Page images
PDF
EPUB
[ocr errors]

ANSWER.-If a Khas has a son, he cannot alienate a rupee from him by will, save only, and in moderation, to pious uses.

QUESTION LXXXIV.-Do the Magars and Gúrungs, and other Parbattias differ from the Khas in respect to inheritance, adoption, and wills?

ANSWER.-In general, they agree closely.

QUESTION LXXXV.—How is it with respect to the Newórs, Sivamárgi, and Buddha-margi?

ANSWER.—The former section agrees mostly with the Parbattias on all three heads; the latter section have some rules of their own.

QUESTION LXXXVI.—How is it with regard to the Múrmi tribe, and the Kiránti?

ANSWER.-Answered above: in regard to inheritance, all

tribes agree.

QUESTION LXXXVII.--Are the customs of the several tribes above mentioned, in respect to inheritance, &c., reduced to writing, collected, and methodised ? If not, can they be ascertained with sufficient ease in cases of dispute before the courts ?

ANSWER.—The customary law on those heads is reduced to writing, and the book containing it is studied by the bicháris and others whom it may concern. [Another respondent, on the other hand, says, with reference to the customary laws : “They are not reduced to writing; nor are the diť has or bicháris regularly educated to the law. A dit'ha or bichári has nothing to do with the courts till he receives from the Government the turban of investiture; but that is never conferred, save on persons conversant with the customs of the country, and the usage of its various tribes; and this general conversancy with such matters, aided by the opinions of elders in any particular cases of difficulty, is his sole stay on the judgment-seat, unless it is that the ci-devant dit'ha or bichári, when removed by rotation or otherwise, cannot retire until he has imparted to his successor a knowledge of the state of the court, and the general routine of procedures." A third reply is as follows :-“When cases of dispute on these topics are brought into the court, the judge calls for the sentiments of a few of the most respectable elders of the tribe to which the litigants belong, and follows their statement of the custom of the tribe.”

[ocr errors]

QUESTION LXXXVIII.- Are the bicháris regularly educated to the law ?

ANSWER.—Those who understand dharma and adharma, who are well educated and practised in law affairs, are alone made bicháris. [By another authority: “Those who are well educated, of high character, and practically acquainted with the law, are alone made bicháris. It is not indispensable that they should have read the law Shastra, though, if they have, so much the better."]

QUESTION LXXXIX.—The dit'ha is not often a professed lawyer; yet, is he not president of the supreme court ? How is this?

ANSWER.—Whether the dit'ha has read the Nyáya Shastra or not, he must understand nyáya (justice-law), and be a man of high respectability.

QUESTION XC.- Are there separate bicháris for the investigation of the civil causes of Néwars and of Parbattias?

ANSWER. There are not.

QUESTION XCI.-In the dit'ha's court, if the dit'ha be the judge, the investigator, and decider, what is the function of the bicharis?

ANSWER.—The investigation is the joint work of the dit has and the bicháris. [Another respondent says: “They both act together; the decree proceeds from the dit' ha."]

QUESTION XCII.-In courts where no dit'ha presides, do the bicháris act in his stead ?

ANSWER.—See the answer to Question XXV.

QUESTION XCIII.--Among Néwars and Parbattias, may not the creditor seize and detain the debtor in his own house, and be and misuse him also ? and to what extent ?

ANSWER.—The creditor may attach duns to the debtor, to follow and dun him wherever he goes. The creditor may also stop the debtor wherever he finds him; take him home, confine, beat, and abuse him; so that he does him no serious injury in health or limbs. [Another answer states that the creditor may seize upon the debtor, confine him in his own house, place him under the spout that discharges the filthy wash of the house, and such like; but he has no further power over him.]

QUESTION XCIV.—Is sitting dhárnú in use in Népál ?

[ocr errors]

ANSWER. It is.

QUESTION XCV.-Give a contrasted catalogue of the principal crimes and their punishments ?

ANSWER.- Destruction of human life, with or without malice, and, in whatever way, must be atoned for by loss of life. Killing a cow is another capital crime. Incest is a third. Deflowering a female of the sacred tribe subjects a man of a lower caste to capital punishment, and the confiscation of all his property. Robbery is a capital crime. Burglary is punished by cutting off the burglar's hands. [The subjoined scale is furnished by another respondent:

Killing in an affray.—The principal is hanged; the accessories before the fact severely fined.

Killing by some accident.—Long imprisonment and fining, besides undergoing práyaschitta.*

Theft and petty burglary.— For the first offence, one hand is cut off; for the second, the other; the third is capital.

