व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

$\left.{l}S. XVIII 10-12
M. p. 117 ll. 3-81\right]$ HEINOUS OFFENCES 263
do to a particular felon viz one who is intent upon a killing a person, it
is right to hold that they are (in the nature of) exceptions to the previ-
ously cited texts of Sumantu and Kātyāyana that are in the nature of
a general proposition (about felons)¹ As for the text of Bṛhaspati
he, who will not kill a felon of the highest class that is endowed with
the best religious conduct and Vedic study, though he deserves death, shall
acquire the merit (of the performance) of a horse sacrifice,
that too has reference to a felon other than one intent upon killing that
man Moreover by the text 'excellent brāhmaṇas even though felons
should not be killed (even) in a fight that is just (or approved by the
śāstras)' the slaying of a brāhmaṇa felon intent upon killing another is
forbidden. This prohibition (about killing an ātatāyī brāhmaṇa) in the Kali age
would be unmeaning if it (killing an ātatāyī brāhmaṇa) were not enjoined as
an act to be done.² For all digests (on dharmaśāstra) establish that the
prohibition of certain acts in the Kali age fell within the purview of enjoin-
ed acts (as regards former ages) on account of the proper significance of
the word dharma occurring in the text 'the wise declare that these dharmas
(enjoined acts) are to be avoided in the Kali age' Therefore in the Kali
age a felonious brāhmaṇa even though intent upon killing a person should
not be killed (even in self-defence by that man), but in other ages he was
certainly (allowed) to be *killed; however a felonious brāhmaṇa different
from the preceding (i e. one not coming to kill) was not to be killed
(i. e killing him was forbidden) in all ages, while all felons whatever of the
kṣatriya and other classes are liable to be killed in all ages. This is a bare
outline (of the subject)
Bṛhaspati (p. 363 vv. 25-28) declares the punishments for seizing articles
of the lowest, middling or best kinds
One who destroys or steals implements of husbandry, flowers, roots and
fruits shall be fined a hundred or more (up to two hundred) according
(to the nature of the property) One who destroys or steals cattle, clothes,
food, drink, household utensils should be punished with a fine of two hundred
or more In the case of women, men, cows, gold, precious stones, the pro-
perty of a deity or of a brāhmaṇa or of women and in the case of other
precious things the fine shall be equal to the value (of the thing stolen).

1. The texts of Sumantu and Kātyāyana in general terms say that an ātatāyī
   brāhmaṇa should not be killed, the four texts of Manu and the other sages particularly
   refer to a brāhmaṇa approaching for killing, therefore they restrict or modify the general
   rule The maxim is 'sāmānyam viśesena bādhyate' (a general proposition is modified or
   restricted by a particular one).
2. A nisedha only prohibits what would otherwise follow as a matter of course. Vide
   p. 231 n 3 above Since ātatāyibrāhmaṇa-vadha is forbidden in kali along with several
   other matters, all of which are spoken of as dharmas proper in former ages, it follows
   that such a vadha was a dharma in former ages.

• P. 248 (text).