The code originally passed 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 illustrations 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 institutions 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 passed into law 'after some little unimportant speaking at a public meeting of the Council,' (which turned, I may say, principally 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 constituencies 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 institutions 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, sturdy, 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 institutions 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 passed 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' illustrates 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 accumulating unmanageable masses 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 glasses 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 document alleged, or by the man who has seen with his own eyes or heard with his own ears the things or the words asserted 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 masses 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 formulæ, 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 passed during Fitzjames's tenure of office. The 'Limitation of Suits' Act, passed 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 title 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 pass 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 damned if their sworn statements are inaccurate, unintentionally or otherwise, and who, inferring that damnation 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.