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his revenge without a thought of the magistrate; he may watch his opportunity for years, till he can safely execute his design ; and when he has, at last, found it, he may use it to the adulterer's destruction. But he may not spare the adulteress: he must cut off her nose, and drive her with ignominy from his house ; her caste and station for ever gone. If the wife have notoriously sinned with many, the husband may not destroy any but the first seducer, and though the husband need prove nothing beforehand, he must be prepared with legal proof afterwards, in case the wife should deny the fact, and summon him before the courts (no other person can) for murder and mutilation.
And what is deemed legal proof in this case? The wife's confession made in the presence of two witnesses. But who is to warrant us that the confession is free? This, it must be confessed, is an awkward question ; since, by the law of Népal, the husband's power over his wife is extreme. He may beat her; lock her up; starve her ad libitum, so long as he endanger not her life or limbs; and that he will do all this and more, when his whole soul is bent upon procuring the necessary acknowledgment of her frailty, is too probable. But still, her honour, her station, and her beauty are dear to a woman; and every Parbattia wife knows, that the terrible avowal once made, she becomes in an instant a noseless and infamous outcast. There is little real danger, therefore, that a true woman should be false to herself, by confessing, where there was no sin, for fear of her husband; and no danger at all, I apprehend, that, as has been imagined, she could be won to become the tool of some petty malice of her husband, or of the covert political spleen of the Darbár. There are, indeed, some married Brahmans among the soldiery of Népál; and the wife of a Brahman may not be mutilated. But in proportion as the station of a Brahmani is higher than that of all others, so must its prerogatives be dearer to her; and all these she must lose if she confess. She must be driven from her home by her husband, and be degraded and banished the kingdom by the State. But there is certainly a contingent hazard to our followers, arising out of the circumstance of the adulteress, if she have sinned with many, being required to name her first lover; for since she must, in every court, suffer the full penalties of her crime, it may well be supposed that, under various circumstances, she might be led to name, as her first paramour, one of our sipáhis, instead of a country fellow. This, however, seems to me a vague and barely possible contingency.
PROCEDURE. The proofs and procedure before the Népál tribunals will fall more naturally under consideration, when we proceed to the next case. Suffice it here to say, that if, when the husband would cut off his wife's nose, or afterwards, the wife should hurry to a court of justice, and deny her guilt, the husband must be brought up to answer. In ninety-nine cases out of a hundred, the husband's answer consists in simply producing the two witnesses to his wife's confession of guilt. She, of course, affirms that the confession was extorted by unwarrantable cruelty towards her; and if she can support such a plea (it is hard to do so, for the husband's legal power covers a multitude of sins), in a manner satisfactory to the court, and if the husband have no counter-evidence to this plea, nor any circumstantial or general evidence of the guilt which he affirms, he may be condemned to death. But, in the vast majority of cases, his two witnesses to the confession, with such circumstantial evidence as the case, if a true bill, can hardly want, will suffice for his justification.
INTERCOURSE BETWEEN A HINDÚ AND A NON-HINDÚ—THE LAW.
He who may give water to a pure Hindú to drink, is within the pale of Hinduism; he whose water may not be drunk by a pure Hindú, is an outcast, an unutterably vile creature, whose intimate contact with one within the pale is foul contamination, communicable to the pure by the slightest and most necessary intercourse held with them, and, through them, to all others. If trivial and involuntary, it may be expiated by the individual, if he alone be affected; or by all with whom he and they communicated before the discovery of the taint, if any such persons there be. The expiation is, by a world of purificatory rites, as tedious as expensive; and the tainted must segregate themselves from society till these rites are completed. But there are many sorts of contact between a Hindú and a non-Hindú, or outcast,
the sin of which is inexpiable, and the penalty, death. Such is intercourse between the sexes. But, by a primary law, the lives and members of Brahmans, and the lives of women, are sacred. Subject to the modification of this primary law, the utmost vengeance of the Code is reserved for this enormous sin. Men so offending are done to death, Women have their noses amputated, are rendered outcasts, if they have castes to lose, and are banished the kingdom.
A male outcast, who has intercourse, under any circumstances, with a pure Hindú female, and whether the female be the seducer or the seduced, be maid, wife, or widow, chaste, or a wanton, is adjudged to die; and the female is rendered noseless and an outcast; unless of the sacred order, when her nose is spared. If an outcast female pass herself off for one of a pure caste, and have commerce with a Hindú, she shall have her nose cut off; and he, if he confess his sin so soon as he discovers it, shall be restored to caste by penance and purification; but if he have connection knowingly with such a female, he shall be emasculated, and made an outcast. If a Sudra, or one of lower degree, but still within the pale, have commerce with a Brahmané, lie shall suffer death, unless the Brahmaní be a prostitute, and then he shall go free.
