PENAL LAW
There is a further difference in their view of crime, between
Englishmen as they are made by education and Orientals who in some ways
remain the natural man, which greatly affects the Courts, that is the
punishment due for crime.
In England we have had the most cruel penal laws ever known. It is not
a hundred years ago that there were two hundred and twenty-three
different offences for which the capital punishment was awarded. I
wonder if people nowadays ever realise their horrors. I have an
account of how a poor little servant girl convicted of having stolen
some few clothes was dragged out half-dead with fear to a gibbet
without the village and there slowly done to death before a crowd of
people. It was no unusual thing, for theft of over five shillings was
punishable with death. The record of our Courts in England is the most
brutal and most bloody in history. They have been reformed but very
partially. There is still amongst Englishmen a vindictiveness towards
the criminal that is unknown elsewhere. Despite frequent denunciation
of the uselessness and the wickedness of vindictive punishment, the
idea continually recurs. It is not merely excused--it is even counted
as righteousness by those who maintain it.
Now it would be impossible here to give a full analysis of the cause of
this vindictiveness. It has many causes. It is not natural, but
caused by education. But a principal one lies in our theology. A
theology that predicates a God who devotes poor mortals He made to
torture by fire for ever, simply for the fun of watching them suffer,
has elevated cruelty, uselessness, and vindictiveness into a divine
attribute. Therefore men may be excused and even praised for imitating
their God as far as in them lies.
The East is free from any such theology. I am not an admirer of any of
the theories at the base of its religions, but, at all events, none of
them have sunk to such a depth as this. Therefore the Oriental thought
is free in this matter to discern the truth.
And further, even the ordinary villagers are deeper psychologists than
we are. How this comes about I am not sure; by the free life of the
children I think mainly. But however it comes there is no doubt of the
fact, for it has been widely noticed. They are very quick at gauging
character, in weighing virtues and defects, at seeing in effects the
causes. Thus, all throughout the East the fatality that runs through
life has been seen; it has even passed into a saying. By fatality, of
course, is not meant that God fore-ordains all events, but that every
act has its antecedent, that it never stands alone but is the outcome
of the past. There has been endless discussion in Europe on this
question, but to the East the matter presents itself in very simple
guise. No man has the choice of when he is born, into what sort of a
physique, of what parents or country. Neither has he any control over
how he is brought up, whether educated or not. Thus he himself is to a
very great extent a creature not of his own will but of what we may
call Fate. He has, moreover, no control over his environment; he did
not make the laws, the customs, nor the religion, which surround him.
Many of his acts are done under the authority of others--parents,
teachers, masters, government; others are the inevitable result of the
environment (which he did not make) acting on his personality (which he
did not make). There is also chance--as we call it; sudden temptation
for instance. Therefore his ability to exercise freewill in act is
small, and to hold him personally responsible for all his acts is
absurd. Especially is this the case with crime. No one originally
wants to commit crime; if he fall into it, his "will" is not usually to
blame. A famine will cause a great deal of crime; the criminals did
not make the famine. An unusual strain was put on them, and they were
not able to stand the strain. Everyone is a potential criminal--given
the circumstances. It is more than probable that everyone has at one
time or another committed some offence. This is well known in the
East, for they think there a great deal more than is supposed. They
have not been educated not to think yet. I have myself discussed this
point with many Orientals, and I have found that this clear view of the
causation of crime is not unusual. Even if the matter has not been
thought out there is an instinctive differentiation between a criminal
and his crime. They, as I have said before, hate crime, but that
shrinking from the criminal so common with us is not so marked with
them.
Thus they have long ago seen the futility of attributing crime to a
defect of the individual will; they know it is due to much deeper,
wider causes. They have also seen the very narrow limits within which
punishment avails. Therefore our punishments shock them by their
cruelty. Ordinary cattle are worth from twenty to fifty shillings a
head, and they roam about the forest on the outskirts of the fields
almost unguarded. Yet the theft of one is punishable always with two
years' rigorous imprisonment; that is to say, the man is vindictively
and uselessly punished, is turned into a confirmed criminal and ruined
for life for failing at a momentary temptation. I have known cases
where a man was sentenced to ten years' penal servitude for stealing a
few rupees--a piece of savagery that the Court sought to justify by the
fact that the man had committed several previous petty thefts. Of
course, the reason of his repeated crime was the man's inability to
earn a livelihood and exercise self-control. He should have been
taught and helped--not sent to penal servitude. So are the instincts
of the people outraged.
