« 上一頁繼續 »
drawn from the mass of society themselves, might derive, from common habits of thinking and of acting,-common prejudicescommon estimates of right and wrong, and a readier insight into congenial character, some correctives to evils of this description.' By living and associating besides with the community, whose affairs they despatched, they would be in the way of learning the true feelings and wants which the people experienced, and would possess the advantage of a much better observation of the effects of their measures. They could not be wholly independent of the good opinion of the population whom they governed; and above all, their own interests would be involved with those of the rest of
Some idea may be formed of the inconvenience actually experienced by those engaged in the business of the country, from such deficiencies. "Nothing is more common," says Sir Henry Strachey, " even after a minute and laborious examination of evidence on both sides, than for the judge to be left in utter doubt respecting the points at issue. This proceeds chiefly from our very imperfect connexion with the natives, and our scanty knowlege, after all our study, of their manners, customs, and languages. We perhaps judge too much by rule. We imagine things to be incredible, because they have not before fallen within our experience; we make not sufficient allowance for the loose, vague, and inaccurate mode, in which the natives tell a story; for their not comprehending us, and our not comprehending them; we hurry, terrify, and confound them, with our eagerness and impatience we cannot study the genius of the people in its own sphere of action; we know little of their domestic life, their knowlege, conversation, amusements, their trades and castes, and any of those national and individual characteristics which are essential to a complete knowlege of them. Every day affords us examples of something new and surprising; and we have no principle to guide us in the investigation of facts, except an extreme diffidence of our opinions, a consciousness of our inability to judge of what is probable or improbable * The evil I complain of is extensive, and I fear irreparable. The difficulty we experience in discerning truth and falsehood may be ascribed, I think, chiefly to our want of connexion and intercourse with them; to the peculiarity of their manners and habits; their excessive ignorance of our character, and our almost equal ignorance of theirs."
I am indebted to Mr. Mill's work, and to the Article India, in the supplement to the Edinburgh Encyclopedia, for these quotations from the reports of the civil servants of the Company, the only source to which I at present had access. The loss of all the papers on the subject of India, which I had accumulated during a nine years' residence in the country, disables me from confirming these general conclusions by more striking illustrations. To those who are intimately acquainted with the state of the country, none would be necessary; but I was induced to support my observations by these testimonies to facts, that I might not appear to others to be overcharging the picture to suit my own argument. They are, I believe, entirely drawn from reports of Sir Henry Strachey, and Mr. James Stuart; and to those who may be ignorant of the weight to which they are entitled, it may be well to say, that these gentlemen are two of the most eminent judicial servants for talent and for worth, of whom the service of the Company has ever had to boast.
society, in the consequences of their acts, and in the evils resulting from mal-administration. But in the English Government of Bengal none of these palliatives are to be found no intercourse takes place between us and the people, but that required for the transaction of business. The residence of an individual in any one part of the country, is very short,-his connexion with it at large, temporary; he is entirely exempted from the influence of his own measures, and in all probability, his stay in India is never sufficiently long to enable him to form his own estimate of their results.
L In addition to this complete insulation of the organ of Government from society, the number of European civil servants is manifestly totally inadequate to perform any thing like the duties of internal administration, to such an immense population; and we have committed the further error, of retarding in a government, the principle of which is that of the purest military despotism, the administration of justice, by many of the forms applicable only to a free constitution. In free states, "les peines, les dépenses, les longueurs, les dangers même de la justice, sont le prix que chaque citoyen donne pour sa liberté ;" but it is an intolerable evil, in a country reduced to the condition of a conquered province, to clog the determination of causes with the penalties payable for liberty, ❝la manière de les finir est indifférente, pourvu qu'on finisse: le Bacha d'abord éclairci, fait distribuer à sa fantaisie des coups de bâton sur la plante des pieds des plaideurs, et les renvoie chez eux."
