37. Brihaspati

Volume I: Part I pp. 484–495

37. Brihaspati

Bṛhaspati as a sūtra writer on politics has been dealt with above (section 26 ). In this section Bṛhaspati the jurist will be spoken of. The complete smṛti of Bṛhaspati on law has not yet been discovereḍ It will be, when discovered, a very precious monument of ancient India, exhibiting the high-water mark of Indian acumen in strictly legal principles and definitionṣ Dr. Führer collected together 84 verses ascribed to Bṛhaspati in the legal treatises of Aparārka and others with German translation and notes (Leipzig, 1879) and Dr. Jolly collected about 711 verses of Bṛhaspati on law and translated them in the Sacred Books of the East (vol. 33).

Yāj. (I. 4-5) enumerates Bṛhaspati among the writers on dharma, but he is probably referring to Bṛhaspati's work on politicṣ The coṃ on the Nītivākyāmṛta (p. 7) quotes the first verse of Bṛhaspati's Nītiśāstra.

We saw above how Bṛhaspati closely follows the extant Manusmṛti, how he pointedly refers to the text of Manu (notes 345-349) and therefore might by analogy be styled a vārtikakāra of Manu. In many places Bṛhaspati explains and illustrates the laconic treatment of Manu. Manu (8. 153) speaks of four varieties of interest (Cakra, Kāla, Kārita, and Kāyika ), but does not explain these termṣ Bṛhaspati explains them clearly.¹ Manu (8. 49) enumerates five modes of recovering a debt (dharma, vyavahāra, chala, ācarita, bala ) but leaves them unexplained; Bṛhaspati devotes several verses to the explanation of these terms (vide Kullūka on Manu 8. 49 ). Bṛhaspati gives elaborate rules regarding partnership. Bṛhaspati enumerates nine ordeals (of fire, water, poison, balance, kośa, taptamāsa, taṇḍulas, dharmādharma, phāla ); while Manu barely alludes to two. Manu devotes only three verses to samvidvyatikrama (8. 219–221), but Bṛhaspati must have devoted at least a score of verses to this topic, as Aparārka alone quotes 17 verses of Bṛhaspati on this title.

The order in which the topics of law appear in Bṛhaspati can be settled with tolerable certainty from the quotations in Aparārka, Vivādaratnākara, Viramitrodaya and other workṣ It was as follows:—the four stages of a law-suit, proof (kriyā, human of three sorts and divine ), witnesses ( of 12 kinds ), documents ( ten kinds ), bhakti ( possession ), ordeals ( nine), 18 titles, ṛṇādāna, nikṣepa, asvāmivikraya, sambhūya-samutthāna, dattāpradānika, abhyupetyā-śuśrūṣā, vetanasyā-anapākarma, svāmipālavi-vāda, saṃvid-vyatikrama, vikriyā-sampradāna, sīmāvivāda, pāruṣya ( of two kinds ), sāhasa ( of three kinds ), strīsaṃgrahaṇa, strīpuṃdharma, vibhāga, dyūta-samāhvaya, prākīrṇaka ( otherwise called ‘nṛpāśraya vyavahāra’, wrongs for which proceedings are set on foot by the king ).

Bṛhaspati was probably the first jurist to make a clear distinction between civil and criminal justice.² He divided the eighteen titles into two groups, those springing from wealth ( 14 titles ) and those springing from injury to beings ( 4 titles ). This distinction was probably dimly perceived by even Gautama, when he says that in disputes based on injury there is no hard and fast rule about witnesses ( i. e. about their interest in the subject of dispute ).³ Bṛhaspati, like Nārada lays down the rule that a legal decision should not be arrived at merely on the basis of śāstra and that when a decision is devoid of reasoning, there is loss of dharma, for even a good man may be held to be a bad one or what is good may be held to be sinful in a judicial proceeding, just as Māṇḍavya was held to be a thief on a decision without thoughtful reasoning.⁴ Bṛhaspati gives such elaborate definitions and rules about procedure from the filing of the plaint to the passing of the decree that he can very well stand comparison with modern legislators on the same subjectṣ

Nārada and Bṛhaspati agree very closely in several respectṣ For example, both speak of three kinds of proof, four parts of a judicial proceeding, almost the same defects of plaints, four kinds of answer, four divisions of the law of gift and their sub-divisions, five modes of recovering debts, four kinds of sāhasa.

