The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I Part 12

III. INDIAN IMPRESSIONS

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

He observes, in the first place, that the legislative department had been accused of over-activity and of a desire to introduce English law with too little regard to native ideas. The chief legislative reform required for India, he was often told, was the abolition of the legislative department--an a.s.sertion which, I should guess, when made in his presence, must have given rise to some rather lively discussions.

He thought that this view rested mainly upon certain prejudices very generally entertained though not often stated in precise words. Many civilians really objected to government by law, holding that in India law should be overridden by 'equity,' or, briefly, that the district officers should decide by their own views of each particular case. Such persons, again, frequently held that the British rule had succeeded to the absolute power of the old native states, and that the vigour of the executive should be fettered by as few laws as possible. This feeling had been strengthened by the fact that the old supreme courts were originally established as a check upon the powers of the Government. The two powers came to be regarded as in a position of natural antagonism, and nothing struck him more than the conviction of the older members of the service that lawyers were their natural enemies, and the law a mysterious power with the special function of trammelling executive action. Various little encounters in the Legislative Council testify to this difference of sentiment. When he explained to a military officer of rank the power conferred by the Criminal Tribes Act, mentioned above, the officer replied, 'It is quite a new idea to me that the law can be anything but a check to the executive power.' The same sentiment underlay the frequent complaints of the want of 'elasticity' of the law.

When brought to a point these complaints always related to certain regulations for taking down and recording evidence. What was really desired by the persons concerned was elasticity in the degree of attention which they might pay to their most important duties. So an officer complained that he could not punish certain persons whom he knew to be murderers, though witnesses were afraid to appear. What he really wanted, it was implied, was power to put people to death on the secret information of irresponsible witnesses.

Hence, the first question is whether India should be governed by law or by merely personal discretion. Baseless as the 'discretion' theory may be, it has a strong unavowed influence. And yet it is the very specific difference of our rule that it is rule by law and not despotism.

Englishmen could have no desire simply to set up a new despotism differing from the old only in being administered by Englishmen instead of natives. The moral difference is unmistakable. Decisive government by law gives the only real security for life or property, and is the indispensable condition for the growth of wealth. Nor is a compromise more possible between law and despotism than between straight and crooked. The essence of one system is that no one shall suffer in person or property except according to law. The essence of the other is that security of person and property is dependent upon the will of the ruler.

Nowhere is this shown more clearly than in India. The remedy of the poorest peasant in the country against any wrongful action of the Government in India is far clearer and more simple than the remedy of the richest and most influential man against the Government in England.[116]

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

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

India, then, must be ruled by law. By what law? Shall we endeavour to govern on native principles and by native agency? To this theory, which has attracted many friends, he replies, No; first, because Indian ideas about government are wrong; they are proved to be wrong by experience, which shows that they led to anarchy and demoralisation; and, secondly, because they have produced men and inst.i.tutions unfit for government.

If, therefore, we tried to rule by Oriental methods and agents, we should either make ourselves responsible for their oppressions, or we should have to keep them in order, and that is to rule by law. We should, again, have to watch perpetually over the ma.s.s of personal intrigue which is the 'curse of every despotic state.' We should require a large native army and live under a perpetual threat of mutiny. In fact, the mutiny of 1857 really represented the explosion and the collapse of this policy. Finally, we should have to choose between Mohammedans and Hindoos, and upon either alternative a ruler not himself belonging to the religion comes into inevitable conflict with their fundamental principles.

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

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

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

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

One of Fitzjames's most remarkable pieces of work is a 'Minute on the Administration of Justice in British India,' containing his remarks upon the subject mentioned by Sir W. W. Hunter. It was originally written in the summer of 1870, as a comment upon a large ma.s.s of opinions obtained from the local governments. It was revised in 1871, and published[117]

just before he left India in 1872. The desirability of separating the judicial from the executive functions of the civilians had been long under discussion, and very various opinions had been held. In this minute Fitzjames summarises these, and gives his own view of the points on which he considered himself able to form an opinion. Many of the questions raised could only be answered to any purpose by men who had had long practical experience of administration. Fitzjames, however, gives a careful account of the actual systems of the various provinces: discusses how far it is possible or desirable to separate the functions; whether a 'special judicial branch of the civil service' should be created; whether any modification would be desirable in the systems of civil or criminal procedure; and what practical suggestions should be followed, having regard to economy and to an increased employment of natives. I cannot even attempt to describe his arguments. I will only say that the minute appears to me to be a very remarkable production, not only as indicating the amount of labour bestowed, amid so many other occupations, upon the important questions discussed; but as one of his best performances as a very clear and terse account of a complicated system with a brief but exceedingly vigorous exposition of what he thought should be the governing principles of any reforms. He held, I may say, in a general way that there were some evils which required a remedy; especially those resulting from the frequency of appeals in the Indian system and the elaborate supervision of the magistrates by the High Courts. He recognises imperfections inherent and excusable in the attempt to administer justice to so vast a population by a small body of foreigners with very imperfect legal training; though he shows his usual admiration for the general results of British government, and thinks that the efficiency of the service may be secured by moderate reforms.

