A demand for codification was among the traditions of the Utilitarians. Bentham, born in 1748, had preached to deaf ears during the eighteenth century; but in the first quarter of the nineteenth he had gathered a little band of disciples, the foremost of whom was James Mill. The old philosopher had gradually obtained a hearing for his exhortations, echoed in various forms by a growing, confident, and energetic body, and his great watchword was 'Codify.' He had found hearers in foreign countries, especially in Russia, Spain, and various American States; but his own countrymen had been among the last to listen. Gradually, however, as the passion and prejudice of the war period passed away and the movement which culminated in the Reform Bill of 1832 gathered strength, it became apparent that the stubborn conservatism, even of the great tacit corporation of lawyers, would have to yield. The supremacy of Eldon was beginning to be shaken. Sir Robert Peel began to reform the criminal law about 1827, taking up the work upon which Bentham's friend and disciple, Romilly, had laboured for years with infinitesimal results. Commissions were appointed to work upon legal reforms. With parliamentary reform an era of rapid and far-reaching changes set in, though Bentham died on the eve of entering the land of promise.
When, therefore, the charter of the last India Company was renewed in 1833, it was natural that some place should be found for codification. James Mill, upon whom Bentham's mantle had fallen, held a leading position at the India House, and his evidence before a parliamentary committee had an important influence in determining the outlines of the new system. One of the four members of the Council of the Governor-General was henceforth to be appointed from persons not servants of the Company. He was to attend only at meetings for framing laws and regulations. Macaulay, the first holder of this office, went to India in 1834 and prepared the penal code. One of his assistants, C. H. Cameron, was an ardent Benthamite, and the code, in any case, was an accomplishment of Benthamite aspirations. This code, says Fitzjames, 'seems to me to be the most remarkable, and bids fair to be the most lasting monument of its principal author. Literary fashions may change, but the penal code has triumphantly stood the ordeal of twenty-one years' experience; and, though composed by a man who had scarcely held a brief, has been more successful than any other statute of comparable dimensions.'[105] The code, however, slept for many years in a pigeon-hole—a fact which Fitzjames considers[106] to be a most striking proof of the reluctance of the English Government to interfere in any way with native institutions. We rubbed on, it seems, with a sort of compromise between English and Mahommedan criminal law until 1860, when the code, after a careful revision by Sir Barnes Peacock, was finally passed into law. That, says Fitzjames, was a singular piece of good fortune. 'An ideal code ought to be drawn by a Bacon and settled by a Coke'; it should combine the highest qualities of literary skill and technical knowledge. Thus drawn, the code became the first specimen of an 'entirely new and original method of legislative expression.' It served as a model for all the later Indian codes. Its method is first to state the 'leading idea' in the most pointed and explicit form; then to give a definite explanation of any terms which admit of a possible doubt; then to give equally definite exceptions; and, finally, to illustrate the whole by applying it to a number of concrete cases.[107] In Macaulay's hands the legal document, freed from the endless verbiage, circumlocution and technicality of English statutes, became a model of logical precision, and was even entertaining as a piece of literature.
The passage of this code was part of a systematic process of codification. An Indian Law Commission, sitting in England, had been appointed in 1853 to carry on the work of consolidating the law. The suppression of the mutiny and the dissolution of the Company were naturally followed by various administrative and legislative reforms. A code of civil procedure was passed in 1859, and a code of criminal procedure, as a necessary supplement to the penal code, in 1861. In 1862 Maine went out as legislative member of the Indian Council, and carried on the work of codification in combination with a new Law Commission, appointed in 1861. The Commission ultimately fell out with the Indian Government, and finally resigned in 1870. They seem to have been of opinion that there was undue delay in passing the bills which they prepared. Meanwhile, Fitzjames took up various measures which had been left incomplete, and carried them to completion. Before specifying them so far as will be desirable, I must say something of the machinery by which they were converted into law.
