Therefore there is a wide difference between the men as they came out in the old days and as they come out now. Then they were young, not very well instructed but capable of seeing, understanding, and learning; nowadays they are so drilled and instructed that they can deal only with books, papers, and records; life has been closed to them; they can enforce laws, but not temper them.
After they come out the difference of life and work is still greater. In the old days, for instance, they picked up the language quickly and well. The time to learn a language is when you are young—the younger the better. We learn our own language as children. The older we grow the harder it is, because it means not merely learning by heart a great many words, not merely training the palate and tongue to produce different sounds, but adopting a new attitude of mind. Nothing definite has been discovered as to the localisation of faculties in the brain, therefore nothing certain is known; but it has always seemed to me and to others whom I have consulted that when you learn a new language you are exercising and developing a new piece of brain. When you know several languages and change from one to another you seem definitely to change the piece of brain which actuates your tongue. You switch off one centre and switch on to another. You will always notice in yourself and others that there is a definite pause when the change of language is made. Now it becomes every year more difficult to awaken an unused part of the brain and bring it into active use, and to begin at twenty-three is late. True, languages are taught them at Oxford before they come out, but the result seemsnil. You must learn a language where it is spoken. Moreover, the way they have been taught Latin and Greek is a hindrance, for living languages are not learnt that way. A child, for instance, learns to talk perfectly without ever learning grammar. I never heard that any great English writer had a grounding in English grammar. There is no real grammar of a living language, because it grows and changes. You can only have a fixed grammar of a dead language.
The fact is that correct talking is the outcome of correct thinking, not of any mechanical rules. You must think in a language before you can speak it well.
But at twenty-three it is far too late for the ordinary man to learn to think in Hindustani or Burmese or Tamil. Of course there are occasional exceptions, but the way these languages are usually spoken is dreadful. I could tell tales about myself as well as others, for though I worked very hard for years I never knew Burmese well, nor yet Canarese, nor yet Hindustani. Yet who will doubt that it is very important, the most important acquisition, in fact, that you can make? Without it you can never really get near the people. So that in this way the old civilian had again a great advantage.
Here is one story. Once upon a time there was a District Officer and there was his district, and for some reason they did not seem to agree. At least the district did not like its Head. It felt uneasy, and it became restive, and at last it complained. It took up many grievances, and amongst them was this: "There is a good deal of building wanted in various parts, and there is timber and there are sawyers, but no licences can be obtained. When the Head comes round on tour we ask him, but he always refuses. So all building work is stopped."
An Inspecting Officer went to inquire, and he began with this complaint: "Why do you refuse them sawpit licences when on tour?" he asked.
"I don't," the Head replied.
"They say you do."
"But they never even applied; so how could I refuse?" he answered.
"Very well," said the Inspecting Officer, "let's see the file of your petitions received."
A clerk brought it out, and there—written in Burmese, of course—were many sawpit applications, and below each, written by the Head, was his endorsement:
"I cannot allow more guns to be issued."
Then the machine of government was far less perfected than it is now. There were, of course, laws and rules and there was supervision, but to nothing like the present extent. The district officer then had a personality. He was required to have one, for local conditions differed more than they do now and he had far more latitude. Moreover, the machine being less effective he depended a great deal upon his personal influence to keep the place quiet and get things done. He could not ask for orders because there was no telegraph, and he could not get help quickly because there were no railways. Therefore he was obliged to acquire a personal knowledge of people and peoples, of individuals and castes and races, which, he thinks, is not so necessary now. The result was that all laws and orders passed through his personality before reaching the people, thus acquiring a humanity and reasonableness that is now impossible. He studied his district and he used his powers, legal and otherwise, as he found best. If he found a law harsh—and in the last resort all laws are so—he would ameliorate its action. Nowadays he cannot do that. In the old days he administered, as best he could, justice; now he administers law—a very wide difference. Thus he was forced by circumstances to acquire a knowledge and a sympathy which are unattainable to-day; for you only learn things by doing them.
The old district officers were known personally by name and by reputation all through their districts. The people looked to them for help and understanding, and protection as much against the rigidity and injustice of the laws as against other ills.
But nowadays, except the Government officials and headmen, I don't believe anyone in a district knows who the head is. At all events, it makes practically no difference, because the application of the laws is supervised and enforced, and the district officer must "fall into line." If any personality has survived his schooling it must now be killed.
Few men, I think, learn anything except from two motives—a natural driving desire or necessity. But a natural desire to study the people round you is scarce, and the necessity of other days has passed away. A district officer can now do his work quite to the satisfaction of Government and know next to nothing of the people. In fact, sometimes knowledge leads to remonstrance with Government, and it doesn't like that.
Again, there has crept into secretariats a cult of "energy" and "efficiency," and a definition of these words, which acts disastrously upon the district officer, both when he is under training and subsequently.
Now, the proper meaning of an "efficient officer" is, I take it, one who sees the right thing to do and does it quickly and effectively; and probably Government really has this in its mind when it uses the word. This is what it wants; but very often what it gets is almost the opposite, and it is as pleased with this as if it got what it expected. In fact, it does not seem to know the difference. An example will explain what I mean.
There is, we will say, in a district a good deal of cattle theft going on, and the thieves cannot be detected. Cattle graze in Burma in the fields, and in the jungle on their outskirts; they roam about a good deal, and it is easy enough to steal them; detection is difficult.
But there is in Burma, as in parts of India, a provision of the Village Regulation which is called the Track Law, and it is substantially as follows:
If cattle are missing their tracks can be followed. When they pass out of the area under the jurisdiction of the village wherein the owner lives and enter another village lands, that village becomes responsible. The tracker calls the headman of that village and shows him the tracks, which he must follow up and demonstrate that they have not stopped in his jurisdiction but gone on. In this way the tracks can be followed till they are lost, when the village in whose land they are lost is considered as being the village of the thief, and is therefore responsible for the lost cattle. It can be fined, and the owner of the lost bullock indemnified.
This Act is taken from a very old custom common once in most of India, and also, I believe, in places of Europe. For several hundred years ago, when villages were widely separated by jungle, it had some sense.
There was then a presumption either that the stolen bullock had been taken to that village, or that some of the villagers had seen it pass. The thief would probably have stopped there for food or rest, as it was a long way on. But nowadays, in most of the country, village fields are conterminous, with little or no jungle between; there are many roads, and except where the tracks actually go into the village gate the presumption does not arise. Cattle are common, and the villagers are not expert trackers. Moreover, there is a very strong premium on dishonesty, or at least carelessness in keeping to the right tracks. Suppose the right track lost in a wet place, or a dry bare place, why not pick up some other? Most cattle tracks are very similar. The owner wants his compensation.
Yet the "energetic" officer will be expected to work this Actà pied de la lettre.
