I wish that I had the time to give you a full account of the state of the law in India. It is a topic of the deepest possible general interest, and is connected with the great problems of the government of India. This would lead me too far, and would trespass too much on your patience; but I will try to draw a general sketch of Anglo-Indian law, and I may remark that interesting as the subject is, it is one which, so far as I know, has not been studied either in England or in India with anything like the attention which it deserves.
It has often been said, and with more truth and sincerity than many people suppose, that political power, and especially the responsibility of the direct government of India, was forced on the Company, and afterwards on the Crown, by the course of events, and to a great extent against their will. It is quite certain that the whole history of the empire shows the greatest reluctance on the part of its rulers to interfere with the laws, the habits, and the daily life of their subjects in any case in which they could possibly help it. The battle of Plassy was fought in 1757; and what is called the grant of the Dewanny, by which the Company became the direct governors of Lower Bengal, took place on the 12th August, 1764. From that date till 1793, that is to say, throughout the whole of the periods of Olive and Warren Hastings, nothing that could be described as legislation took place. The country .was governed through native agency and according to native principles. A different system was gradually and cautiously introduced by Warren Hastings, with all sorts of precautions, and under fictions which it would be tedious in these days to dwell upon. Some rules were required for the collection of the revenue and for the administration of justice, in so far as it was administered by the Company’s officers; but these rules were rather instructions issued by men of business for the guidance of their agents, than what we in these days should call laws. In many cases, I believe, they were not even printed. They were certainly never published, collected, or translated into the native languages. This was the origin of the body of law known as the Regulations.
As to the exact legal position of the regulations I need say nothing on the present occasion. Their character as laws has been recognised both by parliament and otherwise, and cannot now be questioned; but it is by no means easy to specify with complete precision the authority under which they were enacted. Be this as it may, Lord Cornwallis, in 1793, consolidated all the regulations then in force into one general code, and made at the same time extensive and memorable additions to them. His regulations fell under two great heads, which are still recognised as the leading division in all Indian official transactions. These were the Revenue and the Judicial Regulations. The great Revenue Regulation is Regulation I. of 1793, better known as the Permanent Settlement. This is one of the most important laws ever passed. It forms, for reasons which I will not stop to assign, the foundation of the real property law of the whole population of Lower Bengal, a country which is said to have been ascertained at the recent census to contain nearly 60,000,000 inhabitants, all of whom, with exceptions numerically trifling, are immediately dependent on the produce of the soil. I must, however, warn you, that without a knowledge of Indian law and administration, which it is impossible to get from any book with which I am acquainted, the Permanent Settlement, and the subsequent legislation which has been founded upon and connected with it, will give you very little information about, Indian real property law. I will say a few words on that subject in its place; at present I am only treating historically the growth of the system; and I may observe generally, that the law relating to the assessment and collection of the land revenue, and other topics intimately connected with it, forms one great branch of the statute law of British India. So far as Bengal and the North-West Provinces are concerned, it is contained in the Regulations, and in acts of the legislature recognising, consolidating, or altering them.
The other Regulations of 1793 were the foundation of the judicial system of Northern India, which has now reached nearly complete maturity. I need not trace out its history down to the present time, but I may observe in general, that as our knowledge and experience of the country increased, and as our territories extended, changes, experiments, modifications of all kinds became necessary. They were all made by regulation from 1793 to 1834. The result was, that the Regulations became an exceedingly voluminous and intricate body of law. I cannot precisely say what their extent was, but I believe they filled nine or ten large folio volumes; and I know that they presented all the unmistakable features of an English statute book.
The Regulations interfered very little with the daily life of the people, except in regard to land revenue, criminal procedure, and civil procedure; and there can be no question whatever that in these matters their interference was, on the whole, highly beneficial, though much less beneficial at first than it gradually became, as we came by degrees to understand our own position, and to appreciate the nature of the institutions and of the society in which we found ourselves.
The Regulations enact in general terms that in matters relating to “succession, inheritance, marriage, or caste, or any religious usage or institution,” the native laws shall be followed : that in other cases, the judges shall proceed according to “justice, equity, and good conscience;” and they assume and recognise the Mahommedan law as the rule for criminal cases. They contain, however, a considerable number of modifications of its more glaring defects, which may be described as excessive cruelty, and a strange alteration of almost ridiculous minuteness, with a vagueness at least equally inconvenient. Speaking generally, therefore, it may be said that the great subjects of the Bengal Regulations were four, namely, land revenue, criminal procedure, civil procedure, and the constitution of the civil and criminal courts. Of the Madras Regulations it is unnecessary for me to speak at length. Their subject-matter was much the same as that of the Bengal Regulations. The Bombay Regulations were the subject of a most remarkable experiment, of which I will say a few words in its place.
In 1834, the Charter of the East India Company was renewed. The legislative powers of the Governments of Madras and Bombay were taken away, and the Governor- General in Council was empowered to legislate for the whole of India. It was considered, too, that the time had come for making an effort to improve the quality of the legislation. The state of the law which I have attempted to sketch combined nearly every defect. It was exceedingly voluminous and intricate in regard to the matters for which it did provide. It left a vast number of matters of the utmost importance practically unprovided for. It dealt with others in the vaguest and most uncertain manner. Those who wish to see the weak side of the system set out in the most vigorous language, and with great authority and experience, should consult Shore’s “Notes on Indian Affairs,” written in 1835 or 1836, by a distinguished civilian, the son of Lord Teignmouth. He writes, as reformers usually do, with an almost passionate sense of the evils which he attacks, and with little regard to the other side of the question. He had earned the right to do so by distinguished gallantry and long service. For my own part, I know just enough of the country to feel bound to say that no one who has not been in India can have the faintest conception of the enormous magnitude of the task which we have taken upon ourselves, or of the unspeakable difficulties by which it is encumbered. The wonder is, not that holes can be picked in the institutions and laws by which we have governed India, but that we have governed India at all—that there should be laws and institutions there to criticize. There is plenty of fault to be found, no doubt; and it is right that it should be found; but whatever else may be said of Indian law and government, it has done its work as effectively as Rome itself, and far more humanely.
No doubt, however, continual watchfulness and constant reforms are still more obvious necessities of our position in India than elsewhere; and there was in 1834, and there is now, ample room for improvements, and a pressing necessity for them. The Act of 1834 made provision for the appointment of an Indian Law Commission in India, and for the addition to the Council of a legal member, who, however, was to be entitled to be present at its legislative meetings only. The meetings for the purpose of legislation, as Well as for other purposes, were at that time private, and long continued to be so. Lord Macaulay was appointed to be the first legal member of Council. On reaching India he was put at the head of the Indian Law Commission, the other members of which were Sir J. McLeod and Mr. Millet. They published valuable reports, but their great contribution to Indian law reform was the first draft of what is now the Indian Penal Code. It did not become law till 1860, but the Act finally passed did not differ very materially from the draft. I will not trouble you with any criticism upon it at present. Lord Macaulay left India in 1838, and not very long afterwards a period of storms set in which effectually diverted the attention of the Government of India from law reform. The alternate disasters and triumphs of the Afghan war, the struggle with the Sikhs under Lord Hardinge, the conquest of the Punjab, the annexations of Lord Dalhousie, and the mutinies of 1857, turned men’s minds in other directions. There was a good deal of that miscellaneous legislation which is required in every community to provide for the multitude of practical wants which make themselves felt from time to time as society goes on; but the important parts of the law were left in the state which I have described.
