{"collection":"Hinduism","html_url":"https://unchartedknowledge.5gfusion.net/browse/hin/sbe33/sbe3302.htm","path":"hin/sbe33/sbe3302.htm","source_url":"https://sacred-texts.com/hin/sbe33/sbe3302.htm","text":"The Minor Law Books (SBE33), by Julius Jolly, [1889]\nThe N\u00e2rada-smriti or N\u00e2rad\u00eeya Dharmas\u00e2stra firstSupposed origin of the Code of Manu. attracted attention nearly a century ago by being quoted in the Preface to Sir W. Jones's celebrated translation of the Code of Manu. What caused it to be brought before the notice of the learned world, was its bearing on the origin and history of the authoritative law-book of ancient India. The statements extracted by Sir W. Jones from the opening chapter of N\u00e2rada's law-book require some modification at present, as he was not acquainted with the larger and more authentic of the two versions of N\u00e2rada's work, which is now translated. It appears from the present work (pp. 1-4) that N\u00e2rada, the reputed compiler of the N\u00e2rad\u00eeya Dharmas\u00e2stra, refers to four, instead of three, successive versions of the Code of Manu, in 100,000 slokas or 1,080 chapters, in 12,000, 8,000, and 4,000 slokas. The authorship of these four versions is assigned, respectively, to Manu, N\u00e2rada, M\u00e2rkandeya, and Sumati, the son of Bhrigu, and the N\u00e2rada-smriti is described as an abridgment, made by N\u00e2rada, of the ninth or Vyavah\u00e2ra (legal) chapter of the original Code in 100,000 slokas. The first part of N\u00e2rada's abridgment of the ninth chapter of Manu's Code is designed as a m\u00e2trik\u00e2 or vyavah\u00e2ra-m\u00e2trik\u00e2, 'summary of proceedings-at-law' or 'general rules of procedure.'\nThough the mythical nature of the Preface to the N\u00e2rada-smriti Explanation of the legend.is sufficiently apparent, some facts which recently have come to light impart a higher degree of probability to the alleged connexion between Manu and N\u00e2rada, than was formerly allowed by myself. Thus the contents of N\u00e2rada's Preface to his Smriti appear\nto have been known to such an early author as Medh\u00e2tithi, who quotes it, rather loosely it is true, in his Commentary on the Code of Manu, where he says that 'this work, consisting of one hundred thousand (slokas), was composed by Prag\u00e2pati and abridged successively by Manu and the rest 1.' This goes far to prove that the Preface to the N\u00e2rada-smriti had attained notoriety as early as the ninth century A.D., and must be nearly or quite as old as the remainder of the work. The antiquity of the account given by N\u00e2rada of the origin and history of the principal code of ancient India is supported to some extent by the Paur\u00e2nik statement regarding four successive remodellings of the original composition of Sv\u00e2yambhuva (Manu), by Bhrigu, N\u00e2rada, Brihaspati, and A\u1e45giras 2, and by a curious tradition preserved in the Mah\u00e2bh\u00e2rata, to the effect that the original Dharmas\u00e2stra, produced by Brahman in 100,000 chapters, was successively reduced to 10,000, 5,000, 3,000, and 1,000 chapters by Samkara, Indra, Brihaspati, and K\u00e2vya 3. What is more, in a colophon of the ancient Nepalese MS. of the N\u00e2rada-smriti, that work is actually designed as the M\u00e2nava Dharmas\u00e2stra in the recension of N\u00e2rada (m\u00e2nave dharmas\u00e2stre n\u00e2radaprokt\u00e2y\u00e2m samhit\u00e2y\u00e2m), just as the Code of Manu in the colophons is usually called the M\u00e2nava Dharmas\u00e2stra in the recension of Bhrigu (m\u00e2nave dharmas\u00e2stre bhriguprokt\u00e2y\u00e2m samhit\u00e2y\u00e2m, or m\u00e2nave dharmas\u00e2stre bhriguprokte). Again, the chapter on theft (kaurapratishedha), which has come to light in Mr. Bendall's Nepalese Palm-leaf MS. of N\u00e2rada, and in a Nepalese paper MS. recently discovered by the same scholar, forms an appendix to the body of the N\u00e2rada-smriti, exactly in the same way as an analogous chapter on robbery and other criminal offences is tacked on at the close of the eighteen titles of law in the Code of Manu, IX, 252-293. It also deserves to be noted, perhaps, that the Dhamathats of Burma, while professing to be founded\non the laws of Manu, contain several rules and maxims which may be traced to the N\u00e2rada-smriti, whereas they do not occur in the Code of Manu 1.