Friday, October 2, 2009

V. Of the Judiciary stile or form of Pleading.

They have not a double stile; They plead only in writing and by giving Bail. The Function of the Nai in Law Suits; How a Process is prepared at Siam; The Form of the Judgments; The Law or Custom is read; Suits are a long time depending. They have no Advocate nor Attorney; Before whom they produce. Proofs subsidiary to the Torture; The Proof of Fire; Another sort of Proof by Fire; The Proof of the Water; A Proof by Vomits; The various successes of these Proofs; The Degrees of Appeal; Judgments of Death reserved to the Prince, or to some extraordinary Commissioners; The Punishment of Robbery extended to Estates.

They have only on Stile for all matters in Law, and they have not thought fit to divide them into Civil and Criminal: either because there is always some punishment due to him that is cast, even in a matter purely Civil, or because that suits in matters purely Civil are very rare there.

'Tis a general Rule amongst them, that all Process should be in writing, and that they plead not without giving Caution.

But as the whole People of the Jurisdiction is divided by Bands, and that their principal Nai are the Officers of the Tribunal, whom I shall call by the general name of Councellors; in case of process the Plaintiff goes first to the Councellor who is his Nai, or to his Country Nai, who goes to the Councellor Nai. He presents him his Petition, and the Councellor presents it to the Governor. The Duty of the Governour is nicely to examin it; and to admit or reject it, according as to him it seems just or unjust; and in this last case to Chastise the Party, who presented it, to the end that no person might begin any process rashly, and this is likewise the Stile or form of China, but it is little observed at Siam.

The Governor then admits the Petition, and refers to one of the Councellors; and ordinarily he returns it to him that presented it, if he is the common Nai of both parties: but then he puts his Seal thereunto, and he counts the lines and the cancelling thereof, to the end that no alteration may be made. The Councellor gives it to his Deputy and to his Clerk, who make their report to him at his House in his Hall of Audience: And this report, and all those which I shall treat of in the sequel, are only a Lecture. After this the Councellor's Clerk presented by his Master, reports or reads this very Petition, in the Governour's Hall, at an Assembly of all the Councellors; but in the absense of the Governor, who vouchsafes not to appear at whatever serves only to prepare the Cause. The Parties are there called in under pretence of endeavouring to reconcile them, and they are summon'd three times, more for fashions sake, than with a sincere intention of procuring the accommodation. This Reconcilation not succeeding, the Court orders, if there are witnesses, that they should be heard before the same Clerk, unless he be declared suspected. And in such another Session, that is to say, where the Governor is not present, the Clerk reads the Process and the depositions of the Witnesses, and they proceed to the Opinions, which are only consultative, and which are writ down, beginning with the Opinion of the last Officer.

The Process being thus prepar'd, and the Council standing in presence of the Governor, his Clerk reads unto him the Process and the Opinions; and the Governor, after having resumed them all, interrogates those whose Opinions seem to him not just, to know of them upon what reasons they grounded them. After this Examination he pronounces in general terms, that such of the Parties shall be condemned according to the Law.

The it eongs to Oc-Luang-Peng to read with a loud voice the Article of the Law, which respects the suit: but in that Country, as in this, they dispute the sense of the Laws. They do there seek out some accommodations under the title of Equity; and under pretence that all the circumstances of the fact are never in the Law, they never follow the Law. The Governour alone decides these disputes, and the Sentence is pronounced upon the parties, and set down in Writing. But if it be contrary to all appearance of Justice, it belongs to the Jockebat, or the Kings Attorney General, to advertise the Court thereof, but not to oppose it.

Every suit ought to end in three days, and some there are which last three years.

The parties do speak before the Clerk, who writes down what they tell him; and they speak either by themselves, or by another: but it is necessary that this other, who herein performs the office of an Attorney or Advocate, should be at least Cousin German to him for whom he speaks; otherwise he would be punished, and not heard.

The Clerk receives likewise all the Titles and Deeds, but in presence of the Court, who counts all the lines thereof.

When ordinary proofs do not suffice, they have recourse to Torture in Accusations, which are very grievous upon this account; and they apply it rigorously, and in several ways: or rather they use the proofs of Water and of Fire, or of some others as superstitious, but not of Duelling.