A case, however, occurred which put in the clearest possible light the immense practical importance of the sort of reforms which were subsequently made. I refer to the transactions which took place on the conquest of the Punjab in 1849. These events have been a good deal misrepresented and misunderstood, both in England and in India, and they have a curious bearing on the subject before us.
When the Punjab was conquered it became necessary to provide, at a moment’s notice, a whole system of civil government for a country which, speaking roughly, may be said to be as large as Italy, and which had got into a state of utter anarchy. Lord Lawrence declared in the Legislative Council, in 1868, that when he first knew the Punjab there was nothing in it that deserved to be called property in land at all. Criminal justice was little more than organized and authorised massacre and extortion. What then was to be done? It was utterly impossible to extend the Regulations and Acts as a whole to the province. They were too cumbrous for busy men to work. Lord Dalhousie’s view of the subject was that the Punjab should be regarded as a Crown colony, and that the Governor-General in Council, as agent for the Crown, might legislate for it independently of the Parliamentary powers by which he legislated for the rest of India. The legality of this view was afterwards gravely questioned, but practically it was adopted in a curious and intricate fashion, which I will not detain you by explaining. The practical result was that Lord Lawrence, Sir Henry Lawrence, and Mr. Mansel, who formed the Board of Administration, and afterwards Lord Lawrence alone, first as Chief Commissioner and then as Lieutenant-Governor, exercised what for all practical purposes amounted to legislative as well as almost absolute executive authority throughout the province. The extraordinary success of their administration is or ought to be known to every one. When anything which deserves to be called a history of India is written, the most striking pages in it will be those which tell how peace and order were established from the foot of the Passes beyond the Indus to the great Indian Desert on one side, and the North-West Provinces on the other; how property in land was established and protected; how the most furious religious animosities were held in check, and above all how only eight years after the conquest, a Sikh army, raised and led by the men who had conquered them, followed English officers with passionate devotion up the breach at Delhi, and into the Residency at Lucknow.
All this is familiar, and is frequently quoted both in England and in India, as a proof of the superiority of personal energy over the dilatory proceedings of law and lawyers. These, it is constantly said, were the fruits of the non-Regulation system. The true secret of government is to give absolute power to a vigorous man, and leave him to be a law to himself. Of course, we all ought to remember that all the laws of all the codes in the world cannot make a good ruler, but the best ruler cannot govern without law. The proof of this is that the very first use which Lord Lawrence and his associates made of the immense authority with which they were invested, was to produce a code of laws for the government of the Punjab. It would have been utterly impossible for busy men to work the cumbrous system which then prevailed in the North-West Provinces, and one of the very first tasks which Lord Lawrence undertook was the production of what were in fact, though not in name, a code of civil procedure, a code of criminal procedure, a penal code, and a work which was commonly called the Punjab civil-code. These codes were no doubt very defective in many respects. It would have been a miracle if this had not been the case. Several of them were drawn up by very young men who had had no legal training, and who were pressed by other business. My friend and late colleague, Sir Richard Temple, drew up the Punjab civil code when he was considerably under thirty, and when I, his contemporary, was copying precedents in a conveyancer's chambers. Avowedly imperfect as these productions were, they were beyond all comparison superior to the laws which existed at that time in other parts of India, and they rendered it possible to reduce the province to order. The experience of the Punjab (which was repeated some years afterwards in Oude) proves to demonstration, not that law can be dispensed with in government, but that clear, short, and simple laws are absolutely indispensable to a vigorous form of government which is to produce lasting effects. It is one of the most striking of all possible proofs of the value of any sort of code, of any definite authoritative statement of the law, that when these avowedly crude productions were superseded by a set of laws which I shall mention immediately, and which extend to the whole of India, the change was opposed on the ordinary conservative grounds.
At all events it ought not to be forgotten that Lord Lawrence’s celebrated administration of the Punjab is in reality one of the strongest precedents that can be quoted in favour of codification, though it is often represented in another light. He was not, however, the first Indian statesman who had set an example in this direction. Mountstuart Elphinstone, when Governor of Bombay, had done a great and important work of the same kind. Under his administration the whole of the Bombay Regulations were formed into a code regularly arranged according to their subject-matter. This code consists of twenty-seven regulations, sub-divided into chapters and sections. It refers to the same subjects as the Bengal Regulations, but differs from them in the circumstance that it contains a body of substantive criminal law which remained in force till it was superseded by the penal code, and which had very considerable merits, though it would probably not have supported the test of strict professional criticism, to which, indeed, it was not intended to be subjected.
Although the draft of a penal code had been prepared between 1834 and 1838, although the Indian Law Commissioners had collected a mass of information on the subject of Indian law, and although the experience of the Punjab and some other recent acquisitions had shown the intricacy and cumbrousness of the Regulations, the principal things actually done in the way of legislation, down to the close of the Company’s existence, were the repeal and re-enactment, in a more convenient form, of Acts and Regulations on the subjects which I have already mentioned, namely procedure, including the constitution of the courts and land revenue. There had been also a good deal of miscellaneous legislation ; but the extreme, I will not venture to say the unwise, caution which naturally had characterized all their dealings with the vast interests under their charge had prevented the Company’s servants from undertaking anything further.
When the government of India was transferred from the Company to the Crown, there was, as you will probably remember, a strong reaction against what was described as the traditional policy of the Company. The general opinion was that it had been too timid, and that this timidity had been shown by experience to be exceedingly dangerous. However this may have been, it was determined to make a vigorous effort in the direction of legislation, and arrangements were made for the purpose, both in England and in India.
On the expediency of this policy there are two opinions. My own opinion is strongly in favour of it, upon grounds with which I cannot now trouble you. But I will proceed to state what was actually done.
In the course of the thirteen years, between 1859 and 1872, the law of India may be said, without exaggeration, to have been all but completely codified. By this I mean that all the most important branches of law in daily use there are thrown into a distinct, systematic, written form; and that the miscellaneous laws, which may be described collectively as current legislation, are consolidated in such a manner that there is hardly any subject on which the whole law is not comprised in a single Act, amended, where that is necessary, by Acts so drawn that the alterations can be noted as errata.