It is most natural for us, who are justly accustomed in our own country to consider the law as the safeguard of the constitution, and the decisions of our judges as the safeguards of the law, to endeavor to secure, in as far as we can, the administration of justice from error. But the absolute and perfect dispensation of justice is unattainable in human affairs, and there is no injustice that can be done, so great as the withholding of justice altogether; nor, is it conceivable that any errors, resulting from a more prompt determination of causes, could be productive of any thing like the aggregate evil resulting to the community from the inability of our courts to overtake the business.3 The misfortune is, besides, that,
Esp. des Loix, liv. 6. c. 2.
2 Judicia, enim anchoræ legum sunt, ut leges reipublicæ.-BAC.
3 The causes to which I have before alluded, which prevent in India the accumulation of capital, operate with such effect, that the cultivation of the earth is generally, not universally, carried on by loans from the Shroffs or Bankers, in the towns, advanced on the security of the future crop, at most usurious interest. The effect of our land-tax, calculated at ten-elevenths of the surplus produce, and the complete decline of the ancient gentry, who have consumed their capitals, render the disproportion between the upper
after all, the pure administration of justice is not accomplished. The people have studied the forms of our courts, and have employed them to defeat the very ends that we intended them to fulfil.' Some of the upper classes of natives have been heard to say, that it would be better if the English gentlemen would throw the dice at once for the decision of the suits, than settle them as they do; and were it not that we constitute the sole power in the country capable of enforcing an adherence to the decisions that we give, the number of causes, brought before our courts, would probably be more in proportion to their own means of despatch.
If it were a rational and comprehensive, and well-defined system of jurisprudence, that we administered, the evil might not be so. great; but it is to the Mahommedan and Hindoo law, whose vague and uncertain provisions are susceptible of interminable cavils, and where the latitude of application, on the part of the judge, is the
and lower classes in India much greater than in any other country; that is, in this case, the proportion between those who have something, and those who have nothing. The previous habits of oppression acquired under the Mogul Government, the abolition, by the permanent settlement, of fictitious rights, created by the ancient system, in the cultivators of the soil, rendered the lower classes of society the special objects of the protection of the law, from the injuries to which they are so peculiarly exposed. These men, (and these men are the community) cannot approach our courts of justice. The cultivators are unable to support themselves at the Sudder during a procedure of two or three months. They cannot return to their houses without submitting to their oppressor. They must have speedy justice, or none."-SIR HENRY STRACHEY.
"Within these few years, too, the natives have attained a sort of legal knowlege, as it is called; that is to say, a skill in the arts of collusion, intrigue, perjury, and subornation, which enables them to baffle us with infinite facility."-SIR HENRY STRACHEY.
2 Optima lex quæ minimum relinquit arbitrio judicis, optimus judex qui minimum sibi. But this sort of optimus judex requires the optima lex." Of the law in operation in India Mr. Mills gives the following very just account. And it can scarce be doubtful, that the decisions of any English gentleman, of fair understanding, on the individual merits of each case, would be better than the summum jus of such a code.
"It is a sort of a mixture of the Mahommedan and English systems, and so contrived as to combine the principal vices of both. With the exception of a change in certain modes of punishment, revolting to English minds, the Mahommedan code which, in penal matters, had been exclusively followed by the Mogul Government, was still retained. It was the characteristic of the Mahommedan law, as it is of the law of all rude nations, to be unwritten. The standard was the Kôran, in which nothing beyond a few vague precepts could be found. To these were added, the commentaries of the Doctors, of which some had attained the rank of authorities. The vagueness of the commentaries corresponded with the vagueness of the original; and no distinct legislative definition existed." MILLS, vol. iii. p. 36.
In civil suits, the Mahommedan or Hindoo law is applied, according to the religion of the defendant.
only chance of making the enactment a measure of justice at all adequate to the cases that occur, that we have attached all these technicalities. Of the old Government it might be said, quæ usu obtinuere, si non bona, at saltem apta inter se sunt;" but, probably, under no government, since the world began, were such monstrous incongruities ever united, as in that of our East India provinces. If it should be inquired, how they are united, the answer is at hand, by the only means by which such an union was possible-by the influence of an army of a hundred and sixty thousand men.
