A still more important part of the Punjab administration dealt with the land revenue. This, of course, touches the most vital part of the whole system of British government. A famous 'Regulation, VII. of 1822,' had laid down the general principles of land-revenue law. But it was in itself ambiguous, and there were great doubts as to whether it extended to the Punjab, or whether the administrators of the Punjab had full power to lay down such rules as they pleased, subject only to the direction to take the regulation for a model as far as applicable. Different views were taken by the courts of law and by the governors; some opinions would tend to show that the whole series of administrative acts had been illegal, and out of this difficulty had arisen an acrimonious controversy in 1868 upon Punjab tenancy. Meanwhile various 'instructions' had been issued by the executive, and two books, written by Mr. Thomason, gave directions to 'settlement officers' and 'collectors.' These, says Fitzjames, were 'almost if not quite the best law-books that have ever come under my notice.' They were, however, written from an administrative, not from a legal point of view. In order to ascertain the actual state of things Mr. Robert Cust was instructed to draw up a revenue-code, and forwarded his draft to the legislative department in 1870. The law, as Mr. Cust stated in this document, was 'in a state of lamentable and, to those not trained to the study, unintelligible confusion.' His draft contained 1261 sections, filling 216 quarto pages of small type. It was swelled, however, by a large quantity of detail, dealing with matters which might be left to the discretion of executive officers. The draft was carefully considered by a committee, including the most experienced officials, and in consultation with the actual revenue authorities in the Punjab. A measure of moderate dimensions was framed in accordance with their views and passed on October 30, 1871. One of the critics of the bill observed that it had been thus reduced to a 'set of affecting commonplaces.' Fitzjames replies that, in point of fact, the bill was meant precisely to lay down general principles, leaving details to be settled by the local authorities. One proposal made by him which, as Sir R. Temple observed, showed his 'breadth of view and root and branch grasp of the subject,' indicates the importance of the matter. Substantially it was to make the record of rights, established for the purposes of the revenue, a conclusive evidence (under certain precautions) of the titles of the various persons interested in the land. This was modified on the ground that it was not suited to the tastes of the natives; who, it was said, rather preferred that matters should be left 'at a loose end,' instead of being definitely wound up once for all. This Act, together with the Act previously mentioned, put an end to 'one of the strangest pieces of intricacy and confusion to be found in Indian law.'[109]
Another enactment curiously illustrates some practical results of the undefined degree of authority of the laws in the Punjab. Four hundred years ago—so runs a possibly mythical legend—a certain man was ploughing in a field. The wife of a rich banker was bathing not far off, and laid her necklace of pearls on the bank. A crow took it up and dropped it in the ploughman's field. He presented it to his wife, and proceeded to reason upon the phenomenon. The fowls of the air, he reflected, neither ploughed nor sowed, but they managed to pick up valuables. Why should he not show a similar trust in Providence? He resolved to set up as a freebooter, made proselytes, and finally became the ancestor of a clan. His tribe were moral and decent people at home; they had their religious rites, initiated their children solemnly, and divided their earnings on system. After setting aside 3¾ per cent. for the gods, 28 per cent. was divided between the chief and the thief, while the remainder went to the tribe at large. Their morality, however, was conterminous with the limits of the clan. They considered themselves to be in Hobbes's 'state of nature,' with regard to other men. They wandered far and wide through India, and made enough to live in greater comfort than could be got out of legitimate occupations. They were only one among other more important and dangerous tribes of criminals, who adopted the same judicious principle of carrying on their operations at a distance from their homes. The Punjab government had dealt with these tribes by registering them, compelling them to live within certain limits, and settling them upon waste lands. It had been discovered, however, that these regulations were beyond the powers of the executive. The system had to be abandoned and the tribes promptly returned to their old practices. When members of another well-known criminal tribe were arrested on the eve of one of their operations, they were set at liberty by a judicial decision. The proof, it appears, ought to have conformed to the precedent set by certain trials of Fenians in England. A measure was therefore introduced giving power to restore the system which had been previously successful; and sanctioning similar measures in regard to a more atrocious set of criminals, certain eunuchs who made a system of kidnapping children for the worst purposes. It was passed October 12, 1871.
