Chapter IV: India (2)

Here, then, is one of the cases in which the argument from native opinion must be faced. 'It is a grave thing to legislate in opposition to the wishes of any section of the native community; but it is also a grave, a very grave thing for the Government of India deliberately to abstain from doing that which it has declared to be just and right.' If you help the Brahmos alone, what will you say to the 'radical league,' which repudiates all religious belief? When they ask to have their marriages legalised, will you reply, 'You are a small body, and therefore we will do you an injustice'? This is one of the ultimate points which we are forced to decide upon our own convictions. Religious liberty and equality can be no more reconciled with Hindoo and Mohammedan orthodoxy than with some forms of Catholicism. But it is impossible to say that we will not do that which we admit to be urgent because we are afraid of orthodox Mohammedans and Hindoos. And here is the answer to one member who made light of telling a converted young man of enlightened mind that, unless he saw his way to being a Christian, he might be ordered to conform to the customs of his forefathers. It was better that he should make the sacrifice, than that the minds of the masses should be disquieted. Was there, he asked, any real hardship in that? Yes, replies Fitzjames, there would be the greatest and most cruel injustice. 'It would be a disgrace to the English name and nation.' A young man goes to England and wins a place in the Civil Service. He learns from an English education to disbelieve in his old creeds; and when he goes back you tell him that he shall not be capable of marriage unless he will either falsely pretend to be a Christian, or consent to have his tongue burned with a red-hot iron and drink cow's urine in order to regain his caste. One of the native correspondents had complained rather naïvely that the law would be used to enable a man to escape these 'humiliating expiations.' Would they not be far more humiliating for English legislation? What did you mean, it would be asked, by your former profession that you would enforce religious equality? What of the acts passed to secure the immunity of all converts from legal penalties? Were they all hypocritical? I would rather submit to the displeasure of orthodox Hindoos, says Fitzjames, than have to submit to such taunts as that. 'The master objection against the bill, of which the rest are but shadows, and which unites in opposition to it men who mutually denounce each other's creeds, and men who despise those who care enough about religion to be unwilling to call that sacred which they hold to be a lie, is that it will encourage unbelief.' That may be a fair argument from Hindoos and Mohammedans; but it is strange in the mouths of those who maintain missionary societies and support schools and colleges--English education 'leads straight away from all points of native orthodoxy.' 'How can we sow the seed and refuse to recognise the crop?' When we have shut up our schools, renounced our famous legislation, permitted infanticide and _suttee_, we may get credit for sincerity in the objection; 'till then people will say that what we really fear is not the spread of unbelief, but the hostility of believers.' For such hypocrisy Fitzjames could never feel anything but a righteous contempt.

I must now turn to the important legislative measures which were more essentially a part of the general system of codification. A code of civil procedure had been passed in 1859, and codes of criminal law and criminal procedure in 1860 and 1861. The Indian Law Commission had also prepared laws upon contract and evidence, which were still under consideration; Fitzjames had to carry the process one stage further. In regard to the famous Penal Code, of which he always speaks with enthusiasm, his action was confined to filling up a few omissions. The case of a convict in the Andaman Islands, for example, who had made a desperate attempt to murder a gaoler, and could receive no further punishment because he was already sentenced to imprisonment for life, the maximum penalty for attempts to murder, suggested a flaw. Such offences were henceforth to be punishable by death. The only point of general interest was the case of seditious libels. A clause, prepared for the original bill, had been omitted by an unaccountable accident. Maine had already been in correspondence with Sir Barnes Peacock upon this subject in 1869. When, however, in the summer of 1870, Fitzjames proposed the insertion of a clause, it was supposed that he had hastily prepared it in consequence of certain reported disturbances in the previous spring. He was, therefore, taunted with having been a member of the 'fourth estate,' and now desiring to fetter the liberty of the press. He therefore confessed, and it must be admitted that it required less courage in him than it had required in his grandfather to confess, to the sin of having written for the newspapers. In point of fact, however, as he pointed out, the proposed section, which was from the original draft of the case as framed by the Commission, was less severe than the English law. Briefly, a man was to be punishable for writings of which it was the obvious intention to produce rebellion. A journalist might freely abuse officials and express disapproval of a particular measure, such, for example, as a tax. The disapproval, again, might tend to general disaffection. But unless there were a direct intention to stimulate resistance to the law, he would not be guilty. Fitzjames thought that to invoke the phrase 'liberty of the press' in order to permit direct provocatives to crime, whether against the public or against individuals, was a grave misapplication of popular phrases.

