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 magistrates2. 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 edifice4 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 penal5 laws in England were the most savage6, 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 personalities7 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 inquiry8 into facts by a magistrate3 desiring to know them. The question of personality came in a great deal, and whatever may be alleged9 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 admiration10 for his personality which went a long way.
Now that is all changed.
The law has been greatly improved. It has been codified11 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 reign12 of law now, and there is no person in the world who does not hate law when he sees it. The personality that softened13 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 fixed14 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 misuse15 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 condone16 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 acting17 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 drawn18 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 purely19 private matter, with which the police have no business. If the sufferer wants to prosecute20 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 ornament21, 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 offender22 arrested and convicted. By the petty theft public morality has been outraged23, and you must assist morality to vindicate24 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 gaol25. But if your enemy meets you in the fields, knocks you down, rolls you in the dust, dishonours26 and abases27 you in your own esteem28 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 compensates29 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 trifling30 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 concealment31 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 waylay32, 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 battering33 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 evasion34: 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 impartial35 inquiry into what has happened? Not in the least. A trial is a duel36. It is the lineal descendant of the duels37 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 prosecutor38, 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, bullies39, confuses them, tries to make them contradict themselves, drags in irrelevant40 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 sees lacunae in 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 indirectly41 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 vengeance42, fighting for liberty. He knows that though they are a singularly truthful43 people outside, yet inside, their consciences absolve44 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 arena45 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 worthy46 of his hire. The poor man loses and the rich man wins. The poor man goes to gaol, the rich is acquitted47 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 embodying48 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 edifying49 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 proceedings50 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 promotion51 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 immediate52 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 vindictive53 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 confession54. 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 disastrously55 too. I will tell a case in point—one I tried myself.
A man was accused of maiming a bullock. It had trespassed56 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 malicious57 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 futile58 alibi59. He had a pleader who arranged this. The evidence for the prosecution60 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 adjourning61 the case till next day to give me time to write the judgment62, I said to the accused:
"I don't believe your alibi. 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 wilfully63 driven into his field to annoy him and cause him loss. In the second place, he had not deliberately64 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 dodged65 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 extenuating66 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 injustice67 of the law by a little judicious68 weighting of the scales. A man who will tell you the truth as individual to individual will commit perjury69 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 onlooker70, 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 discriminating71 between rich and poor; it does the reverse, of course. And until Justice opens her eyes again to discriminate72 what is put into her scales she will remain the mock she now is.
In a previous book I have discussed the question of veracity73 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 spoke74 to the altruism75 of ignorance in these words: "Sahib," he said, "you are very young."
How the Courts are generally regarded by the people can best be illustrated76 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 litigant77. 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 hustled78 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 remonstrates79, 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 cynically80. "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 unnatural81 in it. In fact, they relished82 it immensely.
The magistrate was a stuffed figure.
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1
motive
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| n.动机，目的；adv.发动的，运动的 | |
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magistrates
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| 地方法官，治安官( magistrate的名词复数 ) | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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edifice
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| n.宏伟的建筑物(如宫殿，教室) | |
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penal
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| adj.刑罚的；刑法上的 | |
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savage
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| adj.野蛮的；凶恶的，残暴的；n.未开化的人 | |
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personalities
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| n. 诽谤，（对某人容貌、性格等所进行的）人身攻击； 人身攻击；人格, 个性, 名人( personality的名词复数 ) | |
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inquiry
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| n.打听，询问，调查，查问 | |
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alleged
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| a.被指控的，嫌疑的 | |
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admiration
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| n.钦佩，赞美，羡慕 | |
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codified
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| v.把（法律）编成法典( codify的过去式和过去分词 ) | |
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reign
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| n.统治时期，统治，支配，盛行；v.占优势 | |
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softened
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| （使）变软( soften的过去式和过去分词 )； 缓解打击； 缓和； 安慰 | |
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fixed
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| adj.固定的，不变的，准备好的；(计算机)固定的 | |
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misuse
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| n.误用，滥用；vt.误用，滥用 | |
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condone
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| v.宽恕；原谅 | |
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acting
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| n.演戏，行为，假装；adj.代理的，临时的，演出用的 | |
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drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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purely
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| adv.纯粹地，完全地 | |
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prosecute
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| vt.告发；进行；vi.告发，起诉，作检察官 | |
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ornament