The reluctance of the people to appeal to our courts, or to support their operation, manifests itself in many ways ;-in cases of disputed boundaries, the villagers turn out in arms, and proceed to settle the question by a regular skirmish, in which which many lives are frequently lost. It is with much difficulty, and frequently by absolute compulsion, that they are brought to appear before the magistrate, either as complainants or witnesses; and, in all the dreadful atrocities committed by the decoits, or gang robbers, society was completely inert in its own defence. Various means were taken to force the Zemindars to activity, and penalties were imposed to compel their assistance; but, if all the robberies, and murders, and torturings that were inflicted, were insufficient to call forth the co-operation of the people with the Government, it is not likely that much could be gained by the risk of fine or imprisonment. In one case (I forget precisely where) where the inhabitants had suffered severely from this evil, they rose of themselves, and proceeding, as if no government existed in the country, surrounded the houses which they knew the decoits inhabited, and hanged, without any process or authority whatever, a great many of them, and thus checked effectually the outrages which they suffered.
Had any, the smallest connexion existed between society and the Government, such a state of things would be impossible; and the only remedy for the multiplied evils which must result to a community from such a separation, (and of which these are only a sample) is by uniting the Government and the people together in one uniform system, and employing the natives, in a much greater degree, in the management of their own affairs. We are too apt
'As many as four or five thousand combatants have fought in these affrays on a side; a striking picture of the dense population of the country, and the species of redress the inhabitants expect from our Government. Armies brought into the field by a few villages, almost as numerous as those by which the fate of the Spanish provinces in South America have been decided!
2 "In our country we all know what service the society contributes to its
to satisfy ourselves that all is well, if we hear that nothing is amiss; but what was the amount of all the evil alleged against Mr. Hastings, (had it been true,) and which roused the indignation of the whole country, compared with the infinite suffering and misery. which the deaf and inexorable operation of our system has produced? The whole class of the gentry have, in the short space of half a century, melted down into the multitude! Of what volumes of wretchedness is not this the evidence? What scenes of honest pride, struggling with the encroachments of poverty, on habitual luxuries, comforts, and necessities, have not been daily acted over and over again in this universal process of humiliation? 2 If we look for actual and positive bodily injury, produced by our misgovernment, I do not believe that all the cruelties practised in the lifetime of the worst tyrant that ever sat on a throne, ever Tamounted to the quantity of human suffering inflicted by the decoits in one year in Bengal. 3
I have been led into longer details with respect to the state of the country than I intended; but it was difficult to allude to it at
own protection; we know how much vigor is conferred on its police by the support which it receives from native gentry, from respectable landholders, from the corporations in towns, and froin substantial persons of the middle class, in the villages. We can form some conception of the mischief which would ensue, if that support should be withdrawn, and an attempt made to compensate it by positive laws and artificial institutions. Such is the extreme difficulty of distributing justice to a people, without the aid of the people themselves."- MILLS, vol. iii. p. 334.
Legem rem surdam et inexorabilem esse.-Liv.
A native gentleman, of whom I made some inquiries on this subject, furnished me with a list of upwards of one hundred families, who, in his own memory, had disappeared from the neighborhood in which he lived, either by migration in quest of employment to the native States, or who had been lost among the crowd. He enjoyed, himself, a small pension from the British Government, which rendered him wealthy, compared with his less fortunate acquaintances; and he told me one day, that he had that morning purchased as an act of charity, a sofa, from the widows of a man "to whom he, when he met him, was used to bend very low." In our little intercourse with the people, we know hardly any thing of what is passing within the walls of their houses; but human suffering is much alike in all climates, and with a few such glimpses imagination can very readily fill up the spacious canvas she has to work on.
3" Were I to enumerate," (says Mr. Dowdeswell, in a Report to Government on the subject)" only a thousandth part of the atrocities of the decuits, and of the unjust sufferings of the people; and were I to soften that recital in every mode which language would permit, I should still despair of obtaining credit, solely on my authority, for the accuracy of the narrative Volumes might be filled with the atrocities of the decoits,
every line of which would make the blood run cold with horror." There was one man hanged during Lord Minto's government, who boasted that he had with his own hand, in the course of a few days, committed nineteen murders.