_INDIA_
I. PERSONAL HISTORY
Fitzjames reached Calcutta upon December 12, 1869. Henry Cunningham had
made the long journey from Lahore to pay him a few days' visit. The
whole time was devoted to an outpour of talk productive of boundless
satisfaction to one--I suppose that I may say to both--of them.
Fitzjames stayed in India until the middle of April 1872, and his
absence from England, including the homeward and outward journeys,
lasted for two years and a half. They were in some ways the most
important years of his life; but they were monotonous enough in external
incidents. I may briefly say that his wife joined him at Calcutta in the
beginning of March 1870, and accompanied him to Simla. They diverged to
pay a visit on the way to the Cunninghams at Lahore. They stayed at
Simla till the end of October, where, for five or six weeks in May and
June, Fitzjames was laid up with a sharp attack of fever. This was his
only illness in India, and the only interruption to work of more than a
day or two's duration. On his return to Calcutta he visited Delhi,
whence his wife returned to England for the winter. In April 1871 he
went again to Simla, and on the way thither was rejoined at Allahabad by
his wife. In the following November she returned to England, while he
remained to spend the winter of 1871-2 in Calcutta and finish his
official work.
He started in the best of health and in a sanguine frame of mind. He
wrote his first letter to his mother from Boulogne (Nov. 9, 1869). 'I
cannot tell you,' he says, 'how perfectly happy I feel in all my
prospects. I never was more sure in my life of being right.... A whole
ocean of small cares and worries has taken flight, and I can let my mind
loose on matters I really care about.' He writes a (fourth) letter to
his mother between Paris and Marseilles in the same spirit. 'I don't
know whether you understand it,' he says, 'but if I had said "No" to
India, I should feel as if I had been a coward and had lost the right to
respect myself or to profess the doctrines I have always held and
preached about the duty of doing the highest thing one can and of not
making an idol of domestic comfort.' He continued to write to his mother
regularly, dictating letters when disabled from writing by his fever,
and the whole series, carefully numbered by her from 1 to 129, now lies
before me. He wrote with almost equal regularity to other members of his
family, of which he considered my sister-in-law, then Miss
Thackeray,[102] to be an adopted member; and occasionally to other
friends, such as Carlyle, Froude, and Venables. But to his mother he
always devoted the first part of the time at his disposal. The pressure
of work limits a few of these letters to mere assertions of his
continued health and happiness; but he is always anxious to tell her any
little anecdotes likely to interest her. I will give one of these,
because it is striking in itself, and his frequent references to it
showed how much it had impressed him. An English party, one of whom told
him the story, visited a wild gorge on the Brahmapootra, famous for a
specially holy shrine. There they fell in with a fakeer, who had
wandered for twenty years through all the holy places between the
Himalayas and Cape Comorin. He had travelled on foot; he had never lain
down, and only rested at night by putting his arms through the loop of a
rope. His body was distorted and his legs and arms wasted and painful.
He came with a set of villagers to the shrine which was to be the end of
all his wanderings; 'did poojah,' and so finished his task. The
villagers worshipped him, and prepared a feast and a comfortable bed;
but the fakeer looked sad and said, 'No! When I began my journey the
goddess Kali appeared to me and told me what I was to do. Had I done it
rightly, she would have appeared again to tell me that she was
satisfied. Now I must visit all the shrines once more,' and in spite of
all persuasion he set out for another twenty years' penance. 'I assure
you,' said the narrator, 'that I thought it very sad and did not laugh
in the least.' 'Was not that,' says Fitzjames, 'a truly British
comment?'
These and other letters have one peculiarity which I shall not exemplify
by quotations. There are some feelings, as I find my father observing in
one of his own letters, which it is desirable 'rather to intimate than
to utter.' Among them many people, I think, would be inclined to reckon
their tender affections for members of their own family. They would
rather cover their strongest emotions under some veil of indirect
insinuation, whether of playful caress or ironical depreciation, than
write them down in explicit and unequivocal assertions. That, however,
was not Fitzjames's style in any case. His words were in all cases as
straightforward and downright as if he were giving evidence upon oath.
If he thinks ill of a man, he calls him bluntly a 'scoundrel' or 'a poor
creature,' and when he speaks of those who were nearest and dearest to
him he uses language of corresponding directness and energy. This method
had certainly an advantage when combined with unmistakable sincerity.
There could be no sort of doubt that he meant precisely what he said, or
that he was obeying the dictates of one of the warmest of hearts. But
point-blank language of this kind seems to acquire a certain impropriety
in print. I must ask my readers, therefore, to take it for granted that
no mother could have received more genuine assurances of the love of a
son; and that his other domestic affections found utterance with all the
strength of his masculine nature. 'I think myself,' as he sums up his
feelings on one occasion, 'the richest and happiest man in the world in
one of the greatest elements of richness and happiness'--that is, in the
love of those whom he loves. That was his abiding conviction, but I
shall be content with the general phrase.
One other topic must be just touched. His daughter Rosamond was at this
time an infant, just learning to speak, and was with her mother at Simla
in both summers, where also his youngest daughter, Dorothea, was born in
1871. Many of the letters to his mother are filled with nursery
anecdotes intended for a grandmother's private reading, and certainly
not to be repeated here. I mention the fact, however, because it was
really significant. When his elder children were in the nursery,
Fitzjames had seen comparatively little of them, partly because his
incessant work took him away from home during their waking hours, and
partly because he had not been initiated into the charm of infantile
playfulness, while, undoubtedly, his natural stiffness and his early
stoicism made the art of unbending a little difficult. Under the new
conditions, however, he discovered the delightfulness of the relation
between a bright little child and a strong grown-up man--at any rate
when they are daughter and father. Henceforward he cultivated more
directly an affectionate intercourse with his children, which became a
great source of future happiness.
His correspondence, though active enough, did not occupy all his leisure
on the journey. Parting from home, he says in a letter written in the
train near Calcutta to his old friend Venables, was 'like cutting the
flesh off my bones'; and ten minutes after beginning his solitary
journey from Boulogne, he had sought distraction by beginning an article
in the train. This was neither his first nor his last performance of
that kind during the journey. He goes on to say that he had written
twenty articles for the 'Pall Mall Gazette' between the days of leaving
England and of landing at Bombay. 'With that and law I passed the time
very pleasantly, and kept at bay all manner of thoughts in which there
was no use in indulging myself.' To pour himself out in articles had
become a kind of natural instinct. It had the charm, if I may say so, of
a vice; it gave him the same pleasure that other men derive from
dramdrinking. 'If I were in solitary confinement,' he says, 'I should
have to scratch newspaper articles on the wall with a nail. My appetite,
natural or acquired, has become insatiable.' When he had entered upon
his duties at Calcutta he felt that there were objections to this
indulgence, and he succeeded in weaning himself after a time. For the
first three or four months he still yielded to the temptation of turning
out a few articles on the sly; but he telegraphs home to stop the
appearance of some that had been written, breaks off another in the
middle, and becomes absorbed in the official duties, which were of
themselves quite sufficient to satiate any but an inordinate appetite
for work.