In the Proof of Fire they erect a Pile of Faggots in a Ditch, in such a manner that the surface of the Pile be level with the edge of the Ditch. This Pile is five fathoms long, and one broad. Both parties do walk with their naked Feet from one end to the other, and he that has not the sole of his Feet hurt gains his Suit. But as they are accustomed to go with naked Feet, and that they have the sole of the Foot hard like Horn, they say that it is very common that the Fire spares them, provided they rest the Foot upon the Coals: for the way to burn themselves is to go quick and lightly. The men do generally walk by the side of him that passes over the Fire, and they lean with force upon his Shoulders, to hinder him from getting too quick over this proof: and it is said that this weight is so far from exposing him more to be burnt, that on the contrary he stifles the Action of the Fire under his Feet.

Sometimes the proof of the Fire is performed which Oil, or other boiling matter, into which the parties do thrust their hand. A Frenchman, from whom a Siamese had stole some Tin, was perswaded, for want of proof, to put his hand into the melted Tin; and he drew it out almost consumed. The Siamese being more cunning extricated himself, I know not how, without burning; and was sent away absolved; and yet six Months after, in another Suit, wherein he was engaged, he was convicted of the Robbery, wherewith the Frenchman had accused him. But a Thousand such like events perswade not the Siameses to change their form.

The Proof of the Water is performed after this manner. The two parties do plunge themselves into the Water at the same time, each holding by a Pole, along which they descend; and he that remains longest under Water is thought to have a good Cause. Every one therefore practises from their Youth, in this Country, to familiarize himself with Fire, and to continue a long time under Water.

They have another sort of Proof, which is performed by certain Pills prepared by the Talapoins, and accompanied with Precations: Both the parties do swallow them, and the token of the right Cause is to be able to keep them in the Stomach without casting them up, for they are vomitive.

All these Proofs are not only before the Judges, but before the People, and if the two parties do escape equally well, or equally ill with one, they have recourse to another Tryal. The King of Siam uses them also in his Judgments, but besides this he sometimes delivers up the parties to Tygers, and he whom the Tygers spare for a certain time is adjudged innocent. But if the Tygers devour them both, they are both esteemed guilty. If on the contrary the Tygers do meddle neither with the one nor the other, they have recourse to some other Proof, or rather they wait till the Tygers determine to devour one or both of the Parties. The Constancy with which it is reported that the Siameses do undergo this kind of death, is incredible in persons, who express so little Courage in War.

There are sometimes several Provinces which appeal one to the other; which multiplies the degrees of Appeal to three our four. An Appeal is permitted in all cases, but the charges thereof are always greater, as it is necessary to travel further to plead, and in a Tribunal superior.

But when there ought to pass the the sentence of Death, the decision thereof is reserved to the King alone. No other Judge than himself can order a capital punishment, if this Prince does not expressly grant him the power thereof; and there is hardly any precedent, that he grants it otherwise than to some extraordinary Judges, whom this Prince sends sometimes into the Provinces, either upon a particular case, or to execute Justice at the places of all the crimes worthy of death. All the Criminals are kept in the Prisons till the arrival of the Commissioners: and they have sometimes, as at China, the power of deposing and punishing the ordinary Officers with death, if they deserve it. But if the King of Siam grants other commissions for his Service, or for the Service of the State, it is rare that he exempts the Commissioner from taking the assistance of the Governor of the places where he sends him.

The usual Punishment of Robbery is the Condemnation to the double, and sometimes to the triple; by equal portions to the Judge and Party: But it is most singular in this, that the Siameses extend the Punishment of Robbery to every unjust Possessor in a Real Estate: So that whoever it evicted out of an Inheritance by Law, not only restores the Inheritance to the Party, but likewise pays the value thereof, half to the Party, and half to the Judge. But if by theKing's special permission the Judge can put the Robber to death, then he can at his own discretion order either Death, or the pecuniary Mulct, but not Death and the pecuniary Mulct together.

But to show how dear Justice is in a Country, where Provisions are so cheap, I will add at the end of this work, a Note that was given me of the charges of Justice, where you will likewise see a particular of the form: but the charges are the same in all the Tribunals, as I have already declared. He for whom this Roll is, has for inferior Jurisdictions, and he appeals to another, which appeals to the Court.

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