\nAlthough, therefore, there appears to be an element of Manu anterior to N\u00e2rada.truth in N\u00e2rada's account of the history of the Code of Manu, and of his own Smriti, there can be no doubt that the actual position of the two works has been inverted by him. The composition of Bhrigu, or of Sumati, the son of Bhrigu, i.e. the now extant Code of Manu, is not posterior, but decidedly anterior, in date to the N\u00e2rada-smriti, as may be gathered easily from a comparison of both works. Thus e.g. N\u00e2rada mentions twenty-one modes of acquiring property, fifteen sorts of slaves, fourteen species of impotency, three kinds of women twice married, and four kinds of wanton women, twenty women whom a man must not approach, thirty-two divisions of the law of gift, eleven sorts of witnesses, five or seven ordeals, four or five losers of their suit, two kinds of proof and two kinds of documents, seven advantages resulting from a just decision, eight members of a lawsuit, one hundred and thirty-two divisions of the eighteen principal titles of law. The first germs of some of these theories may be traced to the Code of Manu, and it is interesting to note how these germs have been developed by N\u00e2rada. As a rule, his judicial theories show an infinitely advanced stage of development as compared to Manu's, and his treatment of the law of procedure, in particular, abounding as it does in technical terms and nice distinctions, and exhibiting a decided preference for documentary evidence and written records over oral testimony and verbal procedure, exhibits manifest signs of recent composition.\nAn analogous inference may be drawn from the fact that N\u00e2rada acquainted with the Code of Manu.N\u00e2rada was apparently acquainted with a work either identical with, or closely allied to, the now extant Code of Manu. His analysis of the contents of the original Code composed by Manu in 100,000 slokas corresponds in the main to the topics\ntreated in that work as it now stands. He quotes the opening verse of the original gigantic work of Manu, and it is a remarkable coincidence that this verse agrees with Manu I, 5, 6, i.e. with the actual exordium of the Code of Manu, as vv. 1-4 serve as an introduction only, and may be a subsequent addition. Forensic law is alleged to have formed the subject of the ninth chapter of the original composition of Manu. In the Code of Manu, law and judicature are discussed in the eighth and ninth chapters. The twenty-four chapters, divided into one thousand and eighty, i.e. 45 \u00d7 24 sections, of the original Code, seem to represent double the twelve chapters of the Code of Manu. On the other hand, Sumati, the son of Bhrigu, who is alleged to have reduced the original Code of Manu to its present size, and to have produced the law-book now current among mankind, may be identified with Bhrigu, the supposed author of the actual Manu-smriti; and the number of 4,000 slokas, which is assigned to his composition, may be taken to be a rough statement of the actual extent of the Manu-smriti, which in reality runs up to 2,685 slokas only.\nA consideration of these facts leaves but little doubt that the compiler of the N\u00e2rada-smriti, whoever he was, must have been acquainted with a work closely akin to the now extant Manu-smriti. This is so much the more probable because several of his references to the authoritative enunciations of Manu may be actually traced to the Manu-smriti 1, and because a number of verses either occurring in the MSS. of the N\u00e2rada-smriti, or attributed to him by the digest-writers, recur in the Code of Manu.