The Passing of Empire

by H. Fielding

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.