I saw a good deal of the actual working of this Act at one time, when I was a subordinate officer. Every time a beast was lost it had to be tracked, and the village where the tracks were lost had to pay. It made no difference if there was any reasonable presumption against the village, there the law was. The tracks might be lost two miles from the actual village, simply crossing its boundary; the law was there.
I remember one village had a bad time because it was near a frequented road, and when the tracks got on this road they were always lost, as the surface was hard. So the village had to pay. Yet what evidence was there against the village? None. I had the curiosity for some time, whenever a case wherein a village was fined was subsequently detected, to find out what village had been fined, and see if that village had been in any way cognisant of the theft. It never had. The fine was purely gratuitous, was worse than useless, for it was wrong.
Yet it is a Government rule—not, I think, actually laid down, but understood—that whenever an offence occurs, unless the culprit is arrested a village must be held responsible.
I always disliked the Track Law and its subsidiary sections, not because I have any objection to holding a village, in certain cases, responsible for its members—I think it is a sound principle—but because it always hit innocent people, as far as I could see. I used it as little as I could, yet there were difficulties. I will mention a case in point.
There was a broker who lived not in my district but near its boundary, and one day he rode to a village in my district to collect some debts. He didn't collect them, and left the village in a rage, saying he would complain to the police-station six or seven miles away that he had been cheated. It was about four o'clock in the afternoon when he left, and he rode off across the plain in the direction of the police-station.
He was sighted at dusk near the river, going along a road which half a mile farther on passed through a village, and no more was seen of him. He never arrived at the police-station, and next morning his pony was found roaming the plain about the village near which he had last been seen.
There was no sign of him or his body.
He was a well-known man, reputed to be wealthy, and a great fuss was made. His wife declared he must have been murdered. The magistrate of the broker's district was indignant that "his" broker should have been murdered in my district and I do nothing. My police could get no clue at all, nor could I. A subordinate magistrate held a proceeding under the Track Law against the village where the broker disappeared, and recommended it be fined. I, however, held my hand.
Then a body was found floating in the river some miles lower down, and identified as the broker's body, and his wife gave it a funeral. Still I held my hand.
My neighbour was indignant; my Superintendent of Police was distressed at me; my Commissioner evidently thought me slack—"no energy." The fact is I was puzzled, and would do nothing till I saw clearly. So six months went on.
What would have happened eventually had nothing more come out I can't say, but something more did come out—the broker came out. He was recognised in Mandalay and immediately arrested—for pretending to be alive when he was really dead, I suppose—and sent to me. I asked him what had occurred, and he confessed that he was deeply in debt to money-lenders and had made up this scheme to defeat them. He had left his pony, gone down to the river, crossed in a canoe, and gone into hiding. While he was "dead" his wife had compounded with his creditors.
I sent him back to my neighbour with the emphatic warning that if his broker ever came up my way again he would certainly be done for in good earnest. The whole district had been turned upside down for him, and he was not popular.
Now the points that I wish all this to illustrate are these: Men at the head-quarters of Government, out of touch with real life, read the Track Law, think it most useful and just, and insist on its being enforced. Officers on the spot, accustomed to accept all law as the epitome of justice, follow the Act without thinking. The responsibility is really on them, as Government tells them to judge each case on its merits, but they fear that if they reported that no case under the Track Law ever had any merits they would be written down as "wanting in energy." As they have not been trained to think for themselves, they do not do so. They fulfil all the requirements of the Act, and are satisfied. Moreover, subsequently, to justify their own action they must praise the Act. Therefore a vicious circle is created. Government says: "District officers praise the Act, therefore have it stringently enforced, for they know its actual value." And district officers say: "Government declares this to be an admirable Act, therefore I must enforce it." No one ever investigates the facts. If a district officer have doubts, he discreetly smothers them as babies, lest they grow.
And this is but one instance. I mention in a later chapter a still more striking case of this sort of action; and even many examples would not expose its whole evil. It is the spirit that renders such things possible that is disastrous. So are officers trained to believe that when anything untoward happens they must do something—they must punish somebody. The idea that if they act without full knowledge the something they do will be wrong and the persons they punish will be innocent is not allowed to intrude. They will, of course, always act by law, but then, "summum jus, summa injuria." In the old days this could not have happened. In the first place, Government trusted its officers, and its trust was not misplaced; now it trusts its laws; yet there is nothing so unintelligent, nothing so fatal as rigid laws—except those who believe in them. In the second place, officers with the personality and knowledge of the men of former days would have insisted on seeing for themselves and judging for themselves. They would have cared nothing that they might be supposed not to have "energy." They would know they had something better than that—they had understanding.
The possibility of making our laws and our government generally endurable to the people depends on the personality of the district officer.
Nowadays he is sent out with his personality crushed, and it gets still more crushed out there. He becomes in time not a living soul but a motor-engine to drive a machine. Whatever knowledge he acquires is of the people's faults and not their virtues. When you hear an official praised as "knowing the Indian" or "the Burman," you know that it means that he knows his faults. He knows the criminal trying to escape, the villager trying to evade revenue. It doesn't mean that he knows more than this. Some do, especially among the police and the forest officers, but then they have no influence.
As showing the difference between the old officer and the new I make the following extract fromA City of Sunshine, by Alexander Allardyce. Few books on the East have been written with a clearer understanding.
"Mr. Eversley, the collector, was an official of a type that has almost passed away. He had been brought up in the strictest traditions of the Haileybury school and had adhered all his life to the conservative principles of the 'old civilianism.' When the 'Competition Wallah' came in, Eversley foresaw certain ruin to the English interests in India. 'Competition Wallahs!' he used to exclaim—'as well put the country under a commission of schoolmasters at once. But we'll lose the country with all this Latin and Greek; take my word for it we'll soon lose the country.' Mr. Eversley had never been able to make a hexameter in the whole course of his life, and there is grave reason to doubt that he was ignorant of even the barest elements of the Greek accidence. But he had acquired a marvellous colloquial familiarity with the Eastern vernaculars, and he knew the habits and feelings of the Bengalee better than any other officer in the Lower Provinces. There was no chance of Eversley falling into such a blunder as that which was laid to the charge of Muffington Prigge, the magistrate of the neighbouring district of Lallkor, who once, in taking the deposition of a witness in a criminal case, had expressed his displeasure that evidence of such importance should be given on the authority of a third person, and ordered the police to bring 'Fidwi' before him. The witness gave his evidence in the third person out of respect. Instead of saying 'I saw' he said 'Fidwi (your slave) saw.' Muffington Prigge's judgments had been more than once spoken of with encomiums by Mr. Justice Tremer in the Appeal side of the High Court, but Mr. Eversley's law never came before the High Court except to be reprobated. Lawyers complained that he did not know even the rudiments of the Codes; but there was no magistrate in the Lower Provinces whose decisions were received with more general satisfaction or from whose judgments there were fewer appeals. His rough-and-ready way of settling cases was better relished than the elaborate findings of the Lallkor archon which were generally unintelligible to the suitors till they had fee'd their lawyer to tell them which side had won.