Work, he says, is 'the very breath of my nostrils'; and he fell upon his
official work greedily, not so much in the spirit of a conscientious
labourer as with the rapture of a man who has at last obtained the
chance of giving full sway to his strongest desires. The task before him
surpassed his expectations. His functions, he says, are of more
importance than those discharged by the Lord Chancellor in England. He
compares himself to a schoolboy let loose into a pastrycook's shop with
unlimited credit. The dainties provided, in the way of legislative
business, are attractive in kind and boundless in quantity. The whole
scene impresses him beyond expectation and calls out all his powers. One
frequent subject of remark is the contrast between the work and the men
who have to do it. The little body of Englishmen who have to rule a
country, comparable in size and population to the whole of Europe
without Russia, seem to him to combine the attributes of a parish vestry
and an imperial government. The whole civil service of India, he
observes, has fewer members than there are boys at one or two of our
public schools. Imagine the Eton and Harrow boys grown up to middle age;
suppose them to be scattered over France, Spain, Italy, Germany, and
England; governing the whole population, and yet knowing all about each
other with the old schoolboy intimacy. They will combine an interest in
the largest problems of government with an interest in disputes as petty
as those about the rules of Eton and Harrow football. The society is, of
course, very small and mainly composed, as every society must be
composed, of commonplace materials. Writing to Miss Thackeray during the
outward voyage, he says that he will trespass upon her province and try
to describe his companions. Among them are a set of 'jolly military
officers 'who play whist, smoke and chaff, and are always exploding over
the smallest of jokes. They are not like the people with whom he has
hitherto associated, but he will not depreciate them; for they know all
kinds of things of which he is ignorant, and are made, as he perceives,
just of the 'right kind of metal to take India and keep it.' In a letter
to Venables, written a few months later, he describes his position as a
sort of 'Benthamee Lycurgus,' and sets forth the problem which he is
trying to solve in an official document then in course of preparation:
'Given corrupt natives, incompetent civilians, and a sprinkling of
third-rate barristers, how to get perfect judges.' His estimate, indeed,
of the merits of the Indian services, considered collectively, was the
highest possible. He speaks of them not merely with appreciation but
with an enthusiasm such as might have been generated in other men by a
life passed in India. In his last speech to the Council he said (and it
was no more than he said in private), 'I have seen much of the most
energetic sections of what is commonly regarded as the most energetic
nation in the world; but I never saw anything to equal the general level
of zeal, intelligence, public spirit and vigour maintained by the public
service of this country.' Nothing could gratify him so much as the
belief that he had in some degree lightened their labours by simplifying
the rules under which they acted. Still, taken individually, they were
average Englishmen, with rather less than the average opportunities for
general intellectual culture; and, like every other small society, given
to personal gossip, which was not very interesting to a grave and
preoccupied outsider. I find him on one occasion reduced to making
remarks upon a certain flirtation, which appears to have occupied the
minds of the whole society at Simla; but as the prophecy upon which he
ventures turned out to be wrong, there is a presumption that he had not
paid proper attention to the accessible evidence.
He naturally, therefore, found little charm in the usual distractions
from work. The climate, though it did not positively disagree with him,
was not agreeable to him; and he found the material surroundings
anything but comfortable. 'I have here found out what luxury is,' he
said to a friend in Calcutta on his first arrival; 'it is the way in
which I used to live at home.' The best that could be done in India was
by elaborate and expensive devices to make up a bad imitation of English
comforts. 'As for the light amusements,' he says, they are for the most
part 'a negative quantity.' When he is passing the winter by himself in
Calcutta, he finds evening parties a bore, does not care for the opera,
and has nobody with whom to carry on a flirtation--the chief resource of
many people. He has, therefore, nothing to do but to take his morning
ride, work all day, and read his books in the evening. He is afraid that
he will be considered unsociable or stingy, and is indeed aware of being
regarded as an exceptional being: people ask him to 'very quiet'
parties. He sticks to his 'workshop,' and there he finds ample
employment. He was, indeed, too much in sympathy with Sir G. Cornewall
Lewis's doctrine that 'life would be tolerable but for its amusements'
not to find a bright side to this mode of existence. A life of labour
without relaxation was not far from his ideal. 'The immense amount of
labour done here,' he says, 'strikes me more than anything else. The
people work like horses, year in and year out, without rest or
intermission, and they get hardened and toughened into a sort of
defiant, eager temper which is very impressive.... I am continually
reminded of the old saying that it is a society in which there are no
old people and no young people. It certainly is the most masculine
middle-aged, busy society that ever I saw, and, as you may imagine, I
don't like to fall behind the rest in that particular.' He laboured,
therefore, hard from the first--even harder as time went on; and came to
feel the strongest sympathy with the energetic spirit of the body of
which he was a member. He made some valued friends in India; chief among
whom, I think, was Sir John Strachey, of whom he always speaks in the
warmest terms, and whose friendship he especially valued in later years.
Another great pleasure was the renewed intercourse with the Cunninghams,
who were able, in one way or another, to be a good deal with him. But he
had neither time nor inclination for much indulgence in social
pleasures.
It will be seen, therefore, that the Indian part of my story must be
almost exclusively a record of such events as can take place within the
four walls of an office. I shall have nothing to say about
tiger-shooting, though Fitzjames was present, as a spectator, at one or
two of Lord Mayo's hunting parties; nor of such social functions as the
visit of the Duke of Edinburgh, though there, too, he was a looker-on;
nor of Indian scenery, though he describes the distant view of the
Himalayas from Simla, by way of tantalising an old Alpine scrambler. He
visited one or two places of interest, and was especially impressed by
his view of the shattered wall of Delhi, and of the places where his
second cousin, Hodson, had seized the king and shot the princes. He
wrote a description of these scenes to Carlyle; but I do not think that
he was especially strong in descriptive writing, and I may leave such
matters to others. What I have to do is to give some account of his
legislative work. I recognise my incompetence to speak as one possessing
even a right to any opinion upon the subject. My brother, however, has
left in various forms a very full account of his own performances,[103]
and my aim will be simply to condense his statements into the necessary
shape for general readers. I shall succeed sufficiently for the purpose
if, in what follows, I can present a quasi-autobiographical narrative. I
will only add that I shall endeavour to observe one condition, which I
know would have been scrupulously observed by him--I mean the condition
of not attributing to him any credit which would properly belong to
others. His work formed part of a process, carried on both by his
predecessors and successors; and it is not always possible to
distinguish his share from that of others.[104]
II. OFFICIAL WORK IN INDIA
A demand for codification was among the traditions of the Utilitarians.
