Englishmen, Hindus and Musulmans continue to live under their respective
laws. So do Parsis, Sikhs, Buddhists (most numerous in Burma), and
Jains, save that where there is really no native law or custom that can
be shown to exist, the judge will naturally apply the principles of
English law, handling them, if he knows how, in an untechnical way. Thus
beside the new stream of united law which has its source in the
codifying Acts, the various older streams of law, each representing a
religion, flow peacefully on.
The question which follows—What has been the action on the other of each
of these elements? resolves itself into three questions:—
How far has English Law affected the Native Law which remains in force?
How far has Native Law affected the English Law which is in force?
How have the codifying Acts been framed—_i.e._ are they a compromise
between the English and the native element, or has either predominated
and given its colour to the whole mass?
The answer to the first question is that English influence has told but
slightly upon those branches of native law which had been tolerably
complete before the British conquest, and which are so interwoven with
religion that one may almost call them parts of religion. The Hindu and
Musulman customs which regulate the family relations and rights of
succession have been precisely defined, especially those of the Hindus,
which were more fluid than the Muslim customs, and were much less
uniform over the whole country. Trusts have been formally legalized, and
their obligation rendered stronger. Adoption has been regularized and
stiffened, for its effects had been uncertain in their legal operation.
Where several doctrines contended, one doctrine has been affirmed by the
English Courts, especially by the Privy Council as ultimate Court of
Appeal, and the others set aside. Moreover the Hindu law of Wills has
been in some points supplemented by English legislation, and certain
customs repugnant to European ideas, such as the self-immolation of the
widow on the husband’s funeral pyre, have been abolished. And in those
parts of law which, though regulated by local custom, were not
religious, some improvements have been effected. The rights of the
agricultural tenant have been placed on a more secure basis. Forest
rights have been ascertained and defined, partly no doubt for the sake
of the pecuniary interests which the Government claims in them, and
which the peasantry do not always admit. But no attempt has been made to
Anglify these branches of law as a whole.
On the other hand, the law applicable to Europeans only has been
scarcely (if at all) affected by native law. It remains exactly what it
is in England, except in so far as the circumstances of India have
called for special statutes.
The third question is as to the contents of those parts of the law which
are common to Europeans and Natives, that is to say, the parts dealt by
the codifying Acts already enumerated. Here English law has decisively
prevailed. It has prevailed not only because it would be impossible to
subject Europeans to rules emanating from a different and a lower
civilization, but also because native custom did not supply the
requisite materials. Englishmen had nothing to learn from natives as
respects procedure or evidence. The native mercantile customs did not
constitute a system even of the general principles of contract, much
less had those principles been worked out in their details. Accordingly
the Contract Code is substantially English, and where it differs from
the result of English cases, the differences are due, not to the
influence of native ideas or native usage, but to the views of those who
prepared the Code, and who, thinking the English case-law susceptible of
improvement, diverged from it here and there just as they might have
diverged had they been preparing a Code to be enacted for England. There
are, however, some points in which the Penal Code shows itself to be a
system intended for India. The right of self-defence is expressed in
wider terms than would be used in England, for Macaulay conceived that
the slackness of the native in protecting himself by force made it
desirable to depart a little in this respect from the English rules.
Offences such as dacoity (brigandage by robber bands), attempts to bribe
judges or witnesses, the use of torture by policemen, kidnapping, the
offering of insult or injury to sacred places, have been dealt with more
fully and specifically than would be necessary in a Criminal Code for
England. Adultery has, conformably to the ideas of the East, been made a
subject for criminal proceedings. Nevertheless these, and other similar,
deviations from English rules which may be found in the Codes enacted
for Europeans and natives alike, do not affect the general proposition
that the codes are substantially English. The conquerors have given
their law to the conquered. When the conquered had a law of their own
which this legislation has effaced, the law of the conquerors was
better. Where they had one too imperfect to suffice for a growing
civilization, the law of the conquerors was inevitable.
VII. THE WORKING OF THE INDIAN CODES.
Another question needs to be answered. It has a twofold interest,
because the answer not only affects the judgement to be passed on the
course which the English Government in India has followed, but also
conveys either warning or encouragement to England herself. This
question is—How have these Indian Codes worked in practice? Have they
improved the administration of justice? Have they given satisfaction to
the people? Have they made it easier to know the law, to apply the law,
to amend the law where it proves faulty?
When I travelled in India in 1888-9 I obtained opinions on these points
from many persons competent to speak. There was a good deal of
difference of view, but the general result seemed to be as follows. I
take the four most important codifying Acts, as to which it was most
easy to obtain profitable criticisms.