I wonder how many people there are in this world who have not committed
some criminal offence; few I should think, and those not the most
useful of mankind. I have just been reading of Mark Twain's boyhood,
and how, besides "borrowing" many articles, he and his friend "hooked"
a boat, painted it red so that the owner should not recognise it, and
kept it.
For that in England a hundred years ago he could and probably would
have been hanged if caught. In Burma to-day he _might_, after
conviction, be let off under the first offender sections, but he would
most probably be sent to a reformatory. Yet who thinks the worse of
Mark Twain for it?
We think we have reformed our laws and made them common-sense, but we
have not. They are still wicked beyond computation.
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 gaol
generally is. The people see this clearly enough--that in helping to
get a man convicted they are not improving matters for themselves. The
offender will come out of gaol a more dangerous character to his
village than when he went in. For they go back to their village; they
are not thrown loose in a great city as in England. If in England an
offender on his release had to be accepted back into his community, the
uselessness of our penal system would soon come home to the public.
But we have no communities now in England, only an amorphous herd of
voters.
All this, however, is clear enough to the East. Therefore they often
won't report their losses. They would sooner submit to the small
monetary loss than have it on their consciences that they have ruined a
man for life. And all for what? Not even to rescue what they have
lost, for the bullock is usually dead and eaten, and no compensation is
ever given.
The quantity of reported crime in Burma is bad enough, but what would
it be if all crimes were reported? Double, I should think. I have
known innumerable cases in my own experience where no report was made
even of serious offences for this reason. One was a case of attempted
murder.
Thus there is a great and dangerous gap between the people and the
Courts, and there is no way of bridging it. In England also there is
that gap, but it is not so wide, and there are juries who can partly
bridge it. In Burma, practically speaking, for Burmans trial by jury
does not exist. There is nothing between the accused and the rigid
injustice of the laws. The judge and the magistrate are helpless; they
must follow the law or be pulled up by the High Court. But a jury need
not give its reasons; its future does not depend on the Appellate
Court; it is independent, and therein lies its strength and its
usefulness. It is juries that put common sense into laws and Courts.
Here is a case in point where Europeans were concerned. There was a
certain big firm, and one day it discovered that it had lost certain
sums of money--not very large. It could not find out how the loss had
occurred; the partners inquired in secret, but could find no evidence.
However, they suspected their cashier. They knew he was hard up; they
heard he had been gambling. But they had no proof. What did they do?
Amend their system of accounts and supervision to prevent loss in the
future? No. They laid a trap. They put a large sum within their
cashier's reach in such a way that it would seem he could take it--at
any rate for a short time--with safety. He took it, and they
prosecuted him. The case, I think, was clear, but to the astonishment
of the judge, the jury acquitted the cashier. They gave no reasons, of
course, in Court. They simply said "Not guilty," and there was an end;
but once out of Court they were not so silent.
"Why did we acquit? Because the firm laid a trap. They deliberately
tempted him, knowing him to be hard up. He was not charged with taking
the first small sums, and in our belief he never took them. Probably
he took the last big sum. But why? Because they tempted him. The
firm were accessory, they were abettors of the crime. Of course we
acquitted."
And I think the general common sense of the community was with them.
No one has a right to tempt to crime and prosecute if the crime occurs.
But had accused been a Burman he would have got seven years without a
doubt. The Englishman got justice, a Burman would have got only law.
The Burmans are not blind, do not suppose it; they see this difference
well enough.
Nothing could demonstrate more conclusively how utterly out of touch
with the people the Courts are, how useless in preventing crime, than
the fact that every year Government in despair prosecutes, and either
holds to heavy security, or sends to gaol with hard labour for from six
months to two years (mainly two years), over two thousand persons who
are not only not convicted of any offence, 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 provocative of crime
than this misuse of the sections it is impossible to imagine. The
legitimate use of these preventive sections is simple enough. They are
to meet the case of the police hearing that a crime, say a robbery, is
being planned, and that to prevent its occurring, the would-be
criminals may be called on by a magistrate to find security to be of
good behaviour.
But such cases are rare and the sections are misused. There are
general circulars in force obliging magistrates and police to use these
sections to their utmost. When officers are on tour they are enjoined
to demand at each village they visit if there are any idle or doubtful
characters about, and if so, to prosecute them. Pressure is brought to
bear on headmen to produce such characters, and they do
produce--everyone they have reason to dislike.
The evidence is all hearsay. Here is a summary:
_Question by Police_: Do you know Accused?
_Answer by Headman_: Yes.
_Q_. What sort of character has he?
