On the basis of these examples (not chosen in historical sequence) Kaegi has concluded, while admitting that ordeals with a general similarity to these have arisen quite apart from Aryan influence, that there is here a bit of primitive Aryan law; and that even the minutiae of the various trials described above are _un_-Aryan. This we do not believe. But before stating our objections we must mention another ordeal.
The Oath: While fire and water are the usual means of testing crime in India, a simple oath is also permitted, which may involve either the accused alone or his whole family. If misfortune, within a certain time (at once, in seven days, in a fortnight, or even half a year) happen to the one that has sworn, he will be guilty. This oath-test is also employed in the case of witnesses at court, perjury being indicated by the subsequent misfortune (Manu, viii. 108).[41]
Our objections to seeing primitive Aryan law in the minutiae of ordeals is based on the gradual evolution of these ordeals and of their minutiae in India itself. The earlier law of the S[=u]tras barely mentions ordeals; the first "tradition law" of Manu has only fire, water, and the oath. All others, and all special descriptions and restrictions, are mentioned in later books alone. Moreover, the earliest (pre-legal) notice of ordeals in India describes the carrying of hot iron (in the test of theft) as simply "bearing a hot axe,"
while still earlier there is only walking through fire.[42]
To the tests by oath, fire, and water of the code of Manu are soon added in later law those of consecrated water, poison, and the balance. Restrictions increase and new trials are described as one descends the series of law-books (the consecrated food, the hot-water test, the licking of the ploughshare, and the lot), Some of these later forms have already been described. The further later tests we will now sketch briefly.
Poison: The earliest poison-test, in the code of Y[=a]jnavalkya (the next after Manu), is an application of aconite-root, and as the poison is very deadly, the accused is pretty sure to die. Other laws give other poisons and very minute restrictions, tending to ease the severity of the trial.
The Balance-test: This is the opposite of the floating-test. The man[43] stands in one scale and is placed in equilibrium with a weight of stone in the other scale. He then gets out and prays, and gets in again. If the balance sinks, he is guilty; if it rises, he is innocent.
The Lot-ordeal: This consists in drawing out of a vessel one of two lots, equivalent respectively to _dharma_ and _adharma_, right and wrong. Although Tacitus mentions the same ordeal among the Germans, it is not early Indic law, not being known to any of the ancient legal codes.
One may claim without proof or disproof that these are all "primitive Aryan"; but to us it appears most probable that only the idea of the ordeal, or at most its application in the simplest forms of water and fire (and perhaps oath) is primitive Aryan, and that all else (including ordeal by conflict) is of secondary growth among the different nations.
As an offset to the later Indic tendency to lighten the severity of the ordeal may be mentioned the description of the floating-test as seen by a Chinese traveller in India in the seventh century A.D.:[44]
"The accused is put into a sack and a stone is put into another sack.
The two sacks are connected by a cord and flung into deep water. If the sack with the man sinks and the sack with the stone floats the accused is declared to be innocent."
FOOTNOTES:
[Footnote 1: Literally, transmigration, the doctrine of metempsychosis, successive births; first, as in Plato: [Greek: _metabole tis tugchanei ousa kai metoikeois te psuche ton topon tou enthende eis allon tochon_], then _metabole_, from "the other place," back to earth; then, with advancing speculation, fresh _metabole_ again, and so on; a theory more or less clumsily united with the bell-doctrine.]
[Footnote 2: Weber has lately published two monographs on the sacrifices, the R[=a]jas[=u]ya and the V[=a]j.a.peya rites, both full of interesting details and popular features.]
[Footnote 3: The traditional sacrifices are twenty-one in number, divided into three cla.s.ses of seven each. The formal divisions are (1) oblations of b.u.t.ter, milk, corn, etc.; (2) _soma_ sacrifices; (3) animal sacrifices, regarded as part of the first two. The sacrifice of the new and full moon is to be repeated on each occasion for thirty years. A _sattra_, session, is a long sacrifice which may last a year or more.]
[Footnote 4: The latter are the metrical codes, a part of Smriti (sm[r.]ti).]
[Footnote 5: The Five Paramount Sacrifices (Observances) are, according to Manu III. 70, study of the Veda (or teaching it); sacrifice to the Manes and to the G.o.ds; offerings of foods to ghosts (or spirits); and hospitality.]
[Footnote 6: In the report of the Or. Congress for 1880, p.
158 ff., Williams has a very interesting account of the daily rites of the modern orthodox Hindu ("_Rig Veda in Religious Service_").]
[Footnote 7: We ignore here the later distinction between the Ved[=a]nta and S[=a]nkhya systems. Properly speaking, the latter is dualistic.]
[Footnote 8: At a later date Buddha himself is admitted into the Brahmanic pantheon as an _avatar_ of the All-G.o.d!]
[Footnote 9: Sometimes regarded as one with Praj[=a]pati, and sometimes treated as distinct from him.]
[Footnote 10: Thus (for the priestly ascetic alone) in M.
vi. 79: "Leaving his good deeds to his loved ones and his evil deeds to his enemies, by force of meditation he goes to the eternal _brahma_." Here _brahma_; but in Gautama perhaps Brahm[=a].]