I hope you will pardon me if I detain you for a moment on the manner in which this result has been brought about. In a debate, which took place last Session, on law reform, my friend Mr. Fawcett referred to what I had been able to do, in a manner for which I heartily thank him, but which drew from Mr. Lowe the remark—a perfectly just remark—that the share of the Indian Law Commissioners in Indian Law Reform had hardly met with sufficient acknowledgment. The truth is that a very considerable work has been brought very near to completion by the united efforts of several persons, each of whom had their peculiar difficulties and facilities, and all of whom exerted themselves to the best of their ability. The facts are as follows. The draft of the Penal Code was prepared in India, by Lord Macaulay, Sir J. M‘Leod, and Mr. Millett ; but it remained a draft for twenty-two years, and the Indian Law Commission in India made no further contributions to codification beyond collecting materials. A second Indian Law Commission, which sat in England, was appointed in 1853 to codify the law of procedure. It produced the first drafts of the Codes of Civil Procedure and Criminal Procedure in 1855. A third Indian Law Commission was appointed in 1861, to prepare a code of substantive law for India. It produced the first drafts of the Succession Act, the Contract Act, and the Evidence Act. Besides these it produced three other drafts, which, for various reasons, have not been enacted in India. It resigned about two years ago, on the ground of the delay made by the Government of India in passing its drafts into law. I will say nothing upon this subject, except that the difficulties of discussing the details of intricate and important measures between a commission sitting in London and a legislature sitting in India, are very great, and that such an arrangement must produce great delay. A difference of opinion about three points in the Contract Law, the importance of which would be by no means apparent to a mere English reader, delayed the passing of the Bill for several years. Be this how it may, it is undoubtedly true that every one of the great laws which collectively form what may be called the Indian codes, was originated, and the first drafts of them were prepared, by the Indian Law Commissioners. It should also be noticed that this great service to India, which I hope may eventually prove to be a service to England also, was (except as to the Penal Code) rendered gratuitously by men of the highest eminence in the rare leisure left to them by other public duties of the first importance.
Legislation in India was conducted during the period in question by the Viceroy’s Council in its legislative capacity. The constitution of this body was materially different between 1854 and 1861 from what it has been since 1861; but upon this I need not speak. Speaking generally, I may say that the legislative business is under the management of the legal member of Council, who usually has charge of the more important measures. He is, however, assisted by committees which sit upon every measure introduced, minutely criticize its details, and frequently remodel it. The public debates, though occasionally very animated, are of far less practical importance than the deliberations of the committees.
Sir Barnes Peacock was the legal member of Council who made the first and the most important contribution to codification. During the last three years of his tenure of office, 1859, 1860, and 1861, there were passed the Code of Civil Procedure, Act VIII. of 1859; the Penal Code, Act XLV. of 1860; and the Code of Criminal Procedure, Act XXV. of 1861.
Sir Barnes Peacock was succeeded by Mr. Ritchie, who died a few months afterwards. The third Indian Law Commission was appointed at this time.
Mr. Ritchie was succeeded by Sir Henry Maine. It was his task to introduce the measures drafted by the last of the three Indian Law Commissions, and he introduced three of them accordingly, namely, the Succession Act, the Contract Law, and the Evidence Act. One only of these measures, namely, the Succession Act, was passed during his tenure of office. The reason of this was that controversies arose upon questions which have now lost their interest, but which connected themselves in curious indirect ways with the questions of contract and civil procedure. It was also necessary to amend the procedure codes in various important respects; indeed, the Code of Civil Procedure was redrawn but not re-enaeted. The current legislation too was very heavy. A system for the registration of assurances, and several Acts as to marriage and divorce, were required. Many English Acts, as for instance, the Act relating to companies, had to be adapted to India; and a variety of half-legal, half-political questions, affecting the legal position of the European community in India and the interests of the landholders in the Punjab and Oudh, required legislation. Preparations too were made in the shape of indexes and repealing Acts for the consolidation of the existing miscellaneous Acts and Regulations. This most laborious task was performed mostly by Mr. Whitley Stokes as regarded the Acts, and by Mr. Cockerell as regarded the Regulations.
I succeeded Sir Henry Maine. On doing so I found everything prepared for the task of consolidation, and I also found two of the Indian Law Commissioners’ drafts, namely, the draft of the Contract Act and the draft of the Evidence Act, under consideration. The Code of Criminal Procedure which had been originally ill-arranged and had been repeatedly amended, seemed to require re-enactment. I was fortunate enough to be able to pass the Contract Act and the Evidence Act, and to re-enact the Code of Criminal Procedure. I was also able to pass nearly all the consolidation Acts, in number about twenty, required to realize the ideal of having only one Act on each subject. The credit of the consolidation Acts is due to a very great extent to Mr. Cockerell, Mr. Whitley Stokes, and Mr. Cunningham. Of course, this was hard work, as there was current legislation besides; but the preceding statement will show that circumstances enabled us to reap where others had sown. I will now say a few words on the Acts which form collectively the Indian codes, referring to them in the order of time.
The first, and in some respects the most important, of them is Act VIII. of 1859, better known as the Code of Civil Procedure. It was drawn by the second Indian Law Commission, and considerably modified in India, especially by Sir Barnes Peacock and Sir Henry Harrington. It has required some amendment, though not very much, and having been drawn with some looseness of expression, has given rise to a great number of judicial decisions. It would no doubt be a great convenience if it could be re-enacted with greater regard to technical precision of language. A draft for this purpose, as I have already observed, was prepared by Sir H. Maine and Sir H. Harrington. There are some questions of principle and policy connected with it which I will not stop to discuss. These, however, arc matters of almost no importance at all in comparison with the more important results of the code. 'It swept away 147 Regulations and Acts, and it laid down a distinct, precise system of civil procedure, applicable to all courts (with exceptions, which I need not mention), and all descriptions of causes, and capable of being fully mastered by any one who will take the pains to study the Act without reference to any other authority. One of the enormous advantages of this Act is, that it has, I will not say abolished, but prevented by anticipation the growth of the distinction between law and equity. Whether the object is to recover damages for a libel, to obtain specific performance of a contract, to get a declaratory decree with consequential relief, or to compel a trustee to do his duty, the form of procedure is the same, and the competency of the court depends on the value of the suit, and the place of residence of the parties, and not on the nature of the question. There is room for much difference of opinion as to the provisions of the code in regard to appeals, and I cannot commend its provisions as to the execution of decrees, but I never heard more than one opinion on the excellency, the perfect simplicity, and the complete success of the code as a whole.
