The pressing need in Criminal Procedure is, I think, a change in the treatment of an accused person when he is arrested.
The first instinct of an offender5 is, as I have said, to confess, even if an understanding person is not available to confess to. He has offended the Law; he wants to make all amends6 he can by confessing to the representative of that offended Personality. I have seen very many first offenders7 and talked to them before they got into the hands of pleaders and others, and my experience tells me that a man who has committed his first offence is very like a man who has caught his first attack of serious illness. He is afraid not so much of the results as of the thing itself. Sin has caught him, and he is afraid of sin. He wants protection and help and cure. He does not want to hide anything; his first need is confession8 to some understanding ear. Many, many such confessions9 have I heard in the old days. That is the result of the first offence.
But this tendency to truth is choked when it is ascertained10 that as a result the offender will be vindictively11 punished and made in the end far worse than he was at the beginning. Naturally the offender says to himself: "I am bad now. What shall I be after two years' gaol12? Better fight it out. If I win and get acquitted13, at least I shall have a chance to reform. If convicted that chance will be taken from me for ever. And fighting will not lose me anything. The penitent14 prisoner who confesses gets no lighter15 punishment than if he had put the Court to the expense of a long trial. Why therefore repent16? It will do me harm, not good." That is the case now; under reasonable laws it would be the other way. But even yet in country places he often confesses to the police by whom he is arrested.
Now by Indian Law no confession to the police may be offered in evidence. The reason of this is that the police, in their keenness to secure a conviction, may extort17 a false confession by torture, and there have been in fact enough of such cases to cause doubt and to prevent the police being allowed to receive a confession. Therefore if the offender wishes to confess he is taken now to a magistrate18, there his confession is recorded. Then he is sent back to police custody19. He is visited by his relatives, a pleader is engaged for him. His folly20 in confessing is pointed21 out to him and he withdraws the confession, alleging22 that he had been tortured to confess. His confession is not only negatived, but a slur23 is cast on the police which is hard to remove. Their case and evidence appear tainted24, and the accused often secures an acquittal though the Magistrate knows that the confession was true.
All this is very common both in Burma and India, and it is disastrous25 to allow and to encourage such things, as by our procedure we do encourage them. There should be a complete change.
When a man is arrested some such procedure should be adopted as this:
He should be told by the police that he is being taken direct to the magistrate who will try the case, who will hear anything accused has to say. He should be warned to say nothing to the police. Then he should be taken direct to the magistrate, who should explain to him fully3 what he is accused of and ask him what he has to say.
Whatever his statement be, the magistrate should tell him that he will himself at once investigate it and summon witnesses; meanwhile the accused should be remitted26 to custody, but not to police custody. That is where all the trouble comes in and all opportunities for making charges against the police. If there be no gaol there should be a lock-up in charge of Indian police who are under the magistrate and are not concerned in the guilt27 or otherwise of the accused. The investigating police should only have access to accused by permission of the magistrate. He should, however, be allowed to see his friends and a pleader if he wish. But I am sure of this, that the first offender would rather trust the magistrate, if he were a personality who he knew would help him, than any pleader.
Further, if a man confess truly, his punishment should be greatly reduced. I do not say this should be done because he gives less trouble, but because the frame of mind induced by a free and full confession is a sounder frame of mind on which to begin reformation than are defiance28 and negation29, which are now inculcated by our system.
The trial need not wait till the case is complete. The magistrate could summon the police witnesses at once, and he should examine them himself, allowing only the police to suggest questions if they wish. Similarly, with the defence witnesses, they could be examined as they came in and should be examined by the magistrate himself. No one but the magistrate should be allowed to speak directly to any party to the case.