The two Procedure Codes, Civil and Criminal, were very generally
approved. They were not originally creative work, but were produced by
consolidating and simplifying a mass of existing statutes and
regulations, which had become unwieldy and confused. Order was evoked
out of chaos, a result which, though beneficial everywhere, was
especially useful in the minor Courts, whose judges had less learning
and experience than those of the five High Courts at Calcutta, Madras,
Bombay, Allahabad and Lahore.
The Penal Code was universally approved; and it deserves the praise
bestowed on it, for it is one of the noblest monuments of Macaulay’s
genius. To appreciate its merits, one must remember how much, when
prepared in 1834, it was above the level of the English criminal law of
that time. The subject is eminently fit to be stated in a series of
positive propositions, and so far as India was concerned, it had rested
mainly upon statutes and not upon common law. It has been dealt with in
a scientific, but also a practical commonsense way: and the result is a
body of rules which are comprehensible and concise. To have these on
their desks has been an immense advantage for magistrates in the country
districts, many of whom have had but a scanty legal training. It has
also been claimed for this Code that under it crime has enormously
diminished: but how much of the diminution is due to the application of
a clear and just system of rules, how much to the more efficient police
administration, is a question on which I cannot venture to
pronounce[54].
-----
Footnote 54:
The merits of this Code are discussed in an interesting and suggestive
manner by Mr. H. Speyer in an article entitled _Le Droit Pénal
Anglo-indien_, which appeared in the _Revue de l’Université de
Bruxelles_ in April, 1900.
-----
No similar commendation was bestowed on the Evidence Code. Much of it
was condemned as being too metaphysical, yet deficient in subtlety. Much
was deemed superfluous, and because superfluous, possibly perplexing.
Yet even those who criticized its drafting admitted that it might
possibly be serviceable to untrained magistrates and practitioners, and
I have myself heard some of these untrained men declare that they did
find it helpful. They are a class relatively larger in India than in
England.
It was with regard to the merits of the Contract Code that the widest
difference of opinion existed. Any one who reads it can see that its
workmanship is defective. It is neither exact nor subtle, and its
language is often far from lucid. Every one agreed that Sir J. F.
Stephen (afterwards Mr. Justice Stephen), who put it into the shape in
which it was passed during his term of office as Legal Member of
Council, and was also the author of the Evidence Act, was a man of great
industry, much intellectual force, and warm zeal for codification. But
his capacity for the work of drafting was deemed not equal to his
fondness for it. He did not shine either in fineness of discrimination
or in delicacy of expression. Indian critics, besides noting these
facts, went on to observe that in country places four-fifths of the
provisions of the Contract Act were superfluous, while those which were
operative sometimes unduly fettered the discretion of the magistrate or
judge, entangling him in technicalities, and preventing him from meting
out that substantial justice which is what the rural suitor needs. The
judge cannot disregard the Act, because if the case is appealed, the
Court above, which has only the notes of the evidence before it, and
does not hear the witnesses, is bound to enforce the provisions of the
law. In a country like India, law ought not to be too rigid: nor ought
rights to be stiffened up so strictly as they are by this Contract Act.
Creditors had already, through the iron regularity with which the
British Courts enforce judgements by execution, obtained far more power
over debtors than they possessed in the old days, and more than the
benevolence of the English administrator approves. The Contract Act
increases this power still further. This particular criticism does not
reflect upon the technical merits of the Act in itself. But it does
suggest reasons which would not occur to a European mind, why it may be
inexpedient by making the law too precise to narrow the path in which
the judge has to walk. A stringent administration of the letter of the
law is in semi-civilized communities no unmixed blessing.
So much for the rural districts. In the Presidency cities, on the other
hand, the Contract Code is by most experts pronounced to be unnecessary.
The judges and the bar are already familiar with the points which it
covers, and find themselves—so at least many of them say—rather
embarrassed than aided by it. They think it cramps their freedom of
handling a point in argument. They prefer the elasticity of the common
law. And in point of fact, they seem to make no great use of the Act,
but to go on just as their predecessors did before it was passed.
These criticisms may need to be discounted a little, in view of the
profound conservatism of the legal profession, and of the dislike of men
trained at the Temple or Lincoln’s Inn to have anything laid down or
applied on the Hooghly which is not being done at the same moment on the
Thames. And a counterpoise to them may be found in the educational value
which is attributed to the Code by magistrates and lawyers who have not
acquired a mastery of contract law through systematic instruction or
through experience at home. To them the Contract Act is a manual
comparatively short and simple, and also authoritative; and they find it
useful in enabling them to learn their business. On the whole,
therefore, though the Code does not deserve the credit which has
sometimes been claimed for it, one may hesitate to pronounce its
enactment a misfortune. It at any rate provides a basis on which a
really good Code of contractual law may some day be erected.
