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Criminal Law and Procedure in Nepal a Century Ago: Notes Left by Brian H. Hodgson1

Published online by Cambridge University Press:  23 March 2011

Leonhard Adam
Leonhard Adam
Affiliation:
University of Melbourne, Australia
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Extract

For an Appreciation of the remarkable document reproduced in the article, some introductory observations may be welcome about the personality and scientific methods of its author and about the anthropological, religious, and historical background of Nepal.

Type
Articles
Information
The Journal of Asian Studies , Volume 9 , Issue 2 , February 1950 , pp. 146 - 168
Copyright
Copyright © The Association for Asian Studies, Inc. 1950

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References

3 Hunter, Sir William Wilson, Life of Brian Houghton Hodgson (London, 1896), 2.Google Scholar

4 Wright, Daniel (ed.) in his introduction to History of Nepal. Translated from the Parbatiya by Singh, Munshi Shew Shunker and Gunanand, Pandit Shri (Cambridge, 1877), 55.Google Scholar

5 Hunter, 237.

6 Hodgson, , Miscellaneous essays relating to Indian subjects (London: Truebner, 1880), 2: 251–54.Google Scholar

7 Published in London by William Collins in 1943.

8 Arberry, 33.

9 Hodgson, (Miscellaneous essays 2, and “On the administration of justice in Nepal,” Asiatic researches, 20 [1836])Google Scholar is the only authority on Nepalese law referred to by Julius Jolly in his outstanding treatise on ancient Indian law and customs in Indo-Ar, Crundriss d.. philologie… vol. 2, no. 8 (1896).Google Scholar The authorized English edition is Hindu law and custom by Ghosh, Batakrishna (Calcutta: Greater India Society, 1928).Google Scholar

10 Wilkinson, W. H. J. (British envoy at the Court of Nepal) in Encyclopedia Britannica (14th ed. 1937), 16:222.Google Scholar

11 Northey, W. B., The land of the Gurkhas, or the Himalayan kingdom of Nepal (Cambridge, 1937), 42.Google Scholar Major Northey's book, the best modern description of the country and its people, is particularly valuable for its good illustrations of Nepalese architecture.

12 Miscellaneous essays, 2:167 ff.Google Scholar

13 A summary is given by Hodgson in “Classification of the Newars, or aborigines of Nepal proper preceded by the most authoritative legends relative to the origin and early history of the race,” Journal of the Asiatic Society of Bengal, 3(1834), 215–21;Google ScholarPoussin, L. de la Vallée has translated a section of the fourth chapter in “Manicūdāvadāna, as related in the fourth chapter of the Svayambhūpurāna” (Journal of the Royal Asiatic Society [1894], 297–319).Google Scholar

14 Hodgson, , “Classification of the Newars,” 217.Google Scholar

15 Ibid., 219.

16 See footnote 4 above. A Gorkhali vamśāvali is among the manuscripts presented by Hodgson to the India Office Library in 1864.

17 Consider the comments of the Indian archaeologist Pandit Bhagvanlal Indraji, Twentythree inscriptions from Nepal... together with some considerations on the chronology of Nepal. Translated from Gujarātī by Dr. Bühler, G. (Bombay: Education Society's Press, Byculla, 1885), 36 ff.Google Scholar Reprinted from the Indian antiquary.

18 Hodgson, gives an outline of their history and descriptions of some of their customs in “On the Kiranti tribe of the central Himalaya” in Miscellaneous essays, 1:396–407.Google Scholar

19 Northey, 175.

20 For photographs, aside from Northey, see Boeck, K., Durch Indien ins verschlossene land Nepal (1903) and Im banne des Everest (Leipzig, 1922).Google Scholar For reproduction of other metalwork see my book Hochasiatische kunst (Stuttgart, 1923) and my article on Nepalese ritual vessels and censers in Ostasiatische zeitschrift, n.s. 13 (1937), 24 ff.Google Scholar

21 See Smith, Vincent A. on “Kapilavastu” in Hasting's encyclopedia of religion and ethics (1914), 7:661.Google Scholar

22 Lévi, Le Nepal, étude historique d'un royaume Hindou (Annales du Musée Guimet, bibliotheque d'tudes, vols. 17–19) (Paris, 1905–08)Google Scholar, is the standard work on the subject. It also contains valuable notes on customs and usages in modern Nepal.

23 Northey, 42.

24 Among a large number of Gurkhas I have met only one young man who called himself a Chetri, but his physical features were distinctly Mongolian.

