:

of an unwritten debt may also be affected and it is equally proper in the present case.

On the reasoning above stated, although the thing promised might not be sold, the promise may be sold, and here the meaning of debt is, money received after such previous promise. The debt belongs to the purchaser alone; hence, if it happen to remain unpaid, the sin consists in not paying the debt due to the purchaser, not in withholding a debt due to the seller. But such interest only as had been promised should be paid; not interest at the rate of an eightieth part, and so forth, when stipulated interest had been previously promised, and no express declaration was made concerning interest at the time of the sale. If a debt be sold by a Brahmana creditor to a S'údra, interest must be received at two in the hundred, the regular rate in the order of classes; not at five in the hundred for interest is settled by the agreement made when the debt is contracted. Nor should the purchaser then exact a promise of greater interest, for that loan had been already advanced by another person. But, after the lapse of the period stipulated, should the debtor be unable to discharge the debt, the purchaser, who is become the creditor, may, according to some opinions, exact a promise for stipulated interest, or for the cáyicá of NAREDA, as explained by CHANDESWARA, at the rate of a pana, or half or other fraction of a pana; for that is the proper time for a stipulation of such interest, and the debtor is then in the power of him who purchased the debt.

Although there be no express text of Sages on the present subject, this and other rules for contracts valid by usage are deduced from the authority of reason copying sacred law for the sake of legal decision in cases of doubt. A portion of the subject has been inserted by way of illustration; other points may be similarly reasoned by the wise,

Form of a Writing for a Debt pledged.

After writing the name of the lender, and so forth, and subjoining "this contract of debt on the pledge of a debt;" it should be added, a debt of so much is contracted by me, giving unto thee, as a pledge, a debt amounting to such a sum contracted by such a one, on an agreement for so much interest, in such a year, month and day, and in the presence of such and such persons," and so forth it should be further written, "if this debt be not discharged by me on such a day of such a year, then the debt due to me by such a person shall be thine, ," and so forth, according to circumstances. This and other forms, as suggested by common sense, are stated by way of example, to guard against defective writings.

In this case the first debt should not be recovered from the debtor, until the close of the period for which the second loan is made. But, if no more than half or other portion of the original debt were made over as a pledge, then a proportionate part may be recovered from the debtor; and it should be inserted in the instrument. However, it is not proper to fix a period for the second loan extending beyond that of the first loan. This and other points may be inferred from reasoning.

Form of a Writing for a Price lent, or Credit given in considera

tion of Interest.

It should be a document of the debt, not a document of sale only, because the sale is shown by the declaration of the debt; for the declaration in words runs thus, "I borrow the value of this commodity, so and so,

which is bought of you." It should not be affirmed, that it might be drawn conversely; and thus the instrument would be only a bill of sale. Were it so, the debt would not be the chief object of the writing, and the clause fixing the period of repayment, and so forth, could not be well arranged. But, should it be thought necessary to authenticate the purchase, a separate document would be proper. To expatiate in this place would be vain. Sales and the like may be similarly authenticated by bills of sale: but that should be hereafter discussed under the head of Sales, and so forth.

IX. On Usage in general.

Doubts occurring on many subjects have been solved by reference to practice; a decision being therefore valid when founded on the practice observed to exist, is not law useless? Practice, which is founded on law, prevails; hence usage, inconsistent therewith, must be abrogated: but where no express law is found, one should be established on approved usage.(37)

(37) Thus ASVALÁYANA in his Grihya-Sútras, (a treatise prescribing forms for religious ceremonies, &c.) declares :-" Now the customs of countries and places are certainly manifold. One must know them as far as marriage is concerned. But we shall explain what is the general custom." Upon this passage the commentator observes. "If there be contradiction between the customs of countries, &c., and those customs which we are going to describe, one must adopt the custom as laid down by us, not those of the country. What we shall say is the general law, this is our meaning. Amongst the Vaidehas, (a caste sprung from a Vaisya father and a Bráhmani mother) for instance, one sees at once that loose habits prevail. But in the domestic laws continence is prescribed; therefore there is no doubt that the domestic and not the national customs are to be observed."

In the Sutras of GAUTAMA, too, a similar line of conduct is traced out. After declaring that the highest authority by which a Government ought to be guided consists in the Védas, Védángas, and Sástras, and old tradition, it is added that in cases where the customs of countries, classes, and families are not expressly founded upon a passage of the Véda, they are, notwithstanding, to be observed, if they are not clearly against the principles of the sacred writings, such as would be, for instance, marrying the daughter of a maternal uncle.