We have seen that Nārada departs from Manu in several essential matterṣ On the other hand Bṛhaspati follows Manu very closely. But he too differs on some points from Manu, for example, we saw above how Bṛhaspati dissents from Manu on the question of the divisibility of clothes &c. (note 348). He appears to differ from Manu as to the maximum interest allowed on corn, fruit, wool and beasts of burdeṇ⁶ Manu and Nārada are both silent as to the widow's right to succeed to her deceased husband's estate. But Bṛhaspati agreeing with Yājñavalkya makes her the first heir of her sonless husband ⁷ Br. says ‘those who say that clothes and the like are not liable to partition have not bestowed proper thought (on that matter), as rich people might, have wealth largely consisting of clothes and ornamentṣ This is really a criticism of the Manusmṛti but out of deference for Manu, the reference is impersonal. Aparārka p. 726 ( five verses ) explains from Bṛhaspati how to partition these.

These considerations make it clear that Bṛhaspati is certainly later than Manu and Yāj. It is difficult to state his exact relationship to Nārada. He agrees more closely with Manu than Nārada does, but in some respects such as definitions and the rights of women he shows great advance over Nārada. So he is probably a contemporary of or not much later than Nārada. He employs the word nāṇaka, ⁸ He defines a dināra, also called “suvarṇa”, as equal to twelve dhāṇakas and says that a dhāṇaka was equal to four andikās, an aṇḍikā being a copper paṇa weighing a karṣa and bearing a stamp. ⁹ This agrees with what Nārada says about dināra. Dr. Jolly (S. B. E. vol. 33 p. 276 ) assigns Bṛhaspati to the 6th or 7th century A. D. But this is much later by several centuries than the evidence warrantṣ Kātyāyana was looked upon as an authoritative writer along with Nārada and Bṛhaspati by Viśvarūpa and Medhātithi. This position he could not have attained in a century or two. So he cannot be placed later than the 6th century. Kātyāyana in several places quotes Bṛhaspati as an authority. Aparārka quotes Kātyāyana as saying that, according to Bṛhaspati, pastures, ways, clothes that are worn on the body, debts, (or books for use, according to others ) and what is set apart for religious purposes should not be partitioneḍ¹⁰ Kātyāyana says that, according to Bṛhaspati, that wealth which a man acquires by means of his learning after refuting an opponent in a contest with a stake for the winner is styled “vidyādhana ” and is not liable to partition¹¹; and what is acquired through valour &c. by persons that were taught in the family or learnt under their father should be partitioned among the brothers, according to Bṛhaspati. If a man falsely denies his liability and if only a part of the claim is brought home to him, then he should be made to pay the whole.¹² That the statement of a witness may be relied upon on a matter under his direct perception owing to his being near the plaintiff and the defendant and not otherwise; so says Bṛhaspati.¹³ The foregoing examples show that Kātyāyana looked upon Bṛhaspati as an authority who must therefore have flourished several centuries before. Therefore Bṛhaspati cannot be placed later than the 4th century A. D. As he knew the extant Manusmṛti, was later than Yāj. and probably than Nārada, Bṛhaspati must have flourished between 200 and 400 A. D. This conclusion is strengthened by the fact that Viśvarūpa quotes, without making any difference, prose and verse passages of Bṛhaspati (in verse ) was identical with the political writer Bṛhaspati and was a very ancient writer in his day. Medhātithi ( on Manu 9. 153 ) quotes the verse “na pratigrahabhūr” (ascribed to Bṛhaspati by others ) as Smṛtyantara. Bṛhaspati is cited in a few cases as referring to his own views in the third person¹⁴; sometimes he uses the first person also.¹⁵ Nothing can be said about his country at present. In a well-known passage Bṛhaspati refers to the usages of the southern people, of the people in the Madhyadeśa, of the eastern and northern people.¹⁶ In a striking and beautiful passage Bṛhaspati compares vyavahāra with yajña,¹⁷ the king with Viṣṇu, the successful party with the sacrificer and the defeated party with the victim, the plaint and the reply to food and the pratijñā to the sacrificial offering (prepared from food), the śāstras to the three Vedas and the sabhyas to the priests in a sacrifice. Bṛhaspati seems to have been very fond of such long-drawn metaphorṣ¹⁸