Upon another closely connected subject, Fitzjames, if he originated little, spent a very great deal of labour. The Penal Code had been necessarily followed by a Code of Criminal Procedure, which defined the whole system of the English administration of justice in India.[111] Courts of justice had been gradually introduced when the British establishments were mere factories, and had gradually grown up, as our power increased and the borders of the empire widened, into a most elaborate and complex organisation. Although, in a general way, the English institutions had served as a model, it had diverged very far from its originals. The different classes of Indian magistrates are carefully graded; there is a minute system for subordinating the courts to each other; they are superintended in every detail of their procedure by the High Courts; and, in brief, the 'Indian civilians are, for the discharge of all their judicial and other duties, in the position of an elaborately disciplined and organised half-military body.' Such words would obviously be inapplicable to the English magistrate. While, therefore, the Penal Code was in the main a version of English law, the Code of Criminal Procedure defined the various relations and processes of an official body entirely unlike anything existing in England.

The code originally passed in 1861 had been amended by an Act of 1869, and Fitzjames observed (June 28, 1870) that he proposed a reform which was 'almost typographical.' The two laws might, as the Law Commission had suggested, be combined in one by slightly altering their arrangement; though the opportunity might be taken of introducing 'a few minor alterations.' On December 9 following, however, he announces that he has now examined the code and had never read 'a more confused or worse-drawn law' in his life. He proceeds to show by various illustrations that the subjects treated had been mixed up in such a way as to make the whole unintelligible. He had been obliged to put off the attempt to understand it till he could get information from outside. He had, however, prepared a draft of the bill, and a Committee was appointed to consider it. The measure did not finally come before the Council until April 16, 1872. He then observes that he has not had the presumption to introduce 'modifications of his own devising into a system gradually constructed by the minute care and practical experience of many successive generations of Indian statesmen.' He has regarded himself 'less as the author of the bill than as the draftsman and secretary of the committee by whom all the important working details have been settled.' He has been in the position of the editor of a law-book, arranging as well as he could, but not introducing any new matter. To attempt any sudden changes in so complex a machinery, which already strains so severely the energies of the small number of officials employed in working it, would be inevitably to throw the whole out of gear.

This committee, he says,[112] which included men of the widest Indian experience, such as Sir G. Campbell, Sir R. Temple, and Sir John Strachey, met five days in the week and usually sat five hours a day, and the process continued for 'some months.' They discussed both substance and style of every section, and examined all the cases decided by the courts which bore upon the previous code. These discussions were all carried on by conversations round a table in a private room. 'The wonderfully minute and exact acquaintance with every detail of the system' possessed by the civilians 'made an ineffaceable impression' upon his mind. They knew, 'to a nicety, the history, the origin and object of every provision in the code.' The discussions were consequently an 'education not only in the history of British India but in the history of laws and institutions in general. I do not believe,' he says, 'that one act of Parliament in fifty is considered with anything approaching to the care, or discussed with anything approaching to the mastery of the subject with which Indian Acts are considered and discussed.' When the committee had reported, the code was passed into law 'after some little unimportant speaking at a public meeting of the Council,' (which turned, I may say, principally upon the question of the policy of allowing native members of the service to sit in judgment upon Europeans). 'This was possible, because in India there are neither political parties nor popular constituencies to be considered, and hardly any reputation is to be got by making speeches. Moreover, everyone is a man under authority, having others under him.'

A condensed account of the code and the institutions which it regulates will be found in Fitzjames's 'History of the Criminal Law,' from which I quote these words: 'If it be asked,' he says, 'how the system works in practice, I can only say that it enables a handful of unsympathetic foreigners (I am far from thinking that if they were more sympathetic they would be more efficient) to rule justly and firmly about 200,000,000 persons of many races, languages, and creeds, and, in many parts of the country, bold, sturdy, and warlike. In one of his many curious conversations with native scholars, Mr. Monier Williams was addressed by one of them as follows: "The Sahibs do not understand us or like us; but they try to be just and do not fear the face of man." I believe this to be strictly true.' 'The Penal Code, the Code of Criminal Procedure, and the institutions which they regulate, are somewhat grim presents for one people to make to another, and are little calculated to excite affection; but they are eminently well calculated to protect peaceable men and to beat down wrongdoers, to extort respect and to enforce obedience.' The code was re-enacted in 1882 under the care of Mr. Whitley Stokes. It was then extended to the High Courts, which had been previously omitted, and alterations were made both in arrangement and in substance. Of these alterations Fitzjames says that he does not consider them to be improvements; but upon that point I am not competent to form any opinion.

