« ՆախորդըՇարունակել »
has not been admitted into their colleges or schools, nor has any thing been written in lieu of it, to occupy the place for which it was designed. This we consider a subject of regret. The work seems to have the misfortune, as some would esteem it, of being founded on the text of Sir W. Blackstone's commentaries upon the laws of England, a work which very learned and eminent men have not been ashamed highly to extol, but which is not in good repute with many able men, who certainly have been the authors of many useful changes, but who, we fear, are sometimes too much devoted to the advance of a few of their own more peculiar opinions. No doubt if the entire fabric of British law were about to be altered, it would then be very right to repudiate Sir William Blackstone's stale legal philosophy, but as there does not appear to be any immediate prospect of such a consummation, it would be well, if the world were allowed, in the meantime, to derive whatever instruction it can, from the works which develope the principles of our present legal constitution. And as we have read these lectures, to which we have referred, pretty carefully, and think them well compiled, we must be excused if we beg that the decision to reject them, may be reconsidered. We are not of the number of those who are prepared summarily to reject Blackstone's authority, albeit, we confess that he is not infallible. But his work is a masterly production, it contains many noble passages, it is full of marks of great refinement in taste, and great general knowledge, and we should, certainly, as soon think of excluding Sir William Grant's, or Lord Stowell's, or Lord Hardwicke's decisions, from the list of legal authorities, as of treating Blackstone's commentaries with indifference. We should not object, if these lectures were rejected, to see nearly the whole of his first volume and large portions of his other volumes introduced into the Government Colleges and Schools. And so far would our veneration for the prejudiced but learned lawyers of old, extend, that we should even like to see a selection of such decisions as we have named, added as a class book. The minds of the pupils would thus be brought in contact with the productions of sound logical thinkers, whose classical style, and judicial severity of argument, would tend greatly to their elevation. It is not acuteness that natives require, nor refined metaphysical speculations; they need strength, purity, and comprehensive views—in fine, a masculine intellectual character. In default of Blackstone's works, or works of a similar character, those who object to them, would do well, themselves, to supply the Government Schools and Colleges
with a compendious treatise which might answer the purpose of the lectures now before us. Oral lectures of merit might be delivered when feasible, but as a competent lecturer cannot be obtained in all places where there are schools, there should be some suitable class book, either selected from the works already published, or written expressly for the Indian students. If the President of the Council of education would undertake this work, we believe that a valuable production might be expected, and we sincerely hope that he will not leave India without satisfying the present want of the schools and Colleges. Mr. Austin's lectures, some of Mr. Bentham's works, and some of Judge Story's, Montesquieu's Spirit of the laws, and some of Sir James Mackintosh's dissertations, with Sir William Jones on Bailments, one or two of Lord Stowell's decisions on points of international law, would supply abundant materials for an important standard compilation. We would only enter our caveat against a total neglect of the old black-letter lawyers. Lord Bacon, Sir Mathew Hale, and Mr. Charles Butler, be it remembered, were among the number, and the latter has shewn that it is possible to write agreeable notes even to Coke upon Lyttleton.
But to proceed with our remarks on the Company's Laws: we have observed that they are simple compared with the laws of England, but the expression must be taken in a limited sense. They are simple in their phraseology but complicated in their formation. They are based upon the laws prevailing when the English obtained the Government of the country, and are consequently an amalgamation of English with Hindu and Mahommedan law, yet modified so as to allow of the toleration of all religions, and to suit the customs and habits of the various people for whom they are designed to be a rule. Thus they are continually changing, and may be regarded rather as a code of experimental, than of permanent laws.
The object of every law, it must ever be borne in mind, is the happiness of every individual, consistent as far as is practicable, with the happiness of the community at large; and consequently the happiness or convenience of an individual member of society is occasionally, yet not wantonly, sacrificed for the good of the whole. Yet in such cases the necessity of the sacrifice is often unperceived, and always misunderstood, and a spirit of dissatisfaction is engendered against the laws, which the laws, if rightly explained and comprehended, would never create. We admit that the study of the letter of the law, is dry, laborious and uninteresting, but the study of the principles of law is the reverse. They are based upon the legiti
mate foundation of doing unto all men as you would they should do unto you, and are calculated rather to interest and arouse the mind, than, like the letter of the law, to perplex and overwhelm it.
The law is so intimately connected with our daily thoughts and actions, that it is scarcely possible not to reflect upon it. It is scarcely possible for the mind to form a wish, to perform an act, of which the law forbids the performance and not ask itself the principle upon which such a restraint has been imposed. If the reasonableness or the necessity of the law be established to the satisfaction of the inquirer, he will not only acquiesce in its propriety, but will feel an interest in its preservation. He will not only uphold it by his own example, but by pointing out its propriety endeavour to deter others from violating it, and when his appeal is made to reason and not to force, to the force of the law, his endeavours will frequently be attended with success.