The Smṛticandrikā quotes about seventy verses of Bṛhas-pati in the Āhnika portion and about forty on Śrāddha. In the later works like the Parāśara-Mādhavīya, the Nīrṇaya-sindhu and Saṁskāra-Kaustubha, the number of verses quot-ed from Bṛhaspati is much larger than even those quoted by the Smṛticandrikā. Those verses are quoted on such saṁs-kāras as puṁsavana, nāmākaraṇa, caula, upanayana, vivāha and also on āśauca and purification of dravyās. Even the Mitākṣarā quotes several verses of Bṛhaspati on matters other than those of vyavahāra. For example, the Mit. on Yāj. I. 210 quotes a verse of Bṛhaspati that a nivartana (of land) is equal to 30 daṇḍas in area (daṇḍa being seven cubits in length) and ten nivartanas are equal to a gocarman¹⁹. On Yāj. III. 17 the Mit. quotes two verses of Bṛhaspati about impurity on birth or death &c. On Yāj. III. 21 the Mit. cites the definition of deśāntara given by Bṛhaspati.²⁰ On Yāj. III. 24 the Mit quotes Bṛhaspati's opinion that the period of mourning on the death of one's maternal grandfather, ācārya or śrotriya is three dayṣ On Yāj. III. 253 the Mit. quotes Bṛhaspati's rule as to prāyaścitta for consciously drinking wine.²¹ Vide also Mit. on Yāj. III. 30, 250, 254, 260, 290 for other quotations from Bṛhaspati.

The foregoing, therefore, establishes, that Bṛhaspati was known at least to the Mit. and later writers as an expounder in verse not only of vyavahāra but also of other topics of dharma as well. As over a thousand verses (including about 800 on Vyavahāra) are quoted it appears that his work must have been an extensive one comprising several thousand verseṣ Such a work of Bṛhaspati has yet to be recovereḍ

The Mit. on Yāj. III. 261 quotes a Vṛddha-Bṛhaspati on the nine varieties of saṁkara.²² Kullūka on Manu (9. 181) cites a verse of Vṛddha-Bṛhaspati about the eleven subsidiary sons ( vide note 346 above, where the verse is ascribed to Bṛhaspati ). Hemādri ( Caturvarga, vol. III, part 2, p. 472 ) quotes a Jyotir-Bṛhaspati on the prohibition of a śrāddha on the thirteenth tithi of the dark half. Aparārka on Yāj. II. 3-4 quotes three verses from Vṛddha-Bṛhaspati about the deriva-tion of the word “ prād-vivāka ” and one on the punishment for sabhyas who take bribeṣ Three of these verses are ascrib-ed to Bṛhaspati in the Parāśara-Mādhavīya and other works and one of them to Kātyāyana in the Vyavahāra-mātrkā.

