Agreeably to the Brahmanic conception of the world, the maintenance of the established order is the especial duty of the king. He must take care that all creatures do what is required of them and perform their duties. He must also protect his subjects, their persons, property, and rights. He must reward the good and punish the bad. Justice is the first duty of the king. By justice the book understands chiefly the maintenance of authority and order by terror, by sharp repression and severe punishment. The power of inflicting punishment is regarded as the best part of the kingly office; the king must especially occupy himself with pronouncing judgment, and punish without respect of persons. The terror spread by punishment, and the apportionment of it in particular cases, are the principles of the law of penalties. The Brahmans had gained recognition for their doctrine mainly by the fear of the penalties of hell, and the regenerations; they thought that nothing but fear governs the world, and by that means only could order be maintained in the state. The more the Brahmanic doctrine drained the marrow out of the bones and the force out of the souls of the people, the more dependent and incapable of self-help the subjects were made by the severe oppression and tutelage of the kings, the more necessary it became, as no one could now defend or help himself, to have an effectual protection for persons and property, and this the book finds only in the power of punishment exercised by the king.
We find a complete theory of the preservative power of punishment, before which all distinctions of criminal and civil process disappear, and it becomes a matter of indifference whether an offence has taken place from a doubtful claim, from error, carelessness, or evil intention. "A man who does good by nature," so we are told in the book, "is rarely found. Even the gods, the Gandharvas, the giants, the serpents perform their functions only from fear of punishment. It is this which prevents all creatures from abandoning their duties, and puts them in a position to enjoy what is properly their own. Punishment is justice, as the sages say; punishment governs the world; it is a mighty power, a strong king, a wise expounder of law. When all things sleep, punishment is awake. If the king did not ceaselessly punish those who deserve it, the stronger would eat up the weak; property would cease to exist; the crow would pick up the rice of the sacrifice, and the dog lick the clarified butter. Only when black punishment with red eyes annihilates the transgressors, do men feel no anxiety."
The services rendered by the king in the exercise of justice and the maintenance of order and the system of caste thus attained, are naturally rated very highly by the book of law, in accordance with its general tendency. "By the suppression of the evil and protection of the good, the king purifies himself like a Brahman by sacrifice." "Then his kingdom flourishes like a tree that is watered continually;" through the protection which the king secures for the good by punishment, he acquires a portion of the merits of the good. The portion of these merits thus allotted to the king is determined by arithmetical calculations. "The king who collects the sixth part of the harvest and protects his people by punishment, obtains a sixth part of the merit of all pious actions, and the sixth part of all rewards allotted by the heavenly beings to the nation for their sacrifices and gifts to the gods, and for the reading of the holy scriptures. But the king who does not protect his people, and yet takes the sixth, goes into hell; as does also the king who punishes the innocent and not the transgressors. Even if the king has not himself pronounced the unjust sentence, a part of the guilt falls upon him. The fourth part of the injustice of the sentence falls on him who began the suit, a fourth on the false witnesses, a fourth on the judge, a fourth on the king. A pure prince, who is truthful, who knows the holy scriptures, and does not disregard the laws, which he has himself given, is regarded by the sages as capable of regulating punishment, of imposing it evenly, and thus he increases the virtue, the wealth, and prosperity of his subjects (the three means of happiness)." "To the prince who decides a case righteously, the people will flock like the rivers to the ocean, and when he has thus obtained the good-will of the nation"—so the book continues—"he must attempt to subjugate the lands which do not obey him."[239]
Accompanied by Brahmans and experienced councillors, the king is to repair without magnificence to the court of justice. After invoking the protectors of the world, he begins, standing or seated, with the right hand raised, and his attention fixed, to examine the case according to the rank of the castes. Like Yama, the judge of the under world, the king must renounce all thoughts of what is pleasing to him; he must follow the example of the judge of all men, suppress his anger, and put a bridle on his senses. If right wounded by wrong enters the court and the king does not draw out the arrow he is himself wounded. From the attitude of the litigants, the colour of their faces, and the tone of their voices, their appearance and gestures, the king must ascertain their thoughts and attain to truth, as the hunter reaches the lair of the wild beast which he has wounded by following up the traces of its blood. Beside these indications, witnesses are required for proof; and if these are not forthcoming, oaths or the "divine declaration." Respectable men of all the orders are allowed as witnesses, especially the fathers of families; if these are not to be obtained, the friends or enemies of the accused, his servants, or such as are in need and poverty, and are afflicted with sickness. In cases of necessity the evidence of a woman, a child, and a slave can be taken.[240]