Closely connected with the subject of procedure was another which was treated in his most original and valuable piece of legislation. The Indian Law Commission had in 1868 sent out the draft of an 'Evidence Act,' which was circulated among the local governments. It was unanimously disapproved as unsuitable to the country. It presupposed a knowledge of English law, and would not relieve Indian officials from the necessity of consulting the elaborate text-books through which that law was diffused. Fitzjames, therefore, prepared a new draft, which was considered by a committee in the winter of 1870-1, and after their report at the end of March was circulated as usual. It was finally passed on March 12, 1872, and a full account of the principles is given in his speeches of March 31, 1871, and March 12, 1872. I have already spoken of his treatment of the law of evidence in the 'View of the Criminal Law.' I will here point out the special importance of the subject under the conditions of Indian legislation. In the first place, some legislation was necessary. An Evidence Act, already in existence, embodied fragments of English law. It would still be in force, inasmuch as English officials were directed, according to the sacred formula, to decide by 'equality, justice, and good conscience.' These attractive words meant practically 'an imperfect understanding of an imperfect recollection of not very recent editions of English text-books.' Something might be said for shrewd mother-wit, and something for a thorough legal system. But nothing could be said for a 'half and half system,' in which a vast body of half-understood law, without arrangement and of uncertain authority, 'maintains a dead-alive existence.' We had therefore to choose between a definite code, intelligible to students, who would give the necessary attention, and no code at all. The Evidence Bill, said one eminent colleague, ought to consist of one clause: 'all rules of evidence are hereby abolished.' Against this attractive proposal Fitzjames argues substantially as he had argued in the 'View.' Rules of some sort have always been found necessary. Daniel's feeble 'cross-examination of the elders in the case of Susannah' illustrates the wonder with which people once regarded methods of testing evidence now familiar to every constable. In later periods all manner of more or less arbitrary rules had been introduced into simple codes, prescribing, for example, the number of witnesses required to prove a given fact. The English system, although the product of special historical developments, had resulted in laying down substantially sound and useful rules. They do in fact keep inquiries within reasonable limits, which, in courts not guarded by such rules, are apt to ramble step by step into remoter or less relevant topics, and often end by accumulating unmanageable masses of useless and irritating scandals. Moreover, they would protect and guide the judges, who, unless you prohibited all rules whatever, would infallibly be guided by the practice of English courts. To abolish the rules of evidence would be simply to leave everything 'to mere personal discretion.' Moreover, the rules have 'a real though a negative' value as providing solid tests of truth. The best shoes will not enable a man to walk nor the best glasses to see; and the best rules of evidence will not enable a man to reason any better upon the facts before him. It is a partial perception of this which has caused the common distrust of them. But they do supply 'negative' tests, warranted by long experience, upon two great points. The first is that when you have to make an inference from facts, the facts should be closely connected in specified ways with the fact to be decided. The second is, that whatever fact has to be proved, should be proved by the best evidence, by the actual document alleged, or by the man who has seen with his own eyes or heard with his own ears the things or the words asserted to have occurred.

If, however, these rules are substantially the expressions of sound common sense, worked out by practical sagacity, it is equally true that 'no body of rules upon an important subject were ever expressed so loosely, in such an intricate manner, or at such intolerable length.' The fact is that the intricate and often absurd theory by which they are connected came after the 'eminently sagacious practice' which the theory was intended to justify. English lawyers, by long practice in the courts, acquire an instinctive knowledge of what is or is not evidence, although they may have hardly given a thought to the theory. The English text-books, which are meant for practical purposes, are generally 'collections of enormous masses of isolated rulings generally relating to some very minute point.' They are arranged with reference to 'vague catchwords,' familiar to lawyers, rather than to the principles really invoked. One of the favourite formulæ, for example, tells us, 'hearsay is no evidence.' Yet 'hearsay' and 'evidence' are both words which have been used in different senses ('evidence,' for example, either means a fact or the statement that the fact exists), and the absence of any clear definitions has obscured the whole subject.

Now as Indian officials have to manage very difficult investigations, with no opportunity for acquiring the lawyer's instinct, and without the safeguard afforded in England by a trained bar, thoroughly imbued with the traditions of the art, they were in special need of a clear, intelligible code. By 'boiling down' the English law, and straining off all the mere technical verbiage, it would be possible to extract a few common-sense principles and to give their applications to practice in logical subordination and coherence. That which seems to be a labyrinth in which it is hopeless to find the way until experience has generated familiarity with a thousand minute indications at the various turning points, may be transformed, when the clue is once given, into a plan of geometrical neatness and simplicity.

