Vol. 7 · pages 76–80

THE SHUDRAS : THE BRAHMANIC .... STATUS OF THE SHUDRAS 57 is the Brahmin. For instance, if the Shudra is guilty of an offence against the Brahmin, the Brahmin has the privilege of demanding a higher punishment than what a Kshatriya or a Vaishya could. A Brahmin could take the property of the Shudra without being guilty of an offence if he needed it for the purpose of performing a sacrifice. A Shudra should not accumulate property because he thereby hurts the Brahmin. A Brahmin should not live in a country where the king is a Shudra. Why is this so? Had the Brahmin any cause to regard the Shudra as his special enemy? There is one other consideration more important than these. It is, what does the average Brahmin think of these disabilities of the Shudras? That they are extraordinary in their conception and shameful in their nature will be admitted by all. Will the Brahmin admit it? It would not be unnatural if this catalogue of disabilities may not make any impression upon him. In the first place, by long habit and usage his moral sense has become so dulled that he has ceased to bother about the how and why of these disabilities of the Shudras. In the second place, those of them who are conscious of them feel that similar disabilities have been imposed on particular classes in other countries and there is therefore nothing extraordinary nor shameful in the disabilities of the Shudras. It is the second attitude that needs to be exposed. This attitude is a very facile one and is cherished bacause it helps to save reputation and slave conscience. It is, however, no use leaving things as they are. It is absolutely essential to show that these disabilities have no parallel anywhere in the world. It is impossible to compare the Brahmanic Law with every other legal system on the point of rights and disabilities. A comparison of the Brahmanic Law with the Roman Law ought to suffice. IV It will be well to begin this comparison by noting the classes which under the Roman Law had rights and those which suffered from disabilities. The Roman jurists divided men into five categories: (1) Patricians and Plebians; (2) Freemen and Slaves; (3) Citizens and Foreigners; (4) Persons who were sui juris and persons who were alieni juris and (5) Chirstians and Pagans. Under the Roman Law; persons who were privileged were: (1) Patricians; (2) Freemen; (3) Citizens; (4) Sui juris and

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES58 (5) Christians. As compared to these, persons who suffered disabilities under the Roman Law were: (1) the Plebians; (2) Slaves; (3) Foreigners; (4) Persons who were alieni juris and (5) Pagans. A Freeman, who was a citizen under the Roman Law, possessed civil rights as well as political rights. The civil rights of a citizen comprised rights of connubium and commercium . In virtue of the connubium , the citizen could contract a valid marriage according to the jus civile , and acquire the rights resulting from it, and particularly the paternal power and the civil relationship called agnation, which was absolutely necessary to enable him in law to succeed to the property of persons who died intestate. In virtue of the commercium he could acquire and dispose of property of all kinds, according to the forms and with the peculiar privileges of the Roman Law. The political rights of the Roman citizen included jus suffragii and jus honorum , the right to vote in public elections and the right to hold office. The slave differred from the Freeman in as much as he was owned by the master and as such had no capacity to acquire rights. Foreigners, who were called Peregrine , were not citizens and had none of the political or civil rights which went with citizenship. A Foreigner could obtain no protection unless he was under the protection of a citizen. The alieni juris differed from sui juris in as much as the former were subject to the authority of another person, while the latter were free from it. This authority was variously called (1) Potestas, (2) Manus and (3) Mancipium, though they had the same effect. Potestas under the Roman Law fell into two classes. Persons subject to Potestas were (1) slaves, (2) children, (3) wife in Manus, (4) debtor assigned to the creditor by the Court and (5) a hired gladiator. Potestas gave to one in whom it was vested rights to exclusive possession of those to whom it extended and to vindicate any wrong done to them by anyone else. The correlative disabilities which persons alieni juris suffered as a result of being subject to Potestas were: (1) they were not free, (2) they could not acquire property and (3) they could not directly vindicate any wrong or injury done to them. The disabilities of the Pagans began with the advent of Christianity. Originally, when all the Romans followed the same Pagan worship, religion could occasion no difference in the enjoyment of civil rights. Under the Christian Emperors, heretics and