25 Etymological interpretations are quoted from Turner, Ralph L., A comparative and etymological dictionary of the Nepali language (London: Regan Paul, 1931).Google Scholar

26 Waddell, L. A., The Buddhism of Tibet (2nd ed., Cambridge, 1934), 20 ff.Google Scholar

27 On the other hand Buddhism does not in principle reject the caste system; see Chalmers, Robert, “The Madhura sutta concerning caste,” Journal of the Royal Asiatic Society (1894), 341–66.Google Scholar

28 Waddell, L. A., “Frog worship among the Newars,” Indian antiquary, 1893.Google Scholar

29 Adam, L., “Ueber speiseverbote der Rai und einiger anderer staemme von Nepal,” Zeitschrijt fiir vergleichende rechtswissenschajt, 50 (1935), 165–75Google Scholar, and “The social organization and the customary law of the Nepalese tribes,” American anthropologist, n.s., 38 (Oct-Dec. 1936), 533–47.CrossRefGoogle Scholar

30 Northey, 13.

31 Consider his valuable, though incomplete, description of the customs of the tribe, Rai, “On the Kiranti tribe of the central Himalaya,” in Miscellaneous essays, 1:396–407.Google Scholar Trunk no. 1 of the Hodgson collection in the India Office Library contains a manuscript, “Account of the institutions and customs (sthithi) of the Newars, got from Nilgirvanand (one of the judges of the chief metropolitan tribunal in my time),” and trunk no. 2 has three volumes of English notes “on the classification of the people (thar), etc.,” which has important information about the social organization of the hill tribes (Hunter, 359, 360).

32 See Vansittart, Colonel Eden, Notes on Goorkhas (Calcutta, 1890).Google Scholar It was revised in 1906, and a third revision by Nicolay, Colonel B. U. entitled Gurkhas appeared in 1915.Google Scholar An entirely rewritten edition by Morris, Major C. John – Gurkhas: handbook for the Indian Army – appeared at Delhi in 1933Google Scholar and has an especially good bibliography. See also the popular and well-illustrated account, The Gurkhas, their manners, customs, and country (London, 1928), by Northey, W. B. and Morris, C. John.Google Scholar

33 For a map showing the area occupied by the different tribes see Morris' handbook on the Gurkhas.

34 See the author's article in the American anthropologist (1936), 524Google Scholar, referred to in footnote 29.

35 Northey, , The land of the Gurkhas, 12.Google Scholar

36 Ibid., 83.

37 Wright, 187.

38 Miscellaneous essays, 2:246.

39 An account of the kingdom of Nepal (Edinburgh, 1819), 103.Google Scholar

40 Hodgson, , Miscellaneous essays, 2:221 ff.Google Scholar

41 Consider Adam, L., “Sitte und recht in Nepal,” Zeitschrift für vergleichende rechtswissenschaft, 49 (1934), 1–269Google Scholar, and Hodgson's manuscript in the India Office Library, “Village system. A questionnaire, with some answers” (Cat. No. Hodgson 12, 480, 11, fol. 125–132).

42 Miscellaneous essays, 2:229, questions lxviii-lxix.

43 Ibid., 2:223, question xxxiii.

44 See photographs in my article in Man (1934), no. 23.

45 Hinduism (London, 1877), 183.Google Scholar

46 Miscellaneous essays, 2:229, answer no. lxviii.

47 Ibid., 2, answer no. lxix.

48 These memoranda are found in the India Office Library, London. Hodgson manuscript 12, no. 25/4, fol. 74–77 (complete copy) and fol. 28–83 (extracts), followed by notes on the jail delivery of September 1843 in India Office Library Catalogue of European manuscripts, vol. 2, pt. 2, no. 479,1. Hodgson's old-fashioned phonetic transliteration of Nepalese and Indian names and terms have not been altered. The italicized paragraph headings were marginal notes in the manuscript.

49 Bands – apparently banda (Hind.) ≥ slave.

50 The frequency of various forms of incest is striking. It certainly disproves the theory of a deterrent effect of a rigorous criminal code. We note that Hodgson classified as “incest” only cases of illicit intercourse between relatives, whereas he recorded as just “sexual commerce” those cases where intercourse took place between members of different castes or tribes. It is quite legitimate, however, and terminologically useful to describe both categories as “incest,” the former type being the biological, and the latter the sociological, variety. This would be in conformity with the classical definition of the term incest. It is true that D.XXIII.2.1.68 says that “iure gentium incestum committit qui ex gradu ascendentium vel descendentium uxorem duxerit,” but 1.39,1 eod. gives the wider definition which will include any violations of the Hindu caste system, namely: “si quis ex his quas moribus prohibemur uxores ducere duxerit, incestum dicitur committere.”

