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Legal education of civil servants.
CIVIL SERVICE OF INDIA.
J. A. F. Hawkins, Esq., to Mr. Maitland.
It will be seen that the Government of Bombay, acting on the
Under these circumstances, Sir Charles Wood desires me to request that you will move the Commissioners to favour him with the requisite information in regard to the general nature of the examination which Candidates will be required to pass in the above-mentioned subjects; and he will be glad to be furnished, at the same time, with the views of the Commissioners, on the recommendations of Mr. Howard, as to the nature and extent of legal training necessary for civil servants intended for employment in the judicial branch of the Indian Service.
I am instructed to enclose, for the information of the Commissioners, a copy of the rules prescribing and regulating the examination to be passed by junior civil servants, under the Government of Bengal, to qualify them for promotion to the more advanced grades of service. Rules similar in substance are in operation in all the presidencies of India.
I am, &c.
CORRESPONDENCE relative to the necessity of supplying the want of LEGAL KNOWLEDGE
The Governor in Council of Bombay to the Secretary of State for India.
26th November 1859. No. 30. (Judicial.) We have the honour to submit for your consideration and decision, an extract of the proceedings of this Government, containing a proposal to provide a course of legal study for civilians designed for the judicial branch of the service.
2. For our opinion on this important question, we beg to refer you to the several minutes which accompany the proceedings.
3. We beg to add in conclusion, that copies of these papers have also been forwarded for the consideration of the Government of India.
We have, &c.
EXTRACT from the PROCEEDINGS of GOVERNMENT in the JUDICIAL Department.
From the Director of Public Instruction. Jud. Cons., 1859. No. 8030.
2. There is a system of legal instruction in this presidency carried on by competent professional men at the expense of Government, and which, as the recent examination shows, is diligently and profitably attended by native students, and by them only.
3. Government have acknowledged the claims of these young men to judicial promotion, and two of them have already been entrusted with the responsible office of moonsiff.
4. On the other hand, all the superior judicial offices are exclusively reserved for covenanted civilians. The young gentlemen of this service educated at Haileybury, have had some slight tincture of legal education in England. You will correct me if I am wrong, but my impression is, that that legal instruction was very slender, and quite inadequate to supply even the foundation of really practical legal knowledge.
5. As regards the new order of covenanted civilians, I am probably right in supposing that not one of them has ever had even the slightest instruction in law or jurisprudence, though their education has been admirably adapted as a basis for such instruction.
6. In these facts I see the possibility of grave complications at no very distant period. 7. The "Company's Courts," as they are called, offer the most favourite mark to European and native agitators against the Indian Government. Few know anything about the real working, but the broad fact that they are presided over by judges without law, is easily worked up as an effective rhetorical topic.
8. I shall not be suspected of wishing to sneer at my own profession, when I mention that, as the agitators to whom I allude either are, or employ as their mouthpieces, English lawyers, the remedy they naturally propose for the evil is the importation from England of a number of lawyers to fill the judgment seats of the Mofussil.
9. The obvious answer always made to this proposal is, that these imported barristers would probably be "briefless" young men of no great learning and ability, and would certainly know nothing of the country, the system of administration, the people, their languages, habits, usages, and feelings. And the strength of this answer is such, that the project has never seriously been pressed by any statesman of weight.
10. But I would earnestly beg Government to look forward a few years, to a time when the project will be revived in a form to which that answer will not be applicable. The Bombay Native Association, four years ago, in a memorial to the Governwent, which I quote from memory, prayed that Indian courts might be presided over by lawyers trained either in England or in this country."
11. The time is fast approaching when lawyers "trained in this country" will be procurable in such numbers, and possessed of such professional attainments and practical experience, as to constitute a formidable body of rivals to the untrained judges of the Civil Service. Whatever agitation has been carried on in the interests of English barristers, will be renewed with tenfold force of reasoning in favour of a class of men professionally trained, to whom none of the objections can be made that I have mentioned in my ninth paragraph.
12. All the usual misrepresentations and exaggerations, all the practised calumnies of faction, will be brought to bear in support of a cause which in the main would be a true and just cause; and to the English Parliament, unacquainted with this country and its people, would seem even more true and just than it is.
