We have seen the danger that attends the introduction of a large body of laws at once into any country, those laws being the best imaginable: we have seen the cautions which in the management of such a business require to be observed. The danger, and the caution which will be requisite in surmounting it, will of course be greater in proportion to the divergency of the laws in question from the line of perfection. But this is not all: the danger, in short, the mischief, for it is more than danger, is much greater than in that proportion where the new laws are such as are already in force in another nation.
Would you see the worth of any established body of law in its genuine colours, transplant it into a foreign clime: the vicious parts of it (that is, speaking of any system as yet in being, the great bulk of it), no longer veiled by partiality, will display themselves in their genuine weakness and impropriety.
The people of every country are attached to their own laws; to those parts of them, at least, under which they have been bred, and to which they have been taught to pay an habitual acquiescence: if the people are not, the lawyers are, whose voice in a matter of this sort goes the greatest part of the way towards forming what appears to be the voice of the people: they were born under them; they have been used to them; they know no better: if they know but little of their own laws, they know nothing at all of any others: whatever benefit they derive from political society, they derive from them; and the benefits that are not to be had from them, are looked upon as unattainable: they are assiduously taught, and the people are ready enough to believe, that the oppressions they suffer from the same quarter are the price (and the necessary price) of those benefits; The patience of nations under the abuses which are the growth of their own country and their impatience under whatever are imported from a foreign country, have their source in the same natural and unavoidable mixture of ignorance and prejudice: they will endure abuses they have been accustomed to, but they will not endure new ones: they will sit easy under the yoke of their own prejudices; but they will not sit easy under the prejudices of another people.
When a body of very imperfect laws, such as are the best of those of which the groundwork has been laid in barbarous ages, is imported in the lump from one country into another, it will be found that opposite judgments will be entertained of it by the two nations: the one will be disposed to think a great deal better of it; the other, if possible, a great deal worse of it, than it deserves.
To a man who has learnt by rote what the law in such or such a case happens to be, without considering why and for what reason it ought to be so; such is his regard for the whole together, such is his regard for every individual part, that abuses and defects the most flagrant, become equally sacred with institutions the most salutary and indispensable.
The constitutional branch of the law of England, taking it in its leading principles, would probably be found the best beyond comparison that has hitherto made its appearance in the world [written in 1782]; resting at no very great distance, perhaps, from the summit of perfection. Thus it stands at least in the opinion of judicious and impartial minds; which opinion will, I believe, appear the more just, the more it is considered; more particularly when considered with reference to the circumstances and situation of that favoured people, whose happiness it is to have stumbled upon so invaluable a possession. Between this part of the law, and some of the principles that govern the system of procedure, particularly in what concerns criminal matters, there is a pretty strict connection and dependence. The honour due to those parts, which however superior in importance, are in point of truth but as one out of a hundred, is extended by an easy process of the imagination (or rather of the affections) to the other ninety-nine. Examine it piece by piece, we should find it a vast bundle of inconsistencies; the wisdom of one page being constantly disgraced by the folly of the next. But this incongruity does not show itself to the distant and admiring multitude, against whose censure its very immensity, which is one of its greatest blemishes, forms a most effectual defence. Do you comprehend the whole of it? No: then pretend not to sit in judgment over any part of it. Such is the rebuke which the sage professor is ever ready to give to the uninstructed layman: such is the opiate which the uninitiated layman is ever ready to administer to himself.
This predilection, how effectually soever it may have veiled from the eyes of Englishmen the defects of English laws, while the dominion of those laws has been confined within the limits of the country which gave them birth, is not so strong, but that the experience of their effects, when transplanted into Bengal, has been able to overcome it: experience too fatal not to be severely felt, and too manifest to be dissembled, has demonstrated their inaptitude. Those, however, who have seen the inaptitude of this system, because they could not fail to see it, and who have cried out under it, because the burthen of it was become intolerable, complaining of it as unfit to be established there, have scarce ventured to go farther. Bad as they found the system there, they have not ventured to insinuate, scarcely, perhaps, have they so much as allowed themselves to suspect, that it is chargeable with any intrinsic defects, and that it was bad with reference to the country which gave it birth. The most striking feature, in the original polity of that distant country, is the despotism of its leading principles: the most striking feature in that of the English government, is the strictness of its procedure. Hence it seems to have been concluded, and that too hastily, that laws that are competent to a free country must for that reason be incompetent to an arbitrary one. From this observation, an hypothesis has been formed for reconciling the experienced incompetency of the English laws as applied to Bengal, with their supposed competency as applied to England. Laws which are fit for a free country (it has been said) are, for that very reason, unfit for a country where the government is arbitrary and despotical. That this observation is just, as applied to certain parts of the law, is not to be denied: but that it is applicable to the greater part of them, or even to more than a very small part, is what I am much disposed to question.