All cross-examination should be absolutely prohibited. If either side have matters they wish brought out of a witness, they should tell the magistrate and he would ask such questions as he thought fit. There is no such curse now to justice as cross-examination by a clever pleader or barrister. It is a sort of forensic30 show-off by the advocate at the cost of the witness, and frequently at the cost of justice. For, naturally, no one cares to be bullied31 by a licensed32 bully33, and witnesses consequently will not come to Court if they can help it. When in Court they are bamboozled34 and made to contradict themselves where they have originally spoken the truth.
I have often been told that acute cross-examination by a clever barrister is the greatest safeguard justice can have from false evidence. I don't believe a word of it. A magistrate can by far fewer and simpler questions expose false evidence better than an advocate does, because the magistrate is intent only on his business—to find the truth; the advocate is advertising35 himself, and trying to destroy truth as well as falsehood.
But if the magistrate did all the questioning I don't believe there would be much false evidence. Witnesses will lie to the opposite side, but not to an understanding Court.
Perjury36 would disappear. What is its present cause? Contempt of the Court and sympathy with either complainant or accused, which sympathy sees no chance of justice for its object except by perjury. Because a trial is a fight. There is not a human being East or West who would not be ashamed to lie to a Court he knew was trying to do its best for all—parties and public. It is because the Courts as at present constituted do as much harm as good that perjury is rampant37 and condoned38. It is so in all countries, it has been so in all periods.
Then, as soon as possible, juries should be introduced. This cannot be done until the law, especially as regards punishment, is greatly altered in accordance with the common sense of the people, but it is the objective to be aimed at as soon as possible. Until the public co-operate with the Courts in all ways you will never have a good system of justice. Crime hurts the people far more than it hurts Government. Don't you think the people know that? And don't you suppose they want it prevented even more than Government does? In any case that is the fact. They hate the Courts now because they don't prevent or cure crime; they only make matters worse.
The only objection I see to this proposed alteration39 is that it will take more time and so cost more money. At first it may do so, but even then what the public loses by more taxes it will more than save in having to pay less to lawyers. How much unnecessary money is now paid to lawyers? Enough, I am sure, to double the magistracy and then leave a big balance. Courts should be made for the people, not for lawyers. And in time crime would so decrease that there would be saving all round.
The reform of the Civil Courts should follow somewhat the same lines. A man should not have to wait to see a civil judge till his case is all made out. He should be able to go to him at once and confide40 in him, and the judge should send for the other party and try to make an arrangement between them so that no suit should be filed. Not until that has been done and not unless a judge give a certificate of its necessity should a suit be allowed to be filed as it is now. And then when it is filed the judge should conduct the case and not the advocates on each side. That is the only way to stop the perjury which increases and will increase. Magistrates41 and judges must cease to be umpires of a combat, and become investigators42 of truth.
As regards the laws of marriage and inheritance, no great change can be made until there is a real representative Assembly to make these changes, but even there something could be done. That fossilisation of custom described by Sir Henry Sumner Maine should stop. Because a High Court proved a hundred years ago that a certain custom existed there is no evidence that it does or should exist now. To establish precedents44 of this nature is to stop all progress of every kind; we have a vision different from the poet's
Of bondage45 slowly narrowing down
From precedent43 to precedent.
Why should not fresh inquiries46 into custom be made from time to time, it being understood that any Court-ruling only applied47 to that time and place, and did not bind48 the future? Something must be done. Things cannot go on as they are. We reproach the Indians for want of progress, but we ourselves are the main cause of that stagnation49. We bind them and they cannot move.
As regards land policy there is this to be said, that fixed50 ideas are a mistake.
In Bengal there was at one time a fixed idea that all land did and must belong to large land-owners, and so, partly out of sheer ignorance, partly out of prejudice, a race of Zemindars was created out of the tax-gatherers to the Mogul Empire. The result has been sad.
Again in Burma the same idea prevailed for a while, and headmen were encouraged to annex51 communal52 waste as their private land. This was unfortunate.
Then came a reaction, and all large estates were denounced as bad. There was to be a small tenantry holding direct from Government, forbidden to alienate54 their land, and all leasing of land to tenants55 was forbidden.
