One result was a coolness between my brother and J. S. Mill, who was displeased by his want of sufficient zeal in the matter. They had been on friendly terms, and I remember once visiting Mill at Blackheath in my brother's company. There was never, I think, any cordial relation between them. Fitzjames was a disciple of Mill in philosophical matters, and in some ways even, as I hold, pushed Mill's views to excess. He complains more than once at this time that Carlyle was unjust to the Utilitarian views, which, in his opinion, represented the true line of advance. But Carlyle was far more agreeable to him personally. The reason was, I take it, that Carlyle had what Mill had not, an unusual allowance of the quality described as 'human nature.' Mill undoubtedly was a man of even feminine tenderness in his way; but in political and moral matters he represented the tendency to be content with the abstractions of the unpractical man. He seemed to Fitzjames at least to dwell in a region where the great passions and forces which really stir mankind are neglected or treated as mere accidental disturbances of the right theory. Mill seemed to him not so much cold-blooded as bloodless, wanting in the fire and force of the full-grown male animal, and comparable to a superlatively crammed senior wrangler, whose body has been stunted by his brains. Fitzjames could only make a real friend of a man in whom he could recognise the capacity for masculine emotions as well as logical acuteness, and rightly or wrongly Mill appeared to him to be too much of a calculating machine and too little of a human being. This will appear more clearly hereafter.
In the meantime Fitzjames was obtaining, as usual, some occasional spurts of practice at the bar, while the steady gale still refused to blow. He had an influx of parliamentary business, which, for whatever reason, did not last long. He had some arbitration cases of some importance, and he was employed in a patent case in which he took considerable interest. He found himself better able than he had expected to take in mechanical principles, and thought that he was at last getting something out of his Cambridge education. Mr. Chamberlain has kindly sent me his recollections of this case. 'I first made the acquaintance of Sir J. F. Stephen' (he writes) 'in connection with a very important and complicated arbitration in which the firm of Nettlefold & Chamberlain, of which I was then a partner, was engaged. Sir James led for us in this case, which lasted nearly twelve months, and he had as junior the late Lord Bowen. The arbitrator was the present Baron Pollock, assisted by Mr. Hick, M.P., the head of a great engineering firm. From the first I was struck with Sir James Stephen's extraordinary grasp of a most complicated subject, involving as it did the validity of a patent and comparison of most intricate machinery, as well as investigation of most elaborate accounts. He insisted on making himself personally acquainted with all the processes of manufacture, and his final speech on the case was a most masterly summary of all the facts and arguments. In dealing with hostile witnesses he was always firm but courteous, never taking unfair advantage or attempting to confuse, but solely anxious to arrive at the truth. He was a tremendous worker, rising very early in the morning, and occupying every spare moment of his time. I remember frequently seeing him in moments of leisure at work on the proofs of the articles which he was then writing for the "Pall Mall Gazette." In private he was a most charming companion, full of the most varied information and with a keen sense of humour. Our business relations led to a private friendship, which lasted until his death.' In 1868 he took silk, for which he had applied unsuccessfully two years before. In the autumn of the same year he sat for the first time in the place of one of the judges at Leeds, and had the pleasure of being 'my Lord,' and trying criminals. 'It appears to me,' he says, 'to be the very easiest work that ever I did.' The general election at the end of 1868 brought him some work in the course of the following year. He was counsel in several election petitions, and found the work contemptible. 'It would be wearisome,' he says, 'to pass one's life in a round of such things, even if one were paid 100l. a day.' Advocacy in general is hardly a satisfactory calling for a being with an immortal soul, and perhaps a mortal soul would have still less excuse for wasting its time. The view of the ugly side of politics is disgusting, and he acknowledges a 'restless ambition' prompting him to look to some more permanent results.