\nHowever, though acquainted with the Code of Manu, the so-called Discrepancies between Manu and N\u00e2rada.N\u00e2rada was far from offering a mere slavish reproduction of its doctrines in his own work. On the contrary, the N\u00e2rada-smriti must be considered as an independent, and therefore specially valuable, exposition of the whole system of civil and criminal law, as taught in the law schools of the period. It is in fact the only Smriti, completely preserved\nin MSS., in which law, properly so-called, is treated by itself, without any reference to rules of penance, diet, and other religious subjects; and it throws a new and an important light on the political and social institutions of ancient India at the time of its composition. Several of the doctrines propounded by N\u00e2rada arc decidedly opposed to, and cannot be viewed in the light of developments from, the teaching of Manu. Thus e.g. N\u00e2rada advocates the practice of Niyoga, or appointment of a widow to raise offspring to her deceased husband; he declares gambling to be a lawful amusement, when carried on in public gaming-houses; he allows the remarriage of widows; he virtually abrogates the right of primogeniture by declaring that even the youngest son may undertake the management of the family property, if specially qualified for the task; he ordains that, in a partition of the family property, the father may reserve two shares for himself, and that, in the case of a partition after his death, the mother shall divide equally with the sons, and an unmarried sister take the same share as a younger son; he lays down a different gradation of fines from those laid down by Manu, &c. 1\nIt may be argued that N\u00e2rada would not have ventured Their probable origin.to differ from the Code of Manu on such essential points as these, unless he had found good authority for doing so in other early works or dicta attributed to the primeval legislator of India, and that this fact furnishes another reason for attaching some credit to what N\u00e2rada relates of the original Code in 100,000 verses, and of its successive abridgment. Thus much is certain, that a great many floating proverbs and authoritative enunciations of Manu and of Vriddha or Brihan-Manu must have existed by the side of the Code of Manu in the times of N\u00e2rada as well as before and after his period, when they were quoted in the Mah\u00e2bh\u00e2rata 2 and in the Commentaries\nand Dharmanibandhas from Medh\u00e2tithi's Manubh\u00e2shya down to Gagann\u00e2tha's Digest, translated by Colebrooke. The compiler of the N\u00e2rada-smriti may have incorporated a number of these dicta in his own composition. At the same time, it is far from improbable that a work on law, called the Code of Manu in the version of N\u00e2rada, may have existed by the side of the celebrated Code of Manu in the version of Bhrigu, and that the unknown compiler of the N\u00e2rada-smriti may have utilised that work for his own composition, and enhanced the value and authority of the latter by referring to, and arranging in his own way, the reports current with regard to Manu and N\u00e2rada. The precise nature of the origin of such a work as the N\u00e2rada-smriti must needs remain a matter for speculation; but it certainly was an established practice with Sanskrit writers to graft their own compositions on earlier works attributed to fabulous personages of the heroic age of India, and indeed to fabricate an authority of this kind for the productions of their own pen.\nThe probable date of the Code of Manu may be turned Date of the N\u00e2rada-smriti.to account for determining the date of the N\u00e2rada-smriti; just as the presumable date of the latter work has been used in its turn for fixing the chronological position of Manu. The composition of the two works is separated, apparently, by a considerable interval of time. If, therefore, the date of Manu has been rightly placed between the second centuries B.C. and A.D. by Professor B\u00fchler 1, it would seem to follow that the N\u00e2rada-smriti can hardly belong to an earlier period than the fourth or fifth century A.D. The same conclusion may be arrived at by other, and independent considerations.\nThus the N\u00e2rada-smriti agrees on many important Compared with other Smritis,points, especially in the law of evidence, with the Dharmas\u00e2stras or Smritis of Y\u00e2g\u00f1avalkya, Vishnu, Brihaspati, K\u00e2ty\u00e2yana, and Vy\u00e2sa. It may be a little older than the three last-named works,\nwhich belong to the latest productions of the Smriti epoch of Hindu Law, but its legal rules and judicial theories have a decidedly more advanced character than either Vishnu's or Y\u00e2g\u00f1avalkya's. The Smriti of Vishnu cannot belong to an earlier period than the third century A.D. 1, and the Y\u00e2g\u00f1avalkya Smriti is not likely to be anterior to it in date 2.