It should be a truism, but is too seldom recognized, that the less the higher Courts interfere, especially on technical grounds, the better. Now and then, however, it was pleasing to be able of one’s own motion to throw open the prison gates. Very gratifying it was to set at liberty a man sentenced to a long term of imprisonment for exceeding the right of private defence against an armed robber. To me he seemed deserving of reward rather than punishment. I doubt if any act of my official life gave me greater pleasure than restoring a young woman to freedom. Inspecting a gaol, I found a young Burmese girl, the solitary occupant of the woman’s side. In an agony of grief at her husband’s sudden death she had tried to commit suicide. For this heinous crime she had been sentenced to imprisonment for three months. On her ready promise not to do it again, I was able to release her at once.
For a few weeks in 1899, by arrangement with Mr. F. S. Copleston, C.S., who, solely for my convenience, changed places with me, I held the office of Judicial Commissioner of Lower Burma, a thankless post, of which the work exceeded my capacity.
In 1900 the Chief Court of Lower Burma was established, Mr. Copleston becoming the first Chief Judge. The selection was vehemently criticized, the local Bar and Press clamouring for the appointment of a barrister and for Mr. Copleston’s head on a charger. I should like to explain the reasons which may be urged in support of the appointment of a civilian. The judicious skipper will perhaps be warned, and avoid the next page or two. It is open to argument that there should not be any civilian Judges; that, as in England, all Judges should be barristers trained in forensic practice. This argument is not seriously advanced by anyone conversant with the conditions, and need not be traversed at length. But the situation may be briefly stated. From the beginning of their service, civilians are constantly doing judicial work, always criminal, generally civil. In the five-and-twenty years or so that pass before they are likely to enter a High or Chief Court, those who have any aptitude or inclination for legal studies have had abundant experience and have acquired a good stock of learning. Where there is a division between the executive and judicial branches, certain officers specialize almost exclusively. Civilians of my own standing had even an earlier training. During their term of probation law formed a prominent part of their reading. Periodical examinations tested their proficiency, and they had also to attend Courts and prepare notes of cases. They saw in practice the daily working of Courts under the presidency of the best Judges and magistrates in England. A selected candidate who failed at the Final Examination to qualify in law was ruthlessly rejected, excluded for ever from the paradise of the Civil Service. It is thought by some not unintelligent persons that in the trial of civil and criminal causes it is an advantage for the Judge to have knowledge of the language, customs, and character of the people concerned. Apart from this, every High and Chief Court in India has civilian Judges, by common consent as well qualified as their barrister colleagues. So much for the appointment of any civilians as Judges. Now for the question of the Chief Judge. In the Chief Court of Lower Burma, with which we are immediately concerned, in forensic business the Chief Judge has no more weight or authority than any of his puisne brothers. Only when all the Judges are sitting as a Bench, and when they are equally divided, has the Chief Judge a casting-vote. As yet that instance has not happened. Ordinarily, in court the Chief Judge is on terms of exact equality with his colleagues. As a member of a Bench he can be outvoted by his juniors. His decision as a single judge can be considered, modified, or overruled by a Bench, of which he may or may not be a member. So far as judicial work is concerned, every objection to the appointment of a civilian as Chief Judge can be urged with equal force to the appointment of any civilians as Judges. But the work is not exclusively judicial. It includes also administrative functions. The Chief Court initiates or advises upon many matters connected with the judicial administration. All subordinate Judges and magistrates, most of them Burmans, are under its supervision. In this branch of the duties of the Court the leading part is necessarily taken by the Chief Judge. It is therefore desirable that he should have administrative experience, and, if possible, good knowledge of the people. For these reasons public interest is better served by the selection of a civilian as Chief Judge. I do not care to discuss the vulgar suggestion, not seriously made by any decent person, that civilian Judges are more likely to be subservient to Government than barristers. No one believes this; nor would it apply particularly to the Chief Judge, who, as I have said, has no more power judicially than his colleagues. The only sound rule is for Government to appoint as Chief Judge the man believed to be best qualified for the office, whether civilian or barrister, bearing in mind that administrative as well as purely legal qualifications are requisite.
Some time ago there was an agitation for the establishment of a High Court for Burma in place of the Chief Court and Judicial Commissioner. No doubt Judges of the Chief Court should receive the same pay as Judges of a High Court. They do exactly the same work, and are of the same standing. Apart from this, in my humble judgment, the establishment of a High Court would be an unmixed evil. Upper Burma is not ripe for even the mild sway of the Chief Court. For both litigants and Judges it is better to remain under the sympathetic control of the Judicial Commissioner, whose learning is tempered by sympathy with the people. It would also be disastrous for suitors from Upper Burma to have to come to Rangoon, practically a foreign city, instead of Mandalay, where they are at home. Besides these objections, the establishment of a High Court would involve the appointment on every occasion of a barrister Chief Justice, which I hope I have shown to be inexpedient. As puisne Judges, barristers would be sent from England. One need not believe spiteful stories of political jobs, and one may respect many Judges of High Courts; but it cannot be contended that an Indian career now attracts the pick of the English Bar, men in first-class practice or with good prospects. Recent experience has, I trust, quenched whatever desire there may have been for the establishment of a High Court in Rangoon. But enough of controversy.
At the end of 1898 Lord Elgin visited Burma, on the very eve of his departure from India.
In the last few months of my last residence in Mandalay, no suitable house being available, I occupied my old quarters in the Palace, with the White Pavilion[260] opposite. Except for the Club on the western side and a few offices, the Palace was untenanted. Burmans ranged it at will, much interested in pacing its corridors and examining its stately rooms. They certainly did not regard the Palace with awe or reverence, but were well pleased to satisfy their curiosity. On feast days crowds came to picnic in the gardens and loitered in my courtyard. All climbed up the Queen’s Tower, and all counted the steps as they descended. At night, save for a few watchmen, most of the Palace was left in solitude. Very striking was the effect as one’s footsteps sounded hollow on the boarded floors, while the tropic moon flooded the columned arcades with unearthly light. Revolving many memories and picturing many scenes of bygone days, I traversed the deserted halls.
At the end of 1900, the day after the completion of my obligatory service in India, I went on furlough, free to retire at the end of two years. Mr. Harvey Adamson[261] succeeded to the appointment.