These reflections were partly suggested by a new turn of affairs. I have incidentally quoted more than one phrase showing how powerfully his imagination had been impressed by the Indian Empire. He says in his last book[101] that in his boyhood Macaulay's 'Essays' had been his favourite book. He had admired their manly sense, their 'freedom from every sort of mysticism,' their 'sympathy with all that is good and honourable.' He came to know him almost by heart, and in particular the essays upon Clive and Warren Hastings gave him a feeling about India like that which other boys have derived about the sea from Marryat's novels. The impression, he says, was made 'over forty years ago,' that is, by 1843. In fact the Indian Empire becomes his staple illustration whenever he is moved to an expression of the strong patriotic sentiment, which is very rarely far from his mind. He speaks in 1865 of recurring to an 'old plan' for writing a book about India. I remember that he suggested to me about that date that I should take up such a scheme, and was a good deal amused by my indignation at the proposal. James Mill, he argued, had been equally without the local knowledge which I declared to be necessary to a self-respecting author. Several circumstances had strengthened the feeling. His friend Maine had gone to India in 1862 as legal Member of Council, and was engaged upon that work of codification to which he refers admiringly in the 'View of the Criminal Law.' In November 1866 Fitzjames's brother-in-law, Henry Cunningham, went to India, where he was appointed public prosecutor in the Punjab. His sister, then Miss Emily Cunningham, joined him there. Their transplantation caused a very important part of Fitzjames's moorings (if I may say so) to be fixed in India. It became probable that he might be appointed Maine's successor. In 1868 this was suggested to him by Maine himself, when he regarded it on the whole unfavourably; but during 1869 the question came to need an answer. Against accepting the post was the risk to his professional prospects. Although not so brilliant as could be wished, they presented several favourable appearances; and he often hoped that he was at last emerging definitely from his precarious position. His opinion varied a little with the good or bad fortune of successive circuits. He felt that he might be sacrificing the interests of his family to his own ambition. The domestic difficulty was considerable. He had at this time seven children; and the necessity of breaking up the family would be especially hard upon his wife. Upon the other hand was the desire for a more satisfying sphere of action. 'I have been having a very melancholy time this circuit' (he writes to Miss Cunningham, March 17, 1869). 'I am thoroughly and grievously out of spirits about these plans of ours. On the whole I incline towards them; but they not unfrequently seem to me cruel to Mary, cruel to the children, undutiful to my mother, Quixotic and rash and impatient as regards myself and my own prospects.... I have not had a really cheerful and easy day for weeks past, and I have got to feel at last almost beaten by it.' He goes on to tell how he has been chaffed with the characteristic freedom of barristers for his consequent silence at mess. It is 'thoroughly weak-minded of me,' he adds, but he will find a 'pretty straight road through it in one direction or another.' Gradually the attractions of India became stronger. 'It would be foolish,' he says, 'when things are looking well on circuit, to leave a really flourishing business to gratify a taste, though I must own that my own views and Henry Cunningham's letters give me almost a missionary feeling about the country.' He reads books upon the subject and his impression deepens. India, he declares, seems to him to be 'legally, morally, politically, and religiously nearly the most curious thing in the world.' At last, on May 11, while he is attending a 'thoroughly repulsive and disgusting' trial of an election petition at Stafford, he becomes sick of his indecision. He resolves to take a two hours' walk and make up his mind before returning. He comes back from his walk clear that it is 'the part of a wise and brave man' to accept such a chance when it comes in his way. Next day he writes to Grant Duff, then Indian Under-Secretary, stating his willingness to accept the appointment if offered to him. He was accordingly appointed on July 2. A fortnight later the Chief Justiceship of Calcutta, vacant by the resignation of Sir Barnes Peacock, was offered to him; but he preferred to retain his previous appointment, which gave him precisely the kind of work in which he was most interested.
He was pleased to recollect that the post on its first creation had been offered to his father. Among his earliest memories were those of the talks about India which took place at Kensington Gore on that occasion, when Macaulay strongly advised my father to take the post of which he soon became himself the first occupant. Fitzjames spent the summer at a house called Drumquinna on the Kenmare river. Froude was his neighbour at Dereen on the opposite bank, and they saw much of each other. In November, after various leave-takings and the reception of a farewell address on resigning the recordership of Newark, he set out for India, his wife remaining for the present in England.
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]
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 3¾ 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 naïvely that the law would be used to enable a man to escape these 'humiliating expiations.' Would they not be far more humiliating for English legislation? What did you mean, it would be asked, by your former profession that you would enforce religious equality? What of the acts passed to secure the immunity of all converts from legal penalties? Were they all hypocritical? I would rather submit to the displeasure of orthodox Hindoos, says Fitzjames, than have to submit to such taunts as that. 'The master objection against the bill, of which the rest are but shadows, and which unites in opposition to it men who mutually denounce each other's creeds, and men who despise those who care enough about religion to be unwilling to call that sacred which they hold to be a lie, is that it will encourage unbelief.' That may be a fair argument from Hindoos and Mohammedans; but it is strange in the mouths of those who maintain missionary societies and support schools and colleges—English education 'leads straight away from all points of native orthodoxy.' 'How can we sow the seed and refuse to recognise the crop?' When we have shut up our schools, renounced our famous legislation, permitted infanticide and suttee, we may get credit for sincerity in the objection; 'till then people will say that what we really fear is not the spread of unbelief, but the hostility of believers.' For such hypocrisy Fitzjames could never feel anything but a righteous contempt.