In opposition to these notions, I would venture to lay down the following propositions: 1st, That the English law is a great part of it of such a nature, as to be bad every where: 2d, But that it would not only be, but appear worse in Bengal than in England: 3d, That a system might be devised, which, while it would be better for Bengal, would also be better even for England.
To enable us to form a judgment as to the truth of these propositions, let us take a general, though rapid view of the English law, with a view to the following particulars:
These several points cannot always be kept distinct in the mode of treating them; but it will be proper that the distinction there is between them should be constantly kept in view.
The English law, like every other body of law which has grown up together (as it were by accretion) without a plan, is distinguishable into statute and customary law. The statute law, framed with great attention to the circumstances, and for the most part with great regard to the welfare, of England, was framed without any regard to the interests, circumstances, or welfare of countries, the acquisition of which had never been foreseen. The customary, or, as it is called, the common law, in which accident, rather than design, has mixed up a few principles which are inestimable, has been made up with scarce any regard for the welfare of any country, even of that which has given it birth. To prove this (for a proof suited to the present purpose must be given in a few lines, or not at all), I shall not dig into the dark ruins of remote antiquity, nor send my readers to wander among the discordant elements of British, Saxon, Danish, Norman, and German jurisprudence. A single trait is sometimes sufficient to mark with force and verity the character of an individual: the character of a body of laws may be learned from the general complexion of it. Let us interrogate the great oracle of British law, Sir Edward Coke. In the first volume of his Institutes, he has furnished us with a list of the topics or heads of argument, which, according to him, furnish the several grounds of decision, which are recognised in the courts of justice. They are twenty in number: of these, the principle of utility, the argumentum ab inconveniente, as he phrases it, it must be confessed, is one. But in what style is it introduced? It stands neither the first nor the last, nor in any post of honour: it is shuffled in, without distinction, towards the middle. To judge from this account, what is the chance, then, that the rule of law, on which the decision is grounded in any given instance, shall be of the number of those, in the framing of which the welfare of the people has been kept in view? To judge from this account, it should be as one to twenty. The farther we penetrate into the recesses of English law (taking utility for our guide,) the better shall we be convinced that the account given of it by this its warmest panegyrist, is not an unsuitable one; and that, for the greater part of it, it is a piece of cobweb work, spun out of fantastic conceits and verbal analogies, rather than a mass of substantial justice cast in the mould of reason.
That the assertion may not appear entirely gratuitous, let us ran over a few of the most prominent points in the English law with a rapid pace, considering all along how far it answers what ought to be the purposes of its institution in England; and thence, or otherwise, how far it is likely to answer the like purposes in Bengal. I shall say nothing here of the numerous defects and inconsistencies of the penal branch of the law; of the want of symmetry that prevails throughout the whole; of the absolute want of names for so many extensive and important heads of delinquency; of the total want of authoritative definitions for the few offences that have a name; of the multitude of crying injuries which are left without redress; of the impunity of so many mischievous practices, and the unmerited punishment annexed to so many acts, of which the mischief is light or undiscernible: of the utter want of plan in the adjustment of punishment to offences; of the neglect of every rule of proportion; of the want of variety and appositeness in the species of punishment that are employed; of the lavish and unnecessary use that is made of the invariable, unequable, incommensurable, uncharacteristic, unfrugal, unpopular, uncompensatory, irremissible punishment of death; the total want of method and comprehension in the very imperfect attention that is paid to the several grounds of justification, aggravation, extenuation, and exemption; the want of fixed and settled principles for ascertaining the quantity and quality of the compensation, or other satisfaction which the several sorts of injuries have a claim to. These details would lead me into too wide a field for the present purpose; and what is more, these are defects of which the ruder penal systems, already established in Bengal, would probably be found to possess a still more ample share. The points I would rather choose for examples are those in which the inaptitude of the English law must appear the more striking; inasmuch as the practice of the Asiatic courts, in relation to those points, is, or for any thing that hinders may be, less unconformable to the rules of reason. A few of these points I shall now run over; keeping the outlines of the method I have pitched upon in view, but without imposing on myself the duty of touching upon every head, or of making out the connection between one head and another. The defects I shall have occasion to bring to view will be found to arise from various causes: sometimes from the deformities which grew up with the law in its cradle; sometimes from the additional deformities which have been produced in it by the circumstances which have happened to accompany its migration.
