The king is entitled to five per cent. on all debts admitted by the defendant on trial, and to ten per cent. on all denied and proved. This fee probably went direct to the judges, who would thus be remunerated without infringing the law against Brahmans serving for hire. A king or judge in trying causes is carefully to observe the countenances, gestures, and mode of speech of the parties and witnesses. He is to attend to local usages of districts, the peculiar laws of classes and rules of families, and the customs of traders: when not inconsistent with the above, he is to observe the principles established by former judges. Neither he nor his officers are to encourage litigation, though they must show no slackness in taking up any suit regularly instituted.
A king is reckoned among the worst of criminals who receives his revenue from his subjects without affording them due protection in return. The king is enjoined to bear with rough language from irritated litigants, as well as from old or sick people, who come before him. He is also cautioned against deciding causes on his own judgment, without consulting persons learned in the law; and is positively forbidden to disturb any transaction that has once been settled conformably to law. In trials he is to adhere to established practice.
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.