Bentham, born in 1748, had preached to deaf ears during the eighteenth
century; but in the first quarter of the nineteenth he had gathered a
little band of disciples, the foremost of whom was James Mill. The old
philosopher had gradually obtained a hearing for his exhortations,
echoed in various forms by a growing, confident, and energetic body, and
his great watchword was 'Codify.' He had found hearers in foreign
countries, especially in Russia, Spain, and various American States;
but his own countrymen had been among the last to listen. Gradually,
however, as the passion and prejudice of the war period passed away and
the movement which culminated in the Reform Bill of 1832 gathered
strength, it became apparent that the stubborn conservatism, even of the
great tacit corporation of lawyers, would have to yield. The supremacy
of Eldon was beginning to be shaken. Sir Robert Peel began to reform the
criminal law about 1827, taking up the work upon which Bentham's friend
and disciple, Romilly, had laboured for years with infinitesimal
results. Commissions were appointed to work upon legal reforms. With
parliamentary reform an era of rapid and far-reaching changes set in,
though Bentham died on the eve of entering the land of promise.
When, therefore, the charter of the last India Company was renewed in
1833, it was natural that some place should be found for codification.
James Mill, upon whom Bentham's mantle had fallen, held a leading
position at the India House, and his evidence before a parliamentary
committee had an important influence in determining the outlines of the
new system. One of the four members of the Council of the
Governor-General was henceforth to be appointed from persons not
servants of the Company. He was to attend only at meetings for framing
laws and regulations. Macaulay, the first holder of this office, went to
India in 1834 and prepared the penal code. One of his assistants, C. H.
Cameron, was an ardent Benthamite, and the code, in any case, was an
accomplishment of Benthamite aspirations. This code, says Fitzjames,
'seems to me to be the most remarkable, and bids fair to be the most
lasting monument of its principal author. Literary fashions may change,
but the penal code has triumphantly stood the ordeal of twenty-one
years' experience; and, though composed by a man who had scarcely held a
brief, has been more successful than any other statute of comparable
dimensions.'[105] The code, however, slept for many years in a
pigeon-hole--a fact which Fitzjames considers[106] to be a most striking
proof of the reluctance of the English Government to interfere in any
way with native institutions. We rubbed on, it seems, with a sort of
compromise between English and Mahommedan criminal law until 1860, when
the code, after a careful revision by Sir Barnes Peacock, was finally
passed into law. That, says Fitzjames, was a singular piece of good
fortune. 'An ideal code ought to be drawn by a Bacon and settled by a
Coke'; it should combine the highest qualities of literary skill and
technical knowledge. Thus drawn, the code became the first specimen of
an 'entirely new and original method of legislative expression.' It
served as a model for all the later Indian codes. Its method is first to
state the 'leading idea' in the most pointed and explicit form; then to
give a definite explanation of any terms which admit of a possible
doubt; then to give equally definite exceptions; and, finally, to
illustrate the whole by applying it to a number of concrete cases.[107]
In Macaulay's hands the legal document, freed from the endless verbiage,
circumlocution and technicality of English statutes, became a model of
logical precision, and was even entertaining as a piece of literature.
The passage of this code was part of a systematic process of
codification. An Indian Law Commission, sitting in England, had been
appointed in 1853 to carry on the work of consolidating the law. The
suppression of the mutiny and the dissolution of the Company were
naturally followed by various administrative and legislative reforms. A
code of civil procedure was passed in 1859, and a code of criminal
procedure, as a necessary supplement to the penal code, in 1861. In 1862
Maine went out as legislative member of the Indian Council, and carried
on the work of codification in combination with a new Law Commission,
appointed in 1861. The Commission ultimately fell out with the Indian
Government, and finally resigned in 1870. They seem to have been of
opinion that there was undue delay in passing the bills which they
prepared. Meanwhile, Fitzjames took up various measures which had been
left incomplete, and carried them to completion. Before specifying them
so far as will be desirable, I must say something of the machinery by
which they were converted into law.
This, as will be seen, greatly impressed Fitzjames by its total
dissimilarity to the process of legislation under our own parliamentary
system. The Legislative Council consisted, under an Act passed in 1861,
of the Viceroy, the Commander-in-Chief, the Governor of the province in
which the Council sits, of five ordinary members, and of additional
members--not less than six and not more than twelve in number--half of
whom must be non-official. The maximum number possible would therefore
be twenty. The Viceroy, the Commander-in-chief, and the five ordinary
members conducted the whole executive government of the country. The
'legislative department' consisted of a 'secretary to the council of the
Viceroy, for the purpose of making laws and regulations.' The secretary
during Fitzjames's tenure of office was Mr. Whitley Stokes, who had
already served under Maine. During Mr. Stokes's absence on leave for the
last year of Fitzjames's service, his place was taken by Henry
Cunningham. The member of Council and the secretary drew almost all the
bills required. It must be noticed that proposals for legislation were
not initiated by the department itself. This principle, says Fitzjames,
'was scrupulously observed both by Sir Henry Maine and myself.' They did
not originate a single measure, except those which repealed,
consolidated, and re-enacted existing laws. When a bill had been drawn
and introduced into Council, it was circulated to be criticised by the
local governments and by district officers, or by persons whose
interests might be affected. A special committee was appointed to go
through the Act, clause by clause, and consider the suggestions and
criticisms which had been received. In the case of one act, it is
mentioned that the materials thus collected formed a volume of 500
closely printed pages of minute criticism upon every section of the
bill. The committee made such changes as appeared desirable in view of
these comments, and the bill, after being in some cases reprinted,
published, and circulated, was again brought before the Council. A
discussion then took place and amendments might be proposed. When these
had been accepted or rejected, the bill was passed and became law upon
receiving the assent of the Viceroy, though it might still be disallowed
by the Secretary of State in Council.