This I understand to be the policy still. It is a policy of fixed ideas, and as applied to anything that has life, like land tenure56, it is unfortunate, no matter what the fixed idea be.
If there be one truth above another that is clear in studying land systems it is that no one permanent system is good. The cultivation57 of land, like all matters, undergoes evolution and change. What is good to-day may not be good to-morrow. The English system of large estates cultivated by tenants did, at one time in English history, produce the best farming in the world. English farming was held up as an example to all countries and was so admitted by them. The system of large estates allowed of the expenditure58 of capital, experiments in new cultivations and new breeds of cattle, and variety of crops. It suited its day well. And though its full day has passed, there will never be a time when some large estates will not be able to justify59 themselves. Even if, as apparently60 is the case now in England, petite culture is that best adapted to the cultivation of the day and the needs of the people, yet there is still room for large estates. A dead uniformity of small holdings could not but be unfortunate for any country.
Further, although excessive alienation61 of land through money-lenders may be very bad, yet stagnation in ownership may be worse. India and Burma are progressive, and changes must take place. Cultivators will become artisans and traders; city people will like to return to the land. There is an ebb62 and flow which is good for all. Too great rigidity63 of system will stop progress. A good system of land tenure is that which is in accordance with the evolution of the people it applies to and assists in that evolution.
While recognising that for the bulk of the people small holdings are best, it will not forbid larger estates; while admitting that the alienation of land through borrowing recklessly from money-lenders is bad, it will see that the progress of the people from purely64 agricultural towards a state of industrial activity is not checked. It takes all sorts to make a State.
It may be good for the cultivator to hold direct from Government, but if Government is to be the landlord it must act up to its name. It must give compensation for improvements when a tenant53 has to relinquish65 the land. Otherwise no tenant will improve, and the necessity for improvement, for wells, irrigation, embankments, manuring, and so on, is the greatest necessity of agriculture. In my own experience I have seen that the system of State land tenure in Upper Burma does stop improvements.
That is the light in which the land question has to be worked out, on broad comprehensive lines—that, while acknowledging the present, sees also the future, which, while seeing one form of good does not deny another.
So, with an understanding and a sympathetic personnel, the administration would be brought nearer to the people, until at length when their capacity for self-government had developed they would be able to take over our administrative66 machine little by little and work it themselves.
They could never do that now. If by any chance they did get possession of the machinery67 at present, they would set to work to smash it till none remained.
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1
pending
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| prep.直到，等待…期间；adj.待定的；迫近的 | |
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penal
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| adj.刑罚的；刑法上的 | |
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3
fully
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| adv.完全地，全部地，彻底地；充分地 | |
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amendments
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| （法律、文件的）改动( amendment的名词复数 )； 修正案； 修改； （美国宪法的）修正案 | |
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offender
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| n.冒犯者，违反者，犯罪者 | |
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amends
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| n. 赔偿 | |
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offenders
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| n.冒犯者( offender的名词复数 )；犯规者；罪犯；妨害…的人（或事物） | |
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8
confession
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| n.自白，供认，承认 | |
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confessions
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| n.承认( confession的名词复数 )；自首；声明；（向神父的）忏悔 | |
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10
ascertained
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| v.弄清，确定，查明( ascertain的过去式和过去分词 ) | |
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11
vindictively
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| adv.恶毒地；报复地 | |
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12
gaol
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| n.(jail)监狱；(不加冠词)监禁；vt.使…坐牢 | |
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13
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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14
penitent
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| adj.后悔的；n.后悔者；忏悔者 | |
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15
lighter
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| n.打火机，点火器；驳船；v.用驳船运送；light的比较级 | |
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16
repent
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| v.悔悟，悔改，忏悔，后悔 | |
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extort
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| v.勒索，敲诈，强要 | |
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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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custody
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| n.监护，照看，羁押，拘留 | |
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folly
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| n.愚笨，愚蠢，蠢事，蠢行，傻话 | |
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pointed
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| adj.尖的，直截了当的 | |
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alleging
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| 断言，宣称，辩解( allege的现在分词 ) | |
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slur