"The people knew that Eversley would do what he saw to be right, independent of Act or Code,and they had more confidence in his sense of justice than in the written law."
What is the highest praise a Burman will give to an officer—that he is clever, painstaking, honest, energetic, kind? No; but that he has "auza." And what is "auza"? It is that influence and power that comes from personality. Who has "auza" nowadays? No one, not even Government. It has become, as Eversley expected, a Commission of Schoolmasters.
Let us turn now from thepersonnelof government to its methods, from its men to its laws, from the motive power to the machine it works, or which more often now works government.
The first subject that comes naturally to our view is the prevention and suppression of crime, for in point of time that precedes all else. When you are conquering a country, after the soldiers have partly done their work and the civil power comes in, its first care is to create and maintain peace. It organises a police and appoints magistrates. Thus in point of time the Criminal Courts are the first to be organised and criminal law to be laid down, and they are the foundation-stone on which all else is built. And they remain always the most important of the functions of government. If they work well, then there is a good beginning made, but if ill, then the outlook is bad. If what should be Courts of Justice cease in the opinion of the people to be so, then is the very foundation-stone of your rule dissolving. The whole edifice is undermined; it is not founded on a rock, but on something that decays, which soon will give way and let down everything.
Let us go back therefore to the beginning, and see how things worked then. The laws were few, were crude, were often bad. It must be remembered that a hundred years ago the penal laws in England were the most savage, the most useless, the most wicked the world has ever seen. The law in India could not therefore be expected to be very good. But previous to our rule there was no law at all generally. And these bad laws of ours came to the people through the medium of personalities who were for the most part intelligent and sympathetic. Moreover, there was nothing like the number of cases then as now. The system now obliges all cognisable crime to be reported even if petty in its nature. In those days very little crime was reported, it was dealt with by the village communities and never known to the Courts. There were few pleaders; and a trial was really what it ought to be, an inquiry into facts by a magistrate desiring to know them. The question of personality came in a great deal, and whatever may be alleged of the ordinary district courts of those days, they were human, they really tried to be Courts of Justice, they tried to understand. The people respected them. If they did not respect the law, at all events they respected the magistrate who tried to do his best with it. They had an admiration for his personality which went a long way.
Now that is all changed.
The law has been greatly improved. It has been codified by trained legists; Lord Macaulay and Sir James Stephen were two of them, and it is up to the standard of European codes. But, on the other hand, it has been made absolute. There is a reign of law now, and there is no person in the world who does not hate law when he sees it. The personality that softened it in the old days has been ruled out. The High Courts supervise all work and reduce it to a dead level of uniformity. There is even a fixed scale of punishment sometimes. On revision, cases are rejudged on the written evidence alone. Of course, the case cannot be altered on revision, but the magistrate can be admonished—and he is. All humanity is eliminated.
Therefore the Courts are despised and hated by the people, who misuse them in every way they can.
Let us look into this matter.
In the first place, let me explode a common fallacy. It is frequently said that Oriental people do not dislike crime, that they condone it, that they have low standards in matters of current morality. Therefore they are not anxious to have crime brought to justice as we are. They are a bad lot, and the criminal being but a trifle worse than the average they sympathise with him.
All that is wicked nonsense. Standards in the East are the same as they are elsewhere. The people dislike crime as much as we do. But they think our laws and Courts are not calculated to reduce crime, and they have good reason for so thinking. Moreover, they distinguish between the sinner and his sin—we don't. There lies the difference. Let us consider, therefore, the Courts and their relation to the people.
I confine myself to the province of Burma which I know best, but there is little difference between it and other provinces in these matters. The law is uniform, the procedure uniform, and what differences exist are due to interference of the High Courts acting within the law. In the Indian Penal Code are laid down definitions of the various offences; what it is that constitutes theft, or robbery, or murder. It was drawn out by skilled and able men from the experience of all civilised nations. It is not, of course, perfect; no code could be that or near it, but it is good. With most of it the people have no quarrel. A theft is the same anywhere, and so is a murder. With one point, however, they profoundly disagree, and that is the classification of offences. Theft, no matter how trivial, is an offence against the State, is not compoundable, and is cognisable by the police; whereas an assault, no matter how severe, unless it causes grievous hurt, is the opposite. It is a purely private matter, with which the police have no business. If the sufferer wants to prosecute he must do so himself; pay his own expenses and engage his own pleader, or go without. This is a difference that offends his own instinct. Just take two cases.
Your servant steals a little silver ornament, a few rupees you left about; or some hungry loafer takes some fruit off your tree. You may not forgive him, you may not overlook it. You are bound by law to tell the police and get the offender arrested and convicted. By the petty theft public morality has been outraged, and you must assist morality to vindicate itself. You have no option. If you do not tell the police, you are "compounding a felony," and may be punished. Having told the police you will have no further trouble. They will get up the case, look up evidence, summon the witnesses, prosecute the case, and you will be paid for giving evidence. The thief will be sent to gaol. But if your enemy meets you in the fields, knocks you down, rolls you in the dust, dishonours and abases you in your own esteem and before all who know of it, public morality is not offended. It is of no use going to the police-station; they will not listen to you, they will not prosecute, nor take any notice. If you desire justice you must go yourself to Court, pay to have a petition written, pay for a stamp, get an advocate and pay him, pay for summonses to witnesses, spend, say, three or four pounds, and eventually your enemy may be fined five shillings, of which you, if lucky, may get two as compensation. You may, if you like, at any time withdraw your complaint, if, for instance, your enemy apologises to you or compensates you. Now these are not selected cases, exaggerated cases, nor unusual cases. They are common, and in both cases the instincts of the people are outraged. They are not sordid-minded. A petty theft is not to them a very serious thing. They put a higher value on their personal dignity and self-respect than on a trifling piece of property. To them, therefore, all this is wrong. Theft is never a very deadly offence, and if of small things is easily forgiven.But they may not forgive. If the police hear of it, they must give evidence against the culprit—or must lie. They lie. Who blames them? The concealment of thefts, the refusal to report them to the police, the subsequent refusal to give evidence, are common. Is theirs the fault? On the other hand, as it is impossible in the Courts to get any satisfaction for an assault, the hot-tempered Burman seeks revenge in other ways. The Court fails him, so he takes the law into his own hands. He will waylay, will stab, will sometimes murder. Then Government grieves over the large number of serious-hurt cases and wonders what causes them. The wily Madrassi or Bengali coolie gets square in a different way. The injured complainant goes off straight to the police-station and there describes the assault more or less correctly. This, of course, he knows will not help him, so he adds as follows: "During the assault a rupee dropped out of my pocket, and when A had finished battering me he picked up the rupee and went off with it." This makes the offence "theft," which is cognisable by the police, who go off and arrest B and lock him up. Of course, at the trial the experienced magistrate detects the truth, firmly disbelieves the rupee, and convicts A of an assault only. But B is quite satisfied. Has not A been locked up for a week?
