Mountstuart Elphinstone.

Selections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir online

. (page 24 of 41)
Online LibraryMountstuart ElphinstoneSelections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir → online text (page 24 of 41)
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encouraged to settle in the plains, either as cultivators
or as watchmen to villages, a change which would
weaken the power of the chiefs by lessening the
number of their retainers. In the meantime it will bo
requisite to ascertain, with as much precision as the
case admits of, the powers which the Bhil chiefs are
in the habit of exercising under the old Government.
This inquiry is indeed necessary, to prevent an in-
experienced magistrate from interfering unintentionally
with the privileges of those chiefs.

The only innovations yet introduced by us into the
form of the Mahratta police are our closer superin-
tendence, and the prohibition of the indefinite present system
confinement of suspected persons by the Patils
and Mamlatdars ; but there must be a great difference
in the spirit of our administration, and perhaps bad
effects may be felt from it when the great awe with
which we are now regarded is worn off, and when our
principles come to be better understood. Though the
natives put up with petty disorders, they checked great
ones with a rough hand, and gave themselves no con-
cern about the attendant evils. If robberies were com-
mitted, they seized all the suspicious characters in the
neighbourhood ; and if they succeeded in restoring
quiet, they did not care though a hundred Ramoshis
suffered imprisonment and torture without a fault.
Such a course would not be thought of under our
Government ; but we must consider how much our
abstaining from such tyranny must weaken us, and
must provide a remedy in some more tolerable shape.

I am afraid that remedy is not to be found in our
administration of Criminal Justice, which is next to be


examined. This differs greatly from the Mahratta
Present system practice ; the power of punishing is taken
" Jus™ from the Patail, and that which is left to the
Mamlatdar is limited to a fine of two rupees and con-
finement lor twenty-four hours. The powers of the
collector are not less than those of a Sarsuhhedar,
except in the article of inflicting capital j^unishment ;
but his manner of exercising his power is altogether
different. According to our practice, a prisoner is
formally and publicly brought to trial. He is asked
whether he is guily. If he admits it, pains are taken
to ascertain that his confession is voluntary ; if he
denies it, witnesses are called on without further
inquiry. They are examined in the presence of
the prisoner, who is allowed to cross-examine them,
and to call witnesses in his own defence. If there
is any doubt when the trial is concluded, he is
acquitted ; if he is clearly guilty, the Shastri is
called on to declare the Hindu law. It often
happens that this law is unreasonable ; and when
the error is on the side of severit5% it is modified ;
when on the side of lenity, it is acquiesced in. The
law officers are always present at those trials. In
Khandesh a regular jury is generally assembled, who
question the witnesses, and pronounce on the guilt of
the accused. In Satara the political agent calls in
several respectable persons, besides the law officers, and
benefits by their opinion, both in the conduct of the
trial and in determining the verdict. When the trial
is concluded and the sentence passed, in cases of
magnitude, it is reported for confirmation by the com-
missioner, where the same leaning to the side of
lenity is shown as in the Court itself.

The punishments awarded by the Sliastris are as
ollows : Death, which is executed in cases of murder,


and sometimes robbery accompanied with attempts to
murder ; mutilation, which is commuted into imprison-
ment with hard hibour ; and simple imprisonment,
which is carried into effect. Women are never put to
death, nor Brahmins, except in cases of treason, where,
from the nature of our conquest, it was thought ne-
cessary to hold out the severest punishment, even to

When the guilt of the accused is not proved, very
great caution has been enjoined in imprisoning him on
suspicion ; it has, indeed, been recommended that no
person should be so imprisoned unless notorious leaders
of banditti ; and when any person does happen to be
imprisoned for want of security, the period at which he
is to be released is directed to be fixed. These rules are
suggested by the injustice of subjecting a man to a
greater punishment when his guilt is not proved than
would be inflicted if it were, and by the apprehension
that the magistrate would be apt to order perpetual
imprisonment in this form without much reflection,
because it appears to be only temporary and conditional

The whole of this system is evidently better cal-
culated for protecting the innocent from punishment,
and the guilty from undue severity, than for

Its defects

securing the community by deterring from
crimes. In the certainty and efficacy of punishment it
has the same inferiority to the native system that the
police has in detecting and seizing offenders. The
natives seized men on slight suspicions, gave way to
presumptions of guilt, forced confessions by torture, and
inflicted punishments which, although they were in-
human (or rather, because they were inhuman), wore
effectual in striking terror. Our Government demurs
about proofs, discourages and almost rejects confessions,


and never punishes while there is a possibility of the
innocence of the accused. When it does punish, in its
anxiety to prevent its inflictions fi'om being revolting to
humanitj^ it prevents their being terrible to offenders.
Even death is divested as much as possible of its
horrors. No torments, no lengthened exposure, no
effusion of blood, or laceration of members, even after
life is extinguished. Some of these are properly re-
jected as detestable in themselves ; others that would
strike the imagination of the people are set aside,
because they also strike the imagination of the legis-
lator. Imprisonment with hard labour is our great
resource next to death, and this is by no means one
calculated to over-awe offenders. Our imprisonment is
so carefully divested of all circumstances of terror, that
there is nothing except the fetters that is likely to
make the least impression on a native. To a European
confinement is irksome, solitary confinement intolerable.
Bread and water, or bad fare, bad lodging, public ex-
posure, all are real evils to him ; but a native neither
loses in point of food nor lodging ; and shame, I should
think, had less efi'ect on him. In fact, by several
of the reports from the districts (specially by Mr.
Chaplin's answers to my queries), it appears that the
imprisonment ordered by our officers is far from being
looked on with dread, and that they think that, with
the regular subsistence and comfortable blanket they
get in gaol, they arc better off than they would be in
their own villages. There are even instances — one at
Sattara, and one in Puna — of people committing petty
offences to procure the maintenance allowed to prisoners.
Imprisonment, especiall}' when accompanied with labour,
must, however, be a state of suffering to any man ;
separation from family and friends must also be an
aggravation ; and, on the whole, it would be absurd to


contend that imprisonment is no real liardsliip to a
native. The worst of it is, that it is a hardship to the
sufferer without seeming one to the spectators ; and if,
as I fancy is the case, on the present footing it is at
least as ineffectual for reformation ; as, for example, it
unites all the bad qualities that can be combined in a
punishment. If to make up for our defects in con-
victing offenders, and in punishing them when convicted,
we have recourse to imprisonment also, explaining
that in this case it is not meant as a punishment, we
complete the destruction of its use for example. In
short, it may be questioned whether our system does
not occasion as much suffering as the native one ; but
it is spread over a greater surface, and therefore makes
less show, and neither shocks the legislator nor alarms
the criminal.

These evils have often been remarked before ; it is
easier to point them out than to suggest a remedy, and
greater experience might perhaps only show in^provemcnts
more clearly the difficulties to be overcome. «"8^«'^'''^

Online LibraryMountstuart ElphinstoneSelections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir → online text (page 24 of 41)