_Ans_. A bad character.
_Q_. What sort of bad character?
_Ans_. Well, when B.'s headcloth was missing last year, Accused was
supposed to have taken it.
_Q_. You therefore consider him a thief?
_Ans_. Yes.
Three such witnesses, and if Accused cannot find substantial security,
away he goes to hard labour for two years. This has gone on for the
last twenty years. In 1910 one judge has actually opened his eyes wide
enough to see that it is a way of manufacturing criminals, and the High
Court go so far as to have "misgivings." But there it ends.
There are in Burma now probably 60,000 or more men who have been
deliberately made into criminals by Government. No wonder crime is bad.
What is to be done?
The Indian people have clamoured for trial by jury of their peers--that
is their fellow-countrymen--but it has always been refused. Government
does not say why--but the reason is well known--it is because it fears
that juries would invariably acquit. And that fear is probably
justified. Judging from what assessors do I should say it was fully
justified. They would acquit. But does not this very fact indicate
that the law and the people are at variance? It most emphatically does
not mean that the Orientals condone crime; it means that they think
that crime is now wrongly dealt with. There was a period in England
when juries would not convict. Why? Because they condoned crime? No,
but because the punishments were too brutal; and the law had to be
altered till their consciences were satisfied. That was the way the
old penal laws came to be amended. When juries won't convict it is
because their consciences are being outraged in some way. Has any
attempt ever been made to discover in what way our Courts in India now
outrage the people's consciences? Never to my knowledge. There has
been the fixed idea that our system is perfect, therefore blame the
people. "They must have Oriental minds which no one can understand."
The Indian Penal Code is the principal law relating to offences and
punishments, but there are many minor laws and all are defective in the
same way--that they have been framed out of some inner consciousness,
and not out of practical knowledge.
Take the Gambling Acts in Burma. The Burmese are a cheerful people,
and, like other cheerful human beings, they like their game of chance
sometimes. When it becomes a public nuisance, of course it must be
checked, no one doubts that; but the Gambling Acts go much farther than
that. The people have not a great variety of games, and their
principal card game is a sort of bank. It can, of course, become a big
gamble, but it can also be as innocent as penny loo. Nevertheless, it
is always illegal because there is a banker. That is the way the Act
is framed. So if five or six villagers gather in the evening for a
game at penny loo they can be raided, tried, and fined or imprisoned.
I had a Burmese subordinate magistrate once who was not only a very
"energetic" officer but a very religious officer, and he determined to
stop all this "pernicious gambling" in his township. He established a
"terror," so to speak. He had censors everywhere, and if a schoolboy
tossed another double or quits for a farthing, the law was after them.
I could not stop him because he had the law behind him, but every month
I sent for all his gambling cases on revision, and I quashed them all.
There wasn't any Appellate Court behind me in those matters and I had a
free hand. Finally, as he wouldn't take a hint, I got my too energetic
assistant transferred to other fields of usefulness.
It doesn't look well for Englishmen to play bridge and other games of
cards for money in their Clubs and bungalows while the Burmese are
totally debarred. It smacks of self-righteousness. A good deal of our
rule does that now, and it does not tend to make it popular. In human
affairs there are a time and a place for things, but in law there is
only the absolute. Now the absolute is wrong. And if there is one
quality above another that is detestable it is self-righteousness. Our
laws tend to self-righteousness; our judges and officials are very
liable to succumb to that tendency. It is bad for a man to have to
deal continually with the seamy side of human nature; he can only keep
his mind sweet by continual touch with the other side. But in India
and Burma the ordinary official knows nothing of the other side. He
has no dealing with the people except in an official capacity. He
knows nothing of their ordinary life, their work, or their amusements.
He does not take an interest in the staple industries of his villages,
nor in the amusements of the people. Therefore he cannot see how bad
the laws are because he judges 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 condemnation a
system of criminal justice could receive.
As things are now the people hate the Courts; they hate the law, all of
it. It must not be supposed that, because I have pointed out only
certain defects, all the rest is satisfactory. That is very far from
being the case. But my object is not to criticise the laws or Courts
exhaustively. I only want to dissipate the complacency that regards
them as perfect and the people alone to be blameworthy. There is no
one who more dislikes pointing out deficiencies than I do. If I could
I would never write anything but pleasant things. But that is
impossible. An imminent danger hangs over our Indian Empire, and so
our own future and its can only be secured by facing the truth. If
Indian officials on the spot would open their eyes and see things as
they are there would be no cause to write--but they will not.