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The Historians' History of the World 02 [Israel, India, Persia, Phoenicia, Minor Nations of Western Asia]
- Автор: Gutenberg
- Год: 1905
- Язык: английский
- Жанр: История
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Criminal Law
The criminal law is very rude, and this portion of the code, together with the religious penances, leaves a more unfavourable impression of the early Hindus than any other part of the institutes.
It is not, however, sanguinary, unless when influenced by superstition or by the prejudice of caste; and if punishments are, in some cases, too severe, in others they are far too lenient. Mutilation (chiefly of the hand) is among the punishments, as in all Asiatic codes. Burning alive is one of the inflictions on offenders against the sacerdotal order; but it is an honourable distinction from most ancient codes that torture is never employed either against witnesses or criminals.
The punishments, though not always in themselves severe, are often disproportioned to the offence; and are frequently so indistinctly or contradictorily declared as to leave the fate of an offender quite uncertain; such are the punishments for adultery and what are called overt acts of adulterous inclination. Among these last are included, talking to the wife of another man at a place of pilgrimage, or in a forest, or at the confluence of rivers; sending her flowers or perfumes; touching her apparel or her ornaments, and sitting on the same couch with her; yet the penalty is banishment, with such bodily marks as may excite aversion.
For adultery itself, it is first declared, without reserve, that the woman is to be devoured by dogs, and the man burned on an iron bed; yet, in the verses next following, it appears that the punishment of adultery without aggravation is a fine of from 500 to 1000 panas.
The punishment, indeed, increases in proportion to the dignity of the party offended against. Even a soldier committing adultery with a Brahman woman, if she be of eminently good qualities, and properly guarded, is to be burned alive in a fire of dry grass or reeds. These flat contradictions can only be accounted for by supposing that the compiler put down the laws of different periods, or those supported by different authorities, without considering how they bore on each other.
There is no express punishment for murder. From one passage it would appear that it (as well as arson and robbery attended with violence) is capital, and that the slighter punishments mentioned in other places were in cases where there was no premeditation; but, as the murder of particular descriptions of persons is afterwards declared capital, it remains doubtful what is the punishment for the offence in simple cases.
Theft is punished, if small, with fine; if of greater amount, with cutting off the hand; but if the thief be taken with the stolen goods upon him, it is capital. Receivers of stolen goods, and persons who harbour thieves, are liable to the same punishment as the thief. It is remarkable that, in cases of small theft, the fine of a Brahman offender is at least eight times as great as that of a Sudra, and the scale varies in a similar manner and proportion between all the classes. A king committing an offence is to pay a thousand times as great a fine as would be exacted from an ordinary person. Robbery seems to incur amputation of the limb principally employed. If accompanied with violence it is capital; and all who shelter robbers, or supply them with food or implements, are to be punished with death.
Abusive language is still more distinguished for the inequality of punishments among the castes, but even in this branch of the law are traces of a civilised spirit. Men reproaching their neighbours with lameness, blindness, or any other natural infirmity, are liable to a small fine, even if they speak the truth. Assaults, if among equals, are punished by a fine of 100 panas for blood drawn, a larger sum for a wound, and banishment for breaking a bone. The prodigious inequalities into which the penalty runs between men of different classes have already been noticed.
The offences of physicians or surgeons who injure their patients for want of skill; breaking hedges, palisades, and earthen idols; mixing pure with impure commodities, and other impositions on purchasers, are all lumped up under a penalty of from 250 to 500 panas. Selling bad grain for good, however, incurs severe corporal punishment; and, what far more passes the limits of just distinction, a goldsmith guilty of fraud is ordered to be cut to pieces with razors.
Some offences not noticed by other codes are punished in this one with whimsical disregard to their relative importance; forsaking one’s parents, son, or wife, for instance, is punished by a fine of 600 panas; and not inviting one’s next neighbour to entertainments on certain occasions by a fine of one masha of silver.
Gamesters, public dancers, and singers, revilers of scripture, open heretics, men who perform not the duties of their several classes, and sellers of spirituous liquors, are to be instantly banished the town.
Civil Law
The laws for civil judicature are very superior to the penal code, and, indeed, are much more rational and matured than could well be expected of so early an age.
The law of evidence in many particulars resembles that of England: persons having a pecuniary interest in the cause, infamous persons, menial servants, familiar friends, with others disqualified on slighter grounds, are in the first instance excluded from giving testimony; but, in default of other evidence, almost every description of persons may be examined, the judge making due allowances for the disqualifying causes.
Two exceptions which disgrace these otherwise well-intentioned rules have attracted more attention in Europe than the rules themselves. One is the declaration that a giver of false evidence, for the purpose of saving the life of a man of whatever class, who may have exposed himself to capital punishment, shall not lose a seat in heaven; and, though bound to perform an expiation, has, on the whole, performed a meritorious action.
The other does not relate to judicial evidence, but pronounces that, in courting a woman, in an affair where grass or fruit has been eaten by a cow, and in case of a promise made for the preservation of a Brahman, it is no deadly sin to take a light oath. From these passages it has been assumed that the Hindu law gives a direct sanction to perjury; and to this has been ascribed the prevalence of false evidence, which is common to men of all religions in India: yet there is more space devoted in this code to the prohibition of false evidence than to that of any other crime, and the offence is denounced in terms as awful as have ever been applied to it in any European treatise either of religion or of law.
“Naked and shorn, tormented with hunger and thirst, and deprived of sight, shall the man who gives false evidence go with a potsherd to beg food at the door of his enemy.”—“Headlong, in utter darkness, shall the impious wretch tumble into hell, who, being interrogated on a judicial inquiry answers one question falsely.”
A creditor is authorised, before complaining to the court, to recover his property by any means in his power, resorting even to force within certain bounds. This law still operates so strongly in some Hindu states, that a creditor imprisons his debtor in his private house, and even keeps him for a period without food and exposed to the sun, to compel him to produce the money he owes. Interest varies from two per cent. per mensem for a Brahman to five per cent. for a Sudra.
The rules regarding man and wife are full of puerilities; the most important ones shall be stated after a short account of the laws relating to marriage. Six forms of marriage are recognised as lawful. Of these, four only are allowed to Brahmans, which (though differing in minute particulars) all agree in insisting that the father shall give away his daughter without receiving a price. The remaining two forms are permitted to the military class alone, and are abundantly liberal even with that limitation. One is, when a soldier carries off a woman after a victory, and espouses her against her will; and the other, when consummation takes place by mutual consent, without any formal ceremony whatever. Two sorts of marriage are forbidden: when the father receives a nuptial present; and when the woman, from intoxication, or other cause, has been incapable of giving a real consent to the union.