In England we have had the most cruel penal1 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 brutal2 and most bloody3 in history. They have been reformed but very partially4. There is still amongst Englishmen a vindictiveness6 towards the criminal that is unknown elsewhere. Despite frequent denunciation of the uselessness and the wickedness of vindictive5 punishment, the idea continually recurs7. 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 gauging8 character, in weighing virtues9 and defects, at seeing in effects the causes. Thus, all throughout the East the fatality10 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 guise11. 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 inevitable12 result of the environment (which he did not make) acting13 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 instinctive15 differentiation16 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 futility17 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 outskirts18 of the fields almost unguarded. Yet the theft of one is punishable always with two years' rigorous imprisonment19; that is to say, the man is vindictively20 and uselessly punished, is turned into a confirmed criminal and ruined for life for failing at a momentary21 temptation. I have known cases where a man was sentenced to ten years' penal servitude for stealing a few rupees—a piece of savagery22 that the Court sought to justify23 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 livelihood24 and exercise self-control. He should have been taught and helped—not sent to penal servitude. So are the instincts of the people outraged26.
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 he might, after conviction, be let off under the first offender27 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.
In The 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 gaol28 generally is. The people see this clearly enough—that in helping29 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 amorphous30 herd31 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 monetary32 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 rigid34 injustice35 of the laws. The judge and the magistrate36 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 gambling37. But they had no proof. What did they do? Amend38 their system of accounts and supervision39 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 prosecuted41 him. The case, I think, was clear, but to the astonishment42 of the judge, the jury acquitted44 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 acquit43? Because the firm laid a trap. They deliberately45 tempted33 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 tempt14 to crime and prosecute40 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 conclusively46 how utterly47 out of touch with the people the Courts are, how useless in preventing crime, than the fact that every year Government in despair prosecutes48, 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, but are 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 provocative49 of crime than this misuse50 of the sections it is impossible to imagine. The legitimate51 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 misused52. There are general circulars in force obliging magistrates53 and police to use these sections to their utmost. When officers are on tour they are enjoined54 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 hearsay55. 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 "misgivings56." 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 justified57. Judging from what assessors do I should say it was fully58 justified. They would acquit. But does not this very fact indicate that the law and the people are at variance59? It most emphatically does not mean that the Orientals condone60 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 condoned61 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 amended62. 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 outrage25 the people's consciences? Never to my knowledge. There has been the fixed63 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 minor64 laws and all are defective65 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 imprisoned66. I had a Burmese subordinate magistrate once who was not only a very "energetic" officer but a very religious officer, and he determined67 to stop all this "pernicious gambling" in his township. He established a "terror," so to speak. He had censors68 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 bungalows69 while the Burmese are totally debarred. It smacks70 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 succumb71 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 dealing72 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 staple73 industries of his villages, nor in the amusements of the people. Therefore he cannot see how bad the laws are because he judges them a priori and 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 condemnation74 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 pointed75 out only certain defects, all the rest is satisfactory. That is very far from being the case. But my object is not to criticise76 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 imminent77 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.