After the publication of the first volume of ‘ the History of Dharmaśāstra in 1930’ and the publication in 1933 by the present author in a book-form of the verses of Kātyāyana ( with English translation and notes ) on law and judicial procedure ( originally contributed to a Journal on Hindu Law ), the late Prof. K. V. Rangaswami Aiyangar came to me in 1934, when I gave him a copy of the reconstruction of Kātyāyana. He asked me to attempt a similar reconstruction of Bṛhaspati As I had by that time decided to bring out a large history of Dharmaśāstra, I refused to undertake what he suggested and asked him to make the attempt himself. He undertook the work of reconstructing Bṛhaspati’s Smṛti and published it in 1941 in the well-known Gaekwad’s Oriental Series ( Baroda ). That is a bulky volume in 732 pageṣ He not only collected the verses attributed to Bṛhaspati on law and judicial procedure but also on other subjectṣ He arranged them in seven parts: ( 1 ) on Vyavahāra in pp. 1–228 arranged in 29 chapters, ( 2 ) on Saṁskāra ( pp. 231–308 ), ( 3 ) Ācāra ( pp. 309–325 ), ( 4 ) Śrāddha ( pp. 326–351 ); ( 5 Āśa-uca ( pp. 352–364 ); ( 6 ) Āpad-dharma pp. 365–372 ); ( 7 ) Prāyaścitta ( pp. 373–386 ). Besides a Preface, a list of Sans-krit works drawn upon or referred to in the footnotes, an Index in Sanskrit of the topics dealt with ( pp. 17–69 ), he contributed a learned and exhaustive English Introduction ( pp. 71–186 ) and an alphabetical ( Sanskrit ) Index of quarters of the verses included in the section on Vyavahāra ( pp. 387–459 ) and another Index of half-verses on sections other than Vyavahāra ( pp. 460–492 ); he also gives a list of additional texts found after the work was sent to the Press ( pp. 493–499 ), a list of authors and works cited in the text of Bṛhaspati ), additions to footnotes ( pp. 502–536 ) and lastly a comparative statement of verses translated by Dr. Jolly ( in SBE Vol. 33, 1889 ) and in the work that he collected and editeḍ This work is a laborious performance. It should have been accompanied by an English translation and notes on difficult passageṣ I have, however, to differ from it in some places and am further obliged to say that, in spite of all the labour he bestows, he somehow failed to notice some verses and prose passages of Bṛhaspati as having been mentioned by Viśvarūpa and otherṣ Dr. Jolly (in S. B. E. vol. 33) collected and translated 717 verses of Bṛhaspati on 'Vyavahāra'.

Prof. Aiyangar on p. 73 of his Introduction states that Dr. Jolly published an English rendering of 697 Ślokas on Vyavahāra attributed to Bṛhaspati. To me it is not clear how he arrived at the smaller figure of 697. Probably there is some mistake in making the total of the verses in the 27 sections of the translatioṇ Prof. Aiyangar further says (on p. 73 of the Introduction) that the number of Ślokas (including under the term a few passages in prose) dealing with Vyavahāra is 1372, nearly double the number collected by Dr. Jolly.

Dr. Jolly rightly says at the beginning of his Introduction to the translation of Bṛhaspati’s verses 'the fragments of Bṛhaspati' are among the most precious relics of the early legal literature of India.

Aparārka (on Yāj. II. 151 pp. 761–62), Kalpataru (on Vyavahāra on pp. 450–51) and Smṛticandrikā (Vyavahāra, p. 234, Gharpure) contain 8 or 9 verses of Bṛhaspati about the loss or gain of lands by the change in the courses of rivers or when a king grants lands from one village as situated in another.

