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.