This, as will be seen, greatly impressed Fitzjames by its total dissimilarity to the process of legislation under our own parliamentary system. The Legislative Council consisted, under an Act passed in 1861, of the Viceroy, the Commander-in-Chief, the Governor of the province in which the Council sits, of five ordinary members, and of additional members—not less than six and not more than twelve in number—half of whom must be non-official. The maximum number possible would therefore be twenty. The Viceroy, the Commander-in-chief, and the five ordinary members conducted the whole executive government of the country. The 'legislative department' consisted of a 'secretary to the council of the Viceroy, for the purpose of making laws and regulations.' The secretary during Fitzjames's tenure of office was Mr. Whitley Stokes, who had already served under Maine. During Mr. Stokes's absence on leave for the last year of Fitzjames's service, his place was taken by Henry Cunningham. The member of Council and the secretary drew almost all the bills required. It must be noticed that proposals for legislation were not initiated by the department itself. This principle, says Fitzjames, 'was scrupulously observed both by Sir Henry Maine and myself.' They did not originate a single measure, except those which repealed, consolidated, and re-enacted existing laws. When a bill had been drawn and introduced into Council, it was circulated to be criticised by the local governments and by district officers, or by persons whose interests might be affected. A special committee was appointed to go through the Act, clause by clause, and consider the suggestions and criticisms which had been received. In the case of one act, it is mentioned that the materials thus collected formed a volume of 500 closely printed pages of minute criticism upon every section of the bill. The committee made such changes as appeared desirable in view of these comments, and the bill, after being in some cases reprinted, published, and circulated, was again brought before the Council. A discussion then took place and amendments might be proposed. When these had been accepted or rejected, the bill was passed and became law upon receiving the assent of the Viceroy, though it might still be disallowed by the Secretary of State in Council.
A code, or even a measure which is to form part of a code, should be a work of art—unequivocal in language, consistent in its logic, and luminous in its arrangement. Like other works of art, therefore, it must be essentially the product of a single mind. It is as impossible, as Fitzjames often repeats, for a number of people to make a code as for a number of artists to paint a picture. The legal artist requires, indeed, to receive information from numerous sources, and to be carefully and minutely criticised at every point by other experts and by the persons whose interests are affected. But the whole can only be fused into the necessary unity by passing through a single understanding. These conditions were sufficiently secured by the preliminary processes just described. Nor was there any risk that a measure should lose its symmetry in the process of passing through the Council. The Council was composed of men capable, on the one hand, of judging of the expediency of the general policy involved, and willing, on the other hand, to trust for details to the official in charge of the measure, without any desire for captious interference with details. It consisted largely of men, each of whom had important duties to discharge, and was anxious to facilitate the discharge of duties by his colleagues. It was emphatically a body which meant business, and had no temptation to practise the art of 'not doing it.'
There is a quaint contrast, therefore, between the reports of the debates in Council and those which fill the multitudinous pages of Hansard. The speeches, instead of being wordy appeals to constituents, are (so far as one can judge from the condensed official Reports) brief logical expositions of the leading principles involved, packing the essential arguments into the briefest possible space. When a body such as the British Parliament undertakes to legislate, it has certain weaknesses too familiar to require much exposition. If a measure is not adapted to catch the popular ear, it is lucky, however great may be its real importance, in obtaining a hearing at all. It may be thrust aside at any moment by some of the storms of excitement characteristic of a large body agitated by endless party quarrels. Many of the legislators are far less anxious to get business done than to get the doing of business. Everyone who is crotchety, or enthusiastic, or anxious for notoriety, or desirous to serve a party or please a constituency, may set a hand to the work. A man, from the best of motives, may carry some impulsive suggestion. The measure may be tortured and worried out of shape by any number of alterations, moved without clear apprehension of the effect upon the whole. Trifling details will receive an excessive amount of elaboration, and the most important proposals be passed over with precipitation, because the controversy becomes too heated and too complicated with personal interests to be decided upon reasonable grounds. The two evils of procrastination and haste may thus be ingeniously combined, and the result may be a labyrinth of legislative enactments through which only prolonged technical experience can find its way. I need not inquire what compensations there may be in the English system, or how far its evils might be avoided by judicious arrangements. But it is sufficiently clear what impression will be made upon anyone who tests a piece of legislative machinery by its power of turning out finished and coherent work which will satisfy legal experts rather than reflect the wishes of ignorant masses.
I must now try to indicate more precisely the nature of the task in which Fitzjames had to take a share. He gives a preliminary sketch in one of his first speeches.[108] The law of British India was composed of different elements, corresponding to the process by which the trading company had developed into a sovereign power and extended its sway over an empire. There were, in the first place, the 'regulations' made in the three presidencies, Bengal, Madras, and Bombay, before the formation of the Legislative Council in 1834. Then there were the acts of the Legislative Council which had since 1834 legislated for the whole of British India; and the acts of the subordinate legislatures which had been formed in the two presidencies in 1861. Besides these there were executive orders passed by the Governor-General in Council for the 'non-regulation' provinces (the North-western Provinces, the Punjab, Oudh, the Central Provinces, and Burmah). These had more or less introduced the same laws into the regions successively annexed, or such an approximation to those laws as was practicable, and dictated according to an accustomed formula by 'justice, equity, and good conscience.' Certain doubts existed as to the precise legal character of these orders. Their validity had been confirmed by the Act of 1861, but for the future all legislation was to be carried on by the councils. The laws were less numerous and complex than might be inferred from this enumeration. Some were temporary in their nature and others repealed previous legislation. The first thing to be done was to ascertain what laws were actually operative; to repeal the useless and obsolete; and confirm others which, though useful, might be of doubtful validity. It would then become possible to consolidate and codify; so that for every subject there might be a single enactment, and for every province a single body of laws. Much had been already accomplished in this direction under Lord Lawrence when Maine was the legal member of Council; and preparations had been made for carrying the process further.
