« ΠροηγούμενηΣυνέχεια »
Again, in the less peculiar and more scientific law of contracts, as enforced in English Legal education courts of justice, there are fundamental rules (such as the division into contracts of of civil serrecord, specialities, and simple contracts), and the distinction between defences at law vants. and equity, which are in their nature arbitrary, and, pro tanto, inapplicable to a provincial court of justice in India, either for direct use or scientific reference.
27. Probably, the rules which make up what is called the law of evidence are the only portion of the English law which could with advantage be minutely studied by the ordinary candidate for an Indian judicial appointment.
28. Furthermore, and this is the main consideration, English law is founded on precedents, and not on principles, though English lawyers are in the habit of using the word principle," as applied to legal doctrines; it is still nevertheless certain that there are no principles, properly so called, in the English system. General formulæ may indeed be eliminated by comparing the language of learned judges in their reported decisions, and the generalizations of text-book writers are occasionally recognized by courts of justice as correct statements of the law, but there is no systematic development of legal doctrine by deduction from fundamental maxims recognized by the English law, and in this sense it has no principles or scientific method.
29. The time and labour required for the thorough study of the English law, in consequence of its unsystematic character, are very great, and far more than a young Indian civil servant could devote to it; and a superficial study of so vast a fabric of legal doctrine would, in the majority of cases, be positively mischievous to him.
30. It seems to me to remain that the Roman civil law, as a branch of general jurisprudence, must be adopted as the basis of juristic study.
31. The prejudices of English lawyers against the Roman law are historical, and it is, among barristers and attorneys, a common impression that there is something essentially impractical in that learning; but I am prepared to show that those prejudices are not shared by the leading members of the legal profession in England, who have devoted themselves to the subject of legal education; and I am quite willing that the suggestion should be judged of by those whose educational authority is most universally recognized.
32. The Committee on Legal Education of the Middle Temple Society reported, in 1845, that the study of jurisprudence and the civil law would "supply a long-admitted "deficiency in the education of English lawyers ;" and, to illustrate the benefit which, in the view of the Committee, would result to the students from the appointment of a reader on those branches of learning, they defined the sense in which they used the terms civil law and jurisprudence as follows:
"By the term "jurisprudence' the Committee mean to indicate general jurisprudence, "as distinguished from the particular jurisprudence of any individual nation, and which "in further explanation of their meaning, they would divide into positive jurisprudence, "or the philosophy of positive law, and comparative jurisprudence, or exhibition of the "principles of positive law in an embodied form, by a comparison of the jurispru"dence of modern nations. In the first they would have the lectures also include "the important subject of the 'interpretation of laws;' and under the latter head of com"parative jurisprudence, the 'conflict of law' may with propriety be comprised.
"By the term 'civil law' the committee wish to indicate what may be called 'modern "Roman law,' that is to say, those portions of the civil law, which, being of an universal "character, and applicable to the relations of modern society, have formed the basis of "the jurisprudence of many continental nations and entered so largely into our own.
"The Committee are of opinion that this study of the theory of the civil law may be "most advantageously combined with the study of jurisprudence, and that the two united "will furnish the best means of preparatory legal culture, and the formation of an enlarged "and comprehensive legal mind."
33. The Commissioners appointed by Her Majesty to inquire into the arrangements of the Inns of Court for the promotion of the study of law and jurisprudence, in their Report, dated 10th August 1855, after stating that the present system of studying in the chambers of a practising lawyer affords no facilities for the study of the "scientific branches of "legal knowledge, including under that term constitutional law and legal history, and "civil law and jurisprudence," proceed to say that "some knowledge of these subjects "must be useful to the barrister, not only as an advocate, but as a judge, and especially "if he should be appointed to any judicial office in India."
34. It will be observed that the Commissioners had not then before them the case of Indian civilians, but of barristers, who, from the vast extent of the municipal English law, certainly have neither as much leisure as the former, nor as much visible need for preliminary studies, such as civil law and jurisprudence. Any recommendation of the study of civil law to an English barrister would obviously apply with much greater force to a candidate for the Mofussil bench in India.
35. In the Appendix to the Report of the Commissioners is an extract from a Report by the Committee of the Faculty of Advocates (Edinburgh, 1854), from which I quote the following:
"The civil law constitutes the basis of nearly all the law of Europe, and is the best "substitute for lectures on general jurisprudence. The circumstances of the present "times prove the truth of Lord Stair's opinion, that no man can be a knowing lawyer in "any nation who hath not well pondered and digested in his mind the common law of the "world.
