s, 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