13. I am well aware that many members of the Civil Service believe that a judge in this country need have no law; that "common sense" is enough for him, illuminated by practice and a knowledge of the people. To this it would certainly be replied, with unanswerable force, that the question is not between knowledge of law, on the one hand, and practical experience, on the other, but between law and no law, practical knowledge being equal on both sides.
14. There are indeed those, but it is hardly worth while to argue with them, who maintain that legal knowledge would be positively injurious to the usefulness of a Mofussil judge, as likely to make him the slave of technicalities, instead of a dispenser of justice.
15. Government have deliberately decided the contrary, by establishing institutions for legal education. Law was mentioned in the celebrated educational despatch of the late Court of Directors as one of the most important branches of instruction to be given to natives; and the paradox that a judge is all the better for ignorance of law has only been maintained by anonymous writers in Indian newspapers.
Legal education of civil ser
16. The question, then, will present itself before many years, " Can Government con"tinue to exclude from the highest judicial offices the only men who are specially edu"cated and competent to fill them?" and if the answer is in the negative, the result will be literally, sooner or later, to give natives a monopoly of the judicial bench.
17. If this consummation is agreeable to the policy of Government, all is well; but if they design to keep the higher judicial offices in the hands of Englishmen, something must be done to supply Englishmen qualified to hold such offices.
18. The preference given to Europeans in India, as I understand, is not given to their blood, but their presumed merit. This merit, it is true, is not thought to be founded solely in their intellectual qualities or acquired knowledge. Government have an assurance that an English gentleman has been bred up under the motives and restraints of a Christian home; that he has lived without stain among men of honour (according to
Legal education English notions of honour); and, finally, that he is, and even to death will be, a true and
loyal servant of the Queen. Without wishing to say anything offensive against our
19. Still, a native student who has passed through college and the law classes with a good character, who has spent some years in practice as a vakeel, or in the office of sheristadar, and afterwards served with credit as a moonsiff and sudder ameen, has a right to be considered as trustworthy for yet higher office, and certainly his claims would appear strong against those of an English civil servant who had never opened a law book or mastered a principle of jurisprudence.
20. The practical truth which I am endeavouring to enforce has already, to some extent, been recognized by the Government; junior civil servants have been invited to attend the law lectures at Bombay and Poonah; and " Norton's Law of Evidence" has been introduced as a text-book, in the departmental examinations. But I am humbly of opinion that this is not enough. Few will attend the lectures, and few will really prepare the textbook; and even if every candidate for the judicial branch did both, how slender his attainments would be, compared with those of a regular attendant for four years at the Law School, whose knowledge has been tested annually by such examinations as those which for the last two years have been conducted by Mr. White and the Director of Public Instruction.
21. When the University grants its degrees in law, the contrast will be made still more striking.
22. I am, therefore, humbly of opinion that, if it is intended to reserve the higher judi-
I have, &c.
No. 8,031.-Memorandum by the Chief Secretary to Government.
9th September 1859. Mr. Howard is no doubt right in his supposition that the knowledge of law possessed by most civilians on leaving Haileybury is very slight; and there is no security that the young men who have gained their appointments by competition have acquired even the first rudiments of legal knowledge.
Nor can it be denied that, under the recently established educational institutions of this country, a class of young men are being rapidly perfected in a sound knowledge of law and jurisprudence, which must call for far greater technical attainments in those who occupy the judicial bench than has hitherto sufficed to command the respect of the pleaders in our courts of justice. The subject is one which demands early attention, but as it is one which affects the whole of India, perhaps the best course would be to forward Mr. Howard's letter to the Secretary of State for such consideration as he may consider called for.
H. YOUNG, Chief Secretary.
No. 8,032.-Minute by the Governor.
10th September 1859.
I think Mr. Howard deserves the thanks of Government for calling its attention to a point of great importance. I have no doubt that in a very few years we shall have numbers of natives who are perfectly qualified by legal knowledge and practice for the highest judicial offices, and I have no desire to exclude them from these; but, at the same time, I should think it a misfortune if these offices were either filled exclusively by natives, or if a contrast unfavourable to the European judges could be drawn between them and their native colleagues.
I think it is indispensably necessary that the European candidates for the judicial office should have a legal education. It is very difficult to say how this is to be effected, but the subject, as remarked by the Chief Secretary in his memorandum, is one which concerns, not this presidency only, but the whole of India. It should, therefore, be brought to the consideration of the Government of India, and of Her Majesty's Secretary of State, and the Council of India.