The Vyavahāranirṇaya of Varadarāja cites a verse (on p. 132) as Bṛhaspati's in the work called ‘Pañcādhyāyī’ and again (on p. 357) simply a verse in ‘Pañcādhyāyī.’ It is possible that Pañcādhyāyī is an independent work in which Bṛhaspati was quoted or it may be that Pañcādhyāyī is the work of Bṛhaspati himself.²³ Prof. Aiyangar says ( on p. 493 of his reconstructed Bṛhaspati) that certain passages (both nir. prose and verse) attributed to Bṛhaspati in different Nibandhas were noticed by him after the text had been sent to the press and then sets out only two passages in prose from Viśvarūpa's Bālakrīḍā. The commentary of Viśvarūpa was published at Trivandrum in two parts, the first in 1922 (on Yāj. I and II, ācāra and vyavahāra) and the 2nd in 1924 (on Prāyaścitta). He began to collect materials for the reconstruction of Bṛhaspati after 1934. Therefore, he could have secured many more prose passages attributed to Bṛhaspati by Viśvarūpa. I set out a few more prose passages of Bṛhaspati from Viśvarūpa's commentary alone. They are ten in all, most of which refer to Vyavahāra.²⁴ Viśvarūpa also quotes five verses of Bṛhaspati,

( Continued from the previous page )

This is quoted by अपराकं on p. 1225 from मत्स्यपुराण and on the same page he quotes बृहस्पति as ‘दशहस्तेन वेशेन दशवंशाः समन्ततः । पश्च चाभ्यधिकस्तदेतद्दोर्मलमम् ।। – Prof. Aiyangar quotes Hemādri first and it is not clear why he does not mention the Mit. and Aparārka first and why he should not have made a reference to the verses of Yāj. instead of referring to pages of some edition which many readers might not be able to get. अथ पक्षाध्यायां बृहस्पतिः । त्रिवर्षं भुज्यते येन समक्षं भूरादिता । तस्य सा नापहर्त्तव्या क्षमालिङ्गं न चेद्धृतं ।। चतुष्पादनान्यादि वर्षाद्वादशमवागमुगात् ।। व्यव. नि. p, 132; पक्षाध्यायाम् ज्ञातिसामन्तमन्वनिकाः ज्ञाते दशाहायास्तु ते सर्वे केतुविकेवरेव च । ज्ञात्यादिगामी तत्क्षेत्रं विक्रेतुमूर्त्याकर्प-णात् ।। व्यव. नि. p. 357. which have been noticed by Prof. Aiyangar. He, it appears, regards the quotations in prose and verse as belonging to the same author. In one prose quotation Bṛhaspati is mentioned by name as stating a certain propositioṇ It is possible that Viśvarūpa regarded that all quotations (both prose and in verse) are to be attributed to one author. One cannot dogma- tise on such a point. But it is quite likely that the author of the verses was different from the author of the Sūtras quoted by Viśvarūpa.

Prof. Louis Renou of Paris contributed to volume VI (1962) of the Indo-Iranian Journal (Publishers, Moulton and Co., the Hague) pp. 81–102 a learned paper (in French) on the edition of the fragments of Bṛhaspati (collected) by Prof. K. V. Rangaswami Aiyangar. It is not possible to mention here for reasons of space even the most salient points of his criticisms against Prof. Aiyangar's edition of Brhas- pati. On p. 83 note 2 he observes that Prof. Aiyangar has not made use of P. V. Kane’s learned edition of the fragments of Kātyāyana with translations and points out that the word ‘nāstika’ which is explained in H. of Dh. Vol. III pp. 464–5 and the incidents of the sale by a finder of an article lost by the owner (in Kātyāyana 622–623) are not set out by Prof. Aiyangar. It is unnecessary for the present author to dwell on the omissions pointed out by Prof. Renou in Prof. Aiyangar's work, which latter simply collects passages with enormous details about the works and pages where the verses of Bṛhaspati occur with hardly a word of explanation anywhere.

An interesting point, with reference to the collections of verses quoted as from Bṛhaspati or Kātyāyana, the original Smṛtis of which are not now available, is the confusion caused by the same verse being cited as from Bṛhaspati or Kātyāyana or Nārada or Manu (both the latter Smṛtis being available in printed editions). A few striking examples are cited (in the footnote). Some verses are attributed to both Bṛhaspati and Kātyāyana (and sometimes to three viz. Nār., Bṛ., Kāt., or Manu, Bṛ. and Kāt.).³⁴