The next measure to be noticed is Act XLV. of 1850, the Indian Penal Code. Though it was most carefully revised by Sir Barnes Peacock and his colleagues, and was modified by them in many important points, it remains substantially as Lord Macaulay and his colleagues drew it. It contains, with very few exceptions, the whole criminal law of the whole Indian Empire. It consists of 511 sections. It has been in constant use for eleven years by a large number of unprofessional judges, who understand it with perfect ease, and administer it with conspicuous success. It has required hardly any amendments, additions, or explanations; and the number of cases which have been decided upon it is surprisingly small. It has, I think, some considerable defects. It is often said in India that every act of human life may be brought within one or other of its clauses; and no doubt some of them, especially the sections relating to defamation, intimidation and cheating are of most formidable extent, and might, I think, be curtailed with great advantage whenever the code is re-enacted. Some of its definitions again, such as the definitions of murder and criminal force, are intricate, and rather obscure; and there is a tendency in parts of the code to the unnecessary multiplication of distinctions between offences. All these defects, however, might be easily remedied, and are of little practical importance. To compare the Indian Penal Code with English criminal law is like comparing cosmos with chaos. Any intelligent person interested in the subject could get a very distinct and correct notion of Indian criminal law in a few hours from the Penal Code. I appeal to you to imagine the state of mind of a man who should try to read straight through the very best of English books on criminal law, say, for instance, Mr. Greaves’s edition of “Russell on Crimes.”
The penal code was followed by Act XXV. of 1861, the Code of Criminal Procedure. This Act was originally drawn by the Indian Law Commissioners, and was by them, I believe, confined to Bengal. It had to be extended to the other presidencies, and owing to this and some other circumstances its arrangement became defective and obscure. It nevertheless consolidated 237 Regulations and Acts, and the work was done thoroughly, and with great care and accuracy. The Act, however, assumed so much knowledge on the part of those by whom it was to be studied and applied, that it could hardly be regarded as a code; that is to say, as a complete statement of the whole of the law on the matters to which it related. Notwithstanding this defect, the advantage of having the whole written law upon the subject contained in a single enactment was so great that the Code of Criminal Procedure was an immense assistance to the administration of justice.
After being amended several times, the code was re-enacted, I hope in an improved shape, a few months ago, as Act X. of 1872, which will come into force on the 1st of next January. The importance of the subject of criminal procedure is much greater in India than it is in England. The Code of Criminal Procedure might indeed be described as the whole duty of magistrates, and every European government official passes the greater part of his official career as a magistrate. Accordingly this Act is very much more than a mere Code of Criminal Procedure. It provides for the constitution of all the criminal courts in the country, the High Courts only excepted. It defines the relations to each other of the different classes of district magistrates. It disposes of numerous matters connected with the internal government of the country in which magistrates are concerned, such as the removal of nuisances, the provisional settlement of disputes about the possession of land, the making of orders for the maintenance of wives and families, the supervision of vagrants, and the employment of troops in cases of riot. These matters, besides every step of the procedure to be taken in relation to crime, from the discovery and arrest of the offender by the police, down to the execution of the final sentence of the court, is minutely provided for in the code. It contains 541 sections, and is the equivalent of the original code, and of thirty-two other Acts and Regulations which it repeals. It thus represents 270 separate enactments. The new edition of the code disposes also of perhaps 1,500 or 2,000 cases which had been decided on the old one. In most cases this was effected by very slight alterations of the language of the Act.
The passing of this Act was the first case of the re-enactment of a code, a process which I think they ought to undergo—say, once in every ten years. It is a very laborious business, but it is essential to the real utility of a code, and to the maintenance of the simplicity which it is intended to produce. To judge from the notes upon them, the Code Napoleon and the Code Pénal ought to have been reenacted half a dozen times.
The next Act in the nature of a code, after the Code of Criminal Procedure, was Act X. of 1865, the Indian Succession Act. This Act was one of the very highest legal interest. Its immediate practical importance in the government of India was certainly not great, but it may, as time goes on, become one of the most striking monuments of English rule in that country. It provides a body of territoral law for British India, regulating the great subjects of inheritance, the civil effects of marriage, and testamentary power. It is a curious circumstance, that the vast majority of subjects in India are subject in these respects to personal laws. Thus all Hindoos are subject to the Hindoo law; all Mahommedans to Mahommedan law, and so of Buddhists and Parsees, and other native populations. Europeans, as a rule, are subject to the law of their domicile, whether it be English, Scotch, or Continental. This, of course, accounts for the vast mass of the existing population in India. There are, however, exceptions. The Armenians, for instance, of whom there are many in Calcutta, have no personal law, and till 1865 there was no lex loci by which their rights could be settled, and the same is the case with half-castes, with out-castes, and more or less with native Christians. The Succession Act provides what by analogy to the Code Napoleon may be called a Civil Code, for all persons so situated. The number is already important, and may be expected to increase as the cracks already perceptible in the native religions gradually widen. The Succession Act was one of the principal contributions to Indian law of the Indian Law Commission in England, and was of all their drafts least altered in India. I would recommend any one who doubts the possibility or the advantage of codification to compare the 332 sections of this Act with a whole library of English law books, of which "Jarman on Wills” may be taken as a type.
I may perhaps mention, in connection with this Act, an Act which was passed last spring, after a very animated discussion, of which some of you may perhaps have heard, providing a form of marriage for persons who did not profess any of the recognised religions. The Act was occasioned by the rise of the sect called the Brahmo Samaja. It applied to the whole population of India, except Hindoos, Mahommedans, Christians, Buddhists, Parsees, &c. The issue of such marriages will fall under the Succession Act.
The next Act to be mentioned is the-Indian contract law, which was also the work of the Indian Law Commissioners, though the first part of it was considerably modified in India before it became law, rather in form, however, than in substance. It became law early this year, and now stands in the Indian Statute Book as Act IX. of 1872. It was my duty to examine it closely with the authorities from which it was drawn, and to discuss it in minute detail with a committee, two of the members of which were Calcutta merchants of eminence. This enables me to bear witness not only to the care and labour which had been expended on it, but also to the important fact, that when law is divested of all technicalities, stated in simple and natural language, and so arranged as to show the natural relation of different parts of the subject, it becomes not merely intelligible, but deeply interesting to educated men practically conversant with the subject-matter to which it relates. The Act in question deals successively with the general principles of contract, and with the contracts of the sale of goods, indemnity and guarantee, bailment, agency, and partnership. I do not think many lawyers in Westminster Hall could have taken a keener or more intelligent interest in these subjects, or have discussed every enactment relating to them with more acuteness or with a greater disposition to put every sort of case upon them, than my two colleagues, and I am very much mistaken if that Act is not carefully studied by a large proportion of merchants of the Presidency towns with a definite reference to their daily affairs.
Two other Acts may be mentioned as being of the nature of codes, though they are branches of procedure. These are Act IX. of 1871, the Indian Limitation Act; and Act I. of 1872, the Indian Evidence Act. The credit of the first of these Acts is due mainly to Mr. Whitley Stokes, the Secretary to the Legislative Department. It gives in' a very small compass the result of about 1,200 decisions which had been given in the course of about twelve years, on Act XIV. of 1859, which it re-enacts, supplements, and supersedes. The Evidence Act, for which, in its present shape, I am in a great measure responsible, is founded on a draft prepared by the Indian Law Commissioners. It includes, I think, everything which was contained in that draft, but is considerably longer, and is arranged on a different principle.