Petty thefts.Whipping, fining, and imprisonment for short periods.

Treason and petty treason.—Death and confiscation: women and Brahmans are never done to death, but degraded in every possible way, and then expelled the country.]

QUESTION XCVI.-If a Newór wife commit adultery, does she forfeit her strúhan † to her husband, or not? and how is it if she seek a divorce from him from mere caprice? If, on the other hand, he divorces her from a similar motive, what follows as to the stridhan?

ANSWER.—If a Néwár husband divorce himself from his wife, she carries away her stridhan with her; if a Névár wife divorce herself, she may then also carry off with her her own property or portion. Adultery the Newárs heed not.

QUESTION XCVII.—Among the Parbattia tribes, when the injured husband discovers or suspects the fact, must he inform the courts or the Sirkár before or afterwards ? and must he prove the adultery in court subsequently? What, if he then fails in the proof?

ANSWER.—When a Parbattia has satisfied himself of the adultery, and the identity of the male adulterer, he may kill # Vide answer to Question XXX.

+ Stridhan, dowry.

a

him before giving any information to the court or to the Sirkár; he must afterwards prove the adultery, and if he fails in the proof, he will be hanged.

QUESTION XCVIII.- Are such cases investigated in the courts of law, or in the Bháradár Sabhá ?

ANSWER.—The investigation is conducted in the dit'ha's court; but when completed, the dit'ha refers it to the Bháradár Sabhá for instructions, or a final decree.

PART II.

ON THE LAW AND LEGAL PRACTICE OF NÉPÁL AS

REGARDS FAMILIAR INTERCOURSE BETWEEN A
HINDÚ AND AN OUTCAST.

TIIE Penal Law of Népíl, a Hindú state, is necessarily founded on the Shastras; nor is there anything material in its marvellous crimes, and more marvellous proofs, for which abundance of justificatory texts may not be produced out of the Code of Menu and others equally well known on the plains.

The only exceptions to the truth of the above general remarks are, first, that, by the law of Népal, the Parbattia husband retains the natural privilege of avenging, with his own hand, the violation of his marriage bed; and, secondly, that this law expressly confounds Mohammedans with the outcasts of its own community. But it may be remarked, in regard to the first point, that the husband's privilege is rather a licensed violation of the law than a part of the law; and that all nations have tolerated, and do still, some such privilege.

Nor can it be denied, in reference to the second point, that if the followers of Islám are not expressly ranged with ordinary outcasts by the Hindú law Shústras, it is merely because the antiquity of the books transcends the appearance of the

[ocr errors]
[ocr errors]

Moslems in India; since, by the whole spirit and tenor of those books, "all who are not Greeks are barbarians ”-all strangers to Hinduism, Mléchchhas.

If, then, there be any material difference between the Hinduism of Népál, considered as a public institution, and that of the Hindú states of the plains, the cause of it must be sought, not in any difference of the law, the sanctity and immutability of which are alike acknowledged here and there; but in the different spirit and integrity with which the sacred guides, common to both, are followed in the mountains and in the plains.

The Hindú princes of the plains, subject for ages to the dominion or dictation of Mohammedan and European powers, have, by a necessity more or less palpable and direct, ceased to take public judicial cognisance of acts, which they must continue to regard as crimes of the deepest dye, but the sacredly prescribed penalties of which they dare not judicially enforce; and thus have been long since dismissed to domestic tribunals and the forums of conscience, all the most essential but revolting dogmata of Hindú jurisprudence.

We must not, however, forget the blander influence of persuasion and mutual concession, operating through a long tract of time. The Moslems, though the conquerors, gradually laid aside their most offensive maxims: the Hindú princes, their allies and dependants, could not do otherwise than imitate this example; and hence, if there is much diversity between the Hindú laws and Hindú judgments, now and for ages past given in the public tribunals of the Hindú princes of the plains, there is no less between the law of the Korán and its first commentators, and the judgments of AKBAR and his successors.

But neither persuasion nor example, nor coercion, has had room to operate such a change in these mountains; the dominant classes of the inhabitants of which, originally refugees from Mohammedan bigotry, have in their seclusion nursed their hereditary hatred of Islámism, whilst they bade defiance to its power; and they have latterly come very naturally to regard themselves as the sole remaining depositaries of undefiled, national Hinduism. Hence their enthusiasm, which burns all the fiercer for a secret consciousness that their particular and,

« PreviousContinue »