The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I Part 11

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 pa.s.sed 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 They did not originate a single measure, except those which repealed, consolidated, and re-enacted existing laws.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 pa.s.sed and became law upon receiving the a.s.sent 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 pa.s.sing 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 pa.s.sing 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 mult.i.tudinous pages of Hansard. The speeches, instead of being wordy appeals to const.i.tuents, 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 s.p.a.ce. 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 const.i.tuency, 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 pa.s.sed 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 ma.s.ses.

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 pa.s.sed 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 pa.s.sed in a day (May 12, 1871) sanctioning the system which had actually grown up, and confirming the previous Acts. Another ill.u.s.tration of the intricacy of the existing system was given by the law as to the Civil Courts in Bengal. To discover what was the const.i.tution 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 n.a.z.im. 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. c.o.c.kerell, which was pa.s.sed on February 10, 1871.

In these cases I imagine that the effect of the legislation was mainly to clear up the existing order and subst.i.tute 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 c.u.mbrous, 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 ent.i.tled.

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 pa.s.s 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 doc.u.ment, 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 quant.i.ty 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 pa.s.sed 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 t.i.tles 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 ill.u.s.trates 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 G.o.ds, 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 pa.s.sed October 12, 1871.

The case ill.u.s.trates 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 ma.s.s 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 a.s.sail 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 pa.s.sage 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 pa.s.sed in face of vehement opposition and pet.i.tions 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 Pa.r.s.ee, 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 pa.s.sed dealing with them alone. One member of the Council, I notice, complains that the demand is a.s.sociated 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 cla.s.ses, 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 a.s.sert' (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 circ.u.mstances. 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 ma.s.ses should be disquieted. Was there, he asked, any real hards.h.i.+p 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 navely 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 pa.s.sed 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 pa.s.sed 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 Peac.o.c.k 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 inst.i.tutions had served as a model, it had diverged very far from its originals. The different cla.s.ses 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 pa.s.sed 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 ill.u.s.trations 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 inst.i.tutions 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 pa.s.sed into law 'after some little unimportant speaking at a public meeting of the Council,' (which turned, I may say, princ.i.p.ally 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 const.i.tuencies 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 inst.i.tutions 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, st.u.r.dy, 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 inst.i.tutions 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 pa.s.sed 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' ill.u.s.trates 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 acc.u.mulating unmanageable ma.s.ses 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 gla.s.ses 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 doc.u.ment alleged, or by the man who has seen with his own eyes or heard with his own ears the things or the words a.s.serted 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 ma.s.ses 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 pa.s.sed during Fitzjames's tenure of office. The 'Limitation of Suits' Act, pa.s.sed 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 t.i.tle 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 pa.s.s 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 d.a.m.ned if their sworn statements are inaccurate, unintentionally or otherwise, and who, inferring that d.a.m.nation 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 pa.s.sed into law. The Punjab Land Revenue Act was pa.s.sed 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 pa.s.sage 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 pa.s.sed. 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 a.s.sistance 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 compa.s.s.'

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 ent.i.tled to that name. A vigorous const.i.tution of mind and body applied to the discharge of appropriate duties describes a most felicitous combination of circ.u.mstances, 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 const.i.tutes 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 cla.s.sification of any other subject-matter, combine this with intellectual excellence at the opposite pole. The scientific cla.s.sification, 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 cla.s.sical 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.