Besides these Acts the constitution of the civil courts in different parts of India has been provided for by eight or nine Civil Courts Acts, which have been passed in the course of the last five or six years, one for every province of the Empire except Madras. I think that, with a little management, the whole of these Acts might be consolidated with the next edition of the Code of Civil Procedure; but as they are, they supersede an amount of obscurity and confusion of which I may give a single example. The civil courts of Bengal derived their jurisdiction from parts of no less than thirteen Regulations and Acts amending and referring to one another, relating to all sorts of different subjects, and passed at different periods between 1793 and 1870. All these are now replaced by an Act of thirty-eight short sections (Act VI. of 1871), which any one can master in an hour.
This concludes what I have to say on codification in India; and I will now pass to the subject of consolidation. I do not think there is any essential difference between the two processes, though when a code is spoken of the word generally implies that a large and important part of the subject codified is then for the first time reduced to writing in an authoritative manner; whereas consolidation is the process of throwing several statutes into one. Every code, however, will always include more or less consolidation, as upon every subject there is a greater or less amount of statute law. On the other hand, consolidation will be of very little use unless the person who consolidates feels himself at liberty to remodel and rearrange the statutes which he throws together, and to mould their language so as to give the effect of judicial decisions on their meaning. The essence of consolidation is that there should never be more than one statute upon one subject; and that if it is necessary to amend a statute in particulars too small to authorize its repeal and re-enactment, the amendment should be made by enacting that certain words should be erased from the amended Act and others inserted in their place. The result of this is, that the original Act can be reprinted as amended; and simple as this device may appear, it saves an amount of trouble and confusion which can scarcely be believed without practical experience.
The consolidation of Indian law, thus understood, is very nearly complete. When I left India, four Acts on miscellaneous subjects, and three Acts relating to the land revenue of the North-West Provinces, Oude, and the Central Provinces respectively, remained to be passed. Of these seven Acts, five had been drawn and introduced into the Council, and of these one has since become law. Five or six additional consolidation Acts, most of which are already drawn, will thus put the statute law of India into a satisfactory condition. Every subject of which it treats will then be disposed of in a single Act, or in a single Act amended by other Acts, in such a manner that the two can be printed as one. When that is done there will remain about thirty Regulations, which for various reasons it is undesirable to touch. The total number of unrepealed Acts of the Government of India was, on the 31st December, 1871, 506, of which 295 were restricted in their operation to different provinces, and only 211 were general. Since that time eighteen Acts have been passed. The first fifteen repeal sixty-two existing enactments, and so reduce the number by forty-seven. The total number of Acts thus stands at from 450 to 460, the total number of general Acts being about 160.
To resume, that part of the law of India, for which the Viceroy’s Council is responsible, at present stands thus. The subject-matter of the judicial branch of the old Regulations is contained in the Penal Code, the Limitation Act, the Evidence Act, the codes of Civil and Criminal Procedure, and the Civil Courts Acts, of which, as I said, there is one for each province. The revenue branch is represented by consolidated land revenue Acts and by tenancy Acts, which have been passed for the greater part of India, and are under consideration for the rest. The subjects of marriage, inheritance, wills, and the family relations generally, are regulated either by native laws which, for obvious reasons, it is undesirable to touch, or by the Succession Act. The principles of contract in general and the commoner contracts are regulated by the Contract Act, and miscellaneous topics of legislation are each disposed of by a single Act, or by Acts so drawn that they can be printed as a single Act. For the sake of simplicity I have said nothing of Acts of Parliament relating to India, or of the Acts of the local legislatures for Bengal, Madras, and Bombay.
My own opinion is, that if a law of torts were enacted, little more would be required, except current miscellaneous legislation, and the re-enactment from time to time of the existing laws, so as to embody in them the result of judicial decisions. It may strike you that this review leaves out the greatest subject of all, the law relating to land, and that as the whole population of India is immediately dependent on the produce of the land, this is to omit the part of Hamlet from the play. The answer to this is, that the laws relating to land in India are almost entirely of two kinds ; either they are connected with and arise out of the system of land settlement, the law as to which is reduced to writing in the greater part of India; or else they are native customs as to inheritance and tenure, with which it would be undesirable to interfere, though they are carefully registered in the course of settlement proceedings throughout great part of northern India. A law of easements, and a law of mortgages, might, I think, be passed (a draft Mortgage Act was prepared before I left India) ; but they would require very great consideration and local knowledge.
You will naturally ask how this process of codification has succeeded? To this question I can answer that it has succeeded to a. degree which no one could have anticipated, and the proofs of this fact are to my mind quite conclusive. One is the avidity with which the whole subject is studied, both by the English and by the native students in the universities. The knowledge which every civilian you meet in India has of the Penal Code and the two Procedure Codes is perfectly surprising to an English lawyer. People who in England would have a slight indefinite rule-of-thumb knowledge of criminal law, a knowledge which would guide them to the right book in a library, know the Penal Code by heart, and talk about the minutest details of its provisions with keen interest. I have been repeatedly informed that law is the subject which native students delight in at the universities, and that the influence, as a mere instrument of education, of the codifying Acts, can hardly be exaggerated. I have read in native newspapers detailed criticisms, on the Evidence Act, for instance, which proved that the writer must have studied it as any other literary work of interest might be studied.
A proof of a different kind of the success of the codes is this. A few years ago an Act was passed enabling the Government of India to legislate in a summary way for the wilder parts of India. The Punjab Government were accordingly asked whether they had any proposal to make as to special laws for the government of as wild a frontier as any in the world, the districts between the Indus and the mountains. They replied that they could suggest nothing better than the Penal Code and the Code of Criminal Procedure, with one or two slight modifications and additions. It is a new experience to an English lawyer to see how easy these matters are when they are stripped of mystery. I once had occasion to consult a military officer upon certain matters connected with habitual criminals. His special duty was the suppression of Thugs. Upon some remark which I made he pulled out of his pocket a little Code of Criminal Procedure, bound like a memorandum-book, turned up the precise section which related to the matter in hand, and pointed out the way in which it worked with perfect precision. The only thing which prevents English people from seeing that law is really one of the most interesting and instructive studies in the world, is that English lawyers have thrown it into a shape which can only be described as studiously repulsive.