The perspective therefore of the Indian Penal Code is wrong. It is taken from English law, which is also wrong, that is, opposed to common sense. How it arose I know, but this is not the place to enter into that.
Therefore the very definition and classification of offences are repugnant to the people, and are themselves causes of evasion: the Indian Penal Code itself is wrong. But that is nothing to the wrong-headedness of the Criminal Procedure Code.
For whereas the Penal Code only partly offends the people, the Court procedure is wrong from top to bottom. Its very foundation principle is wrong.
What is its principle of a trial? Is it a means of finding out the truth? Is it an impartial inquiry into what has happened? Not in the least. A trial is a duel. It is the lineal descendant of the duels of the Middle Ages. The place is changed, it is a Court and not a field; weapons are witnesses and tongues, not swords nor spears; the parties fight by champions, not in person, and the umpire is called a judge, but the principle is the same. Take any criminal trial. On one side is the Crown prosecutor, on the other the advocate of the accused. They fight. All through the case they fight. The prosecutor calls his witnesses, asks them only the questions the answers to which will help his case. The other champion cross-examines, bullies, confuses them, tries to make them contradict themselves, drags in irrelevant matter, and tries to destroy what the other side has built. When the defence is on, the state of affairs is reversed. Neither wants the truth, and only the truth, and all the truth. Each plays to win, and that alone. If either knows evidence which would help the other side he suppresses it. The judge is almost helpless. He has to take what is given. He seeslacunaein the evidence, he cannot fill them. He can't get down from off the bench and go out into the country finding evidence for himself. He knows that every witness brought before him has been tutored—not directly perhaps, but indirectly by suggestion, by question, by influence. The case is cooked before it reaches him, and therefore hopeless. He knows he never finds out the exact truth about any single thing. How should he? He knows and sees that witnesses are lying. He knows the reason, because it is a duel, and they are, on one side or another, fighting for vengeance, fighting for liberty. He knows that though they are a singularly truthful people outside, yet inside, their consciences absolve them from the necessity of truth because the Court is so constituted as not to be a place for an inquiry into truth, but the arena of a duel.
He sees cases bought and sold. A clever barrister or advocate will secure an acquittal where a cheaper man would fail. That is notorious everywhere. Otherwise how do great barristers come by their big fees? Clients do not pay for nothing. A barrister is worthy of his hire. The poor man loses and the rich man wins. The poor man goes to gaol, the rich is acquitted or gets a light sentence. So it happens everywhere. The exact truth of a case is never known. For twenty years I was a magistrate and judge. I tried hundreds of cases and I did my best with each. But I never once reached my own standard of understanding. What is that standard? Not that of Courts of Appeal who generally upheld my cases. My standard was this: Do I know enough of the case to write a story embodying it if I wanted to? I never did. For the standard of truth that goes to even the slightest story is very far beyond what is required or possible in even the most carefully heard case.
Now this is not an edifying state of things. It is not edifying anywhere, and I have often heard remarks about it in England from men who happened into a court of law to hear a case. To judges, lawyers, and barristers this view of the proceedings does not occur, because they have been brought up to it, and therefore their minds are locked as far as really appreciating it goes. In India and Burma it is even less edifying. I have often heard Burmans talk of it. "Here on one side are the police, trained men, with all the power and resource of a great Government behind them, trying to get a conviction. They have gone about the country, searched out evidence, tested it, summoned it, and displayed it to its best effect in Court. On the other side is a poor devil of a villager who has been locked up while the police were free; who is poor, who is ignorant, who if he can afford a pleader at all can only afford a very indifferent one. His case is not presented at all, or is very badly presented. True, the case has to be clearly proved or he is acquitted, but the same facts may wear very different colours, according to whether the whole truth is known or only a half. The magistrate does his best, but he can only act on the evidence. The police want a conviction because otherwise their records are bad and promotion is stopped. Do you wonder that sympathy is often with the accused?"
So I have often been asked; and I don't wonder. I often felt that way myself.
When a man first falls into an offence his immediate instinct is to confess to somebody. That is true of all the world. In Burma at the beginning he used to confess to the Court. He was sorry for his offence, he wanted to make the best of it, wanted help to reform. He wanted understanding. He thought the Court wanted to know the truth and he would do all he could to help. But he very soon found the uselessness of this. He got no understanding, no sympathy, only conviction and a vindictive punishment. Naturally he reflected, and pleaders and people who knew the Courts helped him to reflect.
"Fight it out. At worst you can but lose and be no worse off than if you confessed. Why tell the truth?No one expects you to. If you have confessed withdraw your confession. Say you were tortured. A trial is a fight, with the judge as umpire. Do your best. Remember that, even if your offence be a very small one, if it is a cognisable offence you will be ruined for life if convicted." That is the advice he gets. Who will doubt but that, our Courts being what they are, it is sound as a rule? So, because it is a fight he won't confess; he plays for the big stake—acquittal; and sometimes this acts disastrously too. I will tell a case in point—one I tried myself.
A man was accused of maiming a bullock. It had trespassed into his Indian-corn field, and had been found there afterwards hamstrung, and had to be destroyed. It was proved that accused was in the field when the bullock wandered in. It was also proved that accused's chopper was found close to the maimed bullock, covered with blood. Accused had run away and had only been arrested some days later.
Now the malicious maiming of a valuable bullock is a serious offence. Its seriousness partly depends on the value of the animal. The case was quite clearly proved though no one actually saw the offence committed. The defence of the accused was a futilealibi. He had a pleader who arranged this. The evidence for the prosecution seemed quite clear, and I did not see how I could avoid convicting the man of the grave offence. Yet somehow I was not quite happy in my mind. I believed the prosecution was substantially true, but that they had been piling it on a good deal. So before adjourning the case till next day to give me time to write the judgment, I said to the accused:
"I don't believe youralibi. You can see for yourself it has no sense. But maybe if you told me your side of the story it might not look so bad for you as it does now."
He looked at me, hesitated, looked at his pleader, then all of a sudden he did bring the whole story out.
And as he told it, though it did not in any way invalidate the evidence for the prosecution, it did put the matter in quite a new light.
In the first place, the cattle, of which the bullock was one, had been wilfully driven into his field to annoy him and cause him loss. In the second place, he had not deliberately cut the bullock; when he saw the cattle coming through the six-foot-high corn towards him he had in a passion thrown his chopper at the dimly seen moving mass of cattle. Then he had dodged out of their way. When he found afterwards what damage he had done he ran away in a fright.
I found there was evidence to support what he said—for instance, he had gone straight home and told his father before he ran away—so he got off with a small fine. He might have got two years. But unless he had confessed I could never have guessed that there was quite another version of the facts.
Now I have often suspected this state of affairs. The substance of the prosecution is clear, but there might be extenuating circumstances. The accused however fights it to the last and will admit nothing. On the evidence I could but take a gloomy view; for, remember, all cases are subject to revision by the High Court, who simply read through the written evidence and are not able to appreciate the subtle effect of tone and manner in witnesses, which tell more sometimes than their words.
