We come now to the Civil Courts, wherein all suits relating to property, to inheritance, and to money are tried.
I have already referred to the archaic state in which, all over India, matters of marriage and inheritance remain; no change has taken place during our rule, nor could do so. Except in Burma, all these matters are connected with religion, and although people when in a progressive state will themselves not hesitate to break through fetters of religion and custom, they will never allow a foreign Government to do so. Our Government interferes already in a great many matters it had better leave alone, and to lay a sacrilegious finger on domestic concerns would cause instant antagonism. It is not our business. Is Government thus to intrude into the very home? You can imagine the howl there would be, and rightly. We must not touch them, and the people, disorganised as they are, cannot touch them; so there they remain.
In a previous book I have referred to the Burmese law that no one may make a will, and to its effect in preventing Burmans building up a business. Moreover, the law of inheritance is so doubtful sometimes that when a rich Burman dies his estate usually goes into Court and, naturally, does not come out again. This is very unsatisfactory, but until there is some real self-government I see no help for it. On a matter of this kind it is of no use collecting the opinions of any number of Burmans as to what should be done, and so passing an Act. It is a fact to which I shall have to revert later that men as individuals will give an opinion, which if combined into an assembly with authority to act they would greatly modify. Moreover, if our Government were responsible, individuals would urge action, which if they themselves were responsible they would not take. No advice that is not steadied by a sense of responsibility is of much value. Our Government cannot deal with such matters. Only a body representing Burmese opinion and responsible to that opinion could do it. There is not now any prospect of any such body. The present Councils are useless. There may be such a body in course of time, but until there is, matters must remain as they are. The result is discontent, naturally.
Take another similar point. In Upper Burma a good deal of the land is what is called ancestral land; that is to say, in private hands. Now there was amongst the people a great pride in holding land their ancestors held, and such land is very rarely sold. I am not quite sure that it can be sold. Neither is it mortgaged in the usual sense. What the owner does is to hand the land over to a mortgagee for a sum of money. He pays no interest on the debt because the mortgagee enjoys the land. Such a transaction is called a usufructuary mortgage. The owner can at any time redeem the land by repaying the original loan. In Burmese time there was no period of limitation, but our Limitation Act has imposed a limit of sixty years. Thus a man may hand over a piece of land to a mortgagee, go off to Lower Burma—as many have—and at any time within sixty years he or his heirs can redeem the land for the same sum.
Consider what this means. I am the mortgagee of a piece of land. If I improve it so that its value is increased the owner can come back, borrow money to redeem it, and re-mortgage it for double the amount next day to someone else. Therefore I certainly won't improve it. I can't sell it. I can work it of course. I have also to defend my title every now and then from attack. It may be that the original mortgagor did not own the land at all. He may have simply been the member of the family in whom the occupation was vested. The other members can challenge my right. They do. And this sort of thing can go on for sixty years. That is not the sort of law to encourage progress. It encourages litigation, but that is all. The whole country groans under it naturally. But before any relief could be given there would have to be some consensus of opinion among the people as to the change. Government could not do it themselves. Even if their amendment were good it would raise a hornets' nest about their ears.
Thus here again is an impasse, and a dangerous one, typical of many.
By our system of Civil Law and Civil Courts, of precedent and case law we have petrified the bonds in which India lay when we arrived and made them far more rigid than before. While by our introduction of new ideas and of greater material progress we have rendered the old laws more and more obsolete, we have at the same time stopped all evolution of these laws, and killed any capacity they had for accommodating themselves to change. Some lawyers even, enthusiastic as they are about their own profession, have seen this danger. Here is what Sir Henry Sumner Maine, who was Legal Member to the Government of India, says:
"What that law and usage"—Indian law and usage—"was, the Sudder Court used to ascertain with what some would call most conscientious accuracy and others the most technical narrowness. Under the hand of the Judges of the Sudder Courts the native rules hardened and contracted a rigidity which they never had in real native practice. Among the older records of their proceedings may be found injunctions couched in the technical language of English Chancery proceedings which forbid the priests of a particular temple to injure a rival fane by painting the face of their idol red instead of yellow, and decrees allowing the complaint of other priests that they were injured in property and repute because their neighbours rang a bell at a particular moment of their services. There is in truth but little doubt that until education began to cause the natives of India to absorb Western ideas for themselves the influence of the English rather retarded than hastened the mental development of the race."
And it does so more and more, because however much they may absorb Western ideas theoretically, they cannot express them practically owing to our petrifaction of their law and custom.
Again. "The methods of interpretation which the Sudder Courts borrowed from the Supreme Courts imported from Westminster Hall put a stop to any natural growth and improvement of Hindu law."
That is to say we introduced new ideas, but sat on the safety-valve lest they should produce any effect. Sir Henry Sumner Maine's book is full of similar expressions, but I need quote no more. Those who wish to read how a lawyer himself has admitted this failure of law will no doubt read the book for themselves.
And now let us go on to the other functions of the Civil Courts—money decrees and so forth.
I do not think that they are any more in touch with the public than the Criminal Courts.