If any such Hindú have commerce with a Khasni, she having been a chaste widow up to that time,* he shall die. If she were a maid, and willing, he shall be heavily fined; if a wanton, he shall go free.
Hindús, however low, whose water will pass from hand to hand, are in no danger of life or limb from such commerce with any others than Brahman and Khas females. The latter are the Kshatriyas of Népal and wear the thread.
The following are the outcasts of Népal
Dúng, or Dụni.
Kingri, or Gáin.
* Chaste widows are supposed to be dead to the world, and devoted to religious exercises. Most of them buru with their husbands' corpses.
The above enumeration of outcast Néwárs may serve to introduce the remark, that the distinctions of caste, and their penal consequences, do not owe their existence in Népal to the Górkhá dynasty. It is true that before that event the majority of the Népálese proper were Budd'hists, having a law of their own; but so they are still. And when we advert to the facts, that the Budd'hism of the most distinguished tribe of them (the Newárs) admitted the dogma of caste; that the sovereigns of Kathmandu and Pátan, though belonging to this tribe, were, for three or four ages before the conquest, with many of their subjects, Brahmanical Hindús; that the Newárs and others, since the conquest, have all, as far as they were allowed, by availing themselves of the privileges of Hinduism, confessed its obligations to be binding on them; and that lastly, all tribes have now for seventy years acknowledged the paramountship, quoad hoc, of the Hindú law of the conquerors ;—when I say, we recollect all these things, it will appear clear, I think, that we are not at liberty to question the equitableness of the application of this law to our followers in Nepál, inasmuch as it is the unquestioned law of the land.*
The round of operations by which a judgment is reached in a Népálese court of justice is precisely such as a man of sense, at the head of his family, would apply to the investigation of a domestic offence; and the contracted range of all rights and wrongs in Népal renders this sort of procedure as feasible as it is expeditious and effectual. The pleasing spectacle is, however, defaced by the occasional rigour arising out of the maxim, that confession is indispensable; and by the intervention, in the absence of ordinary proof, of ordeals and decisory oaths.
An open court, viva voce examination in the presence of the judge, confrontation of the accuser, aid of counsel to the prisoner, and liberty to summon and have examined, under all usual sanctions, the witnesses for the defence—these are the ordinary attributes of penal justice in Népál; and these would amply suffice for the prisoner's just protection, but for the vehemence with which confessions are sought, even when they are utterly superfluous, but for the fatal efficacy of those confessions and but for the intervention of ordeals. Ordeals, however, are more frequently asked for than commanded ; and perhaps it is true that volenti non fit injuría : at all events, with reference to enforced confessions, it must not be supposed that the infamous ingenuity of Europe has any parallel in Népal, or that terrible engines are ever employed in secret to extort confessions. No! the only torture known to these tribunals is that of stern interrogation and brow-beating, and, more rarely, the application of the kórá : * but all this is done in the face of day, under the judge's eye, and in an open tribunal; and though it may sometimes compromise innocence, its by far more common effect is to reach guilt. Besides, with respect to ourselves, the mere presence of the Residency Munshi, pending the trial of one of our followers, would prevent its use, or at least abuse, in regard to him. Or, ere submitting our followers to the Népálese tribunals, we might bargain successfully with the Darbár for the waiving of this coercion, as well as for the non-intervention of the proof ordeal, unless with the consent of the party. And if these two points were conceded to us, I should, I confess, have no more hesitation in committing one of our followers to a Népálese tribunal at Kathmándú, than I should in making him over to our own courts. I have mentioned, that the prisoner is allowed the assistance of counsel; but the expression must be understood to refer to the aid of friends and relatives, for there are no professional pleaders in Népál.
* The objection that may be raised to this law, in reference to our followers, on the ground of its inconsistency with the general principles of justice and humanity, is altogether another question, with which I presume not to meddle.
There are no common spies and informers attached to the courts of justice, nor any public prosecutors in the name of the State. The casual informer is made prosecutor, and he acts under a fearful responsibility; for if he fails to prove the guilt he charges, if he have no eye-witnesses to the principal fact besides himself, and the accused resolutely persevere in denial, a man of respectability must clear his character by demanding the ordeal, in which, if he be cast, the judgment upon him may be to suffer all, or the greater part of that evil which the law
* A kind of whip.