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| PHLIP VON MEHREN, J.D. |
TIM
SAWERS, J.D.
|
| MILBANK,TWEED,HADLEY
AND McCLOY WASHINGTON, D.C. |
HODGSON,
RUSS, ANDREWS, WOODS & GOODYEAR
BUFFALO, N.Y. |
APPENDIX
INTRODUCTION
To the best of our knowledge, Siam's 1805 recension, the Law of the Three Seals, has never been translated into any language. We offer below our translations of the 1805 recension provisions cited in chapter two of this work. In preparing these translations we have used Robert Lingat's definitive edition of the Law of the Three Seals published by Thammasat University in the late 1930s. Titled Pramuan kotmai rachakan thi 1 julasakarat 1166 (The Siamese Code of 1166 C.S.(1)), this work, now out of publication, contains the original fortyone Thai-style books in three volumes. Lingat arranged the order in which the original forty-one volumes are presented and renumbered the provisions to facilitate scholarly research. The arabic numerals in the translations are Lingat's; the original Thai numeration is indicated in brackets.
We have translated sixteen provisions from the miscellaneous book of the Law of the Three Seals and arranged them in numerical order following Lingat's numeration. A seventeenth and final provision, from the crimes against government book of the Law of the Three Seals, is added at the end. Under each of Lingat's arabic numerals is first a close translation of the original and then, in boldface type, a more fluent translation. We have attempted to keep comments, which are interspersed among the translations, and footnotes to a minimum.
The close translations are as accurate as possible. But it is often difficult to convey in English the ambiguity of the original Thai; to do so accurately is to risk incoherence in the English translation. Pronouns, number and articles contribute heavily to this ambiguity. In these provisions the antecedent of a pronoun is rarely self-evident and the same pronoun may be second or third person, singular or plural, depending upon the context. Classifiers are used to indicate (sometimes rather precisely) number in Thai. But without these classifiers, which are scarce in the provisions translated, the reader is left to infer from the context whether a noun is singular or plural. Furthermore, Thai has no equivalent of the English articles "a," "an" and "the," so inference from the context is that much more difficult.
We have tried to address the problem presented by the ambiguity of the original Thai by liberal use of parentheses. Inferences made in translation are in parentheses in the close translations. While most of these inferences are routine and present little danger of misinterpretation, many of them could be challenged. Thus we ask that the reader first read the close interpretation omitting words within parentheses and then read the entire close interpretation ignoring the parentheses. In this way the reader will get a feel for the style and ambiguity of this ancient law and see clearly the inferential leaps made in translation.
Our goal in offering the more fluent translation is to present to the reader as succinctly as possible the meaning of the translated provision to a contemporary lawyer. Thus in addition to involving further (and more questionable, if one is concerned with the literal accuracy of the translation) inferences, the fluent translations exclude information from the original which is not relevant from the point of view of current law. By first reading the close translation excluding the phrases in parentheses, then reading the close translation including the phrases in parentheses and finally consulting the fluent translation, lawyers and scholars will be able to form their own opinions about the legitimacy of inferences made in translation. This should give rise to many differences of opinion and, we hope, inspire further research into Siam's Law of the Three Seals and the society which generated it.
We owe a great debt to Khun Jitraporn Leelawat for her gracious help and guidance in the preparation of the translations that follow.
TRANSLATIONS
LAW OF THE 3 SEALS, MISCELLANEOUS BOOK
34
[Thai numeral 25]. One person is plowing paddy. One person challenges (him by) plowing (the same paddy). If (the interloper) plows (the entire) field, levy a fine of 330,000 cowrie shells. If (he) plows two furrows, levy a fine of 110,000. If (he) plows three furrows, levy a fine of 220,000.
A fine will be levied for plowing over again where another person is plowing.
35
[Thai numeral 26]. (If) anyone intrudes with water buffalo (and) plows the rice which you have just sown, levy a fine of 330,000.
A fine will be levied for plowing under another person's newly sown rice.
36
[Thai numeral 27]. (If) anyone intrudes with water buffalo (and) plows your rice when it is a stalk (or) leaf, thammasat(2) says levy a fine of 440,000. If the rice is young,(3) levy a fine of 550,000; if the rice is ripe, levy a fine of 660,000. If (he) plows as much as 1, 2, 3 rai(4) or more, levy a fine of 110,000 and have the wrongdoer prepare one pig, one duck, one jar of liquor, candles, incense and other ceremonial accessories to pay obeisance to the rice goddess in accordance with the tradition of the community.