51 Bhotya, Bhotnee – bhot – Tibet; bhotān – the country of Bhutan; bhote, n., a native of either Tibet or Bhutan; bhotiya, adj., but also used as a noun; for correct transliteration and etymology see Turner, 484.

52 As has been stated the criminal law practiced in the executions recorded here is ancient Indian law and thus not indigenous in Nepal. The nature of the crimes as well as the respective punishments will easily be identified with institutions of the classical Hindu sources, notably the smrtis, where the lists of sins show the close association between the criminal law and the caste system (comp. Jolly-Ghosh, p. 251). The gravest crimes cause the loss of caste, and sins, or crimes, are therefore arranged according to the possibilities of the criminal recovering his caste easily, with difficulty, or not at all. The most complete list is that given in the Visnusmrti, and the majority of capital punishments recorded by Hodgson may be checked with the classification in that list, in particular, the category of “sins punished by death” (atipātdka). According to the Visnusmrti, unnatural crime with a cow would have been one of the “lesser crimes” (upapātaka), to be punished with the loss of caste. Perhaps in this particular case, the much more severe capital punishment has been imposed because the delinquent happened to be a Bhote, a Tibetan; but this is not certain.

53 Damai, Damainee – damai, damaāi (m. & f.) members of the caste of tailors, one of the pohoni (despicable) castes.

54 Khas – a synonym for Chetri, the most prominent tribe, or caste, after the Brahmans. Khaskura is the name of the language. Turner (p. 117) mentions the following two characteristic phrases: Khas bawan – Chetris and Brahmans; Khas ko inamlo jaso garyo usai ramro – “A Khas may do anything he likes.”

55 Chamarni – probably kamāri, a female slave.

56 Kéa, Kéti – keto, keta, a slave, boy, servant; f. keti slave girl, prostitute, kept woman (Turner, 104).

57 Kŷd – kaid, prison.

58 Udâ – udār, adj., noble, famous, illustrious (Turner, 48); thus “a nobleman.”

59 Kookree – khukri or khukuri, the curved short sword carried by the Gurkha warriors.

60 Moormi Bhotiah – not a Bhotiya, i.e., a Tibetan, but a member of the Murmi tribe of Nepal whose religion is Lamaism; hence the identification with a Tibetan.

61 Gosaen – gosāi (f. gosāini), name of a subclass of Brahmans (Turner, 150).

62 Gaddi – gaddi, cushion, throne (Turner, 134), and thus a symbolic synonym for the ruler of the country, i.e., the king, or rather the prime minister (maharaja).

63 Kami – kāmi, f. kāmini, the caste of blacksmiths, ironworkers.

64 Parbatiya – or Pahari, the language of the mountains. This is a general term for the Indo-Aryan languages spoken in the Himalayan countries south of the dividing range. There are three groups, one of which is Khaskura, or Gorkhali. Compare Linguistic survey of India, 9: part 4; briefly, Encyl. Brit. (14th ed., 1937), 17:29, article “Pahari language.” In Nepal, the term Parbatiya is used to denote the people who speak that language, i.e., all those who also describe themselves as Gurkhas, or Gorkhalis, and thus not the Newars.

65 Nāth – probably derived from natya & dancing, acting (Turner, 339).

66 Blood revenge, especially when taken by a husband in a case of adultery, does not seem to have ever been a general custom in Nepal but used to be a special privilege of the most prominent hill tribes, the Parbatiyas, including the Brahmans, Khas (Chetri), Gurung, and Magar, whereas the Newars, Murmis, and even the Rai (Kiranti), let alone the Bhote, had no such privilege (Hodgson, Misc. essays, 2:242). In this case a Tibetan was capitally punished because he had “cut down” another man whom he suspected of adultery, but actually “adultery was not done.” Suppose the victim had been killed, the Tibetan, not having the right of blood revenge, would have been guilty of murder or at least (in our own terminology) manslaughter. However, regardless of the privilege, a crime would have been committed in any case, as apparently the judge was satisfied that no adultery had taken place. Blood revenge in cases of adultery used to be a custom in northern, especially northwestern, India. Nor was the custom of cutting off the nose of the guilty wife confined to Nepal; it has been recorded from the Northwest provinces by Billington, M. F. (Women in India [London, 1895], 123).Google Scholar But the reader will see from fol. 75 and 81 that this horrible punishment was inflicted upon male delinquents also, and, generally speaking, that it was practiced by the administration of justice and thus not only by the private avenger himself.

67 Khasni widow – a widow belonging to the Khas, or Chetri, tribe.