To begin with, they suffer from the same defect that a trial before a Civil Court is not an inquiry into truth, but a duel between parties. Indeed this is even more manifest than in the Criminal Courts, for there the magistrate does to the best of his small ability go outside the record and try to ascertain facts for himself; in the Civil Courts the judge never does so. He is simply and purely an umpire. Has the plaintiff proved his case? If so, give him a decree; if not, then not. Therefore perjury, and even forgery, are more common here than in the Criminal Courts.
Now let us go back to the way suits originate, and see what the cause is.
There are, of course, a few cases where the issue is clear from the first. A dies. B and C both claim his inheritance. Here from the beginning is a clear issue which can be brought into Court and fought out. It must come into Court, because in no other way could it be settled. But there are few such suits. In the great majority of cases the original issue is quite a small one, but when it comes into Court it is, by one side or the other, or both, swollen out of all recognition. Take the following as an example. It is from a case I heard once.
A and B were both natives of India—Hindus—and had been partners. I cannot remember their business beyond that they bought articles in Upper India and imported them into Upper Burma, where they sold them. It was a small business. One partner would go to India, buy stock, and return with it to Burma. They would both trade in it, and when it was nearly done one of them would go away to India again. This had gone on for some years. They agreed together excellently and made a decent profit. They kept all their accounts in their heads, aided by an occasional scrap of memoranda, and made a settlement from time to time.
Then they would begin afresh.
At last came a disagreement.
When A returned to Burma with a new stock, B objected to the price paid for one item, alleging that A had been "done," and had paid too much.
A indignantly repelled this accusation. B stood to his guns. The item was only about five hundred rupees, and the difference was not more than twenty or thirty rupees, but neither would give way.
The quarrel grew. B said he would not share in the item; A said he must, as it was a partnership transaction. B said he didn't care. A said he would sue him in Court. B said, "Very well, sue me." So each went off to get a pleader.
In due time the case came into Court, but what a case! Each side had considered that if he had got to fight he had better get all the weapons he could, so he raked up everything he could think of. It was a duel, you see, wherein each side fought not to settle the little point at issue, but for victory—any kind of victory he could get. Each side stirred up every sleeping dog of war he could find, resuscitated and galvanised dead dogs, made up imitation dogs, and came to battle.
The issues finally framed covered several years' transactions, and the evidence included forged documents and quantities of perjury. Both sides were ruined.
That is what comes of making a trial a duel. Each side fights for victory, to save his amour propre, and to wound the enemy wherever he can. The original cause of difference is quite lost.
Now that case is typical of many. It is illustrative of human nature all the world over. If you awake the fighting instinct you cannot confine the parties to the original seat of war; they will urge the attack wherever they are likely to win. They cannot go to the judge in the beginning as to a friend of both parties who will inquire into the cause of difference himself and find a reasonable settlement, because judges are not intended to do that. Therefore parties do not go to Court at all until they have determined to fight it out. The case does not come to Court till matters are hopeless.
You may say they should or could have gone to an arbitrator. Do people anywhere in the world trust an unofficial arbitrator? There is a provision in Upper Burma allowing reference to arbitration, but it is a dead letter.
The original dispute in this case was about twenty or thirty rupees, the alleged excess paid for the goods. The suit filed was for several thousand rupees in transactions spread over years: there was an equally heavy counterclaim.
The total value of the suits filed in Burma in 1910 was about ￡1,380,000. I wonder what the value was of the matters first in dispute before the cases came to Court. A fifth, I dare say, would cover them. I notice much the same thing in England. Human nature does not differ East or West.
Now consider the enormous expense of all this. The value of the subject-matter of suits filed in Burma in 1910 was, as I have said, ￡1,380,000. The value of the matters really in dispute before they came to Court was infinitely less, but Court fees and lawyers' fees had to be paid on the full amount. Witnesses in thousands were called to prove matters that should never have come into Court at all.
And with what result?
There were 70,203 suits filed and decrees given, but in 53,594 of these satisfaction could not be obtained, and so the decree-holders had to come to Court for warrants for execution. That is to say that in over five suits out of seven the losing party could not or would not pay. (It does not follow that in the other two out of the seven he did pay. The decree-holder in a percentage of cases no doubt did not think it worth while to go any further.)
But in 53,594 cases he came to Court for execution. What did he get? In half these cases he got absolutely nothing; the execution was "wholly infructuous." In the other cases satisfaction was obtained in full or in part.
Thus out of ￡1,380,000 claimed how much was obtained? The Report does not give figures, but the reader can judge for himself it wasn't much. And to get even this little, what was the cost to the litigants, that is the public? No one knows. But there are a great many lawyers of kinds in Burma, and a good deal of money goes into their hands.
I do not think it would be an over-estimate to say that for every pound originally in dispute two pounds were spent in costs and only ten shillings recovered, and to get this, think of the trouble, the worry, the indignity, and the self-contempt involved. Besides, think of the waste of time—to say nothing of truth.
In the Report from which I take these figures the Judges of the High Court point out that the Courts are yearly becoming less and less used by the public. They can't think how this can be; but they suppose it is due to years of prosperity. That it should be due to anything wrong about the Courts never occurs to them. Yet perhaps the reader will see reason to doubt if the system of Civil Justice is perfect.