The fine for plowing under another persons' rice varies according to how much land is so plowed and the point in the growing cycle of the rice when it is plowed under.
37
[Thai numeral 28]. (If) anyone dares to plant rice in your paddy saying it is his own paddy, levy a fine of 110,000.
A fine will be levied for seizing and planting rice in another person's paddy.
38
[Thai numeral 29]. (You have) plowed the paddy (but) not yet sown the rice. A person comes and plows (the same paddy) again. Whether (he) plows (the same) furrow deeper or plows on either side (of the furrow), levy a fine of 220,000 three times. Also fine (him) by reducing (his) rank once. If there was no boundary marker, levy a fine of 33,000 three times.
A fine will be levied for plowing over again where another person has plowed. The fine will include a demotion in rank. But the fine will be reduced if the land was not marked.
39
[Thai numeral 30]. (There is) paddy which you have formerly worked. (Someone) comes and challenges (you by) plowing (and) working your paddy. Thammasat says that person transgresses, levy a fine of 110,000.
A fine will be levied for seizing and working land formerly worked by another person.
40
[Thai numeral 31]. (If) anyone dares to rake over(5) (the furrows) you plowed, fine (him) 3 times for a total of 220,000.
A fine will be levied for filling back in the furrows plowed by another person.
41
[Thai numeral 32]. (If) anyone dares to pile up a mound of dirt (for) building a but (and) putting up paddy dikes and takes your paddy as his own paddy, thammasat says levy a fine of 110,000.
A fine will be levied for seizing and settling on the land of another person.
Comment
Sections 34-41 all deal with intentional invasions of another's land, but none of these provisions says "don't invade or seize your neighbor's land." In attempting to make these provisions meaningful for current lawyers we have resorted, in §§ 37, 39 and 41, to the word "seize" in the fluent translation. But these sections show clearly that what was important in rural Thai society at that time was the labor already expended or the crop, not the seizure of the land.
Note the extensive articulation in these provisions. There are many different provisions for actions which current law subsumes under the rubric trespass.
52(6)
The land in the area around Bangkok and Ayuthya is the land of the king. Although (the king) allows the populace, people who are tied to the land, to live (on the land), the populace cannot own (it). There are disagreements about this because the people are already living (on the land and) each has his own house, his own garden. Then another person comes to live (on the land). And (he) fences in, plants and builds on (the land). (The king) gives (this) right to him.
Also, if (that) person hasn't abandoned that land and he has fenced (it) in as evidence (of his claim to the land), but he leaves, whether for business or pleasure, and returns (intending) to enter and live (on the land), give (the land) back to him to live on because he did not abandon that land. If he abandons the land as long as 9 (or) 10 years, have the local government arrange to give (the land to) those people who cannot find any land to live on. Do not allow that land to be unoccupied.
Furthermore, if (that person) planted fruit trees on that land, have the person occupying (his land) give him the price of those trees.(7) If he piled up dirt into mounds (for fill), pay him an approriate price. As for the land, do not buy and sell it at all.
All land belongs to the king. Sale of land is prohibited. The people may occupy land and are encouraged to do so in populated areas. People may abandon their land temporarily if it is fenced in. If someone uses the land in their absence, that person must return the land and pay an appropriate price for the use of the land. However, if people leave the land for nine or ten years, they lose their right of usufruct.
Endnotes:
(1) C.S. is an old Burmese dynastic dating system. The recension was completed in the year 1166 of the C.S. system.
(2) Throughout these translations we frequently translate the pronoun than as thammasat. Than is an honorific pronoun used in these instances to refer to the thammasat. We have omitted the article to convey more forcefully the Thai conception that the thammasat is not just a book or an anthropomorphic angel, but omnipresent natural law. For more information on the thammasat see Ishii, Yoneo (1986), "The Thai Thammasat," in Hooker, M.B., ed., (1986-88) The Laws of South-East Asia vol. 1 pp. 157-8.
(3) I.e. not yet transplanted.
(4) Rai is a measure of land area. About two and a half rai equal one acre.
(6) We omit from the translation of this provision an introductory passage containing mythological references and a quote in Pali from the theravadan scriptures.