In the verse (50) cited in the text, MANU, it will be noticed, prescribes for rules of conduct those forms and observances, which, though not expressly laid down in Codes of Law, should, nevertheless, be regarded in the light of ordinances; inasmuch as they have been practised and approved of by learned and virtuous Brahmans. With regard to the nature and authority of human agreement in general, the views of HARADATTA may be appositely quoted in this place.

According to this writer, human agreement (samaya) is of three kinds: vidhi, injunction; nyama, restriction; pratishedha, prohibition. Rules founded upon samaya are called samayácháras. Dharma (virtue) or the quality of the individual-self, in the sútra terminology, signifies law, and has for its object dharma as well as adharma, things to be done and things to be avoided.

"It might be said, however," says HARADATTA, in his commentary on APASTAMBA'S Samayáchárika sutras, "that if samaya (human agreement) be the authority for the law, it would be difficult to deny the same authority to the Bauddhas and their laws, to worship the holy sepulchre," &c., and therefore APASTAMBA has added the next sutra:

'Those agreements are of authority which were made bg men who knew the law.'

"We do not say," HARADATTA remarks with reference to these words, "that every agreement becomes of authority, but those only made by men like MANU, &c., who knew the law. But then, it might be asked, how it can be found out that MANU knew the law, and BUDDBA did not? People answer, that BUDDHA could not have had a knowledge of the divine law. But the same might be said also of MANU; and if a knowledge of divine things be ascribed to MANU, on account of the excellence which he acquired by his virtue, then, again, it would be the same for BUDDHA. There is a known verse: (Sugathoyadi dharmagnya Kapilóneti kaprama: Thavubhoûyedi sarvagnya mathebheda kadam dayoh.) If BUDDHA know the law and KAPILA does not, what is truth? If they were both omniscient, how could there be difference of opinion between them ?' If this be not so, a distinction must be made; and this has been done by APASTAMBA in his next sutra: And the Védas (are of authority.)'

50.

MENU:-What has been practised by good men and by virtuous Brahmanas, if it be not inconsistent with the legal customs of provinces or districts, of classes and families, let him (the king) establish.(38)

What is not inconsistent with the usages of provinces, classes, and families, and has been practised by virtuous and learned Brahmanas, though it be law not found in codes, let him establish.

CULLÚCABHATTA.

By the expression," law not found in codes," it is intimated that law should be established on approved usage, else it would have been said, "if there be no express law. But the practice of forbearance, which has been introduced by good men, through tenderness, in consideration of the debtor's inability to pay, and so forth, should not be abolished. The use of law is only to prevent the introduction of multiform practices at the will of men of the present generation. Where many texts of law are inconsistent, or many interpretations of the same text are contradictory, usage alone can be received as a rule of conduct and practice, which differs in some respects from positive ordinances, but is not remote from ancient legislation, can only be confirmed by its general connection with law. Consequently that practice which is conformable to law is best, but that which is inconsistent there with must be abolished; yet, if that may not be, practice inconsistent with law must be nevertheless retained. But where no positive ordinance is found, there is nothing inconsistent with any known law, and in that case approved usage alone must regulate proceedings. Hence it is said, "human tradition is not unfounded." Still, however, the example of learned and virtuous Brahmanas should be followed for the sake of prosperity, not the practice of immoral and foolish S'ádras and the rest. This and other points may be viewed by a man's own judgment, and it must be so understood in all matters, not in cases of debt alone. Thus have been discussed the various sorts of interest.

"The Védas," observes the commentator," are the highest authority for good and bad; and none of the objections made before could apply to the Védas, which are faultless from all eternity, evident by themselves, and as they were revealed, unaffected by the faults of human authors. Therefore, while to us those agreements are of authority which were made by men who knew the law, the Védas, again, were the authority for those men themselves, like MANU, &c. And although we have not before our eyes a Véda, which is the source of these laws, we must still conclude that MANU and the rest had."

It was by arguments of the above description that the Brahmans endeavoured to establish the authority of their legal text books; and whatever might be thought of these speculations, they certainly lay claim to be regarded as specious and ingenious. For further particulars in connection with this topic, the reader is referred to PROFESSOR MAX MÜLLER'S learned work on "The History of Ancient Sanskrit Literature," from which the materials of this note have been chiefly derived-EDITOR.

(38) This text is cited again in Book I, Ch. VI.-EDITOR.