This was what Fitzjames endeavoured to do for the Indian law of evidence. When the draft was circulated the utility of the work was generally admitted in the reports returned, but some hostile criticisms were also made. One gentleman, who had himself written upon the subject, remarked that it had been apparently constructed by going through 'Taylor on Evidence,' and arbitrarily selecting certain portions. To this Fitzjames replied that every principle, applicable to India, contained in the 1508 royal octavo pages of Taylor, was contained in the 167 sections of his bill, and that it also disposed fully of every subject treated in his critic's book. He accounts for the criticism, however, by pointing out that the limits of the subject had been very ill defined, and that many extraneous matters belonging properly, for example, to the law of procedure, had been introduced. A code which diverges from the general principles into the particular kind of evidence required in various cases, might spread into every department of law. Fitzjames, however, partly met his critic by admitting certain additions of too technical a nature to be mentioned. I may observe that one source of the intricacy of the English law was avoided. In England, at that time, the erroneous admission or rejection of a single piece of evidence might have made it necessary to try the whole Tichborne case over again. In India this had never been the case, and it was provided that such errors should not be ground for a new trial unless it were proved that they had caused a substantial failure of justice. I will only add that Fitzjames, as before, endeavoured in an 'introduction' to connect his legal theory with the logical doctrines of Mill. He was criticised in a pamphlet by Mr. G. C. Whitworth which he admits to be judicious, and afterwards corrected his definitions accordingly.[113] He did not think his principle wrong, but considered the form to be inconvenient for practical application. Upon this, however, I need not here dwell.[114]

Two other important measures of codification were passed during Fitzjames's tenure of office. The 'Limitation of Suits' Act, passed March 24, 1871, was, as he stated, entirely due to Mr. Whitley Stokes. Fitzjames expressed his high admiration for it in a speech in which he takes occasion to utter some characteristic denunciations of the subtleties of English law, connected with the subject of this Act. Did human memory run to the year 1190, when Richard I. set out on the third crusade, or to 1194, when he returned? That was one of the problems propounded by Lord Wensleydale, who for many years devoted extraordinary powers of mind to quibbles altogether unworthy of him. There is no more painful sight for a man who dislikes the waste of human energy than a court engaged in discussing such a point. Four judges, with eminent counsel and attorneys, will argue for days whether Parliament, if it had thought of something of which it did not think, would have laid down an unimportant rule this way or that. It would have been better for the parties to the suit to toss up, and leave the most convenient rule to be adopted for the future.

The 'Contract Act' had been prepared by the Indian Law Commission, and had been under discussion for five years. The final revision had taken place in the winter of 1871-2, and Fitzjames specially acknowledges the help of two colleagues in the Legislative Council, Messrs. Bullen Smith and Stewart, gentlemen engaged in business at Calcutta. The subject is too technical for me to approach it. One point may just be mentioned: If a man steals a cow, and sells it to an innocent purchaser, who is to suffer the loss when the theft is discovered? The original owner, said the Law Commission. The purchaser, said the Legislative Council. Stealing cows is one of the commonest of Indian offences--so much so that it is a regular profession to track stolen cattle. But if the buyer has a good title to the cow, unless he knows it to be stolen, the recovery would be generally impossible. Cattle-stealers would flourish, and would find an asylum in our territory, where the law would differ from that of the native states. This appears to indicate one of the subjects of discontent of the Law Commission, who desired to pass measures unsuitable, according to the Indian Government, to the conditions of the country.

I have now mentioned, I think, the most important measures in which Fitzjames was concerned, whether as having framed the original draft or simply as officially responsible for the work of others. He had, of course, more or less share in many other Acts, some of much importance. Little more than a month after his arrival he had to introduce a bill upon Hindoo wills; and, in speaking on the occasion, elaborately discussed its relation to Hindoo theories as to property, and especially as to the right of creating perpetuities. This speech appears to have made a very strong impression upon his hearers. In the last months of his residence he had charge of a bill upon oaths and declarations, which suggests some curious points of casuistry. What, for example, is to be done in regard to people who believe that they will be damned if their sworn statements are inaccurate, unintentionally or otherwise, and who, inferring that damnation is tolerably certain, argue that they may as well tell a big lie as a small one? How, again, is a European to appreciate the value of an oath made upon a cow's tail or a tiger's skin? I will not go into such discussions, noting only that he seems to have been profoundly interested in them all.

Fitzjames, of course, served upon many committees, and had to attend to the current business of his office. In the last three or four months of his stay, the larger measures which I have mentioned were finally passed into law. The Punjab Land Revenue Act was passed on October 30, 1871; the Evidence Act on March 12, 1872; the Native Marriages Act on March 19; the Punjab Laws on March 26; the Contract Act on April 9; and the Criminal Procedure Act on April 16. In proposing the passage of the Contract Act he took occasion to give his view of the result which had so far been reached in the direction of codifying the Indian laws. It might be said, in a summary way, that consolidation was nearly satisfactory in regard to 'current legislation,' that is, legislation required with a view to particular cases. In regard to 'procedure,' the process of codification was complete, with two or three exceptions. It would be complete when the code of civil procedure had been re-enacted; when the revenue procedure in the Central Provinces had been regulated, and another measure or two passed. Finally, the 'substantive law' includes many most important subjects--the laws of inheritance, for example, and the land laws, which are determined by the native customs, and which, for obvious reasons, we cannot touch. When two or three gaps to which he pointed (the law of 'Torts,' for example) had been filled, we should have as much codification as 'would be required for a length of time.' The Statute Law of India would then be comprised in four or five octavo volumes, and the essential part of it in five or six Acts, which might be learnt in a year of moderate industry. A young civilian who knew the Penal Code, the Succession Act, the Contract Act, the two Procedure Codes, the Evidence Acts, the Limitation Act, and the Land Revenue Acts of his province would know more than nineteen barristers out of twenty when they are called to the bar; and all this would go into a moderately sized octavo volume. His successor, he thought, would be able to accomplish all that was required. He observes, however, emphatically, that a process of re-enactment would be always required. It is necessary to keep laws steadily up to date, having regard to decisions of the courts upon new cases, and to any legislative changes. No important Act should be left without amendments for more than ten or twelve years. A constant process of repairing is as necessary to a system of legislation as it is to the maintenance of a railway.

