process different from any of those hitherto described. The law of
Russia was originally Slavonic custom, influenced to some extent by the
law of the Eastern Roman Empire, whence Russia took her Christianity and
her earliest literary impulse. In its present shape, while retaining in
many points a genuinely Slavonic character, and of course far less
distinctly Roman than is the law of France, it has drawn so much,
especially as regards the principles of property rights and contracts,
from the Code Napoléon and to a less degree from Germany, that it may be
described as being Roman ‘at the second remove,’ and reckoned as an
outlying and half-assimilated province, so to speak, of the legal realm
of Rome. Poland, lying nearer Germany, and being, as a Catholic country,
influenced by the Canon Law, as well as by German teaching and German
books, adopted rather more of Roman doctrine than Russia did[50]. Her
students learnt Roman law first at Italian, afterwards at German
Universities, and when they became judges, naturally applied its
principles. The Scandinavian countries set out with a law purely
Teutonic, and it is chiefly through the German Universities and the
influence of German juridical literature that Roman principles have
found their way in and coloured the old customs. Servia, Bulgaria and
Rumania, on the other hand, were influenced during the Middle Ages by
the law of the Eastern Empire, whence they drew their religion and their
culture. Thus their modern law, whose character is due partly to these
Byzantine influences—of course largely affected by Slavonic custom—and
partly to what they have learnt from France and Austria, may also be
referred to the Roman type.
-----
Footnote 50:
In Lithuania the rule was that where no express provision could be
found governing a case, recourse should be had to ‘the Christian
laws.’ Speaking generally, one may say that it was by and with
Christianity that Roman law made its way in the countries to the east
of Germany and to the north of the Eastern Empire.
-----
V. THE DIFFUSION OF ENGLISH LAW.
England, like Rome, has spread her law over a large part of the globe.
But the process has been in her case not only far shorter but far
simpler. The work has been (except as respects Ireland) effected within
the last three centuries; and it has been effected (except as regards
Ireland and India) not by conquest but by peaceful settlement. This is
one of the two points in which England stands contrasted with Rome. The
other is that her own law has not been affected by the process. It has
changed within the seven centuries that lie between King Henry the
Second and the present day, almost if not quite as much as the law of
Rome changed in the seven centuries between the enactment of the Twelve
Tables and the reign of Caracalla. But these changes have not been due,
as those I have described in the Roman Empire were largely due, to the
extension of the law of England to new subjects. They would apparently
have come to pass in the same way and to the same extent had the English
race remained confined to its own island.
England has extended her law over two classes of territories.
The first includes those which have been peacefully settled by
Englishmen—North America (except Lower Canada), Australia, New Zealand,
Fiji, the Falkland Isles. All of these, except the United States, have
remained politically connected with the British Crown.
The second includes conquered territories. In some of these, such as
Wales, Ireland, Gibraltar, the Canadian provinces of Ontario and Nova
Scotia, and several of the West India Islands, English law has been
established as the only system, applicable to all subjects[51]. In
others, such as Malta, Cyprus, Singapore, and India, English law is
applied to Englishmen and native law to natives, the two systems being
worked concurrently. Among these cases, that which presents problems of
most interest and difficulty is India. But before we consider India, a
few words may be given to the territories of the former class. They are
now all of them, except the West Indies, Fiji and the Falkland Isles,
self-governing, and therefore capable of altering their own law. This
they do pretty freely. The United States have now forty-nine
legislatures at work, viz. Congress, forty-five States, and three
Organized Territories. They have turned out an immense mass of law since
their separation from England. But immense as it is, and bold as are
some of the experiments which may be found in it, the law of the United
States remains (except of course in Louisiana) substantially English
law. An English barrister would find himself quite at home in any
Federal or State Court, and would have nothing new to master, except a
few technicalities of procedure and the provisions of any statutes which
might affect the points he had to argue. And the patriarch of American
teachers of law (Professor C. C. Langdell of the Law School in Harvard
University), consistently declining to encumber his expositions with
references to Federal or State Statutes, continues to discourse on the
Common Law of America, which differs little from the Common Law of
England. The old Common Law which the settlers carried with them in the
seventeenth century has of course been developed or altered by the
decisions of American Courts. These, however, have not affected its
thoroughly English character. Indeed, the differences between the
doctrines enounced by the Courts of different States are sometimes just
as great as the differences between the views of the Courts of
Massachusetts or New Jersey and those of Courts in England.