No. 8,033.-Minute by Mr. Malet.
13th September 1859.
concur in the view of this subject taken by the Right Honourable the President, and I have no doubt that a legal education is daily becoming more necessary for the civil officers employed in judicial office. Hitherto, the whole of the members of the department have alike educated themselves in the practice of their profession, but the admirable legal education which is now open to all in this country, and of which intelligent natives are taking the earliest advantage, will make a most material change; and it becomes absolutely necessary to provide that the European employés shall not lack that knowledge which the natives are so rapidly acquiring.
No. 8,034.-Minute by Mr. Reeves.
19th September 1859. We shall now find the inconvenience of the abolition of Haileybury, and, be convinced, if ever we doubted it, that it would have been far better to have supported and perfected that institution than to have done away with it, owing to some acknowledged imperfection.
I have frequently felt the importance of what Mr. Howard has so well put in his letter, and more especially was I so impressed after reading the last examination papers very recently sent in for the information of Government. concur in opinion that something must be done towards supplying that want of legal knowledge in the judicial branch of the Civil Service which will now very soon become a most serious difficulty in more ways than one. I agree, also, that the subject must go before the Government of India; but I venture to suggest that, in submitting it for the consideration of his Excellency the Governor-General in Council, it would greatly facilitate a decision if we were to accompany our reference with a plan for giving young civilians that particular knowledge which it is clearly perceived that they must possess; and I believe that we could not do better than ask Mr. Howard himself for advice on this head. I have ascertained that he is willing to give it, provided sufficient time be afforded him for consideration. H. W. REEVES.
No. 8,035.-Further Minute by the Governor, subscribed to by the Board.
I agree with my honourable colleague, that our reference should be accompanied by a proposal for giving young civilians the required legal instruction, and that Mr. Howard would be the best person to offer advice upon this important point. I would, therefore, before submitting the matter for the consideration and orders of the Government of India, request Mr. Howard to favour us with his views as to the best mode of securing this most desirable object.
H. W. REEVES.
No. 8,036.-The Secretary to Government to the Director of Public Instruction.
29th September 1859. No. 2,302. I AM directed to acknowledge the receipt of your letter (No. 1,904), dated 6th instant, directing the attention of Government to the necessity of supplying the want of legal knowledge in the judicial branch of the Civil Service, and suggesting that a course of legal study be laid down to be passed by all civilians designed for that branch of the Public Service.
2. In reply, I am desired by the Right Honourable the Governor in Council to convey to you the thanks of Government for calling their attention to a point of such great importance, and to inform you that, as the subject is one which concerns not this presidency only, but the whole of India, it will be brought under the consideration of the Government of India, and of Her Majesty's Principal Secretary of State, and the Council of India.
I have, &c.
3. The Right Honourable the Governor in Council is of opinion, however, that it would greatly facilitate a decision if the proposed reference were accompanied by a plan for giving young civilians the required legal instruction; and I am requested to direct that you will be so good as to favour Government with your views as to the best mode of securing this most desirable object.
H. YOUNG, Chief Secretary.
Legal education of civil servants.
No. 8,037.-The Director of Public Instruction to the Secretary to Government. 17th October 1859. No. 2394. I HAVE the honour to acknowledge the receipt of the Government letter, No. 2302, dated 29th September 1859.
2. With very great diffidence, I submit such a plan as is called for by the Government. 3. Considering the powers of application, general abilities, and high education, which are presumably possessed by successful competitors for the Indian Civil Service under present rules, and considering what are the requirements of a provincial Indian judge in respect of positive legal knowledge, I think that two years ought to be spent by gentlemen designed for the judicial branch of the service, in the study of law as a science.
4. Of these two years, I would have one passed in England in the study of general jurisprudence; and I would extend this rule to all young civilians after appointment, for a tincture of such knowledge will certainly be of the greatest practical use to them in all the duties, magisterial, revenue, diplomatic, or financial, as well as judicial, that they may have to perform in this country.
5. In order to ensure that this first year's study shall be conscientiously performed, I would institute an examination at the end of it, to be passed satisfactorily before the civilian can obtain leave to proceed to India.
6. During the year, a reasonable subsistence allowance should be made to the civil servant, with a further small allowance for the purchase of law books.
