페이지 이미지

will admit the tendency. But people are often better than their principles. The Act which emancipated the Roman Catholics used to be opposed on the ground that members of that religious communion must logically, even if appointed to be Judges, be Papists first and Queen's subjects afterwards : yet in practice this is not realized. The subject is not even mentioned in the very full opinion given by the Government of Bombay.

The second cause of the alleged perverse acquittals is the dislike of the Hindus to concur in what leads very often to the sentence of death, although under the Indian Penal Code the Sessions Judge may, for definite reasons, refrain from passing a capital sentence and award life-long transportation instead. It appears that Bengal juries have lately found a number of prisoners not guilty, whom on references made by the Judge, the High Court convicted of murder. We may concede that as any system which allows the greatest criminals to escape scot-free must lead soon to general disorder and a paralysis of the law, the Executive has both a right and duty to use such lawful means as it inay judge best to prevent the danger and uphold the law. The principle is admitted by the present Ministry in the debates when attacked by the Opposition for not suspending jury trial in Clare or Kerry. It is urged that the Irish Executive has no means of getting a change of venue to another county, a means often used in India when it is shown that justice requires the transfer. Doubtless the Commission now sitting in Bengal will inquire into the state of things existing there ; and it would be premature to discuss them here at present. I have personally no doubt that the general feeling of the Hindus is adverse to capital punishment. The sentiment is older than the time of the Emperor Asoka : it is inscribed as a command on his tables of stone, and tradition and religion have written it on the fleshly tablets of the heart. The Mosaic injunction, “ Thou shalt not kill,” happens to be one of the five great commandments of Buddhism : it is revered in Burma. It




is held in equal veneration by the Jains wherever found, in Gujerat or Assam, Bengal or Madras. The warlike people of Kattywar so far as they follow the reformer Swami Narayen in his gentle religion have adopted it too. My impression is that Pantheism, the belief in a diffused, immanent deity, is the parent of this sentiment. The Greek poets quoted by St. Paul sang,“We are also his offspring.” The Hindu even in the lower castes assents to the doctrine that every living thing is part of God. Hence a dislike to kill man or animal : and a widely diffused habit of vegetarian diet. Besides this, the juror as well as the Judge is conscious of the awful issues involved in the trial of a capital case : and while rightly cautious in weighing the evidence, may sometimes push the virtue of prudence to an extreme. But where, as these Indian Sessions Judges allege, the dislike to capital sentences is so general, we may expect it to extend to the witnesses as well, and that the police will have unusual difficulty in procuring true evidence of the murder. If it is procured by improper means or if false evidence is put forward, the work of adjudication, of sifting the evidence, becomes much harder for both jury and Judge; and the need of caution before convicting becomes, as all Judges know by experience, most difficult and painful. Let anyone read through the published opinions, and he will see

id bare, under the question of abolishing trial by jury for murder, two yawning abysses, the use or abuse of power by the police and the efficacy of capital punishment as a means of repressing crime. The French expedient is to allow the jury to find extenuating circumstances, which they do, as most Englishmen think, too readily. But even in lawrespecting England and Wales

many murders

go undetected, and juries are eager to avoid their share in a capital sentence. The Howard Association have shown from the judicial statistics of ten years 1879 to 1888 that in capital cases the convictions at trials only averaged 45 per cent., whereas at all trials of indictable offences the proportion was 77 per

Coroners' juries returned 1766 verdicts of wilful murder : but only 672 persons were arrested and committed



for trial. Of these 299 were convicted and sentenced to death, 231 were acquitted, and 142 were found insane. Out of the 299, 145 had their sentences commuted and only 154 were executed. We have no full statistics from India, but it would probably be found that in many cases the High Court has upheld the verdict of acquittal which the Sessions Judge referred as wrong; and that many convictions passed by the latter, sitting only with Assessors, have been reversed on such grounds as that the superior tribunal thought too much credence had been given to a retracted confession or to the story told by a child witness, * or to the statements of an accomplice, or that the inference arising from possession of stolen property had been wrongly drawn. Humanum est errare. When Sir James F. Stephen was Legal Member of the Indian Council he wrote a Minute advocating the replacement of the Civilian Sessions Judges by Barristers and better lawyers: and it is not improbable that these Judges think the High Courts often make mistakes in reversing their judgments on the facts. No Judge is infallible : we all adopt some of those idols of the den, the market-place or the theatre which Lord Bacon exposed: and according to Forsyth can no more resist or escape from our own frame of mind than juries can. This risk arising out of the structure of the human intellect is no doubt reduced when several Judges sit together as we do in hearing appeals. But in the three last State trials in India where high public servants were arraigned before Benches of two or three learned Commissioners, the verdicts returned by them were not accepted by the Executive when dealing with the facts. Where the statements are definite and the witnesses respectable, these opposite conclusions of tribunals are rare : the differences of opinion oftener arise about the

