Fitzjames, of course, served upon many committees, and had to attend to the current business of his office. In the last three or four months of his stay, the larger measures which I have mentioned were finally passed into law. The Punjab Land Revenue Act was passed on October 30, 1871; the Evidence Act on March 12, 1872; the Native Marriages Act on March 19; the Punjab Laws on March 26; the Contract Act on April 9; and the Criminal Procedure Act on April 16. In proposing the passage of the Contract Act he took occasion to give his view of the result which had so far been reached in the direction of codifying the Indian laws. It might be said, in a summary way, that consolidation was nearly satisfactory in regard to 'current legislation,' that is, legislation required with a view to particular cases. In regard to 'procedure,' the process of codification was complete, with two or three exceptions. It would be complete when the code of civil procedure had been re-enacted; when the revenue procedure in the Central Provinces had been regulated, and another measure or two passed. Finally, the 'substantive law' includes many most important subjects—the laws of inheritance, for example, and the land laws, which are determined by the native customs, and which, for obvious reasons, we cannot touch. When two or three gaps to which he pointed (the law of 'Torts,' for example) had been filled, we should have as much codification as 'would be required for a length of time.' The Statute Law of India would then be comprised in four or five octavo volumes, and the essential part of it in five or six Acts, which might be learnt in a year of moderate industry. A young civilian who knew the Penal Code, the Succession Act, the Contract Act, the two Procedure Codes, the Evidence Acts, the Limitation Act, and the Land Revenue Acts of his province would know more than nineteen barristers out of twenty when they are called to the bar; and all this would go into a moderately sized octavo volume. His successor, he thought, would be able to accomplish all that was required. He observes, however, emphatically, that a process of re-enactment would be always required. It is necessary to keep laws steadily up to date, having regard to decisions of the courts upon new cases, and to any legislative changes. No important Act should be left without amendments for more than ten or twelve years. A constant process of repairing is as necessary to a system of legislation as it is to the maintenance of a railway.
I am, as I have already said, incompetent to form any opinion as to the intrinsic value of these codes. One able critic, Sir C. P. Ilbert, in the 'Law Quarterly,' observes that their real merit is that they were 'suitable and sufficient for the needs which they were intended to meet. What was urgently needed for India was a guide for the judge or magistrate who has had no legal training, who derives little or no assistance from the bar, and who has to work at a distance from a law library.' Fitzjames's legislation, he thinks, was 'admirably adapted' for advancing the previous Indian system a step further; although his codes might not meet the requirements of the present generation of English lawyers. Sir C. P. Ilbert, I may add, speaks very strongly of the 'educational value' of the Contract Act in particular, as shown by his experience of Indian Civil Service examinations. He thinks that Fitzjames's other writings and codes have a similar merit. A gentleman of high judicial position and very great Indian experience has expressed to me his high admiration of the Evidence Act. It is, he says, 'a wonderful piece of work, boiling down so much into so small a compass.' It is 'an achievement to be proud of,' although parts of it, he adds, are open to criticism, and especially to the criticism that it is 'over the heads of those who have to deal with it.' It presupposes outside knowledge which they often do not possess. These criticisms do not altogether coincide, and I shall not endeavour to reconcile or discriminate. I am content to say that I have heard on all hands, from persons qualified to express an opinion here, that Fitzjames's work made a marked impression upon Indian legislation, and, with whatever qualifications, is admitted to have been of very great service to the administrators of the country.
I shall venture, however, to add a word or two upon the qualities, mental and moral, thus displayed. Sir C. P. Ilbert says that Fitzjames was a 'Cyclopean builder. He hurled together huge blocks of rough-hewn law. It is undeniable that he left behind him some hasty work,' which his successors had to remove and replace. In half the ordinary term of office he did work enough for five law members, and 'left the Legislative Council breathless and staggering,' conscious of having accomplished 'unprecedented labours,' but with some misgivings as to the quality of parts of the work. Fitzjames, that is, was a man of enormous energy, who fulfilled only half of the famous maxim; he laboured 'without rest,' but not 'without haste.' As for the energy displayed, there can, I imagine, be only one opinion.[115] And if unflagging zeal in doing the duty which lies nearest, and an entire devotion of a man's whole powers of mind to what he sincerely believes to be a great and worthy task, be not virtues deserving of all respect, I do not know what qualities are entitled to that name. A vigorous constitution of mind and body applied to the discharge of appropriate duties describes a most felicitous combination of circumstances, and indicates a character which I, at least, cannot regard without cordial admiration. It is true that he loved his work; but that is just what constitutes his merit. I might express my feeling more strongly if I were less closely connected with its object.
The direction, though not the extent, of the shortcomings of such an intellectual force may be easily imagined. If there was one thing which Fitzjames hated it was needless subtlety, and the technicalities which are the product of such subtlety—the provision of a superfluous logical apparatus, which, while it gives scope for ingenuity, distracts the mind from the ends for which it is ostensibly designed. I have quoted enough to show the intensity of his longing for broad, general, common-sense principles, which was, indeed, his most prominent intellectual characteristic. Now a code should, as I take it, like the scientific classification of any other subject-matter, combine this with intellectual excellence at the opposite pole. The scientific classification, when once made, should appear, as the botanists say, to be natural, not artificial. If fully successful, it should seem as if it could not but have been made, or as if it made itself. Every subdivision should fall spontaneously into its right place without violence or distortion. The secret of achieving such a result is, I suppose, the selection of the right principles of division and subdivision from the first. When it appears that any given object refuses to fit itself conveniently into any one of our pigeon-holes, its obstinacy may betray a defect in the original system; and the code, like other artistic wholes in which every part has some definite relation to every other, may require a remanipulation throughout. Now, if I understand Fitzjames's intellectual temperament rightly, this indicates the point at which his patience might begin to fail. When he met with some little specimen which would not go of itself upon any of his previous arrangements, he would be apt to treat it with disrespect, and possibly to jam it in with too rough and ready a hand into the nearest compartment. In so doing he might really be overlooking the indication of a fault in the system, reaching further than he suspected. An apparent subtlety may really correspond to an important distinction, and an outward simplicity be attained at the cost of some internal discord. In short, the same kind of defect which prevented him from becoming an accurate classical scholar, or from taking a sufficient interest in the more technical parts of his profession, would show itself in the delicate work of codification by a tendency to leave raw edges here and there in his work, and a readiness to be too easily satisfied before the whole structure had received the last possible degree of polish. Thus I find, from various indications which I need not specify, that some of his critics professed to have discovered flaws in his work, while he honestly thought the criticism superfine, and the errata pointed out such as concerned a mere corrector of the press rather than a serious legislator for practical purposes. But I must not even attempt to conjecture which was right and which was wrong, nor how far there might be right and wrong upon both sides.
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.