Taking the work of Indian codification as a whole, it has certainly
benefited the country. The Penal Code and the two Codes of Procedure
represent an unmixed gain. The same may be said of the consolidation of
the statute law, for which so much was done by the energy and skill of
Mr. Whitley Stokes. And the other codifying acts have on the whole
tended both to improve the substance of the law and to make it more
accessible. Their operation has, however, been less complete than most
people in Europe realize, for while many of them are confined to certain
districts, others are largely modified by the local customs which they
have (as expressed in their saving clauses) very properly respected. If
we knew more about the provinces of the Roman Empire we might find that
much more of local custom subsisted side by side with the apparently
universal and uniform imperial law than we should gather from reading
the compilations of Justinian.
It has already been observed that Indian influences have scarcely at all
affected English law as it continues to be administered to Englishmen in
India. Still less have they affected the law of England at home. It
seems to have been fancied thirty or forty years ago, when law reform in
general and codification in particular occupied the public mind more
than they do now, that the enactment of codes of law for India, and the
success which was sure to attend them there, must react upon England and
strengthen the demand for the reduction of her law into a concise and
systematic form. No such result has followed. The desire for
codification in England has not been perceptibly strengthened by the
experience of India. Nor can it indeed be said that the experience of
India has taught jurists or statesmen much which they did not know
before. That a good code is a very good thing, and that a bad code is,
in a country which possesses competent judges, worse than no code at
all—these are propositions which needed no Indian experience to verify
them. The imperfect success of the Evidence and Contract Acts has done
little more than add another illustration to those furnished by the
Civil Code of California and the Code of Procedure in New York of the
difficulty which attends these undertakings. Long before Indian
codification was talked of, Savigny had shown how hard it is to express
the law in a set of definite propositions without reducing its
elasticity and impeding its further development. His arguments scarcely
touch penal law, still less the law of procedure, for these are not
topics in which much development need be looked for. But the future
career of the Contract Act and of the projected Code of Torts, when
enacted, may supply some useful data for testing the soundness of his
doctrine.
One reason why these Indian experiments have so little affected English
opinion may be found in the fact that few Englishmen have either known
or cared anything about them. The British public has not realized how
small is the number of persons by whom questions of legal policy in
India have during the last seventy years been determined. Two or three
officials in Downing Street and as many in Calcutta have practically
controlled the course of events, with little interposition from outside.
Even when Commissions have been sitting, the total number of those whose
hand is felt has never exceeded a dozen. It was doubtless much the same
in the Roman Empire. Indeed the world seldom realizes by how few persons
it is governed. There is a sense in which power may be said to rest with
the whole community, and there is also a sense in which it may be said,
in some governments, to rest with a single autocrat. But in reality it
almost always rests with an extremely small number of persons, whose
knowledge and will prevail over or among the titular possessors of
authority.
Before we attempt to forecast the future of English law in India, let us
cast a glance back at the general course of its history as compared with
that of the law of Rome in the ancient world.
VIII. COMPARISON OF THE ROMAN LAW WITH
ENGLISH LAW IN INDIA.
Rome grew till her law became first that of Italy, then that of
civilized mankind. The City became the World, _Urbs_ became _Orbis_, to
adopt the word-play which was once so familiar. Her law was extended
over her Empire by three methods:—
Citizenship was gradually extended over the provinces till at last all
subjects had become citizens.
Many of the principles and rules of the law of the City were established
and diffused in the provinces by the action of Roman Magistrates and
Courts, and especially by the Provincial Edict.
The ancient law of the City was itself all the while amended, purged of
its technicalities, and simplified in form, till it became fit to be the
law of the World.
Thus, when the law of the City was formally extended to the whole Empire
by the grant of citizenship to all subjects, there was not so much an
imposition of the conqueror’s law upon the conquered as the completion
of a process of fusion which had been going on for fully four centuries.
The fusion was therefore natural; and because it was natural it was
complete and final. The separation of the one great current of Roman law
into various channels, which began in the fifth century A.D. and has
continued ever since, has been due to purely historical causes, and of
late years (as we shall see presently) the streams that flow in these
channels have tended to come nearer to one another.
