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' shewing on the one hand, the real similitude of things, and
on the other, the minute shades of distinction which the • human mind is capable of perceiving, in cases, apparently • similar, yet different, it must leave certainly, the English law very far behind.”
But it is not our intention to proceed with the comparison; our object is simply to shew, that the study of the laws of India is a highly extensive and interesting one, and to excite a desire in the minds of our readers to judge for themselves. To such as may have a desire of comparing, without any trouble to themselves, the English, Mahommedan and Hindu laws, we would recommend the perusal of Elberling's treatise on inheritance, sale, gift, and mortgage, where the three laws upon each subject are all ranged together though in somewhat inharmonions array. No attempt has been made by the author to reconcile the laws one with another, but they are brought together, merely to shew what the laws actually in force are, and the principles upon which they are based.
From what we we said of the intrinsic excellence of the Mahommedan law, it may be inferred that it was in some respects suited to the Hindu population. In other respects it was modified to suit them, but it was considered to be so wholly unadapted to English residents, that they were allowed a court of their own, the Supreme Court, in which the laws of England were administered, and which is in existence in the present day ; although the law has been altered so as to render Englishmen amenable to the jurisdiction of the Mofussil Courts, in cases arising out of their connexion with landed estates.
A more intimate acquaintance indeed with the wants, habits and customs of the natives of India, has shewn the Government that at no very distant period of time a code of laws and rules of practice suitable to all, Europeans, Hindus, and Mahommedans, may be enacted, which shall be enforced upon all by Judges amenable to one Supreme Court.
The draft of an act commonly called the lex loci was published for general information at the beginning of the year 1845, having this object in view, as far as regards Christians of every denomination, but in so crude and undigested a form, that we need not be surprised that it should have been withdrawn. It seems indeed that it was published, not with the intention that it should be carried into effect, but with the view of preparing the minds of the people for a future change, by the contemplation of a proposed reform, so that, when that is effected, it may be regarded as a measure which has arisen gradually and na
turally, from the force of circumstances. By this act it was proposed, that the laws of England should be administered to Christians by Judges who might be natives, who were to be controlled by a High Court of Appeal which would supersede the Supreme and Sudder Dewani Courts, and be composed of English Judges trained to English law, and of Judges selected from the Company's service. By these would be decided questions of English, Mahommedan, and Hindu law, to be modified and corrected by equity, so that the principles of one should not be subverted by the principles of the other. But how shall men who have been uneducated in the principles of any laws at all, be capable of administering so complicated a system? How shall they be able to discover when the nice distinctions of the one law are dissimilar to the distinctions of the other, or having discovered them, be capable of correcting them by the principles of equity? It would be impossible that they should give satisfaction even to one party, or command the confidence of either. And yet with such a law in contemplation, the Government is taking no measures to train up Judges capable of executing it. Two things are necessary to constitute a legal decision-fact and law—and though a legal education is not absolutely necessary to enable one to decide upon the first, it is indispensable to the administration of the second. A question of fact indeed, where the evidence adduced is unobjectionable, may be as competently decided upon by a man uneducated in legal knowledge, as by an educated one, because his reason is alone appealed to ; but the uneducated man left to himself, would not know whether the evidence were good. Ignorant that practice has discovered that, for weighty reasons, certain evidence is inadmissible or unworthy of credit, or at least suspicious, he would lend an open ear to all, and thus arrive at an erroneous conclusion, which would consequently, on these grounds alone, be liable to impeachment. The law of evidence indeed is one of the most important branches of legal education, and in this country is most deserving of study, because it is different under the three laws, English, Mahommedan and Hindu ; and yet it is wholly neglected. But when the mere reading of the Acts and Regulations of the Government is considered per se a sufficient qualification for the bench, how could it be reasonably expected to be otherwise ? No mention of the description of evidence which should be considered admissible or inadmissible, is to be found in them, and the subject therefore is wholly disregarded. The evidence admitted
by one Native Judge is considered to be inadmissible by another, and “the glorious uncertainty of the law” as it has been called, is in India fully illustrated. The analysis of the decisions of the Sudder Dawani Adalut prepared by the Register of the Court, and those published by Mr. Norris, show a lamentable ignorance on the part of the native Judges, not only of the principles of law, but of the laws they are called upon to administer, and lead also to the startling conviction that many of the English presiding Judges are equally unlearned, and that they have, as might be expected from their lack of education, embraced the opportunity of suits coming before them, of making themselves acquainted, for the first time, with the laws which will govern the cases. The nominal rules of practice too, laid down by the Court are clearly no real rules at all. They are overlooked, or disregarded, or superseded, at the pleasure of the presiding Judge, so that no suitor can go into the Court with any reasonable certainty of gaining his cause. He may have on his side many precedents, and conduct his case in the manner prescribed by the rules of the Court, but he is told that the precedents are bad and the rules inconvenient. A new precedent is therefore established and a new rule made in his case, which are themselves set aside on some future occasion. We must, however, do the present Judges the justice to say, that there are many striving to introduce a uniformity of practice and law, throughout the country; but they are unfortunately groping in the dark: the precedents laid down for them by former judges are founded on erroneous principles, or devoid of any principles at all, and they are themselves perhaps too deficient in legal acquirements to establish others in their place on sound and stable foundations. The task they have assigned themselves, however, is one of extraordinary difficulty,-a difficulty enhanced by the fact that our laws are of an experimental rather than of a permanent character. “It is perhaps impossible,” it has been said, “ to review the laws of any country without dis' covering many defects, and many superfluities. Laws often • continue when their reasons have ceased. Laws made for the • first state of the society continue unabolished when the
general form of life is changed. Parts of the judicial procedure which were at first only accidental, become in time
essential; and formalities are accumulated upon each other • till the art of litigation requires more study than the discovery of right.” The laws of India are certainly not exempt from the truth of these remarks, and the practice adapted to the first Courts under our Government is found to be unsuited to those of the present day. But the Judges of the Sudder Court are striving to apply remedies; and we do not despair of seeing their exertions, after a lapse of time, crowned with some degree of success.