\nAgain, the judicial trial which is described in the well-known and with the drama Mrikkhakatik\u00e2drama Mrikkhakatik\u00e2 corresponds in all essential features to the rules laid down in N\u00e2rada's chapter on 'The Plaint 3.' If, then, the N\u00e2rad\u00eeya Dharmas\u00e2stra and the Mrikkhakatik\u00e2 are contemporaneous productions, we have a further reason for assigning the composition of the former work to the fifth or sixth century A.D. It may also be noted that N\u00e2rada (XII, 74) regards sexual intercourse with a female ascetic, pravragit\u00e2, as a kind of incest. In the earlier Indian dramas likewise, such as K\u00e2lid\u00e2sa's M\u00e2lavik\u00e2gnimitra and S\u00fbdraka's Mrikkhakatik\u00e2, the position of nuns and monks is highly dignified.\nLast, not least, the European term D\u00een\u00e2ra, i.e. denarius The term D\u00een\u00e2ra.or \u03b4\u03b7\u03bd\u03ac\u03c1\u03b9\u03bf\u03bd, which is so important for the purposes of Indian chronology, occurs repeatedly in the N\u00e2rada-smriti. In the first passage (Introd. II, 34, p. 32), D\u00een\u00e2ras are mentioned among other objects made of gold, and it would seem that a gold coin used as an ornament is meant, such as e.g. the necklaces made of gold mohurs, which are being worn in India at the present day. 'A string of D\u00een\u00e2ras' (d\u00een\u00e2ra-m\u00e2laya) used as a necklace occurs in a well-known Jain work, the Kalpa-s\u00fbtra of Bhadrab\u00e2hu 4. It is, however, possible that the 'D\u00een\u00e2ras or other golden things' may be gold coins simply, and that N\u00e2rada means to refer to forged or otherwise counterfeit coins. The second passage (Appendix v. 60, p. 232) is specially valuable, because it contains an exact\nstatement of the value of a D\u00een\u00e2ra which, it says, is called a Suvarna also. The reception of D\u00een\u00e2ras among the ordinary coins of that period shows that their circulation in India must have commenced some time before the N\u00e2rada-smriti was written. The first importation of gold D\u00een\u00e2ras into India cannot be referred to an earlier period than the time of the Roman emperors, and the gold D\u00een\u00e2ras most numerously found in India belong to the third century A.D. 1\nThe earliest reference to a work called N\u00e2rad\u00eeya References to N\u00e2rada.Dharmas\u00e2stra seems to be contained in a work of the sixth century, B\u00e2na's K\u00e2dambar\u00ee 2. Whether the compiler of the Pa\u00f1katantra was acquainted with the N\u00e2rada-smriti appears to be doubtful. The Pa\u00f1katantra in Kosegarten's edition contains a legal text which is attributed to N\u00e2rada, though it is not to be found in the N\u00e2rada-smriti. The standard Bombay edition of the Pa\u00f1katantra has that very text, but the name of N\u00e2rada is omitted 3. Medh\u00e2tithi's Manubh\u00e2shya, which seems to belong to the ninth century, contains several references to the N\u00e2rada-smriti, and Asah\u00e2ya, who appears to have preceded Medh\u00e2tithi, is the reputed author of the ancient Commentary on it, which has largely been used for the present work 4.\nThese considerations tend to show that the composition Result.of the N\u00e2rada-smriti cannot be referred to a more recent period than the fifth century A.D., or the sixth century at the very latest. Nor can it belong to a much earlier age than that. This estimate of its age agrees with the results arrived at, thirteen years ago, from the very scanty data then available.\nThe present translation, unlike the Institutes of N\u00e2rada previously published by myself (London, Tr\u00fcbner & Co., 1876), The present translation.is based in the main on what may be termed the large version of N\u00e2rada, and accords throughout with the editio princeps of the N\u00e2rada-smriti in the Bibliotheca Indica. The reasons which have induced me to consider the large version as the original and authentic composition of N\u00e2rada, and to make it the basis of my edition of the Sanskrit text in the Bibliotheca Indica, have been stated in my volume of Tagore Law Lectures, pp. 54-56. In those parts of the work also where both versions agree, or where the only extant MS. of the large version is deficient and has to be supplied from the MSS. of the minor version, the present