A code, or even a measure which is to form part of a code, should be a
work of art--unequivocal in language, consistent in its logic, and
luminous in its arrangement. Like other works of art, therefore, it must
be essentially the product of a single mind. It is as impossible, as
Fitzjames often repeats, for a number of people to make a code as for a
number of artists to paint a picture. The legal artist requires, indeed,
to receive information from numerous sources, and to be carefully and
minutely criticised at every point by other experts and by the persons
whose interests are affected. But the whole can only be fused into the
necessary unity by passing through a single understanding. These
conditions were sufficiently secured by the preliminary processes just
described. Nor was there any risk that a measure should lose its
symmetry in the process of passing through the Council. The Council was
composed of men capable, on the one hand, of judging of the expediency
of the general policy involved, and willing, on the other hand, to trust
for details to the official in charge of the measure, without any desire
for captious interference with details. It consisted largely of men,
each of whom had important duties to discharge, and was anxious to
facilitate the discharge of duties by his colleagues. It was
emphatically a body which meant business, and had no temptation to
practise the art of 'not doing it.'
There is a quaint contrast, therefore, between the reports of the
debates in Council and those which fill the multitudinous pages of
Hansard. The speeches, instead of being wordy appeals to constituents,
are (so far as one can judge from the condensed official Reports) brief
logical expositions of the leading principles involved, packing the
essential arguments into the briefest possible space. When a body such
as the British Parliament undertakes to legislate, it has certain
weaknesses too familiar to require much exposition. If a measure is not
adapted to catch the popular ear, it is lucky, however great may be its
real importance, in obtaining a hearing at all. It may be thrust aside
at any moment by some of the storms of excitement characteristic of a
large body agitated by endless party quarrels. Many of the legislators
are far less anxious to get business done than to get the doing of
business. Everyone who is crotchety, or enthusiastic, or anxious for
notoriety, or desirous to serve a party or please a constituency, may
set a hand to the work. A man, from the best of motives, may carry some
impulsive suggestion. The measure may be tortured and worried out of
shape by any number of alterations, moved without clear apprehension of
the effect upon the whole. Trifling details will receive an excessive
amount of elaboration, and the most important proposals be passed over
with precipitation, because the controversy becomes too heated and too
complicated with personal interests to be decided upon reasonable
grounds. The two evils of procrastination and haste may thus be
ingeniously combined, and the result may be a labyrinth of legislative
enactments through which only prolonged technical experience can find
its way. I need not inquire what compensations there may be in the
English system, or how far its evils might be avoided by judicious
arrangements. But it is sufficiently clear what impression will be made
upon anyone who tests a piece of legislative machinery by its power of
turning out finished and coherent work which will satisfy legal experts
rather than reflect the wishes of ignorant masses.
I must now try to indicate more precisely the nature of the task in
which Fitzjames had to take a share. He gives a preliminary sketch in
one of his first speeches.[108] The law of British India was composed of
different elements, corresponding to the process by which the trading
company had developed into a sovereign power and extended its sway over
an empire. There were, in the first place, the 'regulations' made in the
three presidencies, Bengal, Madras, and Bombay, before the formation of
the Legislative Council in 1834. Then there were the acts of the
Legislative Council which had since 1834 legislated for the whole of
British India; and the acts of the subordinate legislatures which had
been formed in the two presidencies in 1861. Besides these there were
executive orders passed by the Governor-General in Council for the
'non-regulation' provinces (the North-western Provinces, the Punjab,
Oudh, the Central Provinces, and Burmah). These had more or less
introduced the same laws into the regions successively annexed, or such
an approximation to those laws as was practicable, and dictated
according to an accustomed formula by 'justice, equity, and good
conscience.' Certain doubts existed as to the precise legal character of
these orders. Their validity had been confirmed by the Act of 1861, but
for the future all legislation was to be carried on by the councils. The
laws were less numerous and complex than might be inferred from this
enumeration. Some were temporary in their nature and others repealed
previous legislation. The first thing to be done was to ascertain what
laws were actually operative; to repeal the useless and obsolete; and
confirm others which, though useful, might be of doubtful validity. It
would then become possible to consolidate and codify; so that for every
subject there might be a single enactment, and for every province a
single body of laws. Much had been already accomplished in this
direction under Lord Lawrence when Maine was the legal member of
Council; and preparations had been made for carrying the process
further.
The measures in which Fitzjames was more or less concerned were made
necessary by these conditions. The old Bengal regulations, made from
1793 to 1834, are said to have been 'eminently practical and useful.'
But they were made from time to time with a view to particular cases;
and their language presupposed familiarity with a variety of facts, as
to the position and mutual relations of the different members of the
service, and so forth, which were constantly changing as the Company
developed, acquired new functions, and redistributed the duties of its
subordinates. Such a process naturally left room for gaps in the system
which might reveal themselves with awkward results at critical moments.
Thus it turned out in the course of investigations made by the
legislative department that nearly every criminal trial which had taken
place in Bengal and the North-western Provinces since 1831 had been
irregular. The result was that 'people had gone on being hung,
transported, and imprisoned illegally for a period of probably nearly
forty years.' No substantial injury had resulted, but as legal
proceedings multiplied it was possible that awkward questions might be
raised. An Act was therefore passed in a day (May 12, 1871) sanctioning
the system which had actually grown up, and confirming the previous
Acts. Another illustration of the intricacy of the existing system was
given by the law as to the Civil Courts in Bengal. To discover what was
the constitution of these courts you would have, says Fitzjames (Feb.
10, 1871) to begin by reading Regulations III. and IV. of 1793, and to
find out that, though most of them had been repealed, little bits of
each remained in force. You would then have to note that, although these
bits applied only to a certain small district, they had been extended in
1795 to certain other specified places, and in 1803 to the district
ceded by the Nawab Nazim. What that district was might be ascertained
from historical records. Continuing such inquiries, you might discover,
after consulting thirteen Acts and Regulations, what was the actual
state of things. People, of course, really learnt such points by
practice and conversation, though their knowledge would probably be in a
nebulous condition. The whole system was put upon a clear footing in an
Act of thirty-eight sections, prepared by Mr. Cockerell, which was
passed on February 10, 1871.