It has been said that Christianity is part and parcel of the common law of England; and, under the authority of this dictum, those who have dared freely to examine the evidences of Christianity, and when unconvinced by them to express their opinions, have been punished: transferred to Bengal, this law would lay the foundation for the persecution of all the Mahometan and Hindoo population.
Such is the excellency of the English laws, say its panegyrists, ``that there is no right but has its remedy'': the opposite conclusion is, that where there is no remedy, there is no right; and upon this principle the English common law constantly acts with regard to everything but land. Are you an antiquary? Your Otho may be stolen from you, and you can only recover the value of the copper. Are you a connoisseur? You may lose your Raphael, and be paid for the canvas and the colour by the yard. Are you a lover? The miniature of your mistress may be snatched from you by a rival, and you only receive for it the price that would be paid by a broker. This is bad enough in England, where we are accustomed to it: transplanted to Bengal, the evil would of course be increased.
Under English law, the greater the injury done to you, the less chance have you of reparation. if your adversary injure you slightly, you may compel him to make you amends by damages: if he kill you, his purse is saved, at least from making compensation to your family.
If, then, you have any purpose of revenge or avarice to answer by keeping a man in confinement, do so; but let the place be unhealthy, and keep him there until his death: the law will not allow his family to touch your fortune in this case; only let his death be slow.
Transplanted to an Asiatic climate, what scope does such a law afford to the exercise of Asiatic ingenuity! The days, how broiling! the nights, how damp! the peons, how obedient! the cutcheries, how close! the marshes of the Ganges how conveniently pestilential!
``The more atrocious the crime, the more remediless the party injured.'' Take a lawyer unawares; propose this maxim to him on a sudden, and ask him whether he ever heard of any thing so obviously unjust: he will probably answer, without hesitation, in the negative. A maxim like this, he would perhaps tell you, could have obtained no where but s in a nation of idiots; was fit only for that imaginary scene depictured for the amusement of children, in which the pig is roasting the a cook, and the thief hanging the judge: yet to this maxim a real and very extensive regard is paid by the law of England. if a man give you a black eye, you may make him pay for it; but if he put out your eye, you get nothing, and whatever is taken from him goes nominally to the king: really to John Stokes or Jack Nokes, who has no concern at all in the matter. If a man kill your pig, you get the value of it: but if he kill your wife or your child, you get nothing: if any thing is got out of him, it goes to a stranger as before. A man sets your house on fire: if by misfortune, you receive amends; if through malice, you receive nothing.
Lawyers have been found to defend this: for say they, ``So long as satisfaction is made, what signifies who gets it?'' To know whether they are sincere, pass a law, that whosoever owes any thing to these reasoners, shall pay it to the king.
The Mahometan law, bad as it is, is at least unsullied by this abomination. It inclines, in certain cases, towards the opposite extreme; substituting satisfaction to punishment, instead of superadding it.
In a country where there is no king, who is to get the forfeiture? This would make a curious question as lawyers feelingly call it, wherever the legislator has left the print of his improvidence. Had the death of Lord Pigot been deemed murder, the forfeitures of the delinquent council would have afforded noble pickings for the gentlemen of the long robe, a rich bone of technical contention. What became of the spoils of the Bramin Nundocomar, whom the English judges hanged, on pretence that a set of men in London had made forgery a felony, without benefit of Braminship?
The standing principle of the good old common law is, that the king is every thing. Is a criminal to be punished? it is because he has broken the king's peace. Is civil justice to be administered? it is that the ears of Majesty may find rest. But in Bengal there is no king; to be consistent, there ought to be no offences: at any rate, no efficient means of punishing the high officers of government are provided there.
If that country has hitherto escaped absolute destruction; if the lust of power, and the thirst of riches, have hitherto been kept within any tolerable bounds; we must attribute it to the force of the moral, not to that of the political sanction; to manners, and not to laws.
If we regard the character of the different tribunals in England, and refer to their origin, we shall find that the present jurisdictions have been obtained by encroachments upon one another: but the result of the method in which their powers have been obtained has been, that the whole system of procedure has been built upon the foundation of fiction, and is full of formalities, delays, embarrassments, and expense; of which it is impossible, in the course of a chapter, to give the details. The character of the English judges has, in general, been above all suspicion and reproach; but the course of procedure has been far from possessing that clearness, brevity, and economy, which it ought to have.