translation will be found to differ not inconsiderably from my previous rendering of the 'Institutes of N\u00e2rada.' The discovery of five valuable MSS. of the minor version, besides the three used in preparing the 'Institutes of N\u00e2rada,' the recovery of Asah\u00e2ya's ancient and valuable Commentary on the N\u00e2rada-smriti, and the dies diem docet have united to produce a considerable number of new results. Among the new MSS. discovered, the fifteenth-century Nepalese Palm-leaf MS. of Mr. Bendall is the most important, and has furnished an entire new chapter, the authenticity of which is proved by numerous references in the mediaeval and modern Digests of Law. The chapter in question has been termed an Appendix in the present work (pp. 223-232). It is found, likewise, in a Nepalese paper MS. of the minor version, discovered very recently by Mr. Bendall among the Nepalese MSS. of the British Museum, where it had been labelled wrongly as Kaurapratishedha.\nThe Commentary of Asah\u00e2ya, as far as it goes, has Asah\u00e2ya and Kaly\u00e2nabhatta.furnished the substance of the foot-notes to the present translation, in which it has been quoted constantly as 'A.' Asah\u00e2ya was a standard writer in the province of Hindu Law, and his N\u00e2radabh\u00e2shya is a very valuable production indeed. He shares with other early commentators of law-books the peculiarity of indulging every now and then in illustrations\ntaken from the every-day life of his period, which help to throw some light on the practical working of Indian Law in those times. As an instance of this tendency I would cite his remarks on a rule concerning liability for debts (pp. 43, 44). Of course it would be dangerous to trust his philological skill everywhere, and some of his interpretations are decidedly artificial. What is worse, the Commentary of Asah\u00e2ya has not been preserved in its original shape, but in a recast due to one Kaly\u00e2nabhatta, whose name is entirely unknown to fame. It is just possible that Kaly\u00e2nabhatta, instead of confining his activity to supplying deficiencies and correcting mistakes in the copies of Asah\u00e2ya's Commentary, may have inserted some new verses in the text of the N\u00e2rada-smriti as well. Such might be conjectured, for example, to be the origin of the four verses, Introd. I, 21-24 (pp. 9-13), which are quoted in none of the authoritative Digests, and objectionable as to grammar and metre. It should be remembered, however, that Kaly\u00e2nabhatta declares the original work of Asah\u00e2ya to have been spoiled by negligent scribes, and so the grammatical blunders may be charged to their account.\nThe latter half of Asah\u00e2ya's Commentary being lost, I had to avail myself for the corresponding portion of the Other auxiliary writings.N\u00e2rada-smriti, of the glosses of other mediaeval writers, by whom the texts of N\u00e2rada have been quoted and discussed a great deal. Their opinions have been adverted to very fully, in the chapter on inheritance especially, both on account of the practical importance of inheritance for the law-courts of modern India, and because each of the various schools of Sanskrit lawyers has been anxious to interpret the sayings of N\u00e2rada to its own advantage. For the curious and somewhat obscure disquisition on fourteen kinds of impotency (XII, 11-18, pp. 167-169), I have been able to use the advice of my late lamented friend Dr. Haas, the well-known student of Indian medical science. A somewhat analogous passage in the canonical literature of the Buddhists has been kindly pointed out to me by Mr. Rhys Davids 1.\nThe sign of an asterisk (*) has been prefixed to those N\u00e2rada's repute as a legal writer.texts of N\u00e2rada which were found to be quoted in one or several of the Sanskrit Commentaries or Digests of Law. The same method has been observed previously in the Bibliotheca Indica edition of the Sanskrit text, but a considerable number of quotations has come to light since then. The repute of N\u00e2rada as a legal writer appears to have been so great that upwards of half his work has been embodied in the authoritative compositions of the mediaeval and modern writers in the province of Sanskrit law.