7. This year's study, however, need not be required of young men whose answers at the examination for appointments show that they have attained the requisite proficiency
Legal education in jurisprudence (for the standard, vide post, para. 52, seq.), or who have obtained
of civil ser
university honours in law or jurisprudence.
8. Facilities exist for the study of jurisprudence at Oxford, Cambridge, the Inns of Court, and I believe, at Edinburgh, and the Irish Colleges. I should leave the civilian to acquire the necessary knowledge wherever he may think proper; but the examination should, I think, be held in London. Possibly the Council for Legal Education of the Inns of Court would allow their examining machinery to be made use of for the Indian Civil Service. If not, separate examiners, of which there should be at least two, must be engaged specially by the Home Government.
9. I think it likely that there will be some difficulty in arranging this part of the scheme, though not, perhaps, so much now as there was a few years ago, legal education having been of late more completely organized by the Inns of Court. But writing in India, I am unable to do more than indicate what I think necessary or fitting to be done in England, without showing how it is to be done.
10. No young civilian should be appointed to the judicial branch of the service without at least a year's study of law in India, and passing an examination, for which facilities are already provided in the law schools established by Government at the several presidencies, (for standard, vide post, para. 68, seq.)
11. After passing the law examination in India satisfactorily, I propose that the young civilian should be attached to the office of some judge, for the purpose of learning the practical exercise of his profession. (Vide post, para. 73.)
12. My plan would thus embrace one year's study in England, tested by an examination, a second year's study similarly proved in India, and a further period (of which the duration cannot be defined) of practical training under a judge. I now proceed to fill up portions of this outline."
13. Study in England.-I have already stated that I would not dictate to the student where he is to acquire his knowledge of jurisprudence; but in that case the final examination must be very carefully devised and firmly conducted, so as to ensure a year's genuine study without any possibility of evasion, and to guard effectually against "cramming."
14. Jurisprudence.-The next point is to define the sense in which the term jurisprudence is to be understood as a subject proposed for the study of candidates for the Indian provincial bench.
15. I am so sensible of the difficulty of determining this question without the opportunity of conference with qualified advisers, that I must beg to be understood as only offering suggestions which may constitute a provisional basis for discussion. I suggest that the point should be decided in England, where eminent persons have for some years past been engaged in considering the principles of legal education; and I would respectfully point to Sir Richard Bethell, Her Majesty's Attorney-General, and now, or late, the Chairman of the Council of Legal Education in the Inns of Court, as the authority to whose judgment I would most confidently appeal, on the recommendation which I shall now have the honour to submit.
16. By jurisprudence, I understand the principles of right and duty, which lie at the bottom of all positive laws among civilized nations.
17. How can these principles best be investigated for the purposes of an Indian judge? 18. Some would recommend an abstract course of study, such as might be comprised in the several works of Bentham and Austin, in which questions of law are raised and decided on philosophical grounds, without reference to the positive institutions of any country.
19. With great deference, I think that such a course of study, however useful and elevating to a practising lawyer or a legislator, would not be the best for a young student, who, in the pursuit of metaphysical trains of thought, would be apt to lose sight of the practical bearing of legal principles.
20. It seems to me that the theory of law would, for the purposes of a future judge, be more usefully studied in the concrete, that is, as embodied in positive legal institutions, which have stood the test of experience, and have been developed to meet the actual wants of mankind.
21. No legal system existing in India can be advantageously selected as the basis of scientific legal study.
22. The Hindoo and Mahomedan codes are unsystematic, and are bound up with religious dogmas in such a manner and to such an extent as to render them quite unsuitable for the purpose required.
23. The English statute law of India prevailing beyond the local jurisdiction of the supreme courts is too fragmentary and incomplete to constitute the groundwork of jural study. And, even when the several contemplated codes are promulgated, they will not supersede the necessity of a previous scientific training in the principles of law, any more than the Code Napoléon has done in France.
24. The common law of England (in its widest sense) is not open to the objections above mentioned, but, as I humbly think, it is almost equally unsuitable as the basis of an Indian judge's education.
25. The English law is vast in extent, highly artificial, an unsystematic.
26. It retains many feudal and other technical doctrines, which must be investigated historically before they can be understood, and thus inflicts upon the student much labour, which, for the training of an Indian judge, would be almost or quite useless. I would refer, as an illustration, to the highly abstruse doctrines relating to interests in land, technically called the law of real property, which are totally inapplicable to India.