But have any pains been taken by the Indian Government to disseminate legal knowledge ? Have any endeavours been made to lighten the harshness of particular laws by explanatory enunciations of their principles ?. We answer, no. It is true that greater publicity is given in the present time to laws before their enactment, by publishing drafts of them in the Government Gazettes, than formerly ; but no means are taken to explain the reasons of their enactment, and to make it evident that each law is necessary. On the contrary, the Government has retrograded a step. The Preamble setting forth the object of the law, has been discontinued, so that the people are in reality kept in greater ignorance concerning it, than they were before their minds were supposed to be prepared for it by the publication of the draft. From the want of a preamble too, the judges are left in comparative darkness as to the spirit in which the law was conceived, and each man's opinion becomes in some measure, in consequence, a law to himself. Thus it is no unusual thing to find that a law which is not clearly worded is regarded in a different light in different districts. It is true that the law which enjoins upon the administrator of it, the duty of explaining the principle and object of the law to the people, is unrepealed—but how shall the blind lead the blind ? How shall Native, nay English Judges, who are entirely uninstructed in the principles of law, and from whom the object or necessity of particular enactments is withheld, explain them? They cannot, and therefore do not attempt it. It is the law—and that is all they know about it. It is the law, and therefore they enforce it.
It is time that such ignorance should cease. The natives of India are not such children as we once seemed to consider them. By education we have ourselves bidden them cease to consider themselves children. By entrusting them with responsible situations under Government, we have ourselves proved that we cease to consider them as such. Why then should we neglect to direct so powerful a weapon as popular opinion, to our own advantage ? Why, when we have taught them to think, should we omit to teach them to think aright, or omit to “ lead them to a just comprehension of those high principles
of legislation which are the basis of the Regulations of Government, and so essential to the due administration of justice ?"
It has often been asserted that our Empire in the East is an empire of opinion, and though this assertion has occasionally been made sneeringly, we admit its correctness. Our empire though gained by the sword, is rather maintained by opinion than maintained by our arms; but it is opinion based upon a well grounded reliance upon the good faith of our Government. Let it not be forgotten that that good faith is based upon our love of justice, and our justice upon our benign religion,-a religion which leads us to endeavour to fulfil the designs of our common Creator, for the happiness of all his people without distinction of caste or creed. This confidence in the word of the British Government, is the link which commands the respect and admiration of the natives of India, and binds them to us; and so long as this is unshaken, so long will there be little danger of general disaffection. This feeling of confidence we should endeavour to strengthen by every means in our power, and none seems so obvious as a demonstration of the principles which guide the Government, more especially the principles of the laws which bind both the Government and the People. There are many laws upon our statute books which are deemed obnoxious, and pains should be taken to explain to the people the principles upon which they are based. Let us for an example take the resumption laws, the enforcement of which created bitter feelings of animosity in the minds of our native fellow subjects against the Government, and which are still considered as unjust engines, to wrest from their grasp, estates of which, in their ignorance, they believe themselves to be legally seized. And yet a dispassionate consideration of these laws will shew that they are based upon equity, and have been enforced with as much tenderness, as circumstances would admit of, and that in no respect has the good faith of Government been violated.
From the preamble to a resumption Regulation enacted in 1793, we learn, that by the ancient laws of the country, the ruling power in India is entitled to a certain proportion of the produce of all land ; and as a necessary consequence, if a landholder made a grant of any parts of his lands, to be held exempt from the payment of revenue, the dues of the Government must be alienated. Had such grants been admitted to be valid, the revenues of the Government, it is obvious, would have been liable to gradual diminution. Previous, however, to the accession of the Company to the Dewani in 1765, many alienations of land had on various pretences been made, and the lenity of the Government induced it to uphold them, provided the grantees had obtained possession, at least to the extent of the intentions of the granter as ascertainable from the terms of the writings by which the grants might have been made, or from their nature and denomination. Grants made since the date of the Company's accession to the Dewani, without their sanction were declared to be illegal and void. Many fraudulent alienations, however, were made after the date of the Company's accession, the deeds being antedated and registered in the Zemindari records, as having been alienated prior to that period, while others were made in spite of the proclamation, the grantee being left to maintain himself in possession by such means as circumstances might afford, in the event of his title being brought into question. Under such circumstances it became the paramount duty of the Government to recover the public dues thus alienated, as well as to resume the revenues of all lands legally alienated, the grants of which might expire; and measures were accordingly taken to effect this object, the principal of which was registration. To prevent the plea of ignorance, publications were fixed up in the principal Kacheri of every landed proprietor paying revenue to Government, as well as in other public places, calling upon grantees to register any lands they might consider themselves entitled to hold rent free, within the period of one year from the date of the proclamation. An omission to register such lands within the above named period, would, it was declared, render them liable to resumption, but a power was reserved to the Governor-General in Council, to direct a grant to be admitted upon the Register, after the lapse of a year, provided he should be satisfied that the reasons for omitting to register it before, were good and sufficient. The mere registring of grants, however,