Incidentally he goes over many of the points already noticed as touched in his speeches. I have, however, said as much as is desirable in regard to his general principles as expounded in the minute and in the 'Life of Lord Mayo.' Every one of the legislative measures in which he was concerned might be regarded as an ill.u.s.tration of one or more of these propositions. To me it seems that they represent at least a definite policy, worthy of his common sense and general vigour of mind. A generalisation from these principles came to const.i.tute his political creed in later years.

IV. LAST MONTHS IN INDIA

I must now speak of an event which made a very strong impression upon him. He concludes the chapter from which I have been quoting by declaring that of the many public men whom he had met in England and India, there was none to whom he 'felt disposed to give such heartfelt affection and honour' as to Lord Mayo. Lord Mayo, he says, though occupied in many other ways, had shown the 'deepest personal interest'

in the work of the legislative department, and, when difficulties arose, had given to it the warmest, most ardent, and most effective support. It was chiefly due to Lord Mayo that the Government was able to pa.s.s the important acts of the beginning of 1872, especially the three great measures: the 'Civil Procedure Code,' the 'Contract Act,' and the 'Evidence Code.' I hope, says Fitzjames to Sir W. W. Hunter, that you will be able to make people understand 'how wise and honest and brave he was, and what freshness, vigour, and flexibility of mind he brought to bear upon a vast number of new and difficult subjects.' On January 24, 1870, Lord Mayo left Calcutta in H.M.S. 'Glasgow' to visit, among other places, the convict settlement at the Andaman Islands. He landed there on February 8, and while getting into his boat to return was murdered by a convict. The body was brought back to Calcutta on February 19, where it lay in state for two days at Government House, before being sent for burial to his native country. In one of his last letters to his mother, Fitzjames gives an account of the ceremonies at Calcutta, which incidentally ill.u.s.trates, I think, more forcibly than anything else, the impression produced upon him by India generally. I shall therefore give most of it, omitting a few comparatively irrelevant details. I will only observe that n.o.body had less taste for public performances of this kind in general--a fact which shows the strength of his feelings on this particular occasion.

'I never expected,' he writes (February 23, 1872), 'to be impressed by a mere ceremonial; but there were some things almost oppressive from their reality and solemnity.... The coffin was brought up on a gun-carriage.

It was of enormous size and weight, (near two tons, I believe). The gun-carriage, drawn by twelve artillery horses, made a strangely impressive hea.r.s.e. It looked so solid, so businesslike, so simple, and so free from all the plumes and staves and rubbish of undertakers. About thirty picked sailors from the "Daphne" and "Glasgow" walked behind and by the side; all dressed in clean white trousers and jerseys, and looking like giants, as indeed they were. They were intensely fond of Lord Mayo, who had won their hearts by the interest he took in them and in the little things they got up to amuse him.... He pa.s.sed the last evening of his life sitting with Lady Mayo on the bridge of the "Glasgow," and laughing at their entertainment with the greatest cordiality. They wanted to be allowed to carry the coffin on their own shoulders; they said they were ready and willing to do it, and I believe they would have been able, ready, and willing to do anything that strength and skill and pluck could do. Behind them walked the procession, which was nearly three-quarters of a mile long, and contained every Englishman of any importance in Calcutta and a considerable number of natives. The whole road was lined with troops on both sides: but they stood at intervals of several yards, and there was an immense crowd close behind and, in some places in between them.... If there had been any other fanatics in the crowd, there was nothing to prevent them from making a rush and giving a stab.... If there had been any attempt of the kind, I cannot say what might not have happened.

People were in such an excited and half-electric state that there might have been a general riot, which would soon have become very like a ma.s.sacre. One man told me that on his way home, he felt possessed by such fury against anyone who might be connected with the murder, that he walked with a kind of charge through a group of people, who looked as if they enjoyed "the show," and gave a shove to a big Mohammedan who looked insolent, at which, he said, "the man went down like a bag of feathers."

I saw some suspicious-looking fellows grinning and sneering and showing their teeth myself, and I felt as if I could have killed them. No one who has not felt it can imagine how we all feel out here in regard to such matters. When Lord Mayo was stabbed, I think every man in the country felt as if he had been more or less stabbed himself.