I am, as I have already said, incompetent to form any opinion as to the intrinsic value of these codes. One able critic, Sir C. P. Ilbert, in the 'Law Quarterly,' observes that their real merit is that they were 'suitable and sufficient for the needs which they were intended to meet. What was urgently needed for India was a guide for the judge or magistrate who has had no legal training, who derives little or no assistance from the bar, and who has to work at a distance from a law library.' Fitzjames's legislation, he thinks, was 'admirably adapted' for advancing the previous Indian system a step further; although his codes might not meet the requirements of the present generation of English lawyers. Sir C. P. Ilbert, I may add, speaks very strongly of the 'educational value' of the Contract Act in particular, as shown by his experience of Indian Civil Service examinations. He thinks that Fitzjames's other writings and codes have a similar merit. A gentleman of high judicial position and very great Indian experience has expressed to me his high admiration of the Evidence Act. It is, he says, 'a wonderful piece of work, boiling down so much into so small a compass.' It is 'an achievement to be proud of,' although parts of it, he adds, are open to criticism, and especially to the criticism that it is 'over the heads of those who have to deal with it.' It presupposes outside knowledge which they often do not possess. These criticisms do not altogether coincide, and I shall not endeavour to reconcile or discriminate. I am content to say that I have heard on all hands, from persons qualified to express an opinion here, that Fitzjames's work made a marked impression upon Indian legislation, and, with whatever qualifications, is admitted to have been of very great service to the administrators of the country.

I shall venture, however, to add a word or two upon the qualities, mental and moral, thus displayed. Sir C. P. Ilbert says that Fitzjames was a 'Cyclopean builder. He hurled together huge blocks of rough-hewn law. It is undeniable that he left behind him some hasty work,' which his successors had to remove and replace. In half the ordinary term of office he did work enough for five law members, and 'left the Legislative Council breathless and staggering,' conscious of having accomplished 'unprecedented labours,' but with some misgivings as to the quality of parts of the work. Fitzjames, that is, was a man of enormous energy, who fulfilled only half of the famous maxim; he laboured 'without rest,' but not 'without haste.' As for the energy displayed, there can, I imagine, be only one opinion.[115] And if unflagging zeal in doing the duty which lies nearest, and an entire devotion of a man's whole powers of mind to what he sincerely believes to be a great and worthy task, be not virtues deserving of all respect, I do not know what qualities are entitled to that name. A vigorous constitution of mind and body applied to the discharge of appropriate duties describes a most felicitous combination of circumstances, and indicates a character which I, at least, cannot regard without cordial admiration. It is true that he loved his work; but that is just what constitutes his merit. I might express my feeling more strongly if I were less closely connected with its object.

The direction, though not the extent, of the shortcomings of such an intellectual force may be easily imagined. If there was one thing which Fitzjames hated it was needless subtlety, and the technicalities which are the product of such subtlety--the provision of a superfluous logical apparatus, which, while it gives scope for ingenuity, distracts the mind from the ends for which it is ostensibly designed. I have quoted enough to show the intensity of his longing for broad, general, common-sense principles, which was, indeed, his most prominent intellectual characteristic. Now a code should, as I take it, like the scientific classification of any other subject-matter, combine this with intellectual excellence at the opposite pole. The scientific classification, when once made, should appear, as the botanists say, to be natural, not artificial. If fully successful, it should seem as if it could not but have been made, or as if it made itself. Every subdivision should fall spontaneously into its right place without violence or distortion. The secret of achieving such a result is, I suppose, the selection of the right principles of division and subdivision from the first. When it appears that any given object refuses to fit itself conveniently into any one of our pigeon-holes, its obstinacy may betray a defect in the original system; and the code, like other artistic wholes in which every part has some definite relation to every other, may require a remanipulation throughout. Now, if I understand Fitzjames's intellectual temperament rightly, this indicates the point at which his patience might begin to fail. When he met with some little specimen which would not go of itself upon any of his previous arrangements, he would be apt to treat it with disrespect, and possibly to jam it in with too rough and ready a hand into the nearest compartment. In so doing he might really be overlooking the indication of a fault in the system, reaching further than he suspected. An apparent subtlety may really correspond to an important distinction, and an outward simplicity be attained at the cost of some internal discord. In short, the same kind of defect which prevented him from becoming an accurate classical scholar, or from taking a sufficient interest in the more technical parts of his profession, would show itself in the delicate work of codification by a tendency to leave raw edges here and there in his work, and a readiness to be too easily satisfied before the whole structure had received the last possible degree of polish. Thus I find, from various indications which I need not specify, that some of his critics professed to have discovered flaws in his work, while he honestly thought the criticism superfine, and the errata pointed out such as concerned a mere corrector of the press rather than a serious legislator for practical purposes. But I must not even attempt to conjecture which was right and which was wrong, nor how far there might be right and wrong upon both sides.