I have said that the people have no respect for the Courts because they have lost all respect for the magistrate or judge. In himself he may be worthy of all confidence; but when on the bench he is not himself, he is a mouthpiece of the law, or an umpire; he is not a living force. When you lie in Court you do not deceive a human being who is doing his best for you and others; you only try to counterbalance the injustice of the law by a little judicious weighting of the scales. A man who will tell you the truth as individual to individual will commit perjury before you in Courts and think nothing of it. In fact, he lies at the other side, and doesn't consider you at all. He does it to try to get justice, or what he thinks is justice, in place of law, which otherwise is all he would get. I have often been told this, and I notice the same in England. Truth is a relationship of persons; in a Court now the only persons are the two opponents; the judge is only a sort of machine to weigh evidence. As man to man I have found Orientals as truthful as Englishmen. In twenty-six years' experience I do not remember ever having been told a deliberate lie as man to man. But in the Courts you are not a man, you are an official, and even as an official your hands are tied. The parties have no direct relationship with you. Their relationship is with each other—just as in a duel or a prize-fight the relationship is between party and party, and the umpire is only the onlooker, who may or may not see most of the game. In law he usually sees less because Justice is blind. I am aware that the bandage over the eyes of Justice is supposed to render her just, not discriminating between rich and poor; it does the reverse, of course. And until Justice opens her eyes again to discriminate what is put into her scales she will remain the mock she now is.
In a previous book I have discussed the question of veracity in this connection, and lest anyone should object that what I say is true only of the Burmese I will add this story, which is of a well-known official in the North-West in his younger days.
He was inquiring into a Revenue case, and incidentally an Indian gentleman gave him certain information. The official thought this so important that he summoned the Indian to Court, where, much to the Englishman's surprise, the Indian as a witness gave a totally different story.
They met again, however, later, and the official asked the Indian gentleman what he meant by going back on his words like that. The latter smiled, hesitated, and then the wisdom of experience spoke to the altruism of ignorance in these words: "Sahib," he said, "you are very young."
How the Courts are generally regarded by the people can best be illustrated by giving an account of a dramatic entertainment I witnessed once. The Burmese are fond of the drama. They have old dramas, and they have new dramas up to date—satires for the most part. The play I saw was of the latter. The company was a well-known one, which had toured almost all the province, and its most famous piece was that I witnessed—I forget the name.
The scene was supposed to be the office of a lawyer, barrister, or advocate, and there was a native clerk. To him entered a would-be litigant. The clerk listens to him for a few minutes and then asks him if he has brought any money. The client says "No." The clerk rises in indignation and the client is hustled out.
He returns with a bag of money. The clerk then listens and the client explains his case. The clerk demands if there is any evidence. The client is puzzled and asks what evidence is required. The clerk then tells him slowly and distinctly: you must have a man to swear to this, another to swear to that, a third to swear to something else.
The client remonstrates, saying he doubts if he can get so much evidence. The clerk then tells him that if he cannot get the evidence demanded his master will not take up his case. "But," says the client indignantly, "it is a true case." "What does that matter?" asks the clerk cynically. "No Court cares—or can tell if it did care—whether your case is true or not. It can only tell if you have evidence or not. If you can't get the evidence your case may be the truest in the world, but that won't help you."
The client then wants his money back, but the clerk clings to the bag and the client is again thrown out. The play was a long one, and I can only give a résumé of parts of it. The client goes looking for witnesses in the village. He gets hold of one man and says: "Come and give evidence." "But I saw nothing," says the villager. "And," says the client indignantly, "would you let me, an old friend, lose what you know is a right cause just because you didn't happen to see a trifle like that? What does it matter if you didn't actually see it? It did happen. I am not asking you to tell a lie or invent anything."
So he gets his witnesses and takes them to the clerk. The clerk takes down their statements. The last scene is in Court, and the client's advocate appears to plead for him. He does so with a tongue two feet in length. But still he loses his case, for the advocate on the other side has a tongue three feet long. That this play was the success it proved to be shows clearly that the audience saw nothing unnatural in it. In fact, they relished it immensely.
The magistrate was a stuffed figure.
There is a further difference in their view of crime, between Englishmen as they are made by education and Orientals who in some ways remain the natural man, which greatly affects the Courts, that is the punishment due for crime.
In England we have had the most cruel penal laws ever known. It is not a hundred years ago that there were two hundred and twenty-three different offences for which the capital punishment was awarded. I wonder if people nowadays ever realise their horrors. I have an account of how a poor little servant girl convicted of having stolen some few clothes was dragged out half-dead with fear to a gibbet without the village and there slowly done to death before a crowd of people. It was no unusual thing, for theft of over five shillings was punishable with death. The record of our Courts in England is the most brutal and most bloody in history. They have been reformed but very partially. There is still amongst Englishmen a vindictiveness towards the criminal that is unknown elsewhere. Despite frequent denunciation of the uselessness and the wickedness of vindictive punishment, the idea continually recurs. It is not merely excused—it is even counted as righteousness by those who maintain it.
Now it would be impossible here to give a full analysis of the cause of this vindictiveness. It has many causes. It is not natural, but caused by education. But a principal one lies in our theology. A theology that predicates a God who devotes poor mortals He made to torture by fire for ever, simply for the fun of watching them suffer, has elevated cruelty, uselessness, and vindictiveness into a divine attribute. Therefore men may be excused and even praised for imitating their God as far as in them lies.
The East is free from any such theology. I am not an admirer of any of the theories at the base of its religions, but, at all events, none of them have sunk to such a depth as this. Therefore the Oriental thought is free in this matter to discern the truth.
And further, even the ordinary villagers are deeper psychologists than we are. How this comes about I am not sure; by the free life of the children I think mainly. But however it comes there is no doubt of the fact, for it has been widely noticed. They are very quick at gauging character, in weighing virtues and defects, at seeing in effects the causes. Thus, all throughout the East the fatality that runs through life has been seen; it has even passed into a saying. By fatality, of course, is not meant that God fore-ordains all events, but that every act has its antecedent, that it never stands alone but is the outcome of the past. There has been endless discussion in Europe on this question, but to the East the matter presents itself in very simple guise. No man has the choice of when he is born, into what sort of a physique, of what parents or country. Neither has he any control over how he is brought up, whether educated or not. Thus he himself is to a very great extent a creature not of his own will but of what we may call Fate. He has, moreover, no control over his environment; he did not make the laws, the customs, nor the religion, which surround him. Many of his acts are done under the authority of others—parents, teachers, masters, government; others are the inevitable result of the environment (which he did not make) acting on his personality (which he did not make). There is also chance—as we call it; sudden temptation for instance. Therefore his ability to exercise freewill in act is small, and to hold him personally responsible for all his acts is absurd. Especially is this the case with crime. No one originally wants to commit crime; if he fall into it, his "will" is not usually to blame. A famine will cause a great deal of crime; the criminals did not make the famine. An unusual strain was put on them, and they were not able to stand the strain. Everyone is a potential criminal—given the circumstances. It is more than probable that everyone has at one time or another committed some offence. This is well known in the East, for they think there a great deal more than is supposed. They have not been educated not to think yet. I have myself discussed this point with many Orientals, and I have found that this clear view of the causation of crime is not unusual. Even if the matter has not been thought out there is an instinctive differentiation between a criminal and his crime. They, as I have said before, hate crime, but that shrinking from the criminal so common with us is not so marked with them.
