III. INDIAN IMPRESSIONS
These rather vague presumptions must take the place of any deliberate estimate of the value of Fitzjames's achievements in India. I must, however, say something more of the impression made upon his own mind. I have already indicated some of the convictions suggested to him by his experience, and I shall have to speak in the next chapter of the book in which he endeavoured to set forth their application to political principles in general. Here I will summarise his view of the special principles of Indian legislation. It is given very emphatically in Sir W. W. Hunter's 'Life of Lord Mayo,' and will, I think, materially elucidate his position in regard to certain wider problems.
He observes, in the first place, that the legislative department had been accused of over-activity and of a desire to introduce English law with too little regard to native ideas. The chief legislative reform required for India, he was often told, was the abolition of the legislative department—an assertion which, I should guess, when made in his presence, must have given rise to some rather lively discussions. He thought that this view rested mainly upon certain prejudices very generally entertained though not often stated in precise words. Many civilians really objected to government by law, holding that in India law should be overridden by 'equity,' or, briefly, that the district officers should decide by their own views of each particular case. Such persons, again, frequently held that the British rule had succeeded to the absolute power of the old native states, and that the vigour of the executive should be fettered by as few laws as possible. This feeling had been strengthened by the fact that the old supreme courts were originally established as a check upon the powers of the Government. The two powers came to be regarded as in a position of natural antagonism, and nothing struck him more than the conviction of the older members of the service that lawyers were their natural enemies, and the law a mysterious power with the special function of trammelling executive action. Various little encounters in the Legislative Council testify to this difference of sentiment. When he explained to a military officer of rank the power conferred by the Criminal Tribes Act, mentioned above, the officer replied, 'It is quite a new idea to me that the law can be anything but a check to the executive power.' The same sentiment underlay the frequent complaints of the want of 'elasticity' of the law. When brought to a point these complaints always related to certain regulations for taking down and recording evidence. What was really desired by the persons concerned was elasticity in the degree of attention which they might pay to their most important duties. So an officer complained that he could not punish certain persons whom he knew to be murderers, though witnesses were afraid to appear. What he really wanted, it was implied, was power to put people to death on the secret information of irresponsible witnesses.
Hence, the first question is whether India should be governed by law or by merely personal discretion. Baseless as the 'discretion' theory may be, it has a strong unavowed influence. And yet it is the very specific difference of our rule that it is rule by law and not despotism. Englishmen could have no desire simply to set up a new despotism differing from the old only in being administered by Englishmen instead of natives. The moral difference is unmistakable. Decisive government by law gives the only real security for life or property, and is the indispensable condition for the growth of wealth. Nor is a compromise more possible between law and despotism than between straight and crooked. The essence of one system is that no one shall suffer in person or property except according to law. The essence of the other is that security of person and property is dependent upon the will of the ruler. Nowhere is this shown more clearly than in India. The remedy of the poorest peasant in the country against any wrongful action of the Government in India is far clearer and more simple than the remedy of the richest and most influential man against the Government in England.[116]
The absolute necessity of government by law is shown, however, most strikingly by a process going on throughout the country—the growth of private rights, and especially of rights in land. Under the old despotic systems, the place of law was taken by a number of vague and fluctuating customs, liable to be infringed at every moment by the arbitrary fancies of the rulers. Society was 'worn to the bone.' It had become an aggregate of villages, each forming a kind of isolated units. In some districts even the villages had been broken up and no political organisation remained except that between landholders and individual husbandmen, which was really a relation between oppressors and oppressed. Elsewhere, there was a chaos of village communities, dominated by the most inorganic and ill-defined of aristocracies and monarchies. The village communities are decaying, and, in spite of regrets prompted by various reasons, they decay because they represent a crude form of socialism, paralysing to individual energy and inconsistent with the fundamental principles of our rule. The cardinal duty which we have to discharge in India is to keep the peace. The villages formed self-contained communities, each regulating its own affairs, and bound by loose customs, leading to quarrels which could only be settled by blood-feuds and the strong hand. Strict laws and a rigid administration of justice are incompatible with such modes of determining disputes between man and man and village and village. The communities, therefore, break up when the law admits of no coercive action except its own. If we will not allow a man to gather his friends, arm them with bludgeons, and march out to settle a boundary dispute with a neighbouring village, we must settle the boundary ourselves, and we must settle it by distinct rules—that is, we must enforce laws. Peace and law go together, as violence and elastic custom go together. Now we must keep the peace, and, therefore, we must rule by law.