There is an Indian proverb that it is wise to go to law once, foolish to go twice. I asked an Indian about this.
"Why is it wise to go once?" I asked.
"Because," he answered, "you learn a great deal, quite a great deal, which you never forget. You learn, anyhow, not to go twice."
"But," I objected, "suppose on a subsequent occasion money were due to you which you couldn't get, would you sit down under the loss?"
He looked at me and laughed. "Well," he said, "if it were a small debt I should let it go. If I thought the man could not pay I would let it go, big or little; but if I thought he could pay and wouldn't, I wouldn't sue him; no, but I wouldn't put up with him either."
"What then would you do?"
"Well," he answered reflectively, "I think I should rob him."
"But that might bring you into a Criminal Court," I remonstrated.
"So it might," he replied; "but the Criminal Courts can't be worse than the Civil; and, anyhow, it would be a change."
As to the Insolvent side of the Civil Courts, perhaps if I say that it is no nearer the people than any other side, enough will have been said, and later on I shall have a story to tell of some of my experiences, but this is not the place.
What is gained by imprisoning a man for debt? Nothing that I ever heard of. It is not required to deter him from being ruined again; he probably won't get the chance, and if he did the fact of having been sold up once is quite sufficient deterrent from wanting to be sold up again.
Will it deter others? People don't get ruined for the fun of the thing. It is a dreadful thing to be sold up; in itself that is quite enough. Then what good does imprisoning the poor devil do? It does none. It does harm, and nothing but harm. It hurts the debtor and prevents his recovering himself; it panders to the desire of society and of creditors for revenge. There is an idea abroad that when anything untoward happens somebody should be punished, and then society will have vindicated itself. But the duty of society is to prevent crime, not punish it, and it cannot whitewash itself in this way. It merely condemns itself more even than it condemns him it punishes.
Moreover, the ability of creditors to imprison debtors is misused in a way that is almost criminal. The creditor will imprison the debtor with the hope that the debtor's relatives and friends will subscribe to save him and them from this disgrace. That is to say, the law allows a creditor to put improper pressure on totally innocent people in order to get his claims satisfied. Think of the iniquity of a law like that!
And what are these claims? Are they just claims? They are legal claims, but are they just?
For the most part they are claims of money-lenders. The Courts act as collecting agencies to the most oppressive system of money-lending that can be imagined. Two and a half per-cent per month is not unusual.
Government has shown its recognition of this danger by creating Co-operative Credit Banks, which are a great boon. But it has not thought of revising its Civil Court procedure. As in most other matters, it recognises something wrong, but attributes it to the people, not to the Courts and the law; therefore it does nothing.
But at all events imprisonment for debt should be abolished. There were eight hundred unfortunate debtors imprisoned in Burma in 1910.
Do you wonder that the people dread and hate the Courts?
Civil law embraces a great variety of suits besides suits for money, and includes a great number of special laws. The harm that has been done by fossilising Hindu, Mohammedan, and Buddhist law and custom has been already mentioned; to enter further into these matters is unnecessary. Once it is clearly recognised that the law and the Courts require amendment, not in details but in fundamental principles, there will be many better critics than I am. For although I have been obliged to learn some law in order to do my work, I was never an apt student of it. Humanity and justice are the only studies I really care for. Law is mainly a denial of both. Therefore if the Government of India and the local officials will but give up thinking that where law and human nature disagree it is so much the worse for human nature, they will soon find out where the present laws are wrong. But before I close this chapter there is one further point I wish to mention, and that is the trial of Burmese divorce suits by our Courts. Now that is wrong, absolutely wrong, and indefensible in every way. The Courts are not concerned with divorce. It is by Burmese custom and common sense a purely village matter. Divorces can be given by the elders, and they alone should be allowed to pronounce them. For they are sensible men, and in such cases they act not as judges, but as neighbours. They will grant no divorce till they have exhausted all means of conciliation. They know the parties as no judge can know them; they know who is to blame, how he or she is to blame, how the difference can be adjusted. It is to their interest to smooth things down and prevent their getting worse. Theoretically the breakers of marriages, they are in fact the preservers of marriage. It is by their tact and common sense that couples are kept together, and that only when matters become impossible divorces are granted.
But a judge is different. He knows nothing, cares nothing, can do nothing but listen to the complaint and grant the divorce. It must legally be granted at the request of either party, remember. To allow a judge to try divorce cases is a violation of Burmese law and custom, and is another and deep injury to the village community. How and why it was ever allowed I don't know. I suppose no one ever thought about it. Divorces in England are granted by Courts according to English law, therefore in Burma divorces can be granted according to Burmese law. I suppose that was the argument—if ever there was any argument at all.
In any case it is wrong. Divorces are properly granted by the elders acting on behalf of the community, and by no one else. Therefore the interference of the Courts should be immediately stopped.
But apart from this, the questions of marriage and inheritance are very difficult. No alien Government can solve them. They must await a real Council that can deal with such matters with knowledge and responsibility.