The case illustrates the most obvious difficulties of our position in India. I suppose that the point of view of Thugs and of these respectable robbers seems perfectly obvious and natural to them; but the average Englishman cannot adopt it without a considerable mental effort. In such cases, however, we might at least reckon upon the support of those who suffered from predatory tribes. But there was another department of legislation in which we had to come into conflict with the legal and religious ideas of the great mass of the population. The British rulers of India had been, with sufficient reason, exceedingly cautious in such matters. Their power might crumble to pieces, if it were once believed that we intended to assail directly the great religions of the country, and in India law, custom, and religion are only different aspects of the same thing. In certain cases we had at last resolved to suppress practices which offended the European code of morals. Under the Bengal regulations, the practice of burning widows had been forbidden. Another series of Acts began by the passage of an Act in 1850 which provided that no one should suffer any legal forfeiture of rights for having ceased to belong to any religious community. This Act was passed in face of vehement opposition and petitions signed by 60,000 natives in and around Calcutta. It practically pledged us to maintain freedom of conscience in matters of religion. It was followed by other measures involving the same principle. In 1856, the re-marriage of Hindoo widows was legalised, and in 1866, native converts to Christianity were enabled to obtain a divorce from wives or husbands who abandoned them in consequence of their religious change. Another Act of 1865, drawn by the Indian Law Commission, regulated the law as to succession to property and the testamentary powers of persons who were not members of any of the native religious communities, and thus recognised that such people had a legitimate legal status. From another application of the same principles arose a proposal in regard to which Fitzjames had to take a conspicuous part. It formed the subject of a very warm debate in the Council, the only debate, indeed, which faintly recalls English parliamentary discussions. Fitzjames, in particular, made two speeches which suggest that he might have been an effective party-leader, and are, in various ways, so characteristic that I must notice them at some length.
The sect of Brahmos, founded by Ram Mohun Roy, was one result of the influence of European ideas on India. It had come to be the most important movement of the kind. It roughly corresponds, I imagine, to English Unitarianism, being an attempt to found a pure theistic religion without the old dogmatic system. Like almost all religious movements, it might be considered either as an innovation or as an attempt to return to a primitive creed by throwing off the corrupt accretions. The sect, like others, had split into two bodies, the conservative Brahmos, who wanted to put new wine into old bottles, and the progressive Brahmos, who desired new bottles as well as new wine. Both of them disapproved in different degrees of the Hindoo ceremonials. The question had arisen whether they could form legal marriages, and the doubts had been rather increased than diminished by an opinion obtained by the progressive Brahmos from the Advocate-General, Mr. Cowie. Thereupon they applied to Government. Maine, who was then (1868) in office, came to the conclusion that they had had a real grievance. Their creed, briefly, would disqualify them from marrying, whereas we were committed to the principle that varieties of creed should entail no civil disqualifications. Maine accordingly prepared a bill to remove the injustice. He proposed to legalise the marriage of all persons (not Christian) who objected to conform to the rites of the various religions of the country. The knot would be cut by introducing civil marriage into India generally for all who preferred it. This proposal, however, met with general disapproval when the draft was circulated among the local authorities. The ground of objection was that it would introduce too great a change into native customs. It would enable a man to 'play fast and loose' with his religion; to cease, for example, to be a Hindoo for the purpose of marrying, and to be a Hindoo again when he had married. The Government admitted that this objection was conclusive.
When Fitzjames became member of Council, the matter was still under discussion, and it became his duty to prepare a bill, which he introduced to the Council in March 1871. This measure avoided the difficulty by providing a form of marriage for the Brahmos alone. To this, however, he found to his surprise that the conservative Brahmos objected. The essential difficulty was that of every 'denominational' system. The bill would give a certain legal status to a particular sect. We should then be bound to provide similar measures for any new sects that might arise and for marriages between adherents of different creeds. There would have to be a 'jungle of marriage acts.' And besides this there would be the difficulty of defining by law what a Brahmo precisely was—whether the Progressives or the Conservatives were the real Brahmos, and so forth. Finally, Fitzjames resolved to bring in an Act resembling Maine's, but with this difference, that anyone who took advantage of it must declare that he (or she) was neither a Hindoo, nor a Mohammedan, nor a Parsee, nor a Sikh, nor a Jaina, nor a Buddhist, nor a Christian, nor a Jew.[110] This measure would be applicable to any persons whatever who might hereafter abandon their traditional religion, but it would not enable anyone to break the laws of a religion to which he still professed to belong.