What, then, must have been the sensations of the poor Hindoo, when forced to submit to all these wanton and ridiculous vexations? Unable to attribute to an European mind the folly adequate to the production of such a mass of nonsense and of gibberish, he must have found himself compelled to ascribe it to a less pardonable cause; to a deliberate plan for forcing him to deliver himself up, without reserve, into the hands of the European professional blood-suckers, carrying on the traffic of injustice under the cloak of law.
The most remarkable circumstance connected with these absurdities in English procedure is, that the judges are aware of the evils, and every now and then act upon a different system; but where the English judge acts rightly, once in a hundred times, the Cawzee and the Bramin were in the habit of acting rightly every day.
But not only were the English common-law courts introduced into Hindostan with all their fictions; they were plagued also with a court of chancery, with its interminable delays.
You are the father of a family: you call on me and say, Two of my children have a dispute about a plaything: each of them claims it as his own: advise me, then, what shall I do to settle the matter between them? what shall I do to come at the truth? I look grave, and answer you as follows: I fear, indeed, there is something wrong on one side, or the other; I am afraid that one or other of them does not speak truth: falsehood should not be permitted to gain its ends. If I were in your place, I would endeavour to sift the matter to the bottom: I will tell you, then, how you shall manage. You must not think of sending for either of them and examining him unawares, nor of bringing them face to face; so far from it, should either of them happen to come into the room where you are, of his own accord, you must take care and not say a syllable to him about the matter. I'll tell you what YOU must do; let your youngest son tell his story upon paper, putting what questions to his brother he thinks proper: give the other boy a reasonable time to contrive his answer; first six weeks, then a month, then three weeks, then a fortnight. If his answer should be evasive, then go on the same course with him again: perhaps the youngest may, by this time, think of some questions which he omitted to put the first time; or a fresh string of questions may be made requisite by the answers to the first: this will make another string of adjournments necessary. Meantime, the eldest perhaps will be for telling his story, and putting his questions in return: by this means, the time for deliberation will be doubled. When affairs are come to this pass, you may either read what they have written yourself, or you may desire their uncle to inquire of the people of the family, whether any body heard any thing of what passed, taking care not to speak to either of the boys themselves: when their uncle has told you what he has learnt, then the matter will be ripe for your decision. By this time, twice as much as the money in dispute will have been spent in pens and paper: all memory of what passed at the time when the dispute arose will beat an end: your children will have become skilled in the evils of falsehood and evasion: the time of the servants will have been taken up in carrying letters and messages backwards and forwards: your own time will have been wasted in poring over all this idle scrawl: a fixed enmity will have taken root between your children: your relations and servants will have taken their parts on one side, or on the other; and thus the truth will be fully brought to light, and the whole family will enjoy uninterrupted peace and harmony. After I had made my speech, would not you think me in a delirium? From the beginning to the end, would you think there was the least particle of common sense? This, however, is, without the least sophistication, the exact progress of what is called a suit in equity: a suit which, unless justice were denied, might be brought for a pecuniary demand as trifling as that which has been here supposed. When I say exact, I mean, as far as it goes; but according to a very simple pattern, stripped of a thousand incidents, by fewer or more of which a suit can scarcely fail to be diversified. Not a syllable here of pleas, replications, demurrers, bills of interpleader, bills of revivor, exceptions to reports, rehearings, motions, and the like. In the patriarchal government, no type could be found of mysteries like these. I know very well, that a state is larger than a family: I know very well, that a judge is not to be expected to feel the same impartial tenderness for suitors, as a father for his children: but it lies upon those who think they can defend the current practice, to show why the same methods which are sure to defeat the purposes of justice in the one case, are necessary to effect them in the other.
And who would think it? This mass of absurdity is the work of modern refinement, not of ancient barbarism. The times are clearly marked in history when an English judge had it in his power to do justice. It was then thought no more a hardship to compel a man to attend to his own concerns, than to attend to the concerns of other people. Each party was ready to relate and to answer, to examine and be examined, in the presence of the judge. Advocates there were a few: attornies there were none. Not a farthing of expense upon either party, till it was seen which of them had deserved it: if the one had complained without cause, he was fined for his vexatiousness; if the other had contested the claim Without reason, he was find for his litigiousness. Why, then, were these simple and pure forms abandoned? why were they not re-established, when new tribunals were instituted in another country, instead of transferring this system of possible equity and certain misery to Bengal?
[Back to:]