THE SHUDRAS : THE BRAHMANIC .... STATUS OF THE SHUDRAS 59 apostates as well as Pagans and Jews, were subjected to vexatious restrictions, particularly as regards their capacity to succeed to property and to act as witnesses. Only orthodox Christians who recognised the decisions of the four oecumenical councils had the full enjoyment of civil rights. This survey of rights and disabilities of the Roman Law may well give comfort to Hindus that the Brahmanic Law was not the only law which was guilty of putting certain classes under disabilities, although the disabilities imposed by the Roman Law have nothing of the cruelty which characterizes the disabilities imposed by the Brahmanic Law. But when one compares the principles of the Roman Law with those of the Brahmanic Law underlying these disabilities, the baseness of the Brahmanic Law becomes apparent. Let us first ask: What was the basis of rights and disabilities under the Roman Law. Even a superficial student of Roman Law knows that they were based upon (1) Caput and (2) Existimatio . Caput meant the civil status of a person. Civil status among the Romans had reference chiefly to three things; liberty, citizenship and family. The status libertatis consisted of being a freeman and not a slave. If a freeman was also a Roman citizen, he enjoyed the status civitatis. Upon this quality depended not only the enjoyment of political rights, but the capacity of participating in the jus civile. Finally, the status familice consisted in a citizen belonging to a particular family, and being capable of enjoying certain rights in which the members of that family, in their quality of agnates, could alone take part. If an existing status came to be lost or changed, the person suffered what was called a capitis diminutio , which extinguished either entirely or to some extent his former legal capacity. There were three changes of state or condition attended with different consequences, called maxima, media, and minima. The greatest involves the loss of liberty, citizenship, and family; and this happened when a Roman citizen was taken prisoner in war, or condemned to slavery for his crimes. But a citizen who was captured by the enemy, on returning from captivity, was restored to all his civil rights jure postliminii . The next change of status, consisted of the loss of citizenship and family rights, without any forfeiture of personal liberty; and this occurred when a citizen became a member of another state. He was then forbidden the use of fire and water, so as to be forced to quit the Roman territory, or was sentenced to deportation under the empire.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES60 Finally, when a person ceased to belong to a particular family, without losing his liberty or citizenship, he was said to suffer the least change of state, as for instance, where one sui juris came under the power of another by arrogation, or a son who had been under the patria potestas was legally emancipated by his father. Citizenship was acquired first by birth. In a lawful marriage the child followed the condition of the father, and became a citizen, if the father was so at the time of conception. If the child was not the issue of justoe nuptioe , it followed the condition of the mother at the time of its birth. Secondly, by manumission, according to the formalities prescribed by law, the slave of a Roman citizen became a citizen. This rule was modified by the laws. Elia Sentia and Junia Norbana, according to which, in certain cases, the freedman acquired only the status of a foreigner, peregrinus dedititius or of a Latin, Latinus Junianus. Justinian restored the ancient principle, according to which every slave, regularly enfranchised, became in full right a Roman citizen. Thirdly, the right of citizenship was often granted as a favour, either to a whole community or to an individual, by the people or the senate during the republic, and by the reigning prince during the empire; and this was equivalent to what the moderns call naturalisation. Citizenship was lost—Firstly, by the loss of liberty—as, for instance, when a Roman became a prisoner of war; secondly, by renouncing the character of Roman citizen, which took place when anyone was admitted a citizen of another state; thirdly, by a sentence of deportation or exile, as a punishment for crime. The civil status of a person under the Roman Law may or may not be civis optimo jure . Civis optimo jure included not only capacity for civil rights but also capacity for political rights such as jus suffragii et honorum , i.e., the right to vote and the capacity to hold a public office. Capacity for political rights depended upon existimatio. Existimatio means reputation in the eye of the law. A Roman citizen may have caput as well as existimatio . On the other hand, a Roman may have caput but may not have existimatio. Whoever had caput as well as existimatio had civil rights as well as political rights. Whoever had caput but had no existimatio could claim civil rights only. He could not claim political rights. A person’s existimatio was lost in two ways. It was lost by loss of freedom or by conviction for an offence. If a person lost his freedom his existimatio was completely extinguished. Loss of existimatio by

THE SHUDRAS : THE BRAHMANIC .... STATUS OF THE SHUDRAS 61 conviction for offence varied according to the gravity of the offence. 1 If the offence was serious the diminution of his existimatio was called infamia . If the offence was less grave it was called turpitudo. Infamia resulted in the extinguishment of existimatio. Under the Roman Law a defendant, in addition to ordinary damages, was subjected to infamia . Condemnation for theft, robbery, injuria or fraud, entailed infamy. So a partner, a mandatarius, a depositarins, tutor , a mortgagee (in contractus fiducioe ) if condemned for wilful breach of duty, was held to be infamous. The consequence of infamia was exclusion from political rights, 2 not merely from office (honours), but even from the right to vote in elections ( suffragium ). From this brief survey of the basis of rights and disabilities in Roman Law, it will be clear that the basis was the same for all. They did not differ from community to community. Rights and disabilities according to Roman Law were regulated by general considerations, such as caput and existimatio . Whoever had caput and existimatio had rights. Whoever lost his caput and his existimatio suffered disabilities. What is the position under the Brahmanic Law? There again, it is quite clear that rights and disabilities were not based on general uniform considerations. They were based on communal considerations. All rights for the first three Varnas and all disabilities for the Shudras was the principle on which the Brahmanic Law was based. The protagonists of Brahmanic Laws may urge that this comparison is too favourable to Roman Law and that the statement that Roman Law did not distribute rights and liabilities on communal basis is not true. This may be conceded. For so far as the relation between the Patricians and Plebians was concerned the distribution of rights and liabilities was communal. But in this connection the following facts must be noted. 1. Such as robbery, theft, perjury, fraud, appearing on the public stage as an actor or gladiator, ignominious expulsion from the army, gaining a living by aiding in prostitution and other disreputable occupations and other variety of acts involving gross moral turpitude. 2. There were other consequences of infamia such as exclusion from the office of attorney, disability to act on behalf of another in a law suit or giving evidence. Infamia was inflicted in two ways, either by the censors or by the judgement of a Court of Law. It was in the power of the censors, in superintending public morality, to deprive senators of their dignity, to remove knights from the equestrian order and even to strip a citizen of all his political rights by classing him among the aerarii . The censors also put a nota censoria opposite to a man’s name in the roll of citizens; and this might be done upon their own responsibility; without special inquiry, though they generally acted in accordance with public opinion. The nota censoria produced no effect except during the magistracy of the censor who imposed it. In this respect it differed essentially from infamy, which was perpetual, unless the stigma was removed by the prerogative of the people or the Emperor.