The book repeatedly and with great urgency exhorts the witnesses to speak the truth, and threatens false witnesses with hell and a terrible series of regenerations. In the presence of the accuser and accused the king calls on the witness to tell the truth: to the Brahman he says, "speak;" to the Kshatriya, "tell the truth;" to the Vaiçya, he points out that false witness is as great a crime as theft of corn, cattle, and gold.[241] "The wicked think," says Manu, "no one sees us if we give false witness. But the protectors of the world know the actions of all living creatures, and the gods see all men. The soul also is its own witness; a severe judge and unbending avenger dwells in thine heart. The soul is a part of the highest spirit, the attentive and silent observer of all that is good and evil." The false witness will not only come to misfortune in his life, so that, deprived of his sight, with a potsherd in his hand he will beg for morsels in the house of his enemy—for all the good that a man has done in his life at once departs into dogs by false witness—in a hundred migrations he will fall into the toils of Varuna, and at last will be thrown head foremost into the darkest abyss of hell. Even his family and kindred are brought into hell by the false witness. For further elucidation the book provides a scale; by false witness about oxen five, about cows ten, about horses a hundred, and about men a thousand members of the family of the false witness are thrown into hell.[242]
If no witnesses are forthcoming the king must endeavour to find out the truth by the oaths of the accuser or the accused, which in cases of special importance he may test and confirm by the "divine declaration." Even the Brahmans could not refuse the oath; for Vasishtha had sworn to the son of Pijavana (Sudas). The Brahman swore by his truthfulness; the Kshatriya by his weapons, his horses, and elephants; the Vaiçya by his cows, his corn, his grass; the Çudra, when taking an oath, must invoke all sins on his own head.[243] If the king desires the "divine revelation" on the truth of the oath, the person taking it must lay his hand, while swearing, on the head of his wife, or the heads of his children; or after taking it, he must undergo the test of fire and water or fire; i. e. he is thrown into water and he must touch fire with his hand. If in the second case no immediate harm follows, if in the first the witness sinks like any other person, if in the third he is not injured by the fire, the oath is correct. Fire, so the book proceeds, is to be the test of guilt or innocence for all men; the holy Vatsa once demonstrated his innocence by walking through fire without a hair of his head being consumed.[244] When we consider the inclination of the Indians to the marvellous, and their belief in the perpetual interference of the gods, it cannot surprise us that these regulations about the divine declaration—which are all that are found in the book of the law—became at a later time much more extended and complicated; it is also possible that the book has omitted certain hereditary forms of the divine sentence, such as the carrying of hot iron, though they continue to exist.[245]
When the king had thus come to a conclusion about the matter and its position by means of indications, evidence, oaths, and "divine declaration," when he had considered the extenuating or aggravating circumstances, e. g. special qualities in the criminal, or repeated convictions, and reflected on the prescriptions given by the law, he is to cause punishment to be inflicted on the guilty. The book acknowledges that the king alone is not sufficient for the burden of pronouncing justice; it is open to him to name a representative, and the necessary judges from the number of the twice-born; no exclusive right in this respect is reserved for the Brahmans, but they are especially recommended. "A court of law, assembled by the king, and consisting of a very learned Brahman and three Brahmans acquainted with writing, is called by the sages the court of Brahman with four faces." A Çudra can never be named by the king as his representative in a court of law. If such a thing were to happen, the kingdom would be in the unfortunate position of a cow which had fallen into a morass.[246]
The doctrine of the Brahmans that no living creature is to be killed is little attended to in respect of human life either in their penal code or in their asceticism. The punishment of death is perhaps less frequently imposed than elsewhere in the East, but mutilations are only the more common, and at times they are employed to aggravate the sentence of death, which is inflicted by beheading and impalement.[247] The legends of the Buddhists show that cruel mutilations were not uncommon. Men of the despised classes, especially Chandalas, served as executioners.[248] The Brahmans are to be free from all bodily punishment; the other castes could be punished either by loss of life, or of the sexual organs, or in the belly, the tongue, feet and hands, eyes and nose, and were distinguished by different brands on the forehead.[249] But the book of the law adds a rule of some importance intended to win respect and legal value for the priestly arrangements of penances: all criminals, who perform the religious expiations prescribed for their offence, are not to be punished in the body, but only condemned to pay a fine. Next to corporal punishments, fines are the most frequent; but imprisonment is mentioned; this was carried out in gaols, which were to be erected on the highways "to spread terror."