Fitzjames explained his views very fully upon introducing the measure on January 16, 1872. The debate was then adjourned, and upon March 19 other members of the Council made various criticisms to which he again replied at some length. These two speeches give the fullest statement of his views upon a very important question. They deal in part with some purely legal questions, but I shall only try to give the pith of the views of policy which they embody. I may briefly premise that the ground taken by his opponents was substantially the danger of shocking native prejudices. The possibility that the measure would enable rash young men to marry dancing-girls out of hand was also noticed, but, I fancy, by way of logical makeweight. It was admitted that the Brahmos had a claim, but it was strongly urged that it would be enough if, in accordance with the former proposal, an act were passed dealing with them alone. One member of the Council, I notice, complains that the demand is associated with talk about 'nationality,' 'fraternity,' and 'equality'—a kind of talk for which Fitzjames had remarkably little sympathy. It is of the more importance to point out what were the principles which he did admit. His main contention was simple. Maine, he said, was absolutely right in deciding that, where an injustice was proved to exist, we should not shrink from applying a remedy. 'I think that one distinct act of injustice, one clear instance of unfaithfulness to the principles upon which our government of India depends, one positive proof that we either cannot or will not do justice to all classes, races, creeds or no-creeds, in British India would in the long run shake our power more deeply than even financial or military disaster. I believe that the real foundation upon which the British Empire in this country rests is neither military force alone, as some persons cynically assert' (though such power is no doubt an indispensable condition of our rule), 'nor even that affectionate sympathy with the native population, on which, according to a more amiable, though not, I think, a truer view of the matter, some think our rule ought to rest—though it is hardly possible to overrate the value of such sympathy, where it can by any means be obtained. I believe that the real foundation of our power will be found to be an inflexible adherence to broad principles of justice common to all persons in all countries and all ages, and enforced with unflinching firmness in favour of, or against, everyone who claims their benefit or who presumes to violate them, no matter who he may be. To govern impartially upon these broad principles is to govern justly, and I believe that not only justice itself, but the honest attempt to be just, is understood and acknowledged in every part of the world alike.'
In the next place the principle of religious equality, 'properly understood, is just as much one of these principles as the principle of suppressing war, famine, and crime.' Properly understood it means that all sects are to be encouraged and, if necessary, are to be compelled to live in peace with each other; and not to injure those who change their religion. This is the principle, moreover, which we have practically adopted, and which is indeed necessary under the circumstances. The native marriage law is 'personal,' not territorial. It depends upon a man's religion, not upon the place of his abode. Hence you must choose between forbidding a man to change his religion and permitting him to change his law. But to forbid conversion would be obviously impossible, and we in fact allow Christian converts to change their legal status. Why is not a similar liberty to be granted to others who have abandoned their religion? Because Christianity is true and all other religions false? That would be the only relevant answer, and many people would really like to give it; but it is refuted by stating it. We cannot attack the Hindoo or Mohammedan religions. If, therefore, we took this ground, we should simply have a conspiracy of four or five dominant sects, each denouncing the others as false, but all agreeing to worry and oppress all outsiders. Such a position is impossible for us. The real objection to the bill was simply that it recognised the fact that many persons had abandoned their religion; and also recognises the fact that they had a right to abandon it.