In these cases I imagine that the effect of the legislation was mainly
to clear up the existing order and substitute a definite accessible law
for a vague rule of thumb. Elsewhere more serious problems were
involved. Upon the annexation of the Punjab in 1849 it was necessary to
establish at once a vigorous and cheap system of government. Lord
Lawrence, with his brother Henry and Mr. Mansel, were formed into a
Board of Administration, and entrusted with dictatorial power. They were
instructed to adopt as nearly as possible the system of law which has
existed in the North-Western Provinces. That system, however, was vague
and cumbrous, and it was impracticable to introduce it into the new
province, which required far more rough and ready methods. Lord Lawrence
and his colleagues proceeded therefore to draw up regulations. Though
these were necessarily crude and imperfect in the eyes of a thorough
lawyer, they made it possible to introduce settled order and government,
and were the first approach to codes in India. There remained, however,
serious differences of opinion as to the degree of legal authority to
which they were entitled.
Two of these codes were of great importance. In 1853 Sir Richard Temple
had prepared a handbook, under the direction of Lord Lawrence, which
came to be known as the 'Punjab Civil Code.' It was a lucid statement,
although made by one who was not a specially trained lawyer, of the law
supposed to exist in the Punjab, with expositions of parts of the Hindoo
and Mohammedan law. The question however, had never been finally settled
whether it was merely a text-book or had acquired the force of law by
the use made of it and by incidental references in official despatches.
It included, for example, a kind of bankruptcy law, under which large
amounts of property had been distributed; although, according to some
opinions, the whole process was illegal. Conflicting views were held by
high authorities. 'As many as six or seven degrees of inspiration had
been attributed to different parts of the code,' said Fitzjames (March
26, 1872), 'as to the relation in which they stood to the rest.' In
short, a book originally intended as a guide to administrators of the
law had come to be a 'sort of semi-inspired volume,' with varying
degrees of 'infallibility.' Moreover, as it led to much litigation and
many discussions, it had swelled from a small volume into 'one of those
enormous receptacles of notes, comments, sections of Acts, and general
observations which pass in England under the name of legal text-books.'
(September 5, 1871.) In order to clear up the confusion, Mr. D. G.
Barkley had been directed by the Lieutenant-Governor of the Punjab to
prepare a volume containing all the regulations which were supposed to
have actually the force of law. Many of these were only accessible in
official archives. This volume filled 408 closely printed pages, besides
various schedules. When carefully examined by Fitzjames this was reduced
to an act of fifty-eight sections, and the question as to authority
finally set at rest.
A still more important part of the Punjab administration dealt with the
land revenue. This, of course, touches the most vital part of the whole
system of British government. A famous 'Regulation, VII. of 1822,' had
laid down the general principles of land-revenue law. But it was in
itself ambiguous, and there were great doubts as to whether it extended
to the Punjab, or whether the administrators of the Punjab had full
power to lay down such rules as they pleased, subject only to the
direction to take the regulation for a model as far as applicable.
Different views were taken by the courts of law and by the governors;
some opinions would tend to show that the whole series of administrative
acts had been illegal, and out of this difficulty had arisen an
acrimonious controversy in 1868 upon Punjab tenancy. Meanwhile various
'instructions' had been issued by the executive, and two books, written
by Mr. Thomason, gave directions to 'settlement officers' and
'collectors.' These, says Fitzjames, were 'almost if not quite the best
law-books that have ever come under my notice.' They were, however,
written from an administrative, not from a legal point of view. In order
to ascertain the actual state of things Mr. Robert Cust was instructed
to draw up a revenue-code, and forwarded his draft to the legislative
department in 1870. The law, as Mr. Cust stated in this document, was
'in a state of lamentable and, to those not trained to the study,
unintelligible confusion.' His draft contained 1261 sections, filling
216 quarto pages of small type. It was swelled, however, by a large
quantity of detail, dealing with matters which might be left to the
discretion of executive officers. The draft was carefully considered by
a committee, including the most experienced officials, and in
consultation with the actual revenue authorities in the Punjab. A
measure of moderate dimensions was framed in accordance with their views
and passed on October 30, 1871. One of the critics of the bill observed
that it had been thus reduced to a 'set of affecting commonplaces.'
Fitzjames replies that, in point of fact, the bill was meant precisely
to lay down general principles, leaving details to be settled by the
local authorities. One proposal made by him which, as Sir R. Temple
observed, showed his 'breadth of view and root and branch grasp of the
subject,' indicates the importance of the matter. Substantially it was
to make the record of rights, established for the purposes of the
revenue, a conclusive evidence (under certain precautions) of the titles
of the various persons interested in the land. This was modified on the
ground that it was not suited to the tastes of the natives; who, it was
said, rather preferred that matters should be left 'at a loose end,'
instead of being definitely wound up once for all. This Act, together
with the Act previously mentioned, put an end to 'one of the strangest
pieces of intricacy and confusion to be found in Indian law.'[109]
Another enactment curiously illustrates some practical results of the
undefined degree of authority of the laws in the Punjab. Four hundred
years ago--so runs a possibly mythical legend--a certain man was
ploughing in a field. The wife of a rich banker was bathing not far off,
and laid her necklace of pearls on the bank. A crow took it up and
dropped it in the ploughman's field. He presented it to his wife, and
proceeded to reason upon the phenomenon. The fowls of the air, he
reflected, neither ploughed nor sowed, but they managed to pick up
valuables. Why should he not show a similar trust in Providence? He
resolved to set up as a freebooter, made proselytes, and finally became
the ancestor of a clan. His tribe were moral and decent people at home;
they had their religious rites, initiated their children solemnly, and
divided their earnings on system. After setting aside 3-3/4 per cent.
for the gods, 28 per cent. was divided between the chief and the thief,
while the remainder went to the tribe at large. Their morality, however,
was conterminous with the limits of the clan. They considered themselves
to be in Hobbes's 'state of nature,' with regard to other men. They
wandered far and wide through India, and made enough to live in greater
comfort than could be got out of legitimate occupations. They were only
one among other more important and dangerous tribes of criminals, who
adopted the same judicious principle of carrying on their operations at
a distance from their homes. The Punjab government had dealt with these
tribes by registering them, compelling them to live within certain
limits, and settling them upon waste lands. It had been discovered,
however, that these regulations were beyond the powers of the executive.
The system had to be abandoned and the tribes promptly returned to their
old practices. When members of another well-known criminal tribe were
arrested on the eve of one of their operations, they were set at liberty
by a judicial decision. The proof, it appears, ought to have conformed
to the precedent set by certain trials of Fenians in England. A measure
was therefore introduced giving power to restore the system which had
been previously successful; and sanctioning similar measures in regard
to a more atrocious set of criminals, certain eunuchs who made a system
of kidnapping children for the worst purposes. It was passed October 12,
1871.