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| v.装饰，美化；n.装饰，装饰物 | |
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offender
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| n.冒犯者，违反者，犯罪者 | |
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outraged
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| a.震惊的，义愤填膺的 | |
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vindicate
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| v.为…辩护或辩解，辩明；证明…正确 | |
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gaol
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| n.(jail)监狱；(不加冠词)监禁；vt.使…坐牢 | |
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dishonours
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| 不名誉( dishonour的名词复数 )； 耻辱； 丢脸； 丢脸的人或事 | |
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abases
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| 使谦卑( abase的第三人称单数 )； 使感到羞耻； 使降低（地位、身份等）； 降下 | |
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esteem
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| n.尊敬，尊重；vt.尊重，敬重；把…看作 | |
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compensates
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| 补偿，报酬( compensate的第三人称单数 )； 给（某人）赔偿（或赔款） | |
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trifling
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| adj.微不足道的；没什么价值的 | |
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concealment
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| n.隐藏, 掩盖，隐瞒 | |
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waylay
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| v.埋伏，伏击 | |
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battering
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| n.用坏，损坏v.连续猛击( batter的现在分词 ) | |
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evasion
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| n.逃避，偷漏(税) | |
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impartial
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| adj.(in,to)公正的，无偏见的 | |
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duel
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| n./v.决斗；(双方的)斗争 | |
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duels
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| n.两男子的决斗( duel的名词复数 )；竞争，斗争 | |
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prosecutor
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| n.起诉人；检察官，公诉人 | |
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bullies
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| n.欺凌弱小者, 开球 vt.恐吓, 威胁, 欺负 | |
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irrelevant
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| adj.不恰当的，无关系的，不相干的 | |
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indirectly
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| adv.间接地，不直接了当地 | |
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vengeance
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| n.报复，报仇，复仇 | |
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truthful
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| adj.真实的，说实话的，诚实的 | |
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absolve
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| v.赦免，解除（责任等） | |
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arena
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| n.竞技场，运动场所；竞争场所，舞台 | |
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worthy
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| adj.(of)值得的，配得上的；有价值的 | |
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acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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embodying
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| v.表现( embody的现在分词 )；象征；包括；包含 | |
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edifying
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| adj.有教训意味的，教训性的，有益的v.开导，启发( edify的现在分词 ) | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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promotion
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| n.提升，晋级；促销，宣传 | |
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immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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vindictive
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| adj.有报仇心的，怀恨的，惩罚的 | |
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confession
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| n.自白，供认，承认 | |
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disastrously
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| ad.灾难性地 | |
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trespassed
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| （trespass的过去式与过去分词形式） | |
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malicious
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| adj.有恶意的，心怀恶意的 | |
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futile
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| adj.无效的，无用的，无希望的 | |
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alibi
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| n.某人当时不在犯罪现场的申辩或证明；借口 | |
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prosecution
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| n.起诉，告发，检举，执行，经营 | |
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adjourning
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| （使）休会， （使）休庭( adjourn的现在分词 ) | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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wilfully
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| adv.任性固执地；蓄意地 | |
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deliberately
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| adv.审慎地；蓄意地；故意地 | |
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dodged
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| v.闪躲( dodge的过去式和过去分词 )；回避 | |
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extenuating
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| adj.使减轻的，情有可原的v.（用偏袒的辩解或借口）减轻( extenuate的现在分词 )；低估，藐视 | |
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injustice
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| n.非正义，不公正，不公平，侵犯（别人的）权利 | |
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judicious
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| adj.明智的，明断的，能作出明智决定的 | |
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perjury
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| n.伪证；伪证罪 | |
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onlooker
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| n.旁观者，观众 | |
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discriminating
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| a.有辨别能力的 | |
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discriminate
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| v.区别，辨别，区分；有区别地对待 | |
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veracity
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| n.诚实 | |
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spoke
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| n.（车轮的）辐条；轮辐；破坏某人的计划；阻挠某人的行动 v.讲，谈（speak的过去式）；说；演说；从某种观点来说 | |
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altruism
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| n.利他主义，不自私 | |
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illustrated
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| adj. 有插图的，列举的 动词illustrate的过去式和过去分词 | |
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litigant
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| n.诉讼当事人；adj.进行诉讼的 | |
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hustled
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| 催促（hustle的过去式与过去分词形式） | |
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remonstrates
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| v.抗议( remonstrate的第三人称单数 )；告诫 | |
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cynically
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| adv.爱嘲笑地，冷笑地 | |
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unnatural
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| adj.不自然的；反常的 | |
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relished
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| v.欣赏( relish的过去式和过去分词 )；从…获得乐趣；渴望 | |
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