-----
Footnote 51:
It has undergone little or no change in the process. The Celtic
customs disappeared in Wales; the Brehon law, though it was contained
in many written texts and was followed over the larger part of Ireland
till the days of the Tudors, has left practically no trace in the
existing law of Ireland, which is, except as respects land, some penal
matters, and marriage, virtually identical with the law of England.
-----
The same is true of the self-governing British colonies. In them also
legislation has introduced deviations from the law of the mother
country. More than forty years ago New Zealand, for instance, repealed
the Statute of Uses, which is the corner-stone of English conveyancing;
and the Australian legislatures have altered (among other things) the
English marriage law. But even if the changes made by statute had been
far greater than they have been, and even if there were not, as there
still is, a right of appeal from the highest Courts of these colonies to
the Crown in Council, their law would still remain, in all its essential
features, a genuine and equally legitimate offspring of the ancient
Common Law.
We come now to the territories conquered by England, and to which she
has given her law whether in whole or in part. Among these it is only of
India that I shall speak, as India presents the phenomena of contact
between the law of the conqueror and that of the conquered on the
largest scale and in the most instructive form. What the English have
done in India is being done or will have to be done, though nowhere else
on so vast a scale, by the other great nations which have undertaken the
task of ruling and of bestowing what are called the blessings of
civilization upon the backward races. Russia, France, Germany, and now
the United States also, all see this task before them. To them
therefore, as well as to England, the experience of the British
Government in India may be profitable.
VI. ENGLISH LAW IN INDIA.
When the English began to conquer India they found two great systems of
customary law in existence there, the Musulman and the Hindu. There were
other minor bodies of custom, prevailing among particular sects, but
these may for the present be disregarded. Musulman law regulated the
life and relations of all Musulmans; and parts of it, especially its
penal provisions, were also applied by the Musulman potentates to their
subjects generally, Hindus included. The Musulman law had been most
fully worked out in the departments of family relations and inheritance,
in some few branches of the law of contract, such as money loans and
mortgages and matters relating to sale, and in the doctrine of
charitable or pious foundations called Wakuf.
In the Hindu principalities, Hindu law was dominant, and even where the
sovereign was a Musulman, the Hindu law of family relations and of
inheritance was recognized as that by which Hindus lived. There were
also of course many land customs, varying from district to district,
which both Hindus and Musulmans observed, as they were not in general
directly connected with religion. In some regions, such as Oudh and what
are now the North-West provinces, these customs had been much affected
by the land revenue system of the Mogul Emperors. It need hardly be said
that where Courts of law existed, they administered an exceedingly rough
and ready kind of justice, or perhaps injustice, for bribery and
favouritism were everywhere rampant.
There were also mercantile customs, which were generally understood and
observed by traders, and which, with certain specially Musulman rules
recognized in Musulman States, made up what there was of a law of
contracts.
Thus one may say that the law (other than purely religious law) which
the English administrators in the days of Clive and Warren Hastings
found consisted of—
First, a large and elaborate system of Inheritance and Family Law, the
Musulman pretty uniform throughout India, though in some regions
modified by Hindu custom, the Hindu less uniform. Each was utterly
unlike English law and incapable of being fused with it. Each was
closely bound up with the religion and social habits of the people. Each
was contained in treatises of more or less antiquity and authority, some
of the Hindu treatises very ancient and credited with almost divine
sanction, the Musulman treatises of course posterior to the Koran, and
consisting of commentaries upon that Book and upon the traditions that
had grown up round it.