I must now turn to the important legislative measures which were more essentially a part of the general system of codification. A code of civil procedure had been passed in 1859, and codes of criminal law and criminal procedure in 1860 and 1861. The Indian Law Commission had also prepared laws upon contract and evidence, which were still under consideration; Fitzjames had to carry the process one stage further. In regard to the famous Penal Code, of which he always speaks with enthusiasm, his action was confined to filling up a few omissions. The case of a convict in the Andaman Islands, for example, who had made a desperate attempt to murder a gaoler, and could receive no further punishment because he was already sentenced to imprisonment for life, the maximum penalty for attempts to murder, suggested a flaw. Such offences were henceforth to be punishable by death. The only point of general interest was the case of seditious libels. A clause, prepared for the original bill, had been omitted by an unaccountable accident. Maine had already been in correspondence with Sir Barnes Peacock upon this subject in 1869. When, however, in the summer of 1870, Fitzjames proposed the insertion of a clause, it was supposed that he had hastily prepared it in consequence of certain reported disturbances in the previous spring. He was, therefore, taunted with having been a member of the 'fourth estate,' and now desiring to fetter the liberty of the press. He therefore confessed, and it must be admitted that it required less courage in him than it had required in his grandfather to confess, to the sin of having written for the newspapers. In point of fact, however, as he pointed out, the proposed section, which was from the original draft of the case as framed by the Commission, was less severe than the English law. Briefly, a man was to be punishable for writings of which it was the obvious intention to produce rebellion. A journalist might freely abuse officials and express disapproval of a particular measure, such, for example, as a tax. The disapproval, again, might tend to general disaffection. But unless there were a direct intention to stimulate resistance to the law, he would not be guilty. Fitzjames thought that to invoke the phrase 'liberty of the press' in order to permit direct provocatives to crime, whether against the public or against individuals, was a grave misapplication of popular phrases.
Upon another closely connected subject, Fitzjames, if he originated little, spent a very great deal of labour. The Penal Code had been necessarily followed by a Code of Criminal Procedure, which defined the whole system of the English administration of justice in India.[111] Courts of justice had been gradually introduced when the British establishments were mere factories, and had gradually grown up, as our power increased and the borders of the empire widened, into a most elaborate and complex organisation. Although, in a general way, the English institutions had served as a model, it had diverged very far from its originals. The different classes of Indian magistrates are carefully graded; there is a minute system for subordinating the courts to each other; they are superintended in every detail of their procedure by the High Courts; and, in brief, the 'Indian civilians are, for the discharge of all their judicial and other duties, in the position of an elaborately disciplined and organised half-military body.' Such words would obviously be inapplicable to the English magistrate. While, therefore, the Penal Code was in the main a version of English law, the Code of Criminal Procedure defined the various relations and processes of an official body entirely unlike anything existing in England.
The code originally passed in 1861 had been amended by an Act of 1869, and Fitzjames observed (June 28, 1870) that he proposed a reform which was 'almost typographical.' The two laws might, as the Law Commission had suggested, be combined in one by slightly altering their arrangement; though the opportunity might be taken of introducing 'a few minor alterations.' On December 9 following, however, he announces that he has now examined the code and had never read 'a more confused or worse-drawn law' in his life. He proceeds to show by various illustrations that the subjects treated had been mixed up in such a way as to make the whole unintelligible. He had been obliged to put off the attempt to understand it till he could get information from outside. He had, however, prepared a draft of the bill, and a Committee was appointed to consider it. The measure did not finally come before the Council until April 16, 1872. He then observes that he has not had the presumption to introduce 'modifications of his own devising into a system gradually constructed by the minute care and practical experience of many successive generations of Indian statesmen.' He has regarded himself 'less as the author of the bill than as the draftsman and secretary of the committee by whom all the important working details have been settled.' He has been in the position of the editor of a law-book, arranging as well as he could, but not introducing any new matter. To attempt any sudden changes in so complex a machinery, which already strains so severely the energies of the small number of officials employed in working it, would be inevitably to throw the whole out of gear.
This committee, he says,[112] which included men of the widest Indian experience, such as Sir G. Campbell, Sir R. Temple, and Sir John Strachey, met five days in the week and usually sat five hours a day, and the process continued for 'some months.' They discussed both substance and style of every section, and examined all the cases decided by the courts which bore upon the previous code. These discussions were all carried on by conversations round a table in a private room. 'The wonderfully minute and exact acquaintance with every detail of the system' possessed by the civilians 'made an ineffaceable impression' upon his mind. They knew, 'to a nicety, the history, the origin and object of every provision in the code.' The discussions were consequently an 'education not only in the history of British India but in the history of laws and institutions in general. I do not believe,' he says, 'that one act of Parliament in fifty is considered with anything approaching to the care, or discussed with anything approaching to the mastery of the subject with which Indian Acts are considered and discussed.' When the committee had reported, the code was passed into law 'after some little unimportant speaking at a public meeting of the Council,' (which turned, I may say, principally upon the question of the policy of allowing native members of the service to sit in judgment upon Europeans). 'This was possible, because in India there are neither political parties nor popular constituencies to be considered, and hardly any reputation is to be got by making speeches. Moreover, everyone is a man under authority, having others under him.'