* Some years ago the Secretary of State for India in a despatch took notice of the fact that in many very serious trials, the case for the prosecution rested on the statements of little boys and girls, eye-witnesses.

† The Blue Book on the Crawford case shows how widely Lord Reay, the Governor of Bombay, Sir K. West and the other members of Council, differed from the findings returned by Mr. Justice Wilson and his brother Commissioners.

n no

[ocr errors]

value of more tainted evidence. When I was Judicial Commissioner of Burma I remember hearing a story which is quite consonant with judicial nature. A general inquiry being made about the increase of crime, one Magistrate reported that the Judicial Commissioner was the cause, meaning that the superior tribunal was too prone to acquit on appeal men rightly convicted by himself.

Let us now turn to the other side of the shield and examine the reasons given in favour of trial by jury. In his History of the Criminal Law of England Sir J. F. Stephen points out three general advantages : and I find nothing in the Indian correspondence to gainsay them in regard to India. The first remark is that trial by jury is considered by the people of the land to be more just, it being felt that the sympathies of Judges are on the side of authority. The second is that trial by jury interests large numbers in the administration of justice, and makes them responsible, and thus gives it a power and popularity which would hardly be derived from any other source. The third reason is that this mode of trial puts the Judge in the place he ought to hold as a moderator in the struggle before him, and a guide and adviser to those who are ultimately to decide. At the last meeting of the East India Association Lord Hobhouse in an eloquent speech added another reason. He said that juries have kept the law sweet and wholesome, thus making it respected and triumphant over superfine legislation, and taking out the sting of cruelty or political faction by persistently acquitting in the times when our penal code was bloodthirsty, and the Government, under the panic of the French Revolution, too readily indicted men for seditious libels or mere discontent. Some of the Indian officials deal with this part of the case. The following rather frigid passage in the opinion of the Bombay Government reads to me like an echo of Sir J. Stephen's more expanded praise : “ The use of juries, when fairly good juries can be had, possesses some undoubted advantages. It prevents the main principles of justice and legal reasoning from being hidden away in technicalities. Everything laid before a jury has to receive

a popular exposition, and be submitted to common-sense tests. The jurymen themselves receive and carry away a true idea of legal principles. They learn that the Judges are acute, wise and impartial, and see how really difficult a task adjudication is. They diffuse their experiences and the consequent regard for law and the judicial administration throughout society. Culprits, again, who are condemned on the verdict of a jury can never say that they have been sacrificed to official animosity or prejudice. The jury form a group always ready to contradict any such assertion. It appears to the Government in Council that it is a distinct benefit to have the odium of apparently harsh decisions thus taken off the shoulders of the official classes." This remark applies more weightily to cases where, as several Judges report, the police connive at the production of false evidence, or where a wholly false case is got up in order to revenge some private injury. There are trials on record where a dying man, to gratify his spite, has named an innocent person as his murderer. The Bombay reports contain a case where a crocodile's bones were brought to Court as those of a murdered man, and another where, in pursuance of a factious conspiracy, some Mussulmans at Broach beheaded their own mother, and then accused the opposite faction.* One Jud

One Judge in Bengal in favour of trial by jury writes that the jurors regard the accused as being subject to all the weight of official pressure brought to obtain a conviction, and that this feeling is increased by the native sentiment objecting to the severity of the sentences under the Penal Code. Another Judge there thinks the system unsuitable for the latter reason, and because the Indians do not sympathize with our law, the gulf between

* When I was a young Magistrate at Dharwar, nearly 30 years ago, the other Magistrates told me of a woman under sentence of death for murdering her baby immediately after the birth. A missionary got some information showing that the case for the prosecution might be false : and she was respited. The signs of pregnancy appeared ; and it was shown to be physically impossible that she could have ever given birth to the baby supposed to have been murdered. I have lately heard of a like case in the Central Provinces.

« 이전계속 »