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1
penal
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| adj.刑罚的；刑法上的 | |
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brutal
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| adj.残忍的，野蛮的，不讲理的 | |
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bloody
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| adj.非常的的；流血的；残忍的；adv.很；vt.血染 | |
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partially
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| adv.部分地，从某些方面讲 | |
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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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vindictiveness
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| 恶毒；怀恨在心 | |
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recurs
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| 再发生，复发( recur的第三人称单数 ) | |
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gauging
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| n.测量[试]，测定，计量v.（用仪器）测量( gauge的现在分词 )；估计；计量；划分 | |
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virtues
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| 美德( virtue的名词复数 )； 德行； 优点； 长处 | |
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fatality
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| n.不幸，灾祸，天命 | |
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guise
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| n.外表，伪装的姿态 | |
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inevitable
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| adj.不可避免的，必然发生的 | |
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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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tempt
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| vt.引诱，勾引，吸引，引起…的兴趣 | |
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instinctive
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| adj.(出于)本能的；直觉的；(出于)天性的 | |
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differentiation
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| n.区别，区分 | |
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futility
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| n.无用 | |
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outskirts
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| n.郊外，郊区 | |
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imprisonment
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| n.关押，监禁，坐牢 | |
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vindictively
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| adv.恶毒地；报复地 | |
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momentary
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| adj.片刻的，瞬息的；短暂的 | |
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savagery
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| n.野性 | |
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justify
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| vt.证明…正当(或有理)，为…辩护 | |
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livelihood
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| n.生计，谋生之道 | |
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outrage
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| n.暴行，侮辱，愤怒；vt.凌辱，激怒 | |
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outraged
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| a.震惊的，义愤填膺的 | |
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offender
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| n.冒犯者，违反者，犯罪者 | |
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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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helping
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| n.食物的一份&adj.帮助人的，辅助的 | |
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amorphous
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| adj.无定形的 | |
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herd
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| n.兽群，牧群；vt.使集中，把…赶在一起 | |
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monetary
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| adj.货币的，钱的；通货的；金融的；财政的 | |
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tempted
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| v.怂恿（某人）干不正当的事；冒…的险（tempt的过去分词） | |
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rigid
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| adj.严格的，死板的；刚硬的，僵硬的 | |
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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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magistrate
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| n.地方行政官，地方法官，治安官 | |
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gambling
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| n.赌博；投机 | |
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amend
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| vt.修改，修订，改进；n.[pl.]赔罪，赔偿 | |
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supervision
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| n.监督，管理 | |
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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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prosecuted
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| a.被起诉的 | |
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astonishment
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| n.惊奇，惊异 | |
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acquit
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| vt.宣判无罪；(oneself)使(自己)表现出 | |
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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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deliberately
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| adv.审慎地；蓄意地；故意地 | |
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conclusively
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| adv.令人信服地，确凿地 | |
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utterly
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| adv.完全地，绝对地 | |
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prosecutes
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| 检举、告发某人( prosecute的第三人称单数 )； 对某人提起公诉； 继续从事（某事物）； 担任控方律师 | |
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provocative
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| adj.挑衅的，煽动的，刺激的，挑逗的 | |
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misuse
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| n.误用，滥用；vt.误用，滥用 | |
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legitimate
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| adj.合法的，合理的，合乎逻辑的；v.使合法 | |
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misused
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| v.使用…不当( misuse的过去式和过去分词 )；把…派作不正当的用途；虐待；滥用 | |
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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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enjoined
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| v.命令( enjoin的过去式和过去分词 ) | |
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hearsay
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| n.谣传，风闻 | |
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misgivings
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| n.疑虑，担忧，害怕；疑虑，担心，恐惧( misgiving的名词复数 )；疑惧 | |
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justified
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| a.正当的，有理的 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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variance
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| n.矛盾，不同 | |
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condone
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| v.宽恕；原谅 | |
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condoned
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| v.容忍，宽恕，原谅( condone的过去式和过去分词 ) | |
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Amended
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| adj. 修正的 动词amend的过去式和过去分词 | |
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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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minor
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| adj.较小(少)的，较次要的；n.辅修学科；vi.辅修 | |
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defective
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| adj.有毛病的，有问题的，有瑕疵的 | |
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66
imprisoned
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| 下狱，监禁( imprison的过去式和过去分词 ) | |
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67
determined
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| adj.坚定的；有决心的 | |
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68
censors
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| 删剪（书籍、电影等中被认为犯忌、违反道德或政治上危险的内容）( censor的第三人称单数 ) | |
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69
bungalows
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| n.平房( bungalow的名词复数 )；单层小屋，多于一层的小屋 | |
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70
smacks
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| 掌掴（声）( smack的名词复数 )； 海洛因； （打的）一拳； 打巴掌 | |
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71
succumb
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| v.屈服，屈从；死 | |
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72
dealing
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| n.经商方法，待人态度 | |
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73
staple
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| n.主要产物，常用品，主要要素，原料，订书钉，钩环；adj.主要的，重要的；vt.分类 | |
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74
condemnation
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| n.谴责; 定罪 | |
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pointed
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| adj.尖的，直截了当的 | |
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76
criticise
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| v.批评，评论；非难 | |
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imminent
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| adj.即将发生的，临近的，逼近的 | |
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