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 t............