\nUnder the heading of Quotations from N\u00e2rada, all those texts have been collected at the close of the present translation 'Quotations from N\u00e2rada.'which are attributed to N\u00e2rada in one or several of the Digests and Commentaries, without being traceable in the MSS. of the N\u00e2rada-smriti. Between these quotations have been inserted, for the sake of completeness and in order to fill up the gaps between the single texts contained in the quotations, a number of unpublished texts from the MSS. of the minor version, and from the final chapter on Ordeals in the ancient Nepalese MS. of the N\u00e2rada-smriti 1. A complete edition of that chapter will, I trust, be published by Dr. A. Conrady. The quotations have been taken from all the principal Sanskrit works on law, from Medh\u00e2tithi's Manubh\u00e2shya downwards. For a detailed statement of the particular work and chapter from which each text has been quoted, I may refer to the foot-notes. Most texts being quoted in more than one work at a time, it has not been thought necessary to give complete references to every such work in each particular case, but I have made a point of referring as much as possible to those law-books which exist in English, both for convenience of reference and in order to facilitate a comparison of the present translation with previous renderings of the texts of N\u00e2rada. All the unpublished texts have been given in the foot-notes in the original Sanskrit, together with the names of the works from which they have been taken. The MSS.\nof these works were obtained principally from the India Office and Deccan College libraries; for some of them I was able to use copies of my own. A peculiar source of difficulties lies in the fact that these works differ considerably as to the names of the authors of the single texts. Many texts were no doubt proverbial sayings, and appropriated therefore by several writers. In other cases, the mutually conflicting statements of various writers regarding the authorship of the texts may be attributed to carelessness. Grammatical blunders and faulty readings, as well as the varietas lectionis, have been referred to in important cases only. I subjoin a list of the abbreviations used in the foot-notes to the present translation.\nxii:1 Manut\u00eek\u00e2sa\u1e45graha, p. 39, gloss on Manu I, 58; B\u00fchler, Sacred Books of the East, vol. xxv, p. xv.\nxii:2 R Mandlik's Hindu Law, p. xlvii.\nxii:3 Mah\u00e2bh\u00e2rata XII, 59, 22, and 80 foll.; B\u00fchler, ibid. p. xcvi.\nxiii:1 Forchhammer, The Jardine Prize Essay, pp. 54-58.\nxiv:1 See e.g. Appendix 26 (p. 227) and Manu VIII, 320; Appendix 34 (p. 228) and Manu VIII, 334; Appendix 36, 37 (p. 228) and Manu VIII, 124, 125.\nxv:1 See the foot-notes, passim.\nxv:2 See N\u00e2rada XII, 80-88, and Manu IX, 65-68; N\u00e2rada XVII, 1-8, and Manu IX, 221-228; N\u00e2rada XII, 97, and Manu V, 162; N\u00e2rada XIII, 5, and Manu IX, 105-209; N\u00e2rada XIII, 13, 14, and Manu IX, 104, 131; N\u00e2rada, Appendix 30, 31, and Manu VIII, 138.\nxvi:1 Loc. cit. p. xcvii.\nxvii:1 Sacred Books of the East, vol. vii, p. xxxii.\nxvii:2 Tagore Law Lectures, p. 49.\nxvii:3 See, particularly, p. 27, note on 18.\nxvii:4 See Dr. Jacobi's edition, par. 36 (p. 44), and the same scholar's translation of the Kalpa-s\u00fbtra, Sacred Books of the East, vol. xxii, p. 232.\nxviii:1 B\u00fchler, S. B. E., vol. xxv, p. cvii; West and B\u00fchler, p. 48; Max M\u00fcller, History of Ancient Sanskrit Literature, p. 245; Jolly, Tagore Law Lectures, p. 36; H\u00f6rnle, Proceedings of the Seventh Congress of Orientalists, p. 134.\nxviii:2 P. 91 in Peterson's edition. See B\u00fchler, Sacred Books of the East, vol. xxv, p. cvii, note 1.\nxviii:3 See Kosegarten's Pa\u00f1katantra III, 94; Bombay ed., III, 2. It is true that the two texts immediately preceding the text in question in the Pa\u00f1katantra may be compared with N\u00e2rada XI, 2 and I, 5, 79.\nxviii:4 The fact that Asah\u00e2ya refers to a coin called dramma, i.e. the Greek \u03b4\u03c1\u03b1\u03c7\u03bc\u03ae, may be used for fixing the earlier limit of his date.\nxx:1 Kullavagga X, 17, 1. See Sacred Books of the East, vol. xx, p. 349.\nxxi:1 Regarding that chapter, see Preface to N\u00e2rada-smriti, pp. 6, 7.","title":"The Minor Law Books (SBE33): Introduction to N\u00e2rada","type":"page"}