III. INDIAN IMPRESSIONS

These rather vague presumptions must take the place of any deliberate estimate of the value of Fitzjames's achievements in India. I must, however, say something more of the impression made upon his own mind. I have already indicated some of the convictions suggested to him by his experience, and I shall have to speak in the next chapter of the book in which he endeavoured to set forth their application to political principles in general. Here I will summarise his view of the special principles of Indian legislation. It is given very emphatically in Sir W. W. Hunter's 'Life of Lord Mayo,' and will, I think, materially elucidate his position in regard to certain wider problems.

He observes, in the first place, that the legislative department had been accused of over-activity and of a desire to introduce English law with too little regard to native ideas. The chief legislative reform required for India, he was often told, was the abolition of the legislative department--an assertion which, I should guess, when made in his presence, must have given rise to some rather lively discussions. He thought that this view rested mainly upon certain prejudices very generally entertained though not often stated in precise words. Many civilians really objected to government by law, holding that in India law should be overridden by 'equity,' or, briefly, that the district officers should decide by their own views of each particular case. Such persons, again, frequently held that the British rule had succeeded to the absolute power of the old native states, and that the vigour of the executive should be fettered by as few laws as possible. This feeling had been strengthened by the fact that the old supreme courts were originally established as a check upon the powers of the Government. The two powers came to be regarded as in a position of natural antagonism, and nothing struck him more than the conviction of the older members of the service that lawyers were their natural enemies, and the law a mysterious power with the special function of trammelling executive action. Various little encounters in the Legislative Council testify to this difference of sentiment. When he explained to a military officer of rank the power conferred by the Criminal Tribes Act, mentioned above, the officer replied, 'It is quite a new idea to me that the law can be anything but a check to the executive power.' The same sentiment underlay the frequent complaints of the want of 'elasticity' of the law. When brought to a point these complaints always related to certain regulations for taking down and recording evidence. What was really desired by the persons concerned was elasticity in the degree of attention which they might pay to their most important duties. So an officer complained that he could not punish certain persons whom he knew to be murderers, though witnesses were afraid to appear. What he really wanted, it was implied, was power to put people to death on the secret information of irresponsible witnesses.

Hence, the first question is whether India should be governed by law or by merely personal discretion. Baseless as the 'discretion' theory may be, it has a strong unavowed influence. And yet it is the very specific difference of our rule that it is rule by law and not despotism. Englishmen could have no desire simply to set up a new despotism differing from the old only in being administered by Englishmen instead of natives. The moral difference is unmistakable. Decisive government by law gives the only real security for life or property, and is the indispensable condition for the growth of wealth. Nor is a compromise more possible between law and despotism than between straight and crooked. The essence of one system is that no one shall suffer in person or property except according to law. The essence of the other is that security of person and property is dependent upon the will of the ruler. Nowhere is this shown more clearly than in India. The remedy of the poorest peasant in the country against any wrongful action of the Government in India is far clearer and more simple than the remedy of the richest and most influential man against the Government in England.[116]

The absolute necessity of government by law is shown, however, most strikingly by a process going on throughout the country--the growth of private rights, and especially of rights in land. Under the old despotic systems, the place of law was taken by a number of vague and fluctuating customs, liable to be infringed at every moment by the arbitrary fancies of the rulers. Society was 'worn to the bone.' It had become an aggregate of villages, each forming a kind of isolated units. In some districts even the villages had been broken up and no political organisation remained except that between landholders and individual husbandmen, which was really a relation between oppressors and oppressed. Elsewhere, there was a chaos of village communities, dominated by the most inorganic and ill-defined of aristocracies and monarchies. The village communities are decaying, and, in spite of regrets prompted by various reasons, they decay because they represent a crude form of socialism, paralysing to individual energy and inconsistent with the fundamental principles of our rule. The cardinal duty which we have to discharge in India is to keep the peace. The villages formed self-contained communities, each regulating its own affairs, and bound by loose customs, leading to quarrels which could only be settled by blood-feuds and the strong hand. Strict laws and a rigid administration of justice are incompatible with such modes of determining disputes between man and man and village and village. The communities, therefore, break up when the law admits of no coercive action except its own. If we will not allow a man to gather his friends, arm them with bludgeons, and march out to settle a boundary dispute with a neighbouring village, we must settle the boundary ourselves, and we must settle it by distinct rules--that is, we must enforce laws. Peace and law go together, as violence and elastic custom go together. Now we must keep the peace, and, therefore, we must rule by law.