Such being the condition of the law of India, I now pass to the question, What can be learnt from it as to codification in England? To this I would reply, that, in the first place, Indian experience shows pretty clearly what in practice is meant by codification. The minds of many persons who write upon the subject appear to me to be haunted by an impression that law is a science inherent in the nature of things, and quite distinct from actual laws, and that to codify the law is to draw out a connected system of propositions which would constitute such an exposition of the science as Euclid gives of the elements of geometry. Of course, if this view of the subject is taken, the codification of the law may well be regarded as a work almost, if not altogether, out of our reach. If, however, we take a truer and more practical view of the matter—if we think about actual laws, and not about abstract law, and if we regard these laws as systems of rules drawn up for practical purposes by the light of common experience—it appears to me as absurd to doubt the possibility of expressing them in plain words, and arranging them in a perspicuous and systematic form, as to doubt the possibility of getting any other sort of skilled labour performed.
All experience, both English and Indian, shows that of the masses of law which are to be found in statutes and text books, the amount with which any one, even a lawyer, need practically concern himself is comparatively small. Turn over “Chitty’s Statutes,” for instance, and consider of how many of the Acts which it contains any lawyer can wish to know more than the fact of their existence. Who would wish to burden his memory with the contents, for instance, of Acts about sewers, ships and shipping, tithes, the improvement of towns, vestries, or a thousand other subjects which might be mentioned? On the other hand, there are branches of the law of which every lawyer who is really master of his profession ought to have a precise and systematic knowledge, embracing not merely their general principles, but their more important working details. My own opinion is, that every educated man might possess a very considerable amount of such knowledge, and I feel no doubt at all that the law both might and ought to be thrown into such a shape as to render the operation of getting it easy and interesting. If any one is sceptical as to this, I would invite his attention to some illustrations. The constitution of the United States is accurately and familiarly known to many millions of Americans, and for this simple reason: It is drawn up in a form which every one can read and understand, and is circulated through the whole country, as we circulate the Bible. The Catechism, The Ten Commandments, and the Creeds, are instances of the same thing. Here are documents which relate to the most important and mysterious subjects to which the human mind can address itself. They form an essential part of one of the most important Acts of Parliament ever passed—the Act of Uniformity. Every child in the land learns them by heart, and the highest courts of law in the country put from time to time a judicial construction upon them. The whole national character of Scotland is moulded by the Westminster Confession. Its system of divinity gives a complete account of all things, human and divine, and a large proportion of Scotchmen used, at all events, to be able to repeat it by heart from end to end, together with its Scripture proofs. What are these but cases of codification P and yet there are those who say that it is idle to attempt to popularize a knowledge of law.
It is not, I think, difficult to specify the particular branches of law which might thus be dealt with. Suppose that we had statutes containing expositions of the whole law, whether derived from statutes, text writers, or decided cases on the following subjects 2— 1. Private relations of life husband and wife, parent and child, guardian and ward); 2. Succession to property; 3. Landed property; 4. Contract; 5. Wrong; 6. Trust; 7. Crime; 8. Civil procedure; 9. Criminal procedure; 10. Evidence; ll. Limitation and prescription, we should then have not indeed a code in the—I had almost said transcendental—sense which some persons seem to attach to the word, but we should have the working kernel of the law stated in such a shape that, with the necessary amount of sustained industry, any one might acquaint himself with it. If, in addition to this, the process of redrawing and re-enacting the statutes upon other subjects, in a consolidated form and in modern' language, were steadily carried on, till on each subject there was only one Act, the law would be as simple as it could be made. Is there any insuperable difficulty in this undertaking P I can see none, if it is seriously taken in hand. It would no doubt be a great undertaking. It would occupy many years, and would cost a considerable amount of money; but the difficulties are by no means greater than those of many other great undertakings. They are not greater, for instance, than the difficulty of draining London, or building new Houses of Parliament, or new courts of law, or constructing a system of railroads. Of course, it is possible to suggest difficulties which may be made to look insurmountable, and I have no doubt that they really are in many instances great, but to suppose that they cannot be overcome by resolute and well-combined efforts, if only the nation is in earnest in the matter, seems to me mere idleness and faintness of heart. Can any one doubt that if the 4th and 17th sections of the Statute of Frauds had been redrawn, as they ought to have been half a dozen times since they were passed, the law would now be as simple as the nature of the case permits it to be? An Act on that matter might be drawn in a few weeks, which would enable every merchant in England to know where he was in regard to such matters without asking his lawyer.
Of the eleven subjects mentioned, several have been dealt with in the Indian Succession Act, and others in the Contract Act, the Penal Code, the two Procedure Codes, and the Evidence and Limitation Acts. Others are disposed of in the New York Civil Code ; and, indeed, distinct precedents might be found for all, with the exception of the law of landed property, which, on account of its enormous importance and great difficulty, might well be left to the last; but I know of no reason why the subjects of crime, contracts, wrong, and procedure, civil and criminal, including evidence and the law of limitation and prescription, should not be undertaken at once, and completed in a few years. Indeed, a single draftsman, who had nothing else to do, might draw the Acts faster than Parliament would be prepared to discuss them. I do not know that the order in which the different Acts should be drawn is a question of very much importance. My own opinion would be in favour of beginning with a Code of Civil Procedure, partly because the Judicature Commission have drawn up in their first report what would amount to instructions to the draftsman, but much more because such a code would at once effect a fusion of law and equity, and thus remove one of the principal causes of the intricacy of English law.
You will perhaps allow me to say a few words on this point. I cannot imagine any litigation taking place which could not be resolved into a question either of law or of fact, or of law and fact. It is easy to understand that some questions of fact can be more conveniently investigated by a jury, others by a judge hearing the witnesses, others by a judge looking at affidavits, others by a judge with skilled assessors. It is also obvious that there may be branches of law with which the judges of the Court of Queen’s Bench are more familiar, and other branches with which the Vice-Chancellors or Lords Justices are more familiar: and, lastly, it is clear that different classes of cases require different remedies; damages in some instances, in others a decree for specific performances, in others an injunction, and so forth; but I can see no reason why the course of proceeding by which the question between the parties is stated, and the appropriate remedy applied for at the hands of the court, should not be the same in all instances, or why every court should not be empowered to grant every remedy. If this were done, and it would not be difficult to do it after the report to which I have referred, the root of the distinction between law and equity would be cut away. When the law of contracts, wrongs, and trusts was codified, it would become apparent that the distinction really is mainly one of procedure. The judges at Westminster and the judges at Lincoln’s Inn would each have to turn to the law of contracts, for instance, to determine the rights of the parties as to any particular matter in dispute, but having done so each would be able to order the payment of damages, to make a decree for specific performance, or to issue an injunction, as the case might require. One court would be applied to in one case, and the other in the other, just as one physician is consulted for diseases of the chest, and another for diseases of the head; but the procedure would be the same, and the law would be one. I cannot help thinking that if this matter were disposed of, the question as to the reorganisation of the courts which excites so much attention at present might be greatly simplified.