Secondly, a large mass of customs relating to the occupation and use of
land and of various rights connected with tillage and pasturage,
including water-rights, rights of soil-accretion on the banks of rivers,
and forest-rights. The agricultural system and the revenue system of the
country rested upon these land customs, which were of course mostly
unwritten and which varied widely in different districts.
Thirdly, a body of customs, according to our ideas comparatively scanty
and undeveloped, but still important, relating to the transfer and
pledging of property, and to contracts, especially commercial contracts.
Fourthly, certain penal rules drawn from Musulman law and more or less
enforced by Musulman princes.
Thus there were considerable branches of law practically non-existent.
There was hardly any law of civil and criminal procedure, because the
methods of justice were primitive, and would have been cheap, but for
the prevalence of corruption among judges as well as witnesses. There
was very little of the law of Torts or Civil Wrongs, and in the law of
property of contracts and of crimes, some departments were wanting or in
a rudimentary condition. Of a law relating to public and constitutional
rights there could of course be no question, since no such rights
existed.
In this state of facts the British officials took the line which
practical men, having their hands full of other work, would naturally
take, viz. the line of least resistance. They accepted and carried on
what they found. Where there was a native law, they applied it, Musulman
law to Musulmans, Hindu law to Hindus, and in the few places where they
were to be found, Parsi law to Parsis, Jain law to Jains. Thus men of
every creed—for it was creed, not race nor allegiance by which men were
divided and classified in India—lived each according to his own law, as
Burgundians and Franks and Romanized Gauls had done in the sixth century
in Europe. The social fabric was not disturbed, for the land customs and
the rules of inheritance were respected, and of course the minor
officers, with whom chiefly the peasantry came in contact, continued to
be natives. Thus the villager scarcely felt that he was passing under
the dominion of an alien power, professing an alien faith. His life
flowed on in the same equable course beside the little white mosque, or
at the edge of the sacred grove. A transfer of power from a Hindu to a
Musulman sovereign would have made more difference to him than did the
establishment of British rule; and life was more placid than it would
have been under either a rajah or a sultan, for the marauding bands
which had been the peasants’ terror were soon checked by European
officers.
So things remained for more than a generation. So indeed things remain
still as respects those parts of law which are inwoven with religion,
marriage, adoption (among Hindus) and other family relations, and with
the succession to property. In all these matters native law continues to
be administered by the Courts the English have set up; and when cases
are appealed from the highest of those Courts to the Privy Council in
England, that respectable body determines the true construction to be
put on the Koran and the Islamic Traditions, or on passages from the
mythical Manu, in the same business-like way as it would the meaning of
an Australian statute[52]. Except in some few points to be presently
noted, the Sacred Law of Islam and that of Brahmanism remain unpolluted
by European ideas. Yet they have not stood unchanged, for the effect of
the more careful and thorough examination which the contents of these
two systems have received from advocates, judges, and text-writers, both
native and English, imbued with the scientific spirit of Europe, has
been to clarify and define them, and to develop out of the half-fluid
material more positive and rigid doctrines than had been known before.
Something like this may probably have been done by the Romans for the
local or tribal law of their provinces.
-----
Footnote 52:
It is related that a hill tribe of Kols, in Central India, had a
dispute with the Government of India over some question of forest
rights. The case having gone in their favour, the Government appealed
to the Judicial Committee. Shortly afterwards a passing traveller
found the elders of the tribe assembled at the sacrifice of a kid. He
inquired what deity was being propitiated, and was told that it was a
deity powerful but remote, whose name was Privy Council.
