinsmen of a bridegroom, in honour of ancestors, is taken by the parent, who maintains the boy such is the custom. : But land and the like, received for the maintenance of the bride, is not taken by her father-in-law; nor property given at the bridal procession. Wealth also, received on a second marriage, is not taken by the bridegroom's father; for a second marriage, is contracted for the purpose of obtaining that wealth. Nor is property which is received after marriage, from the wife's parents and kindred, taken by the husband's father. Such is the established usage.

The families of priests settled on the western bank of the Bhagirathi river are called from the name of the country, Ráď hiya (pronounced Rártya),

Be it as it may be, according to CHANDESWARA's opinion; but, on the other opinion, how are gifts to near neighbours, revenue paid to the king, and a present to a wife on the second marriage of her lord, comprehended in the text? To near neighbours presents are made from friendship, or as an acknowledgement to benefactors; for, in this instance, the return of an obligation may be supposed as a motive. Revenue is paid to the king as wages, or as the price of the produce of land, because her has an interest in the soil. What is given to a wife on the second marriage of her lord, appears to be given for pleasure (Book V, v. 87): for the formerwife's consent to her husband's espousal of another affords him pleasure. This and other cases may be understood according to circumstances in all instances, pleasure, and gratification, may be supposed to influence the gift.

The mention of these irrevocable gifts is intended to show the motive of donation. In these gifts it should be distinguished whether the property might, or might not, be given away but pleasure, as a motive of donation, must be understood with an exception to lust and the like. On this, more will be said under the title of Void Gifts.

51.

DACSHA-Presents given to a mother, a father, a spiritual teacher, a friend, a moral man, a benefactor, an indigent or unprotected person, and a learned man, are productive of benefit.

Here it is not meant that they are productive of moral benefit alone, but of other advantage also. Does not some benefit exist in every case; why is it said that presents given to a mother and the rest are productive? They are productive of the highest benefit. If gifts be made to a mother or a father, prosperity in this world, and increase of religious merit, arise from their satisfaction. By gifts to a friend, the highest degree of friendship is obtained. By presents to a moral man deserving of them, the highest fame is obtained. A present to dancers is attended with fame, but gains only a middle degree of reputation ; and therefore is not mentioned in this place. A gift to a benefactor prevents the charge of ingratitude. Donations to the indigent and unprotected, from tenderness, or from regard to duty, produce religious merit. Sometimes even what is given without any consideration of duty, on account of the respectable qualities of a deserving person, produces religious merit.

52.

CÁTYÁYANA:-What is received for relieving a man from apprehension of danger, or saving him from actual peril, or for promoting a matter in which he was interested, is an acknowledgement to be a benefactor.

2. Where a reward, offered for the recovery of property missing, is received for discovering it, the gift is considered as a payment of

wages.

3. But if the reward be thus offered, "I will give all my property to him who saves me from this danger, to which my life is exposed," it shall not be so given.

After relieving any man sinking under apprehensions from the king or the like, what is received from him is an acknowledgement to a benefactor: so what is received for preserving him from danger. A tiger lies in wait to seize some traveller, who perceives not the animal; but another man, coming from a distance, slays the tiger with a weapon, or, boldly taking this man in his arms, carries him far from danger what the traveller, thus saved, gives to his preserver, is given as an acknowledgement to a benefactor. So is a present made for accomplishing some business: for instance, some person has in hand the marriage of his son; and any man coming on his own accord, even though not induced by familiar intimacy, accomplishes the object; what that person gives to him after the attainment of his object in consideration of the favour received, is an acknowledgement to a benefactor and so in many other cases.

When a person finds not some chattel required for a particular purpose, and, greatly distressed thereat, says, "whoever shows me this chattel, I will give him so much :" after a reward has been thus offered, some person coming points out the thing; is the reward then given an acknowledgement to a benefactor, or not? The legislator replies, it is not an acknowledgement to a benefactor, but "wages" (52, 2).

A reward for the recovery of property missing, is there mentioned generally if any man whosoever act with a view to a reward, what is given to him is considered as his wages; but, where a man acts spontaneously, or from habits of intimacy, what is given to him is an acknowledgement to a benefactor. Yet, even in the case of wages, should an excessive amount be promised by a man in extreme distress, it shail not be delivered (52, 3). Danger of life is mentioned, to denote extreme distress; in fact, should a man, during a conflagration, or during the sickness of his son, or the like, promise all his wealth, or one or two lacshas, to the person who shall save him, that promise is not valid. But it is reasonable that the gift should be great in proportion to the benefit conferred; if ten, fifteen, or twenty pieces of money, or the like, be promised, according to the circumstances of the case, the same should be paid. It must also be considered, that, the resumption of an excessive gift being shown where it has been promised but not delivered, the donor has an equal right to recover it, even though it have been actually delivered.

If an umpire determine a controversy between litigant parties according to law, and the party who gains or who loses the cause give him any gratuity, it is an acknowledgement to a benefactor: the gaining of the cause is an advantage to the one, and the solution of doubts is a benefit to the other party. But if the fee have been previously promised by any person, it falls under the description of wages. Yet, if any litigant party, being distressed, should in any instance promise, or actually give, an excessive fee to an umpire, the excess above the sixth part of the value in dispute may be resumed; deducting a sixth part of that value from the amount promised or paid, he may recover the remainder even through the intervention of the king. This is intimated by JÍMÚTAVÁHANA, in the Dáyabhága, or treatise on Inheritance: and RAGHUNANDANA, explaining the text of CÁTYÁYANA respecting wealth acquired by science, "what has been received as a gift from a pupil, as a gratuity for the performance of a sacrifice, as a fee for answering a question in casuistry, or for ascertaining a doubtful point of law," mentions the sixth part or the like which is received for well ascertaining the point referred by litigant parties, who apply for an explanation of the law.