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| v.含糊地说；诋毁；连唱；n.诋毁；含糊的发音 | |
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24
tainted
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| adj.腐坏的；污染的；沾污的；感染的v.使变质( taint的过去式和过去分词 )；使污染；败坏；被污染，腐坏，败坏 | |
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25
disastrous
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| adj.灾难性的，造成灾害的；极坏的，很糟的 | |
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26
remitted
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| v.免除（债务），宽恕( remit的过去式和过去分词 )；使某事缓和；寄回，传送 | |
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guilt
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| n.犯罪；内疚；过失，罪责 | |
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defiance
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| n.挑战，挑衅，蔑视，违抗 | |
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negation
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| n.否定；否认 | |
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forensic
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| adj.法庭的，雄辩的 | |
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31
bullied
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| adj.被欺负了v.恐吓，威逼( bully的过去式和过去分词 ) | |
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32
licensed
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| adj.得到许可的v.许可，颁发执照(license的过去式和过去分词) | |
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33
bully
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| n.恃强欺弱者，小流氓；vt.威胁，欺侮 | |
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34
bamboozled
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| v.欺骗，使迷惑( bamboozle的过去式和过去分词 ) | |
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advertising
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| n.广告业；广告活动 a.广告的；广告业务的 | |
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perjury
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| n.伪证；伪证罪 | |
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37
rampant
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| adj.(植物)蔓生的；狂暴的，无约束的 | |
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38
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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39
alteration
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| n.变更，改变；蚀变 | |
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40
confide
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| v.向某人吐露秘密 | |
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41
magistrates
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| 地方法官，治安官( magistrate的名词复数 ) | |
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42
investigators
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| n.调查者，审查者( investigator的名词复数 ) | |
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43
precedent
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| n.先例，前例；惯例；adj.在前的，在先的 | |
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44
precedents
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| 引用单元； 范例( precedent的名词复数 )； 先前出现的事例； 前例； 先例 | |
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45
bondage
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| n.奴役，束缚 | |
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46
inquiries
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| n.调查( inquiry的名词复数 )；疑问；探究；打听 | |
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47
applied
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| adj.应用的；v.应用，适用 | |
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48
bind
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| vt.捆，包扎；装订；约束；使凝固；vi.变硬 | |
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49
stagnation
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| n. 停滞 | |
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50
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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51
annex
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| vt.兼并，吞并；n.附属建筑物 | |
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52
communal
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| adj.公有的，公共的，公社的，公社制的 | |
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53
tenant
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| n.承租人；房客；佃户；v.租借，租用 | |
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54
alienate
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| vt.使疏远，离间；转让(财产等) | |
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55
tenants
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| n.房客( tenant的名词复数 )；佃户；占用者；占有者 | |
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56
tenure
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| n.终身职位；任期；(土地)保有权，保有期 | |
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57
cultivation
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| n.耕作，培养，栽培（法），养成 | |
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58
expenditure
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| n.(时间、劳力、金钱等)支出；使用，消耗 | |
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59
justify
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| vt.证明…正当(或有理)，为…辩护 | |
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60
apparently
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| adv.显然地；表面上，似乎 | |
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61
alienation
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| n.疏远；离间；异化 | |
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62
ebb
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| vi.衰退，减退；n.处于低潮，处于衰退状态 | |
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63
rigidity
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| adj.钢性，坚硬 | |
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64
purely
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| adv.纯粹地，完全地 | |
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65
relinquish
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| v.放弃，撤回，让与，放手 | |
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66
administrative
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| adj.行政的，管理的 | |
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67
machinery
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| n.(总称)机械，机器；机构 | |
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