The question of the order in which such Acts should be drawn need not be considered until the country has made up its' mind whether it will or will not have the law codified, and make specific arrangements for that purpose. In the meantime, it would be highly important to show, by specimens, what can be done in this direction, and what sort of a thing a code would be. And this brings me to two personal matters to which I will shortly refer. The Attorney-General lately expressed his intention, both in Parliament and at the meeting of the Social Science Association, at Plymouth, to introduce a Bill into Parliament next session, codifying the law of evidence. He did me the honour to refer to me by name in connection with this scheme, saying, that work done by me, meaning, no doubt, the Indian Evidence Act, would facilitate the undertaking. An Evidence Act for England will of course be a very different thing from an Evidence Act for India, for reasons on which I need not now dwell. I hope, however, that the Act passed in India, for which no doubt I was mainly responsible, may turn out to be capable of being adapted to the wants of this country. There are conveniences in choosing such a subject as a specimen. The subject is one of manageable size, and it cannot be regarded as in any sense a party measure ; but, on the other hand, I fear that any such attempt will encounter a good deal of professional opposition. I do, however, most honestly believe, for more reasons than I can trouble you with at present, that to put the rules upon this subject into a short, clear, and definite shape, would be a great benefit both to the public and to the profession, though it would of course inflict some degree of inconvenience on those who have become familiar by long practice with a different system. I can, however, hardly imagine any proposal by which the issue, whether codification, as such, is a good thing or a bad one, could be raised in a more naked and pointed manner.
The second matter which I have to mention is this. Shortly after my return to England, last May, the Recorder of London told me that Mr. Bright had asked him to draw a Bill defining the offence of murder. Mr. Bright’s attention had no doubt been directed to the subject by the evidence given before the Capital Punishment Commission, some years ago, on the unsatisfactory state of the existing law on that subject. Mr. Russell Gurney’s engagements prevented him from completing this task, though he had made some progress in it, and at his desire I undertook it. I accordingly drew, and we jointly settled, a Bill which I hold in my hand, which codifies the whole law of homicide. It consists of twenty—four sections, and reduces to that length matter which, in Mr. Greaves’s edition of “Russell on Crimes,” is spread over no less than 232 royal 8vo. pages. Nine of the sections, which define the cases in which homicide is not criminal, ought properly to be placed in the first chapter of a penal code, as most of them relate to other offences as well as homicide. Mr. Russell Gurney brought the Bill into Parliament, and it was read a first time on one of the last days of last session. I need hardly say that his name is in itself the best possible warrant that the Bill is not a fanciful or theoretical one, but is practically adapted to its purpose. I may also state that some weeks ago I went carefully through it with the Attorney-General, and that he also considered that the Bill substantially represented the existing law, and would constitute a great improvement to it, though he thought some points in it. open to discussion. I very much wish that I had the opportunity of discussing this Bill, section by section, with those who doubt the possibility or the advantages of codification. I would undertake to show any person who is acquainted with the subject, that it includes the whole of the existing law, modifying it only in certain particulars, putting it into a form perfectly intelligible to any one who can read English, reducing it in 'length from 232 pages to seven or less, and settling a variety of moot points, which might at any moment produce great confusion if they should occur in practice.
I will state in a very few words how this is effected, for it is a typical instance of the advantages of codification. As you all know, murder came to be defined upwards of two hundred years ago, as “killing with malice aforethought.” From that time to this successive generations of judges have racked their ingenuity, first of all, in aflixing strange, unnatural meanings to the two words “malice” and “aforethought;” and then, in reconciling each other’s dicta on the subject. “Malice” may be expressed or implied. Its existence is presumed in some cases, and the presumption is rebutted by particular classes of circumstances. The intricacies arising from this are recorded in the text books, and most fully in “Russell on Crimes,” to which I would refer you. After much reading it becomes clear that all of them may be dispensed with, and that the real gist of the law may be reduced to a perfectly plain, straightforward shape, if the unlucky words “malice aforethought” are rejected, and the crime is defined with reference to the intention with which the act which causes death is done. Once hit upon this clue to the labyrinth, and everything falls into its place, like a tangle of which you have found the knot. I cannot, of course, detain you by going into the Bill, but I should like nothing better than to justify what I have said before anybody competent to udge of it.
Mr. Gurney’s duties in America will probably detain him there till late in the next session. His object in introducing the Bill at the end of the last session was to bring the matter before the public, in the hope that the Government might take it up. If they should do so, and if the Attorney-General carries out his intention‘ of introducing an Evidence Act, the public attention will be challenged on the subject of codification, and the possibility of preparing such a code as I have tried to sketch out will be clearly established.
The only remaining point on which I shall trouble you is the question, how it can be done? Upon this I have little to add to what I suggested in a letter to Mr. Fawcett, which was published last summer in The Times, and which some of you may have noticed. It would obviously be impossible to discuss such matters as I have referred to as ordinary Bills are discussed in Parliament, and a law officer immersed in private practice and in Parliamentary life would probably not be well qualified to draw them. A popular assembly might as well try to paint a picture as to discuss, section by section, a penal code or a law about contracts. On the other hand,' it is impossible to ask Parliament to delegate its legislative power. Nothing on earth would or ought ever to induce them to do so. What then is to be done? I would suggest the following plan.
The history of a. Bill includes the following stages:—1. The preparation of the draft. 2. The introduction of the Bill into Parliament. 3. Its discussion in Parliament.
For the preparation of the draft I would provide as follows: Appoint a small commission charged with the duty of drawing the Bills referred to, or whatever other Bills might be determined on. Each Bill ought to be drawn by a single person for the same reason for which a picture ought to be painted by a single person; for an Act worthy to be called a code is distinctly a work of art. The size of the commission would thus determine the rapidity with which the work would he done. If it were desired only to try the experiment, a single draftsman might be employed in the first instance, and a commission might be appointed to test his work when it was done. I will suppose, however, that a commission of three or four persons was appointed. In order to secure their industry, put them under strict conditions as to keeping a regular account of their proceedings. Let them allot the work to be done to particular members of the commission, and record minutes and resolutions, showing the reasons for what they propose. These proceedings might be of the greatest importance both as throwing light afterwards upon the object and meaning of particular enactments, and as a check upon the employment of their time. When any one commissioner had prepared a draft, it ought to he considered by the whole body minutely; and when settled, it should not only be published in the Gazette, with a full statement of the objects and reasons, but should be forwarded for opinion and criticism to every person or body likely to give a valuable opinion upon it. The commission should carefully examine the draft and the criticisms, and mould it accordingly. In India, we had hardly any careful criticism of our work in the press, and as the Legislative Council consisted of only fifteen members, its public debates were of little value as an expression of opinion. We used, accordingly, to send copies of_ all Acts of any importance to each of the ten local governments, to be distributed by them and their officers to every one who was likely to be able to give us any information, and in this way we got masses of highly important criticisms, all of which were carefully considered by committees, which sat in private. When the Code of Criminal Procedure was under discussion, we had before us a folio volume of perhaps three hundred pages of criticisms on various points connected with it. We had also a digest of all the cases decided on the old code, which we obtained from a gentleman who had just prepared a new edition of the old code. We had a committee of nine, of whom five undertook the task of studying these criticisms. We used to sit five, six, or seven hours a day for months together. The secretary read out the whole Bill (541 sections); and as each section was read, the criticisms upon it were referred to by one or other of the members who took charge of them, and were discussed by the committee in private, and the wording of the Bill was settled accordingly. The number of points thus brought to our notice was surprising, and the value of the process could hardly be exaggerated. It is out of all comparison more searching and effective than a discussion by speeches in a popular assembly can possibly be.