The case illustrates the most obvious difficulties of our position in
India. I suppose that the point of view of Thugs and of these
respectable robbers seems perfectly obvious and natural to them; but the
average Englishman cannot adopt it without a considerable mental effort.
In such cases, however, we might at least reckon upon the support of
those who suffered from predatory tribes. But there was another
department of legislation in which we had to come into conflict with the
legal and religious ideas of the great mass of the population. The
British rulers of India had been, with sufficient reason, exceedingly
cautious in such matters. Their power might crumble to pieces, if it
were once believed that we intended to assail directly the great
religions of the country, and in India law, custom, and religion are
only different aspects of the same thing. In certain cases we had at
last resolved to suppress practices which offended the European code of
morals. Under the Bengal regulations, the practice of burning widows had
been forbidden. Another series of Acts began by the passage of an Act in
1850 which provided that no one should suffer any legal forfeiture of
rights for having ceased to belong to any religious community. This Act
was passed in face of vehement opposition and petitions signed by 60,000
natives in and around Calcutta. It practically pledged us to maintain
freedom of conscience in matters of religion. It was followed by other
measures involving the same principle. In 1856, the re-marriage of
Hindoo widows was legalised, and in 1866, native converts to
Christianity were enabled to obtain a divorce from wives or husbands who
abandoned them in consequence of their religious change. Another Act of
1865, drawn by the Indian Law Commission, regulated the law as to
succession to property and the testamentary powers of persons who were
not members of any of the native religious communities, and thus
recognised that such people had a legitimate legal status. From another
application of the same principles arose a proposal in regard to which
Fitzjames had to take a conspicuous part. It formed the subject of a
very warm debate in the Council, the only debate, indeed, which faintly
recalls English parliamentary discussions. Fitzjames, in particular,
made two speeches which suggest that he might have been an effective
party-leader, and are, in various ways, so characteristic that I must
notice them at some length.
The sect of Brahmos, founded by Ram Mohun Roy, was one result of the
influence of European ideas on India. It had come to be the most
important movement of the kind. It roughly corresponds, I imagine, to
English Unitarianism, being an attempt to found a pure theistic religion
without the old dogmatic system. Like almost all religious movements, it
might be considered either as an innovation or as an attempt to return
to a primitive creed by throwing off the corrupt accretions. The sect,
like others, had split into two bodies, the conservative Brahmos, who
wanted to put new wine into old bottles, and the progressive Brahmos,
who desired new bottles as well as new wine. Both of them disapproved in
different degrees of the Hindoo ceremonials. The question had arisen
whether they could form legal marriages, and the doubts had been rather
increased than diminished by an opinion obtained by the progressive
Brahmos from the Advocate-General, Mr. Cowie. Thereupon they applied to
Government. Maine, who was then (1868) in office, came to the conclusion
that they had had a real grievance. Their creed, briefly, would
disqualify them from marrying, whereas we were committed to the
principle that varieties of creed should entail no civil
disqualifications. Maine accordingly prepared a bill to remove the
injustice. He proposed to legalise the marriage of all persons (not
Christian) who objected to conform to the rites of the various religions
of the country. The knot would be cut by introducing civil marriage into
India generally for all who preferred it. This proposal, however, met
with general disapproval when the draft was circulated among the local
authorities. The ground of objection was that it would introduce too
great a change into native customs. It would enable a man to 'play fast
and loose' with his religion; to cease, for example, to be a Hindoo for
the purpose of marrying, and to be a Hindoo again when he had married.
The Government admitted that this objection was conclusive.
When Fitzjames became member of Council, the matter was still under
discussion, and it became his duty to prepare a bill, which he
introduced to the Council in March 1871. This measure avoided the
difficulty by providing a form of marriage for the Brahmos alone. To
this, however, he found to his surprise that the conservative Brahmos
objected. The essential difficulty was that of every 'denominational'
system. The bill would give a certain legal status to a particular sect.
We should then be bound to provide similar measures for any new sects
that might arise and for marriages between adherents of different
creeds. There would have to be a 'jungle of marriage acts.' And besides
this there would be the difficulty of defining by law what a Brahmo
precisely was--whether the Progressives or the Conservatives were the
real Brahmos, and so forth. Finally, Fitzjames resolved to bring in an
Act resembling Maine's, but with this difference, that anyone who took
advantage of it must declare that he (or she) was neither a Hindoo, nor
a Mohammedan, nor a Parsee, nor a Sikh, nor a Jaina, nor a Buddhist, nor
a Christian, nor a Jew.[110] This measure would be applicable to any
persons whatever who might hereafter abandon their traditional religion,
but it would not enable anyone to break the laws of a religion to which
he still professed to belong.
Fitzjames explained his views very fully upon introducing the measure on
January 16, 1872. The debate was then adjourned, and upon March 19 other
members of the Council made various criticisms to which he again replied
at some length. These two speeches give the fullest statement of his
views upon a very important question. They deal in part with some purely
legal questions, but I shall only try to give the pith of the views of
policy which they embody. I may briefly premise that the ground taken by
his opponents was substantially the danger of shocking native
prejudices. The possibility that the measure would enable rash young men
to marry dancing-girls out of hand was also noticed, but, I fancy, by
way of logical makeweight. It was admitted that the Brahmos had a
claim, but it was strongly urged that it would be enough if, in
accordance with the former proposal, an act were passed dealing with
them alone. One member of the Council, I notice, complains that the
demand is associated with talk about 'nationality,' 'fraternity,' and
'equality'--a kind of talk for which Fitzjames had remarkably little
sympathy. It is of the more importance to point out what were the
principles which he did admit. His main contention was simple. Maine, he
said, was absolutely right in deciding that, where an injustice was
proved to exist, we should not shrink from applying a remedy. 'I think
that one distinct act of injustice, one clear instance of unfaithfulness
to the principles upon which our government of India depends, one
positive proof that we either cannot or will not do justice to all
classes, races, creeds or no-creeds, in British India would in the long
run shake our power more deeply than even financial or military
disaster. I believe that the real foundation upon which the British
Empire in this country rests is neither military force alone, as some
persons cynically assert' (though such power is no doubt an
indispensable condition of our rule), 'nor even that affectionate
sympathy with the native population, on which, according to a more
amiable, though not, I think, a truer view of the matter, some think our
rule ought to rest--though it is hardly possible to overrate the value
of such sympathy, where it can by any means be obtained. I believe that
the real foundation of our power will be found to be an inflexible
adherence to broad principles of justice common to all persons in all
countries and all ages, and enforced with unflinching firmness in favour
of, or against, everyone who claims their benefit or who presumes to
violate them, no matter who he may be. To govern impartially upon these
broad principles is to govern justly, and I believe that not only
justice itself, but the honest attempt to be just, is understood and
acknowledged in every part of the world alike.'