'The procession went on with the most overwhelming solemnity (nothing short of these words can describe it), till we got to Government House.

There was a dead silence nearly all the way; the natives standing or squatting in their apathetic way, and the Europeans as grim as death.

All that was to be heard was the rattle of the gun-carriage, and the tramping of the horses, and the minute-guns from the fort and s.h.i.+ps. The housetops, the windows, the fort were all crowded with people, but all as still as death. I think the s.h.i.+ps looked as sad as anything. There were two miles of n.o.ble s.h.i.+ps in the Hooghly. Their flags were all flying half-mast high, and they had all "tossed their yards."' (He draws a rough diagram to explain the phrase). 'The yards are all in disorder, and the effect is forlorn and dishevelled to a degree you would not imagine. When we got to Government House, the coffin had to be lifted off the gun-carriage and pulled up a long flight of wide stone steps.... The sailors and a few artillerymen did it all in perfect silence, and with an amount of strength that looked almost marvellous.'

The coffin was placed on a truck, to which the sailors harnessed themselves, and dragged it up an inclined plane (formed over the steps) with no apparent effort in spite of the enormous weight. It was taken along a suite of rooms, 'hung with black, and lighted with a curious simplicity and grandeur.' Here, again, the coffin had to be lifted, and 'it was most striking to see the absolute silence with which the men moved the monstrous weight at a sign from the captain's hand.' The only sound was when a spar snapped in the hands of a 'giant of a fellow, who was lifting with it. There was a respectful delicacy in every motion of these men which combined beautifully with their immense, quiet, controlled strength, and impressed me very much. After a few prayers we left.'

On Wednesday, the 21st, the coffin was again removed to the s.h.i.+p. The imprudence of the former procession had struck everyone. The streets were cleared and no one admitted to the jetty except the procession.

'You cannot imagine the awful solemnity which all this precaution gave the whole thing. It was like marching through a city half-dead and half-besieged.' Nothing was to be seen but troops; and, 'when we got into Dalhousie Square, there was a battery of artillery firing minute-guns, and drawn up on the road just as if they were going to fight. Two or three bands played the Dead March the whole way, till I felt as if it would never get out of my ears. At the end of the jetty lay the "Daphne." ... The sailors, with infinite delicacy and quiet, draped the coffin carefully with its flags ... and it was raised and lowered by a steam-crane, which, somehow or other, they managed to work without any sound at all. When the s.h.i.+p steamed off down the river, and the minute-guns stopped, and I drove home with Henry Cunningham, I really felt as I suppose people feel when an operation is over. There was a stern look of reality about the whole affair, quite unlike what one has seen elsewhere. Troops and cannon and gun-carriages seem out of place in England, ... but it is a very different matter here, where everything rests upon military force. The guns and the troops are not only the outward and visible marks of power, but they are the power itself to a great extent, and it is very impressive to see them.

'It gives a sort of relief to one,' he adds, 'that after all Lord Mayo was, in a sense, going home: that he (so far as one can speak of his dead body) was leaving this country with all its various miseries, to return to his own native place. If one is to have fancies on such a matter, it is pleasant to think that he is not to lie here in a country where we can govern and where we can work and make money and lead laborious lives; but for which no Englishman ever did, or ever will, or can feel one tender or genial feeling.[118] The work that is done here is great and wonderful; but the country is hateful.'

One singular incident was connected with this event. The murderer had been tried on the spot and sentenced to death. The sentence had to be confirmed by the High Court at Calcutta. It was there discovered that the judge had by some mistake recorded that the European witnesses had 'affirmed' according to the form used for native religions, instead of being sworn according to the Christian formula. Fitzjames was startled to hear of this intrusion of technicality upon such an occasion; and held, I think, that in case of need, the Government of India should manage to cut the knot. Ultimately, however, some of the witnesses who were at Calcutta made affidavits to the effect that they had really been sworn, and the sentence was confirmed and executed. Otherwise, said Fitzjames in one of his last Indian speeches (upon the Oaths and Declaration Act) a grievous crime might have escaped punishment, because five English gentlemen had made statements 'in the presence of Almighty G.o.d,' instead of kissing the Bible and saying 'So help me G.o.d.'