When a Bill had been in this Way drafted, criticized, and settled, it, together with the criticisms made upon it, and a statement of the alterations made in consequence, should be brought by the commission before the Chancellor and the law officers, who, if they approved of it, as they probably would, should introduce it into the House of Lords or Commons, as might be most convenient. If they did not choose to do so, they should record their reasons. The commission should record theirs, and the whole should be published for public information, together with the rest of their proceedings.
Up to this point observe what we should have gained. In the first place, we should have a permanent body engaged upon the work, and we should thus avoid the rock on which so many schemes of law reform have split—change of ministry. Continuous and systematic law reform is impossible, so long as it is left entirely to Chancellors and law officers, who cannot be sure of their places for a single session, and whose time is occupied by other duties. In codification the object is not so much to alter the law as to give its equivalent in an improved shape. Hence, the draftsman is, to a very great extent indeed, the important person. So long as he is not recognised as such, so long as he is an unknown man with no authority, no responsibility, no position of his own, you will never get really good legislation upon subjects of this sort. No man who is fit to draw a code will do it merely as the unrecognised servant of some politician who is to get all the credit for it. Give to each his due. Let the author of the code be its author. Let the member of Parliament be what he really is, the advocate who pleads its cause; and if he refuses to plead it, let the public know the reason why, and judge who is right and who wrong.
In the second place, we should have a security for careful drafting, and for industry on the part of the draftsman far greater than we have or can have at present. I do not mean to say that the Government drafting of the present day is bad; it is, I think, admirably good; but that is due to the personal merits of individuals and not to the system.
Lastly, let us suppose the Bill to be introduced into whichever House of Parliament might be preferred. Let it be a standing order of each House that the Commissioners’ Bills shall be referred to a Select Committee, and that the Select Committee shall be attended by the commissioner by whom the Bill was drawn; let the committee report to the House, and let the Bill take its course. Perhaps it might be thought right, with regard to Bills of such peculiar character and such importance, to permit them to run on from session to session, instead of being obliged to go through all their stages in one session. It would also be a very great advantage if, after the Bills had gone through committee, they were referred back to the commission to be considered, not from the legislative, but simply from the drafting point of view.
Now, why should not Parliament accept Bills thus prepared, vouched for, and tested? Its legislative authority would not be trenched upon in the slightest degree. It would not be asked to delegate an atom of it. It would merely provide means for the specially careful preparation of Bills of special importance, and for the steady prosecution of a great national work independently of party changes.
I have a few remarks to make in conclusion. First, it is said that we ought to wait for a general digest of the law before proceeding to a code. It appears to me that to do so would be equivalent to an indefinite postponement of the whole undertaking. The fact is, that we have already the best of all possible digests. I do not refer merely to the works which pass under that title—though I confess I think it would be very difficult to improve upon Mr. Fisher’s “Common Law Digest”—I refer to the innumerable text books of every branch of the law. What better digest of criminal law could we possibly hope for than “Russell on Crimes,” and the current Roscoe and Archbold, to say nothing of the title “Criminal Law,” in “Fisher’s Digest.” A digest of the law, made at the public expense, would take years to plan and execute, and it would be out of date by the time it was done. Whereas text books, which constitute complete and admirable digests, are continually called into being by supply and demand. Secondly, I would protest against the supposition that the work of codification can ever be final. To suppose that any code will go on by itself for ever is like supposing that a railway can be built which will not want repairs. You must have an engineering staff to keep your works in order, when they are made, as well as to make them in the first instance. I believe that almost any code, any systematic exposition of the law, would be a great improvement on the present state of things, but constant reenactment would be necessary to make them really complete, and no rational advocate of codification would say more than that codification is a step in advance.
This is the answer to the common criticism on codes, that they yet overrun with commentaries. So would a garden be overrun with weeds if it was not carefully looked after; but the use of a gardener is to look after it. Redraw the codes so as to embody the comments, and you will keep them in shape. The criticism itself involves much exaggeration. I mentioned that we embodied the result of between 1,000 and 2,000 cases in the new Code of Criminal Procedure; but you would have been surprised to see how little they came to. Numbers of them turned upon the alteration of a word or two; numbers were merely superfluous illustrations; and numbers turned upon combinations of facts so peculiar that they were unlikely to recur, and carried the law no further. My experience of the three great Indian Codes is that the degree of real uncertainty as to their meaning is singularly small, and that, though a good many cases are decided on particular sections, the vast majority fully explain their own meaning. As an illustration of the kind of points which cases decide, I may observe that most of the 1,200 cases which were disposed of in the Limitation Act arose upon the question at what point of time the right to sue accrued in particular instances. The period of limitation ran from that point. We made a schedule with 169 items, which gave in twenty pages the result of several volumes of reports. A case containing many pages of argument was thus compressed into a very few lines. One item would often dispose of a whole class of cases.
Thirdly, I wish to observe that if such a commission as I have suggested were appointed, it could be made exceedingly useful for many other purposes connected with law reform, besides the principal one of drawing a code; but upon this large subject I will not enter.
Fourthly and lastly, it is often said that codification would deprive the law of its elasticity, which would be a bad thing. The only plain meaning I have ever been able to attach to this is that it is good that law should be uncertain, and the only sense in which this can possibly be true, is that there are subjects on which it is desirable that the judges should exercise a considerable degree of discretion. To this I entirely agree; but I must observe that nothing can be easier than to draw enactments in such a manner as to give any required amount of discretion to the judges. It is, indeed, very much easier to give too much than to give too little. A very famous document gave a very famous court more discretion than some of its members liked, by the use of the phrases “due diligence,” and “damages growing out of ” certain facts. What, again, can be more elastic than the language of the Extradition Act of 1870, which provides that a fugitive criminal shall not be surrendered if the offence is one “of a political character”? Take, again, such a question as the relation of madness to crime. Several views on the subject are possible; and if it were thought desirable not to settle various delicate questions on the subject which are still undetermined, nothing would be easier than to find language which would leave that task to the judges. On the other hand, if it was desired to decide them, that could be done too. In short, codification enables the legislature to make its laws as definite or indefinite upon any given point as it thinks proper, and to choose between vagueness and precision in each particular case. When the law is uncodified, it must be vague in numberless cases in which precision is clearly desirable.
Fortnightly Review, December 1872.