The measures in which Fitzjames was more or less concerned were made necessary by these conditions. The old Bengal regulations, made from 1793 to 1834, are said to have been 'eminently practical and useful.' But they were made from time to time with a view to particular cases; and their language presupposed familiarity with a variety of facts, as to the position and mutual relations of the different members of the service, and so forth, which were constantly changing as the Company developed, acquired new functions, and redistributed the duties of its subordinates. Such a process naturally left room for gaps in the system which might reveal themselves with awkward results at critical moments. Thus it turned out in the course of investigations made by the legislative department that nearly every criminal trial which had taken place in Bengal and the North-western Provinces since 1831 had been irregular. The result was that 'people had gone on being hung, transported, and imprisoned illegally for a period of probably nearly forty years.' No substantial injury had resulted, but as legal proceedings multiplied it was possible that awkward questions might be raised. An Act was therefore passed in a day (May 12, 1871) sanctioning the system which had actually grown up, and confirming the previous Acts. Another illustration of the intricacy of the existing system was given by the law as to the Civil Courts in Bengal. To discover what was the constitution of these courts you would have, says Fitzjames (Feb. 10, 1871) to begin by reading Regulations III. and IV. of 1793, and to find out that, though most of them had been repealed, little bits of each remained in force. You would then have to note that, although these bits applied only to a certain small district, they had been extended in 1795 to certain other specified places, and in 1803 to the district ceded by the Nawab Nazim. What that district was might be ascertained from historical records. Continuing such inquiries, you might discover, after consulting thirteen Acts and Regulations, what was the actual state of things. People, of course, really learnt such points by practice and conversation, though their knowledge would probably be in a nebulous condition. The whole system was put upon a clear footing in an Act of thirty-eight sections, prepared by Mr. Cockerell, which was passed on February 10, 1871.
In these cases I imagine that the effect of the legislation was mainly to clear up the existing order and substitute a definite accessible law for a vague rule of thumb. Elsewhere more serious problems were involved. Upon the annexation of the Punjab in 1849 it was necessary to establish at once a vigorous and cheap system of government. Lord Lawrence, with his brother Henry and Mr. Mansel, were formed into a Board of Administration, and entrusted with dictatorial power. They were instructed to adopt as nearly as possible the system of law which has existed in the North-Western Provinces. That system, however, was vague and cumbrous, and it was impracticable to introduce it into the new province, which required far more rough and ready methods. Lord Lawrence and his colleagues proceeded therefore to draw up regulations. Though these were necessarily crude and imperfect in the eyes of a thorough lawyer, they made it possible to introduce settled order and government, and were the first approach to codes in India. There remained, however, serious differences of opinion as to the degree of legal authority to which they were entitled.
Two of these codes were of great importance. In 1853 Sir Richard Temple had prepared a handbook, under the direction of Lord Lawrence, which came to be known as the 'Punjab Civil Code.' It was a lucid statement, although made by one who was not a specially trained lawyer, of the law supposed to exist in the Punjab, with expositions of parts of the Hindoo and Mohammedan law. The question however, had never been finally settled whether it was merely a text-book or had acquired the force of law by the use made of it and by incidental references in official despatches. It included, for example, a kind of bankruptcy law, under which large amounts of property had been distributed; although, according to some opinions, the whole process was illegal. Conflicting views were held by high authorities. 'As many as six or seven degrees of inspiration had been attributed to different parts of the code,' said Fitzjames (March 26, 1872), 'as to the relation in which they stood to the rest.' In short, a book originally intended as a guide to administrators of the law had come to be a 'sort of semi-inspired volume,' with varying degrees of 'infallibility.' Moreover, as it led to much litigation and many discussions, it had swelled from a small volume into 'one of those enormous receptacles of notes, comments, sections of Acts, and general observations which pass in England under the name of legal text-books.' (September 5, 1871.) In order to clear up the confusion, Mr. D. G. Barkley had been directed by the Lieutenant-Governor of the Punjab to prepare a volume containing all the regulations which were supposed to have actually the force of law. Many of these were only accessible in official archives. This volume filled 408 closely printed pages, besides various schedules. When carefully examined by Fitzjames this was reduced to an act of fifty-eight sections, and the question as to authority finally set at rest.