A condensed account of the code and the institutions which it regulates will be found in Fitzjames's 'History of the Criminal Law,' from which I quote these words: 'If it be asked,' he says, 'how the system works in practice, I can only say that it enables a handful of unsympathetic foreigners (I am far from thinking that if they were more sympathetic they would be more efficient) to rule justly and firmly about 200,000,000 persons of many races, languages, and creeds, and, in many parts of the country, bold, sturdy, and warlike. In one of his many curious conversations with native scholars, Mr. Monier Williams was addressed by one of them as follows: "The Sahibs do not understand us or like us; but they try to be just and do not fear the face of man." I believe this to be strictly true.' 'The Penal Code, the Code of Criminal Procedure, and the institutions which they regulate, are somewhat grim presents for one people to make to another, and are little calculated to excite affection; but they are eminently well calculated to protect peaceable men and to beat down wrongdoers, to extort respect and to enforce obedience.' The code was re-enacted in 1882 under the care of Mr. Whitley Stokes. It was then extended to the High Courts, which had been previously omitted, and alterations were made both in arrangement and in substance. Of these alterations Fitzjames says that he does not consider them to be improvements; but upon that point I am not competent to form any opinion.
Closely connected with the subject of procedure was another which was treated in his most original and valuable piece of legislation. The Indian Law Commission had in 1868 sent out the draft of an 'Evidence Act,' which was circulated among the local governments. It was unanimously disapproved as unsuitable to the country. It presupposed a knowledge of English law, and would not relieve Indian officials from the necessity of consulting the elaborate text-books through which that law was diffused. Fitzjames, therefore, prepared a new draft, which was considered by a committee in the winter of 1870-1, and after their report at the end of March was circulated as usual. It was finally passed on March 12, 1872, and a full account of the principles is given in his speeches of March 31, 1871, and March 12, 1872. I have already spoken of his treatment of the law of evidence in the 'View of the Criminal Law.' I will here point out the special importance of the subject under the conditions of Indian legislation. In the first place, some legislation was necessary. An Evidence Act, already in existence, embodied fragments of English law. It would still be in force, inasmuch as English officials were directed, according to the sacred formula, to decide by 'equality, justice, and good conscience.' These attractive words meant practically 'an imperfect understanding of an imperfect recollection of not very recent editions of English text-books.' Something might be said for shrewd mother-wit, and something for a thorough legal system. But nothing could be said for a 'half and half system,' in which a vast body of half-understood law, without arrangement and of uncertain authority, 'maintains a dead-alive existence.' We had therefore to choose between a definite code, intelligible to students, who would give the necessary attention, and no code at all. The Evidence Bill, said one eminent colleague, ought to consist of one clause: 'all rules of evidence are hereby abolished.' Against this attractive proposal Fitzjames argues substantially as he had argued in the 'View.' Rules of some sort have always been found necessary. Daniel's feeble 'cross-examination of the elders in the case of Susannah' illustrates the wonder with which people once regarded methods of testing evidence now familiar to every constable. In later periods all manner of more or less arbitrary rules had been introduced into simple codes, prescribing, for example, the number of witnesses required to prove a given fact. The English system, although the product of special historical developments, had resulted in laying down substantially sound and useful rules. They do in fact keep inquiries within reasonable limits, which, in courts not guarded by such rules, are apt to ramble step by step into remoter or less relevant topics, and often end by accumulating unmanageable masses of useless and irritating scandals. Moreover, they would protect and guide the judges, who, unless you prohibited all rules whatever, would infallibly be guided by the practice of English courts. To abolish the rules of evidence would be simply to leave everything 'to mere personal discretion.' Moreover, the rules have 'a real though a negative' value as providing solid tests of truth. The best shoes will not enable a man to walk nor the best glasses to see; and the best rules of evidence will not enable a man to reason any better upon the facts before him. It is a partial perception of this which has caused the common distrust of them. But they do supply 'negative' tests, warranted by long experience, upon two great points. The first is that when you have to make an inference from facts, the facts should be closely connected in specified ways with the fact to be decided. The second is, that whatever fact has to be proved, should be proved by the best evidence, by the actual document alleged, or by the man who has seen with his own eyes or heard with his own ears the things or the words asserted to have occurred.