Rule by law, however, though necessary, is not a necessary evil but an invaluable benefit. Laws are necessary to vigorous administration. When Lawrence and his colleagues undertook to rule the Punjab, it was a popular notion that they ruled by mere personal discretion. The fact, as already noticed, was the very reverse. Their first step was to establish far better, simpler, and more scientific systems of law than were in force in the older provinces. Moreover, and this is one of Fitzjames's most characteristic theories, 'the establishment of a system of law which regulates the most important part of the daily life of a people constitutes in itself a moral conquest, more striking, more durable, and far more solid than the physical conquest which renders it possible. It exercises an influence over the minds of the people in many ways comparable to that of a new religion.' This is the more significant because the instructed natives who study the laws, both Mohammedan and Hindoo, have been accustomed to identify law and religion. 'Our law is, in fact, the sum and substance of what we have to teach them. It is, so to speak, the gospel of the English, and it is a compulsory gospel which admits of no dissent and of no disobedience.' Finally, if Government does not make laws, each officer or group of officers will have to make their own. Practically they will buy a few English law-books and apply them in a servile way to the cases which turn up.

India, then, must be ruled by law. By what law? Shall we endeavour to govern on native principles and by native agency? To this theory, which has attracted many friends, he replies, No; first, because Indian ideas about government are wrong; they are proved to be wrong by experience, which shows that they led to anarchy and demoralisation; and, secondly, because they have produced men and institutions unfit for government. If, therefore, we tried to rule by Oriental methods and agents, we should either make ourselves responsible for their oppressions, or we should have to keep them in order, and that is to rule by law. We should, again, have to watch perpetually over the mass of personal intrigue which is the 'curse of every despotic state.' We should require a large native army and live under a perpetual threat of mutiny. In fact, the mutiny of 1857 really represented the explosion and the collapse of this policy. Finally, we should have to choose between Mohammedans and Hindoos, and upon either alternative a ruler not himself belonging to the religion comes into inevitable conflict with their fundamental principles.

We have, then, no choice but to rule by law and to frame laws upon European principles. Here, it is necessary to guard against misunderstandings which have given rise to the charge of over-legislation. 'European principles' mean those principles which have been shown by our experience to be essential to peace, order, wealth, and progress in arts and sciences. 'No one,' says Fitzjames, 'can feel more strongly than I do the madness of the smallest unnecessary interference with the social habits and religious opinions of the country. I would not touch one of them except in cases of extreme necessity.' But the simple introduction of peace, law, order, free competition for wealth and honour, with an education to match, will inevitably cause a social revolution. By merely suppressing violence and intestine war, you produce such a revolution in a country, which has for centuries been the theatre of disorder and war, as surely as by damming a river you produce a lake. You must look after the security of your dams under penalty of fearful disasters.

Hence the great problem of the English in India is to see that this inevitable revolution, at the head of which they have been placed, shall run in the proper channels and produce good results. What will be the ultimate result passes the wit of man to say. That India should reproduce Europe in religious morals and law seems highly improbable; but whatever changes take place will depend upon other causes than legislation. The law can only provide a convenient social framework. The utmost that we are entitled to say is that the maintenance of peace, order, and the supremacy of a law, which leaves all religious inquiries to find their own level, and is founded upon temporal expediency, is an indisputable condition of the only kind of benefits which it is in our power to confer upon India.

The conclusion, then, follows that so much legislation is not only justifiable but necessary as will provide for the following objects:--the firm establishment of our power; the recognition and enforcement of the principles which it represents; and the vigorous administration of the government. Such legislation should be earned out, however much opposed either to European or to native principles. But all legislation, not required for these purposes, is mischievous and dangerous. The limits thus defined in general terms can only be precisely marked out by experience. But 'no law should be made till it is distinctly perceived and felt to be necessary. No one can admit more fully or feel more strongly than I do the evils and dangers of mere speculative legislation in India.'