During the period of more than four centuries (B.C. 241 to A.D. 211-7),
when these three methods of development and assimilation were in
progress, the original law of the City was being remoulded and amended
in the midst of and under the influence of a non-Roman population of
aliens (_peregrini_) at Rome and in the provinces, and that semi-Roman
law which was administered in the provinces was being created by
magistrates and judges who lived in the provinces and who were, after
the time of Tiberius, mostly themselves of provincial origin. Thus the
intelligence, reflection, and experience of the whole community played
upon and contributed to the development of the law. Judges, advocates,
juridical writers and teachers as well as legislators, joined in the
work. The completed law was the outcome of a truly national effort.
Indeed it was largely through making a law which should be fit for both
Italians and provincials that the Romans of the Empire became almost a
nation.
In India the march of events has been different, because the conditions
were different. India is ten thousand miles from England. The English
residents are a mere handful.
The Indian races are in a different stage of civilization from the
English. They are separated by religion; they are separated by colour.
There has therefore been no fusion of English and native law. Neither
has there been any movement of the law of England to adapt itself to
become the law of her Indian subjects. English law has not, like Roman,
come halfway to meet the provinces. It is true that no such
approximation was needed, because English law had already reached, a
century ago, a point of development more advanced than Roman law had
reached when the conquest of the provinces began, and the process of
divesting English law of its archaic technicalities went on so rapidly
during the nineteenth century under purely home influences, that neither
the needs of India nor the influences of India came into the matter at
all.
The Romans had less resistance to meet with from religious diversities
than the English have had, for the laws of their subjects had not so
wrapped their roots round religious belief or usage as has been the case
in India. But they had more varieties of provincial custom to consider,
and they had, especially in the laws of the Hellenized provinces,
systems more civilized and advanced first to recognize and ultimately to
supersede than any body of law which the English found.
There is no class in India fully corresponding to the Roman citizens
domiciled in the provinces during the first two centuries of the Roman
Empire. The European British subjects, including the Eurasians, are
comparatively few, and they are to a considerable extent a transitory
element, whose true home is England. Only to a very small extent do they
enjoy personal immunities and privileges such as those that made Roman
citizenship so highly prized, for the English, more liberal than the
Romans, began by extending to all natives of India, as and when they
became subjects of the British Crown, the ordinary rights of British
subjects enjoyed under such statutes as Magna Charta and the Bill of
Rights. The natives of India have entered into the labours of the barons
at Runnymede and of the Whigs of 1688.
What has happened has been that the English have given to India such
parts of their own law (somewhat simplified in form) as India seemed
fitted to receive. These parts have been applied to Europeans as well as
to natives, but they were virtually applicable to Europeans before
codification began. The English rulers have filled up those departments
in which there was no native law worthy of the name, sometimes, however,
respecting local native customs. Here one finds an interesting parallel
to the experience of the Romans. They, like the English, found criminal
law and the law of procedure to be the departments which could be most
easily and promptly dealt with. They, like the English, were obliged to
acquiesce in the retention by a part of the population of some ancient
customs regarding the Family and the Succession to Property. But this
acquiescence was after all partial and local; whereas the English have
neither applied to India the more technical parts of their own law, such
as that relating to land, nor attempted to supersede those parts of
native law which are influenced by religion, such as the parts which
include family relations and inheritance. Thus there has been no general
fusion comparable to that which the beginning of the third century A.D.
saw in the Roman Empire.
As respects codification, the English have in one sense done more than
the Romans, in another sense less. They have reduced such topics as
penal law and procedure, evidence and trusts, to a compact and
well-ordered shape, which is more than Justinian did for any part of the
Roman law. But they have not brought the whole law together into one
_Corpus Iuris_, and they have left large parts of it in triplicate, so
to speak, that is to say, consisting of rules which are entirely
different for Hindus, for Musulmans, and for Europeans.
Moreover, as it is the law of the conquerors which has in India been
given to the conquered practically unaffected by native law, so also the
law of England has not been altered by the process. It has not been
substantially altered in India. The uncodified English law there is the
same (local statutes excepted) as the law of England at home. Still less
has it been altered in England itself. Had Rome not acquired her Empire,
her law would never have grown to be what it was in Justinian’s time.
Had Englishmen never set foot in India, their law would have been, so
far as we can tell, exactly what it is to-day.
Neither have those natives of India who correspond to the provincial
subjects of Rome borne any recognizable share in the work of Indian
legal development. Some of them have, as text-writers or as judges,
rendered good service in elucidating the ancient Hindu customs. But the
work of throwing English law into the codified form in which it is now
Applied in India to Europeans and natives alike has been done entirely
by Englishmen. In this respect also the more advanced civilization has
shown its dominant creative force.
IX. THE FUTURE OF ENGLISH LAW IN INDIA.