Thus they have long ago seen the futility of attributing crime to a defect of the individual will; they know it is due to much deeper, wider causes. They have also seen the very narrow limits within which punishment avails. Therefore our punishments shock them by their cruelty. Ordinary cattle are worth from twenty to fifty shillings a head, and they roam about the forest on the outskirts of the fields almost unguarded. Yet the theft of one is punishable always with two years' rigorous imprisonment; that is to say, the man is vindictively and uselessly punished, is turned into a confirmed criminal and ruined for life for failing at a momentary temptation. I have known cases where a man was sentenced to ten years' penal servitude for stealing a few rupees—a piece of savagery that the Court sought to justify by the fact that the man had committed several previous petty thefts. Of course, the reason of his repeated crime was the man's inability to earn a livelihood and exercise self-control. He should have been taught and helped—not sent to penal servitude. So are the instincts of the people outraged.
I wonder how many people there are in this world who have not committed some criminal offence; few I should think, and those not the most useful of mankind. I have just been reading of Mark Twain's boyhood, and how, besides "borrowing" many articles, he and his friend "hooked" a boat, painted it red so that the owner should not recognise it, and kept it.
For that in England a hundred years ago he could and probably would have been hanged if caught. In Burma to-day hemight, after conviction, be let off under the first offender sections, but he would most probably be sent to a reformatory. Yet who thinks the worse of Mark Twain for it?
We think we have reformed our laws and made them common-sense, but we have not. They are still wicked beyond computation.
InThe Soul of a People, and in I think every book since, I have animadverted upon the uselessness and cruelty of our penal system. When a man has committed a crime, what do we do? Find out the weakness which led to it and cure that weakness—turn him out a whole and healthy man again? No. We make him worse. We make a confirmed criminal of him. Is that sense, to say nothing of humanity? A man who has committed a theft is not past cure; a man who has been in gaol generally is. The people see this clearly enough—that in helping to get a man convicted they are not improving matters for themselves. The offender will come out of gaol a more dangerous character to his village than when he went in. For they go back to their village; they are not thrown loose in a great city as in England. If in England an offender on his release had to be accepted back into his community, the uselessness of our penal system would soon come home to the public. But we have no communities now in England, only an amorphous herd of voters.
All this, however, is clear enough to the East. Therefore they often won't report their losses. They would sooner submit to the small monetary loss than have it on their consciences that they have ruined a man for life. And all for what? Not even to rescue what they have lost, for the bullock is usually dead and eaten, and no compensation is ever given.
The quantity of reported crime in Burma is bad enough, but what would it be if all crimes were reported? Double, I should think. I have known innumerable cases in my own experience where no report was made even of serious offences for this reason. One was a case of attempted murder.
Thus there is a great and dangerous gap between the people and the Courts, and there is no way of bridging it. In England also there is that gap, but it is not so wide, and there are juries who can partly bridge it. In Burma, practically speaking, for Burmans trial by jury does not exist. There is nothing between the accused and the rigid injustice of the laws. The judge and the magistrate are helpless; they must follow the law or be pulled up by the High Court. But a jury need not give its reasons; its future does not depend on the Appellate Court; it is independent, and therein lies its strength and its usefulness. It is juries that put common sense into laws and Courts.
Here is a case in point where Europeans were concerned. There was a certain big firm, and one day it discovered that it had lost certain sums of money—not very large. It could not find out how the loss had occurred; the partners inquired in secret, but could find no evidence. However, they suspected their cashier. They knew he was hard up; they heard he had been gambling. But they had no proof. What did they do? Amend their system of accounts and supervision to prevent loss in the future? No. They laid a trap. They put a large sum within their cashier's reach in such a way that it would seem he could take it—at any rate for a short time—with safety. He took it, and they prosecuted him. The case, I think, was clear, but to the astonishment of the judge, the jury acquitted the cashier. They gave no reasons, of course, in Court. They simply said "Not guilty," and there was an end; but once out of Court they were not so silent.
"Why did we acquit? Because the firm laid a trap. They deliberately tempted him, knowing him to be hard up. He was not charged with taking the first small sums, and in our belief he never took them. Probably he took the last big sum. But why? Because they tempted him. The firm were accessory, they were abettors of the crime. Of course we acquitted."
And I think the general common sense of the community was with them. No one has a right to tempt to crime and prosecute if the crime occurs. But had accused been a Burman he would have got seven years without a doubt. The Englishman got justice, a Burman would have got only law. The Burmans are not blind, do not suppose it; they see this difference well enough.
Nothing could demonstrate more conclusively how utterly out of touch with the people the Courts are, how useless in preventing crime, than the fact that every year Government in despair prosecutes, and either holds to heavy security, or sends to gaol with hard labour for from six months to two years (mainly two years), over two thousand persons who are not only not convicted of any offence, butare not accused of any offence. The exact number in 1910 was 2143.
This is done under the Preventive sections of the Criminal Procedure Code, and anything more unjust, more useless, more provocative of crime than this misuse of the sections it is impossible to imagine. The legitimate use of these preventive sections is simple enough. They are to meet the case of the police hearing that a crime, say a robbery, is being planned, and that to prevent its occurring, the would-be criminals may be called on by a magistrate to find security to be of good behaviour.
But such cases are rare and the sections are misused. There are general circulars in force obliging magistrates and police to use these sections to their utmost. When officers are on tour they are enjoined to demand at each village they visit if there are any idle or doubtful characters about, and if so, to prosecute them. Pressure is brought to bear on headmen to produce such characters, and they do produce—everyone they have reason to dislike.
The evidence is all hearsay. Here is a summary:
Question by Police: Do you know Accused?
Answer by Headman: Yes.
Q. What sort of character has he?
Ans. A bad character.
Q. What sort of bad character?
Ans. Well, when B.'s headcloth was missing last year, Accused was supposed to have taken it.
Q. You therefore consider him a thief?
Ans. Yes.
Three such witnesses, and if Accused cannot find substantial security, away he goes to hard labour for two years. This has gone on for the last twenty years. In 1910 one judge has actually opened his eyes wide enough to see that it is a way of manufacturing criminals, and the High Court go so far as to have "misgivings." But there it ends.
There are in Burma now probably 60,000 or more men who have been deliberately made into criminals by Government. No wonder crime is bad.