Fitzjames proceeds to argue that these principles have in fact guided our Indian legislation. No Government was 'ever less justly chargeable with enacting laws merely for the sake of legislation.' The faults have arisen from defects of style and from the peculiar conditions of Indian administration. The unwritten law of India is mainly personal; and many difficulties have arisen from the mixture of English law with the Mohammedan and Hindoo laws and other native customs. All cases not otherwise provided for were to be decided by justice, equity, and good conscience. Much latitude of decision was thus left to the Indian judges upon matters not included in the written law. The practical result of thus 'throwing the reins on the neck of judges,' the first body of whom had no professional training, was to produce a vague uncertain feeble system,' combining the defects of 'a weak grasp of principle with a great deal of occasional subservience to technicality.' English professional lawyers occasionally seem to acquire a specially vigorous grasp of principles, to which they have had to force their way through a mass of confused precedent and detail. But the 'unprofessional judge seldom gets beyond a certain number of illustrations and rules, more or less imperfectly understood.' Hence the special necessity in India of reducing the laws to the clearest and most explicit shape possible, or, in other words, for the codifying process in which he had played his part. Sir W. W. Hunter remarks in a note that the evils indicated here have been remedied to some extent, 'partly through the influence which his (Fitzjames's) views have exercised' in India, by a greater separation between the judicial and the executive branches of the service.

One of Fitzjames's most remarkable pieces of work is a 'Minute on the Administration of Justice in British India,' containing his remarks upon the subject mentioned by Sir W. W. Hunter. It was originally written in the summer of 1870, as a comment upon a large mass of opinions obtained from the local governments. It was revised in 1871, and published[117] just before he left India in 1872. The desirability of separating the judicial from the executive functions of the civilians had been long under discussion, and very various opinions had been held. In this minute Fitzjames summarises these, and gives his own view of the points on which he considered himself able to form an opinion. Many of the questions raised could only be answered to any purpose by men who had had long practical experience of administration. Fitzjames, however, gives a careful account of the actual systems of the various provinces: discusses how far it is possible or desirable to separate the functions; whether a 'special judicial branch of the civil service' should be created; whether any modification would be desirable in the systems of civil or criminal procedure; and what practical suggestions should be followed, having regard to economy and to an increased employment of natives. I cannot even attempt to describe his arguments. I will only say that the minute appears to me to be a very remarkable production, not only as indicating the amount of labour bestowed, amid so many other occupations, upon the important questions discussed; but as one of his best performances as a very clear and terse account of a complicated system with a brief but exceedingly vigorous exposition of what he thought should be the governing principles of any reforms. He held, I may say, in a general way that there were some evils which required a remedy; especially those resulting from the frequency of appeals in the Indian system and the elaborate supervision of the magistrates by the High Courts. He recognises imperfections inherent and excusable in the attempt to administer justice to so vast a population by a small body of foreigners with very imperfect legal training; though he shows his usual admiration for the general results of British government, and thinks that the efficiency of the service may be secured by moderate reforms. Incidentally he goes over many of the points already noticed as touched in his speeches. I have, however, said as much as is desirable in regard to his general principles as expounded in the minute and in the 'Life of Lord Mayo.' Every one of the legislative measures in which he was concerned might be regarded as an illustration of one or more of these propositions. To me it seems that they represent at least a definite policy, worthy of his common sense and general vigour of mind. A generalisation from these principles came to constitute his political creed in later years.

IV. LAST MONTHS IN INDIA

I must now speak of an event which made a very strong impression upon him. He concludes the chapter from which I have been quoting by declaring that of the many public men whom he had met in England and India, there was none to whom he 'felt disposed to give such heartfelt affection and honour' as to Lord Mayo. Lord Mayo, he says, though occupied in many other ways, had shown the 'deepest personal interest' in the work of the legislative department, and, when difficulties arose, had given to it the warmest, most ardent, and most effective support. It was chiefly due to Lord Mayo that the Government was able to pass the important acts of the beginning of 1872, especially the three great measures: the 'Civil Procedure Code,' the 'Contract Act,' and the 'Evidence Code.' I hope, says Fitzjames to Sir W. W. Hunter, that you will be able to make people understand 'how wise and honest and brave he was, and what freshness, vigour, and flexibility of mind he brought to bear upon a vast number of new and difficult subjects.' On January 24, 1870, Lord Mayo left Calcutta in H.M.S. 'Glasgow' to visit, among other places, the convict settlement at the Andaman Islands. He landed there on February 8, and while getting into his boat to return was murdered by a convict. The body was brought back to Calcutta on February 19, where it lay in state for two days at Government House, before being sent for burial to his native country. In one of his last letters to his mother, Fitzjames gives an account of the ceremonies at Calcutta, which incidentally illustrates, I think, more forcibly than anything else, the impression produced upon him by India generally. I shall therefore give most of it, omitting a few comparatively irrelevant details. I will only observe that nobody had less taste for public performances of this kind in general--a fact which shows the strength of his feelings on this particular occasion.