Tōkichi Masao

“ The system of maximum and minimum punishments adopted in the French Penal Code is one of the reflections of the spirit of the period following the French Revolution. It is one of those things that were adopted at that period to safeguard the people against the tyranny of the officials. While the English system is no doubt a most excellent system for England, it does not follow, necessarily, that it will prove itself to be so for any other country ”

“ Sir John Bowring has said in his treatise on Siam that "legal reasons for excluding witnesses are so many in Siam that they would appear seriously to interfere with the collection of evidence." Here again is another illustration of the close analogy between the Hindu law and the ancient Siamese laws. The code of Manu says as follows: "Those must not be made witnesses who have an interest in the suit, nor familiar friends, companions, and enemies of the parties, nor men formerly convicted of perjury, nor persons suffering under severe illness, nor those tainted by mortal sin. ”

“ In the case of an orphan or castaway who, in the opinion of the Judge, requires more than a mere admonition, the best and the only thing that can be done may be to send him to a Reformatory School. But in the case of the child of one who has failed to make his home sufficiently attractive to his family, it may be said that the responsibility for the child’s offence rests not less (or perhaps more) on the parent than on the child, and it may be well to bind over the parent in some way for the good behaviour of the child. ”

“ In short, it is a system of controlling habitual offenders by increasing their punishments in certain definite proportions. Recidivism is one of those principles which are commonly known in countries where the system of Continental Codes is followed but are almost unknown as general principles of jurisprudence in countries where English law prevails. An English Judge will, as a matter of common sense, be inclined to punish a second offender more severely than a first offender as, indeed, any Judge will be inclined to. ”

“ On this subject the Siamese Laxana Tat [3] begins by saying that there are seven kinds of slaves and enumerates them as follows: (1) slaves whom you have redeemed from other money masters; (2) slaves who have been born of slaves in your house; (3) slaves you have got from your father and mother: (4) slaves whom you have got from others by way of gift; (5) slaves you have helped out of punishment; (6) those who have become your slaves by your having fed them when rice was dear, and (7) those whom you have brought back as captives when you went to war. ”

“ But in France deportation is a distinct form of punishment. In Japan it is not. The Japanese Government has found it extremely difficult to make proper provisions for enforcing deportation as a form of punishment distinct from imprisonment. The result is that all the eleven punishments above-mentioned are simply different names for one and the same thing — imprisonment. The only distinctions that can possibly be made are that some are required to work while others are not, and that some prisoners are kept in one jail while others are kept in another. ”

“ It may not be in strict conformity with the hard theory of the law, that one who is detained in jail pending his trial or appeal, but not as a convict, should have the time so spent count upon his final sentence. Nevertheless, it is an exceedingly simple, practical and humane system, and what is best of all, it is the system that has been actually in use in Siam. ”

“ India, with its multitudes of what once were independent kingdoms and principalities, some of one religious profession, some of another, but now all under the British administration, at the present day presents a unique example of a country in which the British courts administer the Brahman, the Buddhist, and the Mohammedan laws according to the religious profession of the litigant. ”

“ Many a Judge can recall with the deepest grief the instance when circumstances compelled him, against his better judgment, to send a man or woman to prison who had merely been the victim of some temptation or circumstances for which, morally speaking, such person could hardly be said to be blamable and yet legally must be held responsible. ”

“ In the code of Manu, the typical Hindu law book, the whole body of civil and criminal laws are divided into eighteen principal titles. According to Professor Bühler's translation these eighteen titles or causes of law suits are as follows: (1) Debt; (2) deposit and pledge; (3) sale without ownership; (4) concerns among partners; (5) resumption of gifts; (6) hiring of persons ”

“ The defenders of this system usually rely on philosophical grounds of an extremely speculative kind, namely, that the criminality of an offender who has committed ten offences at different times and places is not necessarily ten times the criminality of him who has committed only one offence and that if the State had exercised sufficient vigilance to catch and punish him when he had committed his first offence he might have been prevented from committing his nine other offences. ”

“ As adopted in the new Penal Code of Siam there are four kinds of recidivism, viz., general recidivism, special recidivism, third offenders’ recidivism, and recidivism of petty offences. General recidivism applies where a person who has been punished for any kind of offence commits another offence of whatever kind within five years of his liberation from the punishment suffered for his first offence. In such a case the punishment for the subsequent offence is, according to the system adopted, to be increased by one-third. ”

“ The fact is that in the case of the French Penal Code, the old Japanese Penal Code, and the other Penal Codes following the conventional method of dividing offences into crimes, delicts and contraventions, it is found necessary to multiply and complicate the names of punishments in order to make them fit in with the different classes of offences, although as a matter of fact there may be no substantial difference between one mode of punishment, passing under one name, and another mode, passing under a different name. ”

“ A man who gives another man a hundred strokes with a stick, would, at the rate of, let us say one year for each blow, get one hundred years for the whole beating! The English system is sufficiently guarded against such absurdities and so is the system as adopted in the new Penal Code of Siam. ”

“ The tendency of modern legislation in regard to juvenile offenders is to recognize them more and more as a distinct class of unfortunate children and to give more and more freedom to the Judge in dealing with them. In most cases they are either orphans or castaways, or children of parents who have not made their homes sweet to their children. Some of them may be of a comparatively good sort: others may be of an absolutely bad sort. ”

“ The English system requires a staff of most superior judges such as are found in England, who may be said to be almost superhuman. The French system is workable with any judges who have received a fair amount of training. ”

“ Sooner or later the time must come when Siam will be freed from the present régime of what is popularly called extraterritoriality, or the system under which the subjects of the Treaty Powers are exempt from the jurisdiction of the Siamese Courts and are subject only to the jurisdiction of the Courts of their own Consuls or Judges. ”

“ Then there would be the inducement that if he does not commit another offence during those five years the sentence is not to be executed at all and what is more, the sentence becomes null and void, so that he becomes a man with a clean record as if he had never committed an offence in his life. ”

“ Children over seven and under fourteen are presumed to be irresponsible but may be admonished, or sent to a Reformatory School, or handed over to parents under a bond for good behaviour, etc., etc., according to the requirements of each particular case and as the Judge thinks fit. ”

“ The system adopted in the new Penal Code of Siam is substantially the system in use in England, Japan and Egypt, and meets all those contingences above suggested. Children under seven are absolutely irresponsible. ”