What is to be done?
The Indian people have clamoured for trial by jury of their peers—that is their fellow-countrymen—but it has always been refused. Government does not say why—but the reason is well known—it is because it fears that juries would invariably acquit. And that fear is probably justified. Judging from what assessors do I should say it was fully justified. They would acquit. But does not this very fact indicate that the law and the people are at variance? It most emphatically does not mean that the Orientals condone crime; it means that they think that crime is now wrongly dealt with. There was a period in England when juries would not convict. Why? Because they condoned crime? No, but because the punishments were too brutal; and the law had to be altered till their consciences were satisfied. That was the way the old penal laws came to be amended. When juries won't convict it is because their consciences are being outraged in some way. Has any attempt ever been made to discover in what way our Courts in India now outrage the people's consciences? Never to my knowledge. There has been the fixed idea that our system is perfect, therefore blame the people. "They must have Oriental minds which no one can understand."
The Indian Penal Code is the principal law relating to offences and punishments, but there are many minor laws and all are defective in the same way—that they have been framed out of some inner consciousness, and not out of practical knowledge.
Take the Gambling Acts in Burma. The Burmese are a cheerful people, and, like other cheerful human beings, they like their game of chance sometimes. When it becomes a public nuisance, of course it must be checked, no one doubts that; but the Gambling Acts go much farther than that. The people have not a great variety of games, and their principal card game is a sort of bank. It can, of course, become a big gamble, but it can also be as innocent as penny loo. Nevertheless, it is always illegal because there is a banker. That is the way the Act is framed. So if five or six villagers gather in the evening for a game at penny loo they can be raided, tried, and fined or imprisoned. I had a Burmese subordinate magistrate once who was not only a very "energetic" officer but a very religious officer, and he determined to stop all this "pernicious gambling" in his township. He established a "terror," so to speak. He had censors everywhere, and if a schoolboy tossed another double or quits for a farthing, the law was after them.
I could not stop him because he had the law behind him, but every month I sent for all his gambling cases on revision, and I quashed them all. There wasn't any Appellate Court behind me in those matters and I had a free hand. Finally, as he wouldn't take a hint, I got my too energetic assistant transferred to other fields of usefulness.
It doesn't look well for Englishmen to play bridge and other games of cards for money in their Clubs and bungalows while the Burmese are totally debarred. It smacks of self-righteousness. A good deal of our rule does that now, and it does not tend to make it popular. In human affairs there are a time and a place for things, but in law there is only the absolute. Now the absolute is wrong. And if there is one quality above another that is detestable it is self-righteousness. Our laws tend to self-righteousness; our judges and officials are very liable to succumb to that tendency. It is bad for a man to have to deal continually with the seamy side of human nature; he can only keep his mind sweet by continual touch with the other side. But in India and Burma the ordinary official knows nothing of the other side. He has no dealing with the people except in an official capacity. He knows nothing of their ordinary life, their work, or their amusements. He does not take an interest in the staple industries of his villages, nor in the amusements of the people. Therefore he cannot see how bad the laws are because he judges thema prioriand not in relation to their effects on the people. The Indian Penal Code he knows, the accused and the witnesses he does not know; the Village Act he knows, the village organism he is hopelessly ignorant of. Therefore when Government pass and enforce laws that do more harm than good he cannot tell them what is wrong. Naturally, he must believe nothing is wrong.
Yet the whole Penal System of India is wrong. It is very wrong indeed. I believe I could keep a district in greater quietness and peace if its Criminal Courts were abolished altogether and I were allowed to use the village organism in its proper form for preventing crime. For the essential truth in dealing with crime, as with disease, is that it can be prevented but can rarely be cured. However, I do not mean to say that Criminal Courts, if they administered good laws and were reasonably constituted, are bad things. They will in time be to crime what hospitals are to diseases: places where the sufferer goes to have his illness diagnosed and cured so that he come out a clean man whom the community will be glad to welcome back. That a man who has once been in gaol is for ever a social leper is the strongest condemnation a system of criminal justice could receive.
As things are now the people hate the Courts; they hate the law, all of it. It must not be supposed that, because I have pointed out only certain defects, all the rest is satisfactory. That is very far from being the case. But my object is not to criticise the laws or Courts exhaustively. I only want to dissipate the complacency that regards them as perfect and the people alone to be blameworthy. There is no one who more dislikes pointing out deficiencies than I do. If I could I would never write anything but pleasant things. But that is impossible. An imminent danger hangs over our Indian Empire, and so our own future and its can only be secured by facing the truth. If Indian officials on the spot would open their eyes and see things as they are there would be no cause to write—but they will not.
We come now to the Civil Courts, wherein all suits relating to property, to inheritance, and to money are tried.
I have already referred to the archaic state in which, all over India, matters of marriage and inheritance remain; no change has taken place during our rule, nor could do so. Except in Burma, all these matters are connected with religion, and although people when in a progressive state will themselves not hesitate to break through fetters of religion and custom, they will never allow a foreign Government to do so. Our Government interferes already in a great many matters it had better leave alone, and to lay a sacrilegious finger on domestic concerns would cause instant antagonism. It is not our business. Is Government thus to intrude into the very home? You can imagine the howl there would be, and rightly. We must not touch them, and the people, disorganised as they are, cannot touch them; so there they remain.
In a previous book I have referred to the Burmese law that no one may make a will, and to its effect in preventing Burmans building up a business. Moreover, the law of inheritance is so doubtful sometimes that when a rich Burman dies his estate usually goes into Court and, naturally, does not come out again. This is very unsatisfactory, but until there is some real self-government I see no help for it. On a matter of this kind it is of no use collecting the opinions of any number of Burmans as to what should be done, and so passing an Act. It is a fact to which I shall have to revert later that men as individuals will give an opinion, which if combined into an assembly with authority to act they would greatly modify. Moreover, if our Government were responsible, individuals would urge action, which if they themselves were responsible they would not take. No advice that is not steadied by a sense of responsibility is of much value. Our Government cannot deal with such matters. Only a body representing Burmese opinion and responsible to that opinion could do it. There is not now any prospect of any such body. The present Councils are useless. There may be such a body in course of time, but until there is, matters must remain as they are. The result is discontent, naturally.
Take another similar point. In Upper Burma a good deal of the land is what is called ancestral land; that is to say, in private hands. Now there was amongst the people a great pride in holding land their ancestors held, and such land is very rarely sold. I am not quite sure that it can be sold. Neither is it mortgaged in the usual sense. What the owner does is to hand the land over to a mortgagee for a sum of money. He pays no interest on the debt because the mortgagee enjoys the land. Such a transaction is called a usufructuary mortgage. The owner can at any time redeem the land by repaying the original loan. In Burmese time there was no period of limitation, but our Limitation Act has imposed a limit of sixty years. Thus a man may hand over a piece of land to a mortgagee, go off to Lower Burma—as many have—and at any time within sixty years he or his heirs can redeem the land for the same sum.