Rule by law, however, though necessary, is not a necessary evil but an invaluable benefit. Laws are necessary to vigorous administration. When Lawrence and his colleagues undertook to rule the Punjab, it was a popular notion that they ruled by mere personal discretion. The fact, as already noticed, was the very reverse. Their first step was to establish far better, simpler, and more scientific systems of law than were in force in the older provinces. Moreover, and this is one of Fitzjames's most characteristic theories, 'the establishment of a system of law which regulates the most important part of the daily life of a people constitutes in itself a moral conquest, more striking, more durable, and far more solid than the physical conquest which renders it possible. It exercises an influence over the minds of the people in many ways comparable to that of a new religion.' This is the more significant because the instructed natives who study the laws, both Mohammedan and Hindoo, have been accustomed to identify law and religion. 'Our law is, in fact, the sum and substance of what we have to teach them. It is, so to speak, the gospel of the English, and it is a compulsory gospel which admits of no dissent and of no disobedience.' Finally, if Government does not make laws, each officer or group of officers will have to make their own. Practically they will buy a few English law-books and apply them in a servile way to the cases which turn up.
India, then, must be ruled by law. By what law? Shall we endeavour to govern on native principles and by native agency? To this theory, which has attracted many friends, he replies, No; first, because Indian ideas about government are wrong; they are proved to be wrong by experience, which shows that they led to anarchy and demoralisation; and, secondly, because they have produced men and institutions unfit for government. If, therefore, we tried to rule by Oriental methods and agents, we should either make ourselves responsible for their oppressions, or we should have to keep them in order, and that is to rule by law. We should, again, have to watch perpetually over the mass of personal intrigue which is the 'curse of every despotic state.' We should require a large native army and live under a perpetual threat of mutiny. In fact, the mutiny of 1857 really represented the explosion and the collapse of this policy. Finally, we should have to choose between Mohammedans and Hindoos, and upon either alternative a ruler not himself belonging to the religion comes into inevitable conflict with their fundamental principles.
We have, then, no choice but to rule by law and to frame laws upon European principles. Here, it is necessary to guard against misunderstandings which have given rise to the charge of over-legislation. 'European principles' mean those principles which have been shown by our experience to be essential to peace, order, wealth, and progress in arts and sciences. 'No one,' says Fitzjames, 'can feel more strongly than I do the madness of the smallest unnecessary interference with the social habits and religious opinions of the country. I would not touch one of them except in cases of extreme necessity.' But the simple introduction of peace, law, order, free competition for wealth and honour, with an education to match, will inevitably cause a social revolution. By merely suppressing violence and intestine war, you produce such a revolution in a country, which has for centuries been the theatre of disorder and war, as surely as by damming a river you produce a lake. You must look after the security of your dams under penalty of fearful disasters.
Hence the great problem of the English in India is to see that this inevitable revolution, at the head of which they have been placed, shall run in the proper channels and produce good results. What will be the ultimate result passes the wit of man to say. That India should reproduce Europe in religious morals and law seems highly improbable; but whatever changes take place will depend upon other causes than legislation. The law can only provide a convenient social framework. The utmost that we are entitled to say is that the maintenance of peace, order, and the supremacy of a law, which leaves all religious inquiries to find their own level, and is founded upon temporal expediency, is an indisputable condition of the only kind of benefits which it is in our power to confer upon India.