SECT. III.-On Interest specially authorized, and specially

prohibited.

ART. I.-On Debts bearing Interest, without an express Agreement.

51.

CÁTYÁYANA:-Though a loan be made expressly without interest, yet, if the debtor pay not the sum lent after demand, but fraudulently(39) go to another country, that sum shall carry interest after a lapse of three months.

Uddhára (the term employed in the text) here signifies money received without a promise of interest. "If he go to another country," if he abandon the country in which the creditor resides, that debtor should immediately pay the sum lent.

The Retnácara.

If he abandon the country in which the creditor resides; that is, if he go to another country.

"After a lapse of three months;" if it have been demanded, it shall bear interest at the end of three months.

The Chintameni.

it bears interest In this case, a

That is, if the sum lent be demanded, but not paid, after a lapse of three mouths from the date of the loan. loan has been amicably made by the creditor without any stipulation for interest. It is proper that no interest should be paid by the debtor, while friendly intercourse is maintained: but if he do not pay it after demand, the friendly consideration no longer subsists, and interest should therefore be paid. In that case it commences at the expiration of three months under the authority of the law. However, should he fix a near term after the first demand, with the assent of the creditor, and pay it at that term, no interest accrues: accordingly it is said in a text, which will be cited, "after more demands than one."

But no interest accrues within three months, even though the debt be repeatedly demanded; for no law has authorized it.

If it be asked what sort of interest? the answer is, interest at the rate of an eightieth part, and so forth, as prescribed by law. But CULLÚCABHATTA expounds the text of MENU (42) as relating to this case: "Interest exceeding the fixed rates, or those prescribed by law, and contrary to, that is different from, interest agreed on, or, in other words, interest not agreed on, is invalid, and cannot be exacted: interest not agreed on cannot be exacted at rates not declared by the law; for there can be no interest which is neither settled by the parties, nor prescribed by law." Consequently, in a case, where none was agreed on, interest should be received at the rates prescribed by law, in the order of the classes. So the following

text:

(39) According to Hindu philosophers, fraud (ch'hala) or perversion and misconstruction, is of three sorts:-1st, verbal misconstruing of what is ambiguous; 2nd, perverting, in a literal sense, what is said in a metaphorical one; 3rd, generalizing what is particular. (COLEBROOKE, "Miscellaneous Essays," Vol. I, Essay IX, p. 294.)-EDITOR.;

52.

VISHNU-After the lapse of one year, debtors, who have not acted fraudulently, must pay interest, as allowed, even though not agreed on at the time of the loan.

"As allowed;" at the rate of two and three in the hundred, and so forth, in the order of the classes. He declares another distinction in respect of interest without a special agreement.

53.

VISHNU-Sages have declared it an usurious mode; yet a lender may exact five in the hundred.

"From twice-born men," must be supplied in the text: hence it is an usurious mode, originating with abject persons. MENU and the rest have declared it so this must be supplied in the text. Consequently a lender may exact, even from a twice-born man, the interest which is receivable from a man of the servile class, or five in the hundred; but such conduct is immoral: and this must be understood of a sum lent without any agreement for interest, and which has been demanded.

54.

CÁTYÁYANA declares it :-What has been amicably lent for use, shall bear no interest until it be demanded back; but if, on demand, it be not restored, it shall bear interest on its true value at the rate of five in the hundred.

The rate of five in the hundred, which is mentioned in these texts, supposes a debtor of a twice-born class; for, if it concerned a debtor of the servile class, it would not exhibit an usurious transaction, but would be a vain repetition of the rate of five in the hundred. Hence it is CULLÚCABHATTA'S interpretation, that, because a lender may exact five in the hundred from a debtor of a twice-born class, therefore do Sages term it an usurious way.

It is, however, proper to consider the phrase, "the lender is entitled to five in the hundred," as a mere repetition of the rate of interest receivable from a debtor of the servile class; for it is difficult to establish another rule of interest: and the sense is, Sages have propounded this rate of interest as the way of money-lending; therefore is a lender entitled to it. This may be argued on the authority of VÁCHESPATI MISRA ; for he says as much in his gloss on a subsequent text (56, 2): and it is proper to establish the same induction in the present instance; for there is no difference; and this interest should be understood in all cases where no agreement for interest was expressly made.

If a debtor, having received a loan free of interest, go to another country after the debt has been demanded, interest is ordained after the lapse of three months; the Sage also propounds interest in the case of a debtor who remains in the same country.