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.
IV. LAST MONTHS IN INDIA
I must now speak of an event which made a very strong impression upon him. He concludes the chapter from which I have been quoting by declaring that of the many public men whom he had met in England and India, there was none to whom he 'felt disposed to give such heartfelt affection and honour' as to Lord Mayo. Lord Mayo, he says, though occupied in many other ways, had shown the 'deepest personal interest' in the work of the legislative department, and, when difficulties arose, had given to it the warmest, most ardent, and most effective support. It was chiefly due to Lord Mayo that the Government was able to pass the important acts of the beginning of 1872, especially the three great measures: the 'Civil Procedure Code,' the 'Contract Act,' and the 'Evidence Code.' I hope, says Fitzjames to Sir W. W. Hunter, that you will be able to make people understand 'how wise and honest and brave he was, and what freshness, vigour, and flexibility of mind he brought to bear upon a vast number of new and difficult subjects.' On January 24, 1870, Lord Mayo left Calcutta in H.M.S. 'Glasgow' to visit, among other places, the convict settlement at the Andaman Islands. He landed there on February 8, and while getting into his boat to return was murdered by a convict. The body was brought back to Calcutta on February 19, where it lay in state for two days at Government House, before being sent for burial to his native country. In one of his last letters to his mother, Fitzjames gives an account of the ceremonies at Calcutta, which incidentally illustrates, I think, more forcibly than anything else, the impression produced upon him by India generally. I shall therefore give most of it, omitting a few comparatively irrelevant details. I will only observe that nobody had less taste for public performances of this kind in general—a fact which shows the strength of his feelings on this particular occasion.
'I never expected,' he writes (February 23, 1872), 'to be impressed by a mere ceremonial; but there were some things almost oppressive from their reality and solemnity.... The coffin was brought up on a gun-carriage. It was of enormous size and weight, (near two tons, I believe). The gun-carriage, drawn by twelve artillery horses, made a strangely impressive hearse. It looked so solid, so businesslike, so simple, and so free from all the plumes and staves and rubbish of undertakers. About thirty picked sailors from the "Daphne" and "Glasgow" walked behind and by the side; all dressed in clean white trousers and jerseys, and looking like giants, as indeed they were. They were intensely fond of Lord Mayo, who had won their hearts by the interest he took in them and in the little things they got up to amuse him.... He passed the last evening of his life sitting with Lady Mayo on the bridge of the "Glasgow," and laughing at their entertainment with the greatest cordiality. They wanted to be allowed to carry the coffin on their own shoulders; they said they were ready and willing to do it, and I believe they would have been able, ready, and willing to do anything that strength and skill and pluck could do. Behind them walked the procession, which was nearly three-quarters of a mile long, and contained every Englishman of any importance in Calcutta and a considerable number of natives. The whole road was lined with troops on both sides: but they stood at intervals of several yards, and there was an immense crowd close behind and, in some places in between them.... If there had been any other fanatics in the crowd, there was nothing to prevent them from making a rush and giving a stab.... If there had been any attempt of the kind, I cannot say what might not have happened. People were in such an excited and half-electric state that there might have been a general riot, which would soon have become very like a massacre. One man told me that on his way home, he felt possessed by such fury against anyone who might be connected with the murder, that he walked with a kind of charge through a group of people, who looked as if they enjoyed "the show," and gave a shove to a big Mohammedan who looked insolent, at which, he said, "the man went down like a bag of feathers." I saw some suspicious-looking fellows grinning and sneering and showing their teeth myself, and I felt as if I could have killed them. No one who has not felt it can imagine how we all feel out here in regard to such matters. When Lord Mayo was stabbed, I think every man in the country felt as if he had been more or less stabbed himself.
'The procession went on with the most overwhelming solemnity (nothing short of these words can describe it), till we got to Government House. There was a dead silence nearly all the way; the natives standing or squatting in their apathetic way, and the Europeans as grim as death. All that was to be heard was the rattle of the gun-carriage, and the tramping of the horses, and the minute-guns from the fort and ships. The housetops, the windows, the fort were all crowded with people, but all as still as death. I think the ships looked as sad as anything. There were two miles of noble ships in the Hooghly. Their flags were all flying half-mast high, and they had all "tossed their yards."' (He draws a rough diagram to explain the phrase). 'The yards are all in disorder, and the effect is forlorn and dishevelled to a degree you would not imagine. When we got to Government House, the coffin had to be lifted off the gun-carriage and pulled up a long flight of wide stone steps.... The sailors and a few artillerymen did it all in perfect silence, and with an amount of strength that looked almost marvellous.' The coffin was placed on a truck, to which the sailors harnessed themselves, and dragged it up an inclined plane (formed over the steps) with no apparent effort in spite of the enormous weight. It was taken along a suite of rooms, 'hung with black, and lighted with a curious simplicity and grandeur.' Here, again, the coffin had to be lifted, and 'it was most striking to see the absolute silence with which the men moved the monstrous weight at a sign from the captain's hand.' The only sound was when a spar snapped in the hands of a 'giant of a fellow, who was lifting with it. There was a respectful delicacy in every motion of these men which combined beautifully with their immense, quiet, controlled strength, and impressed me very much. After a few prayers we left.'