The conclusion, then, follows that so much legislation is not only justifiable but necessary as will provide for the following objects:—the firm establishment of our power; the recognition and enforcement of the principles which it represents; and the vigorous administration of the government. Such legislation should be earned out, however much opposed either to European or to native principles. But all legislation, not required for these purposes, is mischievous and dangerous. The limits thus defined in general terms can only be precisely marked out by experience. But 'no law should be made till it is distinctly perceived and felt to be necessary. No one can admit more fully or feel more strongly than I do the evils and dangers of mere speculative legislation in India.'
Fitzjames proceeds to argue that these principles have in fact guided our Indian legislation. No Government was 'ever less justly chargeable with enacting laws merely for the sake of legislation.' The faults have arisen from defects of style and from the peculiar conditions of Indian administration. The unwritten law of India is mainly personal; and many difficulties have arisen from the mixture of English law with the Mohammedan and Hindoo laws and other native customs. All cases not otherwise provided for were to be decided by justice, equity, and good conscience. Much latitude of decision was thus left to the Indian judges upon matters not included in the written law. The practical result of thus 'throwing the reins on the neck of judges,' the first body of whom had no professional training, was to produce a vague uncertain feeble system,' combining the defects of 'a weak grasp of principle with a great deal of occasional subservience to technicality.' English professional lawyers occasionally seem to acquire a specially vigorous grasp of principles, to which they have had to force their way through a mass of confused precedent and detail. But the 'unprofessional judge seldom gets beyond a certain number of illustrations and rules, more or less imperfectly understood.' Hence the special necessity in India of reducing the laws to the clearest and most explicit shape possible, or, in other words, for the codifying process in which he had played his part. Sir W. W. Hunter remarks in a note that the evils indicated here have been remedied to some extent, 'partly through the influence which his (Fitzjames's) views have exercised' in India, by a greater separation between the judicial and the executive branches of the service.
One of Fitzjames's most remarkable pieces of work is a 'Minute on the Administration of Justice in British India,' containing his remarks upon the subject mentioned by Sir W. W. Hunter. It was originally written in the summer of 1870, as a comment upon a large mass of opinions obtained from the local governments. It was revised in 1871, and published[117] just before he left India in 1872. The desirability of separating the judicial from the executive functions of the civilians had been long under discussion, and very various opinions had been held. In this minute Fitzjames summarises these, and gives his own view of the points on which he considered himself able to form an opinion. Many of the questions raised could only be answered to any purpose by men who had had long practical experience of administration. Fitzjames, however, gives a careful account of the actual systems of the various provinces: discusses how far it is possible or desirable to separate the functions; whether a 'special judicial branch of the civil service' should be created; whether any modification would be desirable in the systems of civil or criminal procedure; and what practical suggestions should be followed, having regard to economy and to an increased employment of natives. I cannot even attempt to describe his arguments. I will only say that the minute appears to me to be a very remarkable production, not only as indicating the amount of labour bestowed, amid so many other occupations, upon the important questions discussed; but as one of his best performances as a very clear and terse account of a complicated system with a brief but exceedingly vigorous exposition of what he thought should be the governing principles of any reforms. He held, I may say, in a general way that there were some evils which required a remedy; especially those resulting from the frequency of appeals in the Indian system and the elaborate supervision of the magistrates by the High Courts. He recognises imperfections inherent and excusable in the attempt to administer justice to so vast a population by a small body of foreigners with very imperfect legal training; though he shows his usual admiration for the general results of British government, and thinks that the efficiency of the service may be secured by moderate reforms. Incidentally he goes over many of the points already noticed as touched in his speeches. I have, however, said as much as is desirable in regard to his general principles as expounded in the minute and in the 'Life of Lord Mayo.' Every one of the legislative measures in which he was concerned might be regarded as an illustration of one or more of these propositions. To me it seems that they represent at least a definite policy, worthy of his common sense and general vigour of mind. A generalisation from these principles came to constitute his political creed in later years.