-----
In those departments in which the pre-existing customs were not
sufficient to constitute a body of law large enough and precise enough
for a civilized Court to work upon, the English found themselves obliged
to supply the void. This was done in two ways. Sometimes the Courts
boldly applied English law. Sometimes they supplemented native custom by
common sense, _i.e._ by their own ideas of what was just and fair. The
phrase ‘equity and good conscience’ was used to embody the principles by
which judges were to be guided when positive rules, statutory or
customary, were not forthcoming. To a magistrate who knew no law at all,
these words would mean that he might follow his own notions of ‘natural
justice,’ and he would probably give more satisfaction to suitors than
would his more learned brother, trying to apply confused recollections
of Blackstone or Chitty. In commercial matters common sense would be
aided by the usage of traders. In cases of Tort native custom was not
often available, but as the magistrate who dealt out substantial justice
would give what the people had rarely obtained from the native courts,
they had no reason to complain of the change. As to rules of evidence,
the young Anglo-Indian civilian would, if he were wise, forget all the
English technicalities he might have learnt, and make the best use he
could of his mother-wit[53].
-----
Footnote 53:
For the facts given in the following pages I am much indebted to the
singularly lucid and useful treatise of Sir C. P. Ilbert (formerly
Legal Member of the Viceroy’s Council) entitled _The Government of
India_.
-----
For the first sixty years or more of British rule there was accordingly
little or no attempt to Anglify the law of India, or indeed to give it
any regular and systematic form. Such alterations as it underwent were
the natural result of its being dispensed by Europeans. But to this
general rule there were two exceptions, the law of Procedure and the law
of Crimes. Courts had been established in the Presidency towns even
before the era of conquest began. As their business increased and
subordinate Courts were placed in the chief towns of the annexed
provinces, the need for some regular procedure was felt. An Act of the
British Parliament of A.D. 1781 empowered the Indian Government to make
regulations for the conduct of the provincial Courts, as the Court at
Fort William (Calcutta) had already been authorized to do for itself by
an Act of 1773. Thus a regular system of procedure, modelled after that
of England, was established; and the Act of 1781 provided that the rules
and forms for the execution of process were to be accommodated to the
religion and manners of the natives.
As respects penal law, the English began by adopting that which the
Musulman potentates had been accustomed to apply. But they soon found
that many of its provisions were such as a civilized and nominally
Christian government could not enforce. Mutilation as a punishment for
theft, for instance, and stoning for sexual offences, were penalties not
suited to European notions; and still less could the principle be
admitted that the evidence of a non-Musulman is not receivable against
one of the Faithful. Accordingly a great variety of regulations were
passed amending the Musulman law of crimes from an English point of
view. In Calcutta the Supreme Court did not hesitate to apply English
penal law to natives; and applied it to some purpose at a famous crisis
in the fortunes of Warren Hastings when (in 1775) it hanged Nuncomar for
forgery under an English statute of 1728, which in the opinion of many
high authorities of a later time had never come into force at all in
India. It was inevitable that the English should take criminal
jurisdiction into their own hands—the Romans had done the same in their
provinces—and inevitable also that they should alter the penal law in
conformity with their own ideas. But they did so in a very haphazard
fashion. The criminal law became a patchwork of enactments so confused
that it was the first subject which invited codification in that second
epoch of English rule which we are now approaching.
Before entering on this remarkable epoch, one must remember that the
English in India, still a very small though important class, were
governed entirely by English law. So far as common law and equity went,
this law was exactly the same as the contemporaneous law of England. But
it was complicated by the fact that a number of Regulations, as they
were called, had been enacted for India by the local government, that
many British statutes were not intended to apply and probably did not
apply to India (though whether they did or not was sometimes doubtful),
and that a certain number of statutes had been enacted by Parliament
expressly for India. Thus though the law under which the English lived
had not been perceptibly affected by Indian customs, it was very
confused and troublesome to work. That the learning of the judges sent
from home to sit in the Indian Courts was seldom equal to that of the
judges in England was not necessarily a disadvantage, for in traversing
the jungle of Indian law the burden of English case lore would have too
much impeded the march of justice.