In the next place the principle of religious equality, 'properly
understood, is just as much one of these principles as the principle of
suppressing war, famine, and crime.' Properly understood it means that
all sects are to be encouraged and, if necessary, are to be compelled to
live in peace with each other; and not to injure those who change their
religion. This is the principle, moreover, which we have practically
adopted, and which is indeed necessary under the circumstances. The
native marriage law is 'personal,' not territorial. It depends upon a
man's religion, not upon the place of his abode. Hence you must choose
between forbidding a man to change his religion and permitting him to
change his law. But to forbid conversion would be obviously impossible,
and we in fact allow Christian converts to change their legal status.
Why is not a similar liberty to be granted to others who have abandoned
their religion? Because Christianity is true and all other religions
false? That would be the only relevant answer, and many people would
really like to give it; but it is refuted by stating it. We cannot
attack the Hindoo or Mohammedan religions. If, therefore, we took this
ground, we should simply have a conspiracy of four or five dominant
sects, each denouncing the others as false, but all agreeing to worry
and oppress all outsiders. Such a position is impossible for us. The
real objection to the bill was simply that it recognised the fact that
many persons had abandoned their religion; and also recognises the fact
that they had a right to abandon it.
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 naively 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 formulae, 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.
'I never expected,' he writes (February 23, 1872), 'to be impressed by a
mere ceremonial; but there were some things almost oppressive from their
reality and solemnity.... The coffin was brought up on a gun-carriage.
It was of enormous size and weight, (near two tons, I believe). The
gun-carriage, drawn by twelve artillery horses, made a strangely
impressive hearse. It looked so solid, so businesslike, so simple, and
so free from all the plumes and staves and rubbish of undertakers. About
thirty picked sailors from the "Daphne" and "Glasgow" walked behind and
by the side; all dressed in clean white trousers and jerseys, and
looking like giants, as indeed they were. They were intensely fond of
Lord Mayo, who had won their hearts by the interest he took in them and
in the little things they got up to amuse him.... He passed the last
evening of his life sitting with Lady Mayo on the bridge of the
"Glasgow," and laughing at their entertainment with the greatest
cordiality. They wanted to be allowed to carry the coffin on their own
shoulders; they said they were ready and willing to do it, and I believe
they would have been able, ready, and willing to do anything that
strength and skill and pluck could do. Behind them walked the
procession, which was nearly three-quarters of a mile long, and
contained every Englishman of any importance in Calcutta and a
considerable number of natives. The whole road was lined with troops on
both sides: but they stood at intervals of several yards, and there was
an immense crowd close behind and, in some places in between them.... If
there had been any other fanatics in the crowd, there was nothing to
prevent them from making a rush and giving a stab.... If there had been
any attempt of the kind, I cannot say what might not have happened.
People were in such an excited and half-electric state that there might
have been a general riot, which would soon have become very like a
massacre. One man told me that on his way home, he felt possessed by
such fury against anyone who might be connected with the murder, that he
walked with a kind of charge through a group of people, who looked as if
they enjoyed "the show," and gave a shove to a big Mohammedan who looked
insolent, at which, he said, "the man went down like a bag of feathers."
I saw some suspicious-looking fellows grinning and sneering and showing
their teeth myself, and I felt as if I could have killed them. No one
who has not felt it can imagine how we all feel out here in regard to
such matters. When Lord Mayo was stabbed, I think every man in the
country felt as if he had been more or less stabbed himself.
'The procession went on with the most overwhelming solemnity (nothing
short of these words can describe it), till we got to Government House.
There was a dead silence nearly all the way; the natives standing or
squatting in their apathetic way, and the Europeans as grim as death.
All that was to be heard was the rattle of the gun-carriage, and the
tramping of the horses, and the minute-guns from the fort and ships. The
housetops, the windows, the fort were all crowded with people, but all
as still as death. I think the ships looked as sad as anything. There
were two miles of noble ships in the Hooghly. Their flags were all
flying half-mast high, and they had all "tossed their yards."' (He
draws a rough diagram to explain the phrase). 'The yards are all in
disorder, and the effect is forlorn and dishevelled to a degree you
would not imagine. When we got to Government House, the coffin had to be
lifted off the gun-carriage and pulled up a long flight of wide stone
steps.... The sailors and a few artillerymen did it all in perfect
silence, and with an amount of strength that looked almost marvellous.'
The coffin was placed on a truck, to which the sailors harnessed
themselves, and dragged it up an inclined plane (formed over the steps)
with no apparent effort in spite of the enormous weight. It was taken
along a suite of rooms, 'hung with black, and lighted with a curious
simplicity and grandeur.' Here, again, the coffin had to be lifted, and
'it was most striking to see the absolute silence with which the men
moved the monstrous weight at a sign from the captain's hand.' The only
sound was when a spar snapped in the hands of a 'giant of a fellow, who
was lifting with it. There was a respectful delicacy in every motion of
these men which combined beautifully with their immense, quiet,
controlled strength, and impressed me very much. After a few prayers we
left.'
On Wednesday, the 21st, the coffin was again removed to the ship. The
imprudence of the former procession had struck everyone. The streets
were cleared and no one admitted to the jetty except the procession.
'You cannot imagine the awful solemnity which all this precaution gave
the whole thing. It was like marching through a city half-dead and
half-besieged.' Nothing was to be seen but troops; and, 'when we got
into Dalhousie Square, there was a battery of artillery firing
minute-guns, and drawn up on the road just as if they were going to
fight. Two or three bands played the Dead March the whole way, till I
felt as if it would never get out of my ears. At the end of the jetty
lay the "Daphne." ... The sailors, with infinite delicacy and quiet,
draped the coffin carefully with its flags ... and it was raised and
lowered by a steam-crane, which, somehow or other, they managed to work
without any sound at all. When the ship steamed off down the river, and
the minute-guns stopped, and I drove home with Henry Cunningham, I
really felt as I suppose people feel when an operation is over. There
was a stern look of reality about the whole affair, quite unlike what
one has seen elsewhere. Troops and cannon and gun-carriages seem out of
place in England, ... but it is a very different matter here, where
everything rests upon military force. The guns and the troops are not
only the outward and visible marks of power, but they are the power
itself to a great extent, and it is very impressive to see them.