Here, then, is one of the cases in which the argument from native opinion must be faced. 'It is a grave thing to legislate in opposition to the wishes of any section of the native community; but it is also a grave, a very grave thing for the Government of India deliberately to abstain from doing that which it has declared to be just and right.' If you help the Brahmos alone, what will you say to the 'radical league,' which repudiates all religious belief? When they ask to have their marriages legalised, will you reply, 'You are a small body, and therefore we will do you an injustice'? This is one of the ultimate points which we are forced to decide upon our own convictions. Religious liberty and equality can be no more reconciled with Hindoo and Mohammedan orthodoxy than with some forms of Catholicism. But it is impossible to say that we will not do that which we admit to be urgent because we are afraid of orthodox Mohammedans and Hindoos. And here is the answer to one member who made light of telling a converted young man of enlightened mind that, unless he saw his way to being a Christian, he might be ordered to conform to the customs of his forefathers. It was better that he should make the sacrifice, than that the minds of the masses should be disquieted. Was there, he asked, any real hardship in that? Yes, replies Fitzjames, there would be the greatest and most cruel injustice. 'It would be a disgrace to the English name and nation.' A young man goes to England and wins a place in the Civil Service. He learns from an English education to disbelieve in his old creeds; and when he goes back you tell him that he shall not be capable of marriage unless he will either falsely pretend to be a Christian, or consent to have his tongue burned with a red-hot iron and drink cow's urine in order to regain his caste. One of the native correspondents had complained rather naïvely that the law would be used to enable a man to escape these 'humiliating expiations.' Would they not be far more humiliating for English legislation? What did you mean, it would be asked, by your former profession that you would enforce religious equality? What of the acts passed to secure the immunity of all converts from legal penalties? Were they all hypocritical? I would rather submit to the displeasure of orthodox Hindoos, says Fitzjames, than have to submit to such taunts as that. 'The master objection against the bill, of which the rest are but shadows, and which unites in opposition to it men who mutually denounce each other's creeds, and men who despise those who care enough about religion to be unwilling to call that sacred which they hold to be a lie, is that it will encourage unbelief.' That may be a fair argument from Hindoos and Mohammedans; but it is strange in the mouths of those who maintain missionary societies and support schools and colleges—English education 'leads straight away from all points of native orthodoxy.' 'How can we sow the seed and refuse to recognise the crop?' When we have shut up our schools, renounced our famous legislation, permitted infanticide and suttee, we may get credit for sincerity in the objection; 'till then people will say that what we really fear is not the spread of unbelief, but the hostility of believers.' For such hypocrisy Fitzjames could never feel anything but a righteous contempt.
I must now turn to the important legislative measures which were more essentially a part of the general system of codification. A code of civil procedure had been passed in 1859, and codes of criminal law and criminal procedure in 1860 and 1861. The Indian Law Commission had also prepared laws upon contract and evidence, which were still under consideration; Fitzjames had to carry the process one stage further. In regard to the famous Penal Code, of which he always speaks with enthusiasm, his action was confined to filling up a few omissions. The case of a convict in the Andaman Islands, for example, who had made a desperate attempt to murder a gaoler, and could receive no further punishment because he was already sentenced to imprisonment for life, the maximum penalty for attempts to murder, suggested a flaw. Such offences were henceforth to be punishable by death. The only point of general interest was the case of seditious libels. A clause, prepared for the original bill, had been omitted by an unaccountable accident. Maine had already been in correspondence with Sir Barnes Peacock upon this subject in 1869. When, however, in the summer of 1870, Fitzjames proposed the insertion of a clause, it was supposed that he had hastily prepared it in consequence of certain reported disturbances in the previous spring. He was, therefore, taunted with having been a member of the 'fourth estate,' and now desiring to fetter the liberty of the press. He therefore confessed, and it must be admitted that it required less courage in him than it had required in his grandfather to confess, to the sin of having written for the newspapers. In point of fact, however, as he pointed out, the proposed section, which was from the original draft of the case as framed by the Commission, was less severe than the English law. Briefly, a man was to be punishable for writings of which it was the obvious intention to produce rebellion. A journalist might freely abuse officials and express disapproval of a particular measure, such, for example, as a tax. The disapproval, again, might tend to general disaffection. But unless there were a direct intention to stimulate resistance to the law, he would not be guilty. Fitzjames thought that to invoke the phrase 'liberty of the press' in order to permit direct provocatives to crime, whether against the public or against individuals, was a grave misapplication of popular phrases.
Upon another closely connected subject, Fitzjames, if he originated little, spent a very great deal of labour. The Penal Code had been necessarily followed by a Code of Criminal Procedure, which defined the whole system of the English administration of justice in India.[111] Courts of justice had been gradually introduced when the British establishments were mere factories, and had gradually grown up, as our power increased and the borders of the empire widened, into a most elaborate and complex organisation. Although, in a general way, the English institutions had served as a model, it had diverged very far from its originals. The different classes of Indian magistrates are carefully graded; there is a minute system for subordinating the courts to each other; they are superintended in every detail of their procedure by the High Courts; and, in brief, the 'Indian civilians are, for the discharge of all their judicial and other duties, in the position of an elaborately disciplined and organised half-military body.' Such words would obviously be inapplicable to the English magistrate. While, therefore, the Penal Code was in the main a version of English law, the Code of Criminal Procedure defined the various relations and processes of an official body entirely unlike anything existing in England.