The book allows the kings absolute power to punish with capricious severity and with death any attempt and even "any hostile feeling" against themselves. This is necessitated by the position of the despotic ruler whose throne depends on keeping alive the sense of fear in his subjects. "He who in the confusion of his mind betrays hatred against his king must die; the king must at once occupy himself with the means to bring about his destruction." Any one who has refused obedience to the king or robbed the king's treasury must be put to death with tortures.[250] He who forges royal orders, puts strife between the ministers of the king, appropriates the royal property, has any understanding with the enemies of the king, and inspires them with courage, must die. So also must the man who has killed a Brahman, a woman, or a child,[251] who has broken down a dyke, so that the water in the reservoir is lost.[252] Adultery under certain circumstances is punished with death. Robbery, arson, attacks with violence on persons or property, are punished very severely, for such crimes "spread alarm among all creatures."[253] The punishments prescribed by the law for the protection of property are, comparatively, the most severe; it seems that the Brahmanic view, which allots to each creature his sphere of rights, regarded property, the extended circle of the person, as an appurtenance deserving the strictest respect, and that the Brahmans looked on the protection of property as an essential part of a good arrangement of the state, which must secure his own to every man and maintain him in the possession of it. The king is to suppress theft with the greatest vigour. In order to discover the thief, no less than the gambler and cheat, the law recommends him to avail himself of the espionage of those who apparently pursue the same occupation. These spies are to be taken from all orders, and must watch especially the open places, wells, and houses of courtesans in the cities, and in the country the sacred trees, the crossways, the public gardens, and parks of the princes. The king must cause every one to be executed who is caught on the spot with the property upon him, and the concealers of the thief must be punished as severely as the thief himself.[254] Any one who steals more than ten kumbhas worth of corn is to be punished with death; theft of a less value is followed by loss of hand or foot. Petty stealing, e. g. of flowers, or of as much corn as a man can carry, is to be punished by fines, in which the Vaiçya has to pay twice as much as the Çudra, the Kshatriya four times, the Brahman eight or a hundred times. Burglary is a capital offence; the sentence is carried out by impalement, after the hands of the victim have been cut off.[255] A cut-purse loses two fingers; on a second offence a hand and a foot; if the offence is repeated he must die.[256] In regard to property, Manu's laws are so severe that they not only put the sale of another's goods, but even the loosing of a tied ox, or the tying of one which is loose, the use of the slave, horse, or carriage of another on the same level as theft. On the other hand, it is permissible to take roots, and fruits, and even wood for sacrifice out of any unfenced field; the hungry traveller, if a Dvija, may break two sugarcanes, but not more.[257] Gamblers are punished like thieves, and any one who keeps a gambling house must undergo corporal punishment; drunkards are branded in the forehead. The law of contract and debt, the breach of covenants, the non-payment of wages when due, the annulling of a purchase or sale, the law of deposits, the collection of outstanding accounts, gambling debts and wages, are discussed at some length.
The views and regulations in the book of law about the unlimited power of the king and the exercise of the right of punishment might appear to be of a later date than has been assumed, if the sutras of the Buddhists and the accounts of the Greeks from the end of the fourth century B.C. did not exhibit the monarchy of India in the full possession of unlimited power; the latter also mention the careful regard paid by the kings to the administration of justice. Hence we can hardly be wrong in assuming that the Arians in India were not later than their kindred in Iran in reaching this form of constitution.