[Footnote 11: That is, when the latter are grouped as in the following list. Our point is that, despite new faith and new G.o.ds, Vedic polytheism is taught not as a form but as a reality, and that in this period the people still believe as of old in the old G.o.ds, though they also acknowledge new ones (below).]
[Footnote 12: Compare Manu, ix. 245: "Varuna is the lord of punishment and holdeth a sceptre (punishment) even over kings."]
[Footnote 13: In new rites, for instance. Thus in P[=a]rask.
_Grih. S_. 3. 7 a silly and dirty rite "prevents a slave from running away"; and there is an ordeal for girls before becoming engaged (below).]
[Footnote 14: Blood is poured out to the demons in order that they may take this and no other part of the sacrifice, _[=A]it. Br_. ii. 7. 1.]
[Footnote 15: Here. 4. 8. 19, civa"s names are Hara, Mrida, carva, civa, Bhava, Mah[=a]deva, Ugra, Bhima, Pacupati, Rudra, cankara, Icana.]
[Footnote 16: These rites are described in 6. 4. 24 of the _Brihad [=A]ranyaka Upanishad_ which consists both of metaphysics and of ceremonial rules.]
[Footnote 17: Especially mentioned in the later Vasistha (see below); on _m[=i]m[=a]ms[=a]_ a branch of the Ved[=a]nta system see below.]
[Footnote 18: The commentator here (19. 12, cited by Buhler) defines Ved[=a]nta as the part of the [=A]ranyakas which are not Upanishads, that is, apparently as a local "Veda-end"
(_veda-anta_), though this meaning is not admitted by some scholars, who will see in _anta_ only the meaning "goal, aim."]
[Footnote 19: The Rudra (civa) invocation at 26. 12 ff. is interpolated, according to Buhler.]
[Footnote 20: Here there is plainly an allusion to the two states of felicity of the Upanishads. Whether the law-giver believes that the spirit will be united with Brahm[=a] or simply live in his heaven he does not say.]
[Footnote 21: Gautama, too, is probably a Northerner. The S[=u]tra, it should be observed, are not so individual as would be implied by the name of the teachers to whom they are credited. They were each texts of a school, _carana_, but they are attributed uniformly to a special teacher, who represents the _cara[n.]a_, as has been shown by Muller. For what is known in regard to the early "S[=u]tra-makers" see Buhler"s introductions to volumes ii. and xiv. of the Sacred Books.]
[Footnote 22: Compare Buhler"s Introduction, p. x.x.xV, SBE.
vol. XIV.]
[Footnote 23: B[=a]udh. II. 18. 2-3. Compare Jacobi"s Introduction, p. XXIII ff. of SBE. vol. XXII.]
[Footnote 24: Buhler (Introduction, p. x.x.xI) gives as the district of the [=A]pastamb[=i]ya school parts of the Bombay Presidency, the greater parts of the Niz[=a]m"s possessions, and parts of the Madras Presidency. Apastamba himself refers to Northerners as if they were foreigners (_loc. cit.)_.]
[Footnote 25: In India the latter question is: does the soul immediately at death unite with the _[=a]tm[=a]_ or does it travel to it. In Europe: does the soul wait for the Last Day, or get to heaven immediately? Compare Maine, _Early Law and Custom_, p. 71.]
[Footnote 26: Thought by some scholars to have been developed out of the code of The M[=a]navas; but ascribed by the Hindus to Father Manu, as are many other verses of legal character contained in the epic and elsewhere.]
[Footnote 27: Although S[=u]tras may be metrical too in part, yet is the complete metrical form, as in the case of still later c[=a]stra, evidence that the work is intended for the general public.]
[Footnote 28: The priest alone, in the post-Vedic age, has the right to teach the sacred texts; he has immunity from bodily punishment; the right to receive gifts, and other special privileges. The three upper castes have each the right and duty of studying the sacred texts for a number of years.]
[Footnote 29: Weber has shown, _loc. cit_., that the c[=u]dras did attend some of the more popular ceremonies, and at first apparently even took a part in them.]
[Footnote 30: The "four orders" or stadia of a priest"s life, student, householder, hermit, ascetic, must not be confused with the "four (political) orders" (castes), priest, warrior, farmer, slave--to which, from time to time, were added many "mixed castes," as well as "outcasts," and natural pariahs. At the time of Manu"s code there were already many of these half-a.s.similated groups.]
[Footnote 31: Theoretically, twenty-one; but an extra one has slipped in by mistake.]
[Footnote 32: The girl is given or bought, or may make her own choice among different suitors. Buying a wife is reprehended by the early law-givers (therefore, customary).
The rite of marriage presupposes a grown girl, but child-marriages also were known to the early law.]
[Footnote 33: The groom "releases her from Varuna"s fetter,"
by symbolically loosening the hair. They step northeast, and he says: "One step for sap; two for strength; three for riches; four for luck; five for children; six for the seasons; seven for friendship. Be true to me--may we have many long-lived sons."]