It must be conceded that the Mofussil Courts do not enjoy the confidence of the people, and that they are resorted to rather as houses of chance than as Courts of Justice. A suitor is never heard to talk of the justice of his cause but of his • Kismut,' or chance, and as long as this feeling, arising from a want of confidence in the legal abilities or integrity of the Judges, exists, so long will our files be crowded with litigious causes, and so long will appeals be multiplied. We are not of those who consider all native Judges corrupt because they are natives, and that consequently a suit must necessarily be gained by the most wealthy of the parties. On the contrary we have heard of some, and known others, who, during their official career, have enjoyed a reputation for the strictest integrity and impartiality, though admitted to be deficient in legal knowledge, and who have retired from service honoured by the Government, and respected by all who knew them. But it is time that legal ignorance on the part of our Judges should cease. We are educating the mass of the people, who will soon be able to judge of the qualifications of their rulers. We must not as the Emperor Nicolas of Russia proposes to do, “oppose barriers to civilization” by putting a stop to education, but we must raise the standard of a Judge's qualifications. We must select Judges, not on account of their seniority in the service, but on account of their merits and legal attainments. We must teach them (and the instruction should be commenced in our Schools and Colleges) to fill the situation of Judge with dignity and efficiency: and" to fill it with efficiency,” says Blackstone, “it is necessary that the Judge should understand • his business, and have not only the will but the power also, • (under which must be included the knowledge) of administer
ing legal and effectual justice. Else when he has mistaken • his authority through passion, through ignorance, or absurdity, • he will be the object of contempt from his inferiors, and of • censure from those to whom he is accountable for his conduct." • By teaching them what is right and forbidding them what is • wrong”, we must lead them, with a firm hand to a great comprehension of those high principles of legislation which are the basis of the Acts and Regulations of the Government of India, and essential to the due administration of Justice.
ART. IV.-1. Carne's Lives of Eminent Missionaries, vol. I.,
p. 299-318: John Kiernander. 2. Asiatic Journal: Biography : Kiernander the Missionary.
In the first number of the Calcutta Review, we presented our readers with a sketch of the earliest Protestant Mission to India, carried on by the zealous labours of Ziegenbalg and his colleagues at Tranquebar. Believing, as we do, that the increase of morality constitutes the only solid improvement in a nation's condition, since without it all other improvements become vitiated and useless, we make no apology for continuing the same subject in a short Memoir of the first Protestant Missionary to Bengal, the Rev. J. Z. Kiernander. Though this is not the place to discuss the question, we state it as our full conviction, that the regeneration of India will essentially depend upon the progress of that Christianity, which was first preached to the natives of Bengal by the excellent missionary of whom we speak. If it be true that “the man who causes two blades of grass to grow where only one grew before is a benefactor to his species," much more is he entitled to that name who first roots out noxious weeds, to plant in their stead a tree of life. Science, philosophy, and art have done much to promote the comfort of men; but there is a higher good than relates to earthly life, which they have failed to accomplish. And if he is blessed who multiplies the resources of society, who provides for increased communication between the various tribes of men, for the increase of personal comfort, and social happiness ; who by trade and commerce opens to the poor, blessings never heretofore enjoyed ; who gives mental light instead of darkness, and knowledge instead of ignorance; much more is he a benefactor, whose labours tend, under God's blessing, to diminish human suffering and human guilt, to purify society from crime, to implant the love of truth and uprightness, to repress injustice, to encourage mutual confidence, to discourage vice, to promote true morality : whose efforts, in a word, reach to the spring of happiness, the affections of men, and lead them inwardly to hate what is evil, and cleave to that which is good. The increase of earthly comforts belongs to commerce ; the enlargement of the sphere as well as the resources of mental activity is the aim of science: but the subjugation of moral evil, in all its forms, and to whatever extent, is the province of religion alone. Happy are they who contribute to the inferior good in society. Thrice happy, they