The first period of English rule, the period of rapid territorial
extension and of improvised government, may be said to have ended with
the third Maratha war of 1817-8. The rule of Lord Amherst and Lord
William Bentinck (1823-35) was a comparatively tranquil period, when
internal reforms had their chance, as they had in the Roman Empire under
Hadrian and Antoninus Pius. This was also the period when a spirit of
legal reform was on foot in England. It was the time when the ideas of
Bentham had begun to bear fruit, and when the work begun by Romilly was
being carried on by Brougham and others. Both the law applied to
Englishmen, and such parts of native law as had been cut across, filled
up, and half re-shaped by English legal notions and rules, called loudly
for simplification and reconstruction.
The era of reconstruction opened with the enactment, in the India
Charter Act of 1833, of a clause declaring that a general judicial
system and a general body of law ought to be established in India
applicable to all classes, Europeans as well as natives, and that all
laws and customs having legal force ought to be ascertained,
consolidated, and amended. The Act then went on to provide for the
appointment of a body of experts to be called the Indian Law Commission,
which was to inquire into and report upon the Courts, the procedure and
the law then existing in India. Of this commission, Macaulay, appointed
in 1833 legal member of the Governor-General’s Council, was the moving
spirit: and with it the work of codification began. It prepared a Penal
Code, which however was not passed into law until 1860, for its activity
declined after Macaulay’s return to England and strong opposition was
offered to his draft by many of the Indian judges. A second Commission
was appointed under an Act of 1853, and sat in England. It secured the
enactment of the Penal Code, and of Codes of Civil and of Criminal
Procedure. A third Commission was created in 1861, and drafted other
measures. The Government of India demurred to some of the proposed
changes and evidently thought that legislation was being pressed on
rather too fast. The Commission, displeased at this resistance, resigned
in 1870; and since then the work of preparing as well as of carrying
through codifying Acts has mostly been done in India. The net result of
the sixty-six years that have passed since Macaulay set to work in 1834
is that Acts codifying and amending the law, and declaring it applicable
to both Europeans and natives, have been passed on the topics
following:—
Crimes (1860).
Criminal Procedure (1861, 1882, and 1898).
Civil Procedure (1859 and 1882).
Evidence (1872).
Limitation of Actions (1877).
Specific Relief (1877).
Probate and Administration (1881).
Contracts (1872) (but only the general rules of contract with a few
rules on particular parts of the subject).
Negotiable Instruments (1881) (but subject to native customs).
Besides these, codifying statutes have been passed which do not apply
(at present) to all India, but only to parts of it, or to specified
classes of the population, on the topics following:—
Trusts (1882).
Transfer of Property (1882).
Succession (1865).
Easements (1882).
Guardians and Wards (1890).
These statutes cover a large part of the whole field of law, so that the
only important departments not yet dealt with are those of Torts or
Civil Wrongs (on which a measure not yet enacted was prepared some years
ago); certain branches of contract law, which it is not urgent to
systematize because they give rise to lawsuits only in the large cities,
where the Courts are quite able to dispose of them in a satisfactory
way; Family Law, which it would be unsafe to meddle with, because the
domestic customs of Hindus, Musulmans, and Europeans are entirely
different; and Inheritance, the greater part of which is, for the same
reason, better left to native custom. Some points have, however, been
covered by the Succession Act already mentioned. Thus the Government of
India appear to think that they have for the present gone as far as they
prudently can in the way of enacting uniform general laws for all
classes of persons. Further action might displease either the Hindus or
the Musulmans, possibly both: and though there would be advantages in
bringing the law of both these sections of the population into a more
clear and harmonious shape, it would in any case be impossible to frame
rules which would suit both of them, and would also suit the Europeans.
Here Religion steps in, a force more formidable in rousing opposition or
disaffection than any which the Romans had to fear.