'It gives a sort of relief to one,' he adds, 'that after all Lord Mayo
was, in a sense, going home: that he (so far as one can speak of his
dead body) was leaving this country with all its various miseries, to
return to his own native place. If one is to have fancies on such a
matter, it is pleasant to think that he is not to lie here in a country
where we can govern and where we can work and make money and lead
laborious lives; but for which no Englishman ever did, or ever will, or
can feel one tender or genial feeling.[118] The work that is done here
is great and wonderful; but the country is hateful.'
One singular incident was connected with this event. The murderer had
been tried on the spot and sentenced to death. The sentence had to be
confirmed by the High Court at Calcutta. It was there discovered that
the judge had by some mistake recorded that the European witnesses had
'affirmed' according to the form used for native religions, instead of
being sworn according to the Christian formula. Fitzjames was startled
to hear of this intrusion of technicality upon such an occasion; and
held, I think, that in case of need, the Government of India should
manage to cut the knot. Ultimately, however, some of the witnesses who
were at Calcutta made affidavits to the effect that they had really been
sworn, and the sentence was confirmed and executed. Otherwise, said
Fitzjames in one of his last Indian speeches (upon the Oaths and
Declaration Act) a grievous crime might have escaped punishment, because
five English gentlemen had made statements 'in the presence of Almighty
God,' instead of kissing the Bible and saying 'So help me God.'
I must mention one other incident which occurred at the end of
Fitzjames's stay in India. One Ram Singh was the spiritual and political
chief of a sect called the Kookas. His disciples showed their zeal by
murdering butchers as a protest against cow-killing. They were animated
by prophecies of a coming kingdom of heaven, broke into rioting and were
suppressed, and, as the Indian Government held, punished with an excess
of severity. Although Fitzjames was not officially responsible in this
business, he was consulted on the occasion; and his opinions are
represented by an official despatch. I need only say that, as in the
case of Governor Eyre, he insisted that, while the most energetic
measures were allowable to suppress actual resistance, this was no
excuse for excessive punishment after the danger was over. The ordinary
law should then be allowed to take its course. Meanwhile, Ram Singh was
shown to be more or less implicated in the disorders and was deported
to Burmah. Fitzjames was greatly impressed by the analogy between
English rulers in India and Roman governors in Syria some eighteen
centuries ago, when religious sects were suspected of political designs.
To this I shall refer presently.
Fitzjames attended the Legislative Council for the last time on April
17, 1872. He left Calcutta the next day on his return to England. He had
thus been in office for only half the usual period of five years. His
reasons for thus cutting short his time were simple. He felt very
strongly that he was exacting a sacrifice on the part of his wife and
his family which could only be justified by a very distinct advantage.
The expenses were more than he had anticipated, and he saw at an early
period that he would be in any case compelled to return to his
profession. Gaps at the bar are soon filled up. The more prolonged his
absence, the greater would be the difficulty of regaining the position
which he had slowly reached. I have some reason to think that the
authorities at the India Office were not altogether pleased at what they
considered to be a premature relinquishment of his post. He could,
however, reply that if he had been only half the usual time in India, he
had done fully twice the average amount of work. He left India without
regrets for the country itself; for to him the climate and surroundings
of English life seemed to be perfection. But he left with a profound
impression of the greatness of the work done by Englishmen in India; and
with a warm admiration for the system of government, which he was eager
to impart to his countrymen at home. How he endeavoured to utter himself
upon that and kindred subjects shall be told in the next chapter.
FOOTNOTES:
[Footnote 102: His first letter to Miss Thackeray, I notice, is written
upon the back of a quaint broadsheet, bought at Boulogne. On the other
side is a woodcut of the gallant 'Tulipe' parting from his mistress, and
beneath them is the song 'Tiens, voici ma pipe, voila mon briquet!'
which Montcontour used to sing at the 'Haunt' to the admiration of
Pendennis and Warrington. See the _Newcomes_, vol. i. chap. xxxvi.]
[Footnote 103: I depend chiefly upon the official reports of the debates
in the Legislative Council; my brother's own summary of Indian
legislation in a chapter contributed to Sir W. W. Hunter's _Life of the
Earl of Mayo_ (1875), ii. pp. 143-226; and a full account of Indian
criminal legislation in chap, xxxiii. of his _History of Criminal Law_.
He gave a short summary of his work in an address to the Social Science
Association on November 11, 1872, published in the _Fortnightly Review_
for December 1872. I may also refer to an article upon 'Sir James
Stephen as a Legislator' in the _Law Quarterly Review_ for July 1894, by
Sir C. P. Ilbert, one of his successors.]
[Footnote 104: I may say that he especially acknowledges the share of
the work done in his own time by Mr. Whitley Stokes, secretary to the
Council, by Sir H. S. Cunningham, for some time acting secretary, and by
Mr. Cockerell, a member of the Council.]
[Footnote 105: _History of Criminal Law_, iii. 299.]
[Footnote 106: _Life of Lord Mayo_, ii. 199.]
[Footnote 107: _History of Criminal Law_, ii. 300-303.]
[Footnote 108: 'Obsolete Enactments Bill,' February 25, 1870.]
[Footnote 109: _Mayo_, ii. 220.]
[Footnote 110: The parties had also to be of certain ages, not already
married, and not within certain degrees of relationship.]
[Footnote 111: See the account of this in _History of Criminal Law_,
iii. 324-346.]
[Footnote 112: _History of Criminal Law_, iii. 345.]
[Footnote 113: _Digest of the Law of Evidence._ Fourth edition, 1893,
pp. 156-9.]
[Footnote 114: An edition of the _Evidence Code_, with notes by Sir H.
S. Cunningham, reached a ninth edition in 1894. It gives the changes
subsequently made, which are not numerous or important.]
[Footnote 115: Sir C. P. Ilbert, however, is mistaken in supposing that
Fitzjames wrote his _Liberty, Equality, Fraternity_ during his official
labours.]
[Footnote 116: _Life of Mayo_, ii. 163.]
[Footnote 117: In _Selections from the Records of the Government of
India_, No. lxxxix., published by authority. Calcutta, 1872.]
[Footnote 118: I do not feel that it would be right to omit this remark,
although I am certain that, taken by itself, it would convey a totally
inaccurate impression of my brother's sentiments about India. I have, I
hope, said enough to indicate his sympathetic interest in Indian matters
and the work of Indian officials. I must trust my readers to understand
that the phrase expresses a mood of intense excitement and must be taken
only as indicating the strength of the passing emotion.]