Consider what this means. I am the mortgagee of a piece of land. If I improve it so that its value is increased the owner can come back, borrow money to redeem it, and re-mortgage it for double the amount next day to someone else. Therefore I certainly won't improve it. I can't sell it. I can work it of course. I have also to defend my title every now and then from attack. It may be that the original mortgagor did not own the land at all. He may have simply been the member of the family in whom the occupation was vested. The other members can challenge my right. They do. And this sort of thing can go on for sixty years. That is not the sort of law to encourage progress. It encourages litigation, but that is all. The whole country groans under it naturally. But before any relief could be given there would have to be some consensus of opinion among the people as to the change. Government could not do it themselves. Even if their amendment were good it would raise a hornets' nest about their ears.
Thus here again is animpasse, and a dangerous one, typical of many.
By our system of Civil Law and Civil Courts, of precedent and case law we have petrified the bonds in which India lay when we arrived and made them far more rigid than before. While by our introduction of new ideas and of greater material progress we have rendered the old laws more and more obsolete, we have at the same time stopped all evolution of these laws, and killed any capacity they had for accommodating themselves to change. Some lawyers even, enthusiastic as they are about their own profession, have seen this danger. Here is what Sir Henry Sumner Maine, who was Legal Member to the Government of India, says:
"What that law and usage"—Indian law and usage—"was, the Sudder Court used to ascertain with what some would call most conscientious accuracy and others the most technical narrowness. Under the hand of the Judges of the Sudder Courts the native rules hardened and contracted a rigidity which they never had in real native practice. Among the older records of their proceedings may be found injunctions couched in the technical language of English Chancery proceedings which forbid the priests of a particular temple to injure a rival fane by painting the face of their idol red instead of yellow, and decrees allowing the complaint of other priests that they were injured in property and repute because their neighbours rang a bell at a particular moment of their services. There is in truth but little doubt that until education began to cause the natives of India to absorb Western ideas for themselves the influence of the English rather retarded than hastened the mental development of the race."
And it does so more and more, because however much they may absorb Western ideas theoretically, they cannot express them practically owing to our petrifaction of their law and custom.
Again. "The methods of interpretation which the Sudder Courts borrowed from the Supreme Courts imported from Westminster Hall put a stop to any natural growth and improvement of Hindu law."
That is to say we introduced new ideas, but sat on the safety-valve lest they should produce any effect. Sir Henry Sumner Maine's book is full of similar expressions, but I need quote no more. Those who wish to read how a lawyer himself has admitted this failure of law will no doubt read the book for themselves.
And now let us go on to the other functions of the Civil Courts—money decrees and so forth.
I do not think that they are any more in touch with the public than the Criminal Courts.
To begin with, they suffer from the same defect that a trial before a Civil Court is not an inquiry into truth, but a duel between parties. Indeed this is even more manifest than in the Criminal Courts, for there the magistrate does to the best of his small ability go outside the record and try to ascertain facts for himself; in the Civil Courts the judge never does so. He is simply and purely an umpire. Has the plaintiff proved his case? If so, give him a decree; if not, then not. Therefore perjury, and even forgery, are more common here than in the Criminal Courts.
Now let us go back to the way suits originate, and see what the cause is.
There are, of course, a few cases where the issue is clear from the first. A dies. B and C both claim his inheritance. Here from the beginning is a clear issue which can be brought into Court and fought out. It must come into Court, because in no other way could it be settled. But there are few such suits. In the great majority of cases the original issue is quite a small one, but when it comes into Court it is, by one side or the other, or both, swollen out of all recognition. Take the following as an example. It is from a case I heard once.
A and B were both natives of India—Hindus—and had been partners. I cannot remember their business beyond that they bought articles in Upper India and imported them into Upper Burma, where they sold them. It was a small business. One partner would go to India, buy stock, and return with it to Burma. They would both trade in it, and when it was nearly done one of them would go away to India again. This had gone on for some years. They agreed together excellently and made a decent profit. They kept all their accounts in their heads, aided by an occasional scrap of memoranda, and made a settlement from time to time.
Then they would begin afresh.
At last came a disagreement.
When A returned to Burma with a new stock, B objected to the price paid for one item, alleging that A had been "done," and had paid too much.
A indignantly repelled this accusation. B stood to his guns. The item was only about five hundred rupees, and the difference was not more than twenty or thirty rupees, but neither would give way.
The quarrel grew. B said he would not share in the item; A said he must, as it was a partnership transaction. B said he didn't care. A said he would sue him in Court. B said, "Very well, sue me." So each went off to get a pleader.
In due time the case came into Court, but what a case! Each side had considered that if he had got to fight he had better get all the weapons he could, so he raked up everything he could think of. It was a duel, you see, wherein each side fought not to settle the little point at issue, but for victory—any kind of victory he could get. Each side stirred up every sleeping dog of war he could find, resuscitated and galvanised dead dogs, made up imitation dogs, and came to battle.
The issues finally framed covered several years' transactions, and the evidence included forged documents and quantities of perjury. Both sides were ruined.
That is what comes of making a trial a duel. Each side fights for victory, to save hisamour propre, and to wound the enemy wherever he can. The original cause of difference is quite lost.
Now that case is typical of many. It is illustrative of human nature all the world over. If you awake the fighting instinct you cannot confine the parties to the original seat of war; they will urge the attack wherever they are likely to win. They cannot go to the judge in the beginning as to a friend of both parties who will inquire into the cause of difference himself and find a reasonable settlement, because judges are not intended to do that. Therefore parties do not go to Court at all until they have determined to fight it out. The case does not come to Court till matters are hopeless.
You may say they should or could have gone to an arbitrator. Do people anywhere in the world trust an unofficial arbitrator? There is a provision in Upper Burma allowing reference to arbitration, but it is a dead letter.
The original dispute in this case was about twenty or thirty rupees, the alleged excess paid for the goods. The suit filed was for several thousand rupees in transactions spread over years: there was an equally heavy counterclaim.
The total value of the suits filed in Burma in 1910 was about £1,380,000. I wonder what the value was of the matters first in dispute before the cases came to Court. A fifth, I dare say, would cover them. I notice much the same thing in England. Human nature does not differ East or West.
Now consider the enormous expense of all this. The value of the subject-matter of suits filed in Burma in 1910 was, as I have said, £1,380,000. The value of the matters really in dispute before they came to Court was infinitely less, but Court fees and lawyers' fees had to be paid on the full amount. Witnesses in thousands were called to prove matters that should never have come into Court at all.
And with what result?
There were 70,203 suits filed and decrees given, but in 53,594 of these satisfaction could not be obtained, and so the decree-holders had to come to Court for warrants for execution. That is to say that in over five suits out of seven the losing party could not or would not pay. (It does not follow that in the other two out of the seven he did pay. The decree-holder in a percentage of cases no doubt did not think it worth while to go any further.)