I must mention one other incident which occurred at the end of Fitzjames's stay in India. One Ram Singh was the spiritual and political chief of a sect called the Kookas. His disciples showed their zeal by murdering butchers as a protest against cow-killing. They were animated by prophecies of a coming kingdom of heaven, broke into rioting and were suppressed, and, as the Indian Government held, punished with an excess of severity. Although Fitzjames was not officially responsible in this business, he was consulted on the occasion; and his opinions are represented by an official despatch. I need only say that, as in the case of Governor Eyre, he insisted that, while the most energetic measures were allowable to suppress actual resistance, this was no excuse for excessive punishment after the danger was over. The ordinary law should then be allowed to take its course. Meanwhile, Ram Singh was shown to be more or less implicated in the disorders and was deported to Burmah. Fitzjames was greatly impressed by the a.n.a.logy between English rulers in India and Roman governors in Syria some eighteen centuries ago, when religious sects were suspected of political designs.

To this I shall refer presently.

Fitzjames attended the Legislative Council for the last time on April 17, 1872. He left Calcutta the next day on his return to England. He had thus been in office for only half the usual period of five years. His reasons for thus cutting short his time were simple. He felt very strongly that he was exacting a sacrifice on the part of his wife and his family which could only be justified by a very distinct advantage.

The expenses were more than he had antic.i.p.ated, and he saw at an early period that he would be in any case compelled to return to his profession. Gaps at the bar are soon filled up. The more prolonged his absence, the greater would be the difficulty of regaining the position which he had slowly reached. I have some reason to think that the authorities at the India Office were not altogether pleased at what they considered to be a premature relinquishment of his post. He could, however, reply that if he had been only half the usual time in India, he had done fully twice the average amount of work. He left India without regrets for the country itself; for to him the climate and surroundings of English life seemed to be perfection. But he left with a profound impression of the greatness of the work done by Englishmen in India; and with a warm admiration for the system of government, which he was eager to impart to his countrymen at home. How he endeavoured to utter himself upon that and kindred subjects shall be told in the next chapter.

FOOTNOTES:

[Footnote 102: His first letter to Miss Thackeray, I notice, is written upon the back of a quaint broadsheet, bought at Boulogne. On the other side is a woodcut of the gallant 'Tulipe' parting from his mistress, and beneath them is the song 'Tiens, voici ma pipe, voila mon briquet!'

which Montcontour used to sing at the 'Haunt' to the admiration of Pendennis and Warrington. See the _Newcomes_, vol. i. chap. x.x.xvi.]

[Footnote 103: I depend chiefly upon the official reports of the debates in the Legislative Council; my brother's own summary of Indian legislation in a chapter contributed to Sir W. W. Hunter's _Life of the Earl of Mayo_ (1875), ii. pp. 143-226; and a full account of Indian criminal legislation in chap, x.x.xiii. of his _History of Criminal Law_.

He gave a short summary of his work in an address to the Social Science a.s.sociation on November 11, 1872, published in the _Fortnightly Review_ for December 1872. I may also refer to an article upon 'Sir James Stephen as a Legislator' in the _Law Quarterly Review_ for July 1894, by Sir C. P. Ilbert, one of his successors.]

[Footnote 104: I may say that he especially acknowledges the share of the work done in his own time by Mr. Whitley Stokes, secretary to the Council, by Sir H. S. Cunningham, for some time acting secretary, and by Mr. c.o.c.kerell, a member of the Council.]

[Footnote 105: _History of Criminal Law_, iii. 299.]

[Footnote 106: _Life of Lord Mayo_, ii. 199.]

[Footnote 107: _History of Criminal Law_, ii. 300-303.]

[Footnote 108: 'Obsolete Enactments Bill,' February 25, 1870.]

[Footnote 109: _Mayo_, ii. 220.]

[Footnote 110: The parties had also to be of certain ages, not already married, and not within certain degrees of relations.h.i.+p.]

[Footnote 111: See the account of this in _History of Criminal Law_, iii. 324-346.]

[Footnote 112: _History of Criminal Law_, iii. 345.]

[Footnote 113: _Digest of the Law of Evidence._ Fourth edition, 1893, pp. 156-9.]

[Footnote 114: An edition of the _Evidence Code_, with notes by Sir H.

S. Cunningham, reached a ninth edition in 1894. It gives the changes subsequently made, which are not numerous or important.]

[Footnote 115: Sir C. P. Ilbert, however, is mistaken in supposing that Fitzjames wrote his _Liberty, Equality, Fraternity_ during his official labours.]

[Footnote 116: _Life of Mayo_, ii. 163.]

[Footnote 117: In _Selections from the Records of the Government of India_, No. lx.x.xix., published by authority. Calcutta, 1872.]

[Footnote 118: I do not feel that it would be right to omit this remark, although I am certain that, taken by itself, it would convey a totally inaccurate impression of my brother's sentiments about India. I have, I hope, said enough to indicate his sympathetic interest in Indian matters and the work of Indian officials. I must trust my readers to understand that the phrase expresses a mood of intense excitement and must be taken only as indicating the strength of the pa.s.sing emotion.]