CRIMINAL LAW
Let us turn now from the _personnel_ of 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
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 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 futile _alibi_. 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 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
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.