"In requiring the civil law as an essential branch of the legal education of a Scottish "advocate, the Committee are only enforcing the rule sanctioned by the prescription of "three centuries. They are by no means desirous of attaching an undue degree of im
portance to its study, or to claim for it the undistinguishing veneration with which the
Legal education" faculty were in former days asked to regard it. They claim for it only such a degree of of civil ser"attention as it is entitled to from its merits, merits which have been acknowledged by men whose partiality for their own common law gives weight to their testimony. "A system which has contributed to give form and consistency to the law of Scotland "could not be overlooked in an enlightened system of legal education. But, indepen"dently of its special claims on the notice of a Scottish lawyer, the jurisprudence of the greatest nation of antiquity must possess an imperishable interest in the eyes of those "who regard law as a science, every step in the development of which has its value and "importance, as tending to accomplish the establishment of sound principles of legisla"tion and the correct administration of justice. Accordingly, it has been nearly the "universal rule of all the states of Europe to enforce upon the advocate of the supreme "courts the study, not merely of the jurisprudence of the locality, but also that of the "civil law; not so much for its immediate use in practice, as because its study humanizes "the mind, gives a larger and more comprehensive view of jurisprudence, and furnishes, "at the same time, the many informing aids that are to be derived from the history of "other times."
36. Such are the collective resolutions of three learned bodies of lawyers recently engaged in devising schemes for legal education.
37. The Commissioners appointed to inquire into the Inns of Court examined several distinguished persons on the subject of the study of the Roman civil law, and there was a remarkable, if not an absolutely complete, concurrence in their views as to its great utility in furnishing a scientific foundation of legal study for an English barrister.
38. Mr. Hastings gave the following evidence:-"(1629.) Do vou think the study of "the civil law and of general law would be a means of effecting an improvement in the "minds of the practitioners at the bar generally?—I think it would. (1630.) Notwith"standing the different basis upon which the two laws rest?-I think our law rests, to a "great extent, upon the Roman law. I think the study of the broad principles of the "Roman law tends to enlarge a man's mind, and makes him regard the science in a way "that is very desirable. (1631.) With respect to the law of contract, would not the "principles of the Roman law be of considerable use in directing the judgment of the "bar as applied to the English law ?—Yes, I have studied the Roman law a good number "of years myself, and I think I have derived great benefit from it."
39. I would refer to almost the whole of Mr. J. G. Phillimore's evidence as to the defective education (in his judgment) of English lawyers, and the supposed inferiority of the English to the French bar as jurists, which he attributes to the absence in England of the Roman law, and the theory of jurisprudence. "General jurisprudence," he states, "includes the study of the Roman law and the Pandects (that is to say, parts of the "Pandects.)"
40. Sir Hugh Cairns prescribes (1652), as a fundamental course of legal study, "mainly the general system of jurisprudence as a system of ethics, and the knowledge "of civil law as connected with classical and historical learning."
41. I beg leave to refer more particularly to the opinions of the eminent German civilians consulted by Mr. Greenwood, and recorded in his special "report upon the "systems of legal education pursued in the different states of Germany," appended to the Commissioners' Report.
42. Dr. Guest, of Berlin, says, "I think the study of the Roman law essential to a "systematic legal education." Upon subjects relating to private rights and personal contracts, and the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice.
43. To the same effect is the emphatic testimony of Dr. Wangerow, Dr. Mittemaier, and Dr. Wahloff.
44. The first-named says, In my estimation there is no better mode of cultivating "the science of legal thinking and the interpretation of laws than the study of their (the "Roman jurists') works."
45. All these opinions, I repeat, have reference to the training of an English barrister, who has to master a vast and highly complicated structure of national jurisprudence, which might well be thought to demand his whole time.
46. The amount of positive law to be acquired by an Indian Mofussil judge is extremely limited, and therefore, in his case, a broad basis of jural study, such as is provided by the civil law, is more easily laid, and is more necessary for the purpose of enabling him to adjudicate with readiness and certainty the thousand questions arising in daily life, and to unfold the reasons for his decisions with clearness and persuasiveness.
47. I will close my appeal to authorities by the very pointed testimony of Sir Erskine Perry, who sat on the Inns of Court Commission; and who, eleven years ago, when he was Chief Justice in Bombay, published a translation of Savigny's celebrated treatise on
The Roman law forms no rule binding in itself on the subject of these realms; but in deciding a case upon principle where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it prove to be supported by the law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe. (Per Chief Justice Tindal, Acton and Blundell, 12, Meeson and Welsby, p. 324.)
"Possession" (the Jus Possessionis of the Roman Law), dedicated to the Indian Cove- Legal education
48. I will say, in passing, that this treatise is exceedingly abstruse in the translation, vants.
49. The translator, addressing the Civil Service, whom he compliments for their impartiality and earnestness in the administration of justice, says, "Although the subject "of this work is treated very technically, and solely with reference to civil law, an "accurate knowledge of the distinction between possession and property, and of the "legal protection afforded to the former, in order to repress violence and breaches of "the public peace, is essential in all systems of jurisprudence, and will be found, I "apprehend, most valuable to Indian practitioners."
50. "Independently of this feature of the work," he continues, "it affords the most "admirable model of strict legal reasoning, of interpretation of the language of the law, "and of that practical good sense in the treatment of legal questions, which the study "of the Roman classical jurists seems to engender, that I have met in any modern "treatise, and, as such, it seems to commend itself with peculiar propriety to your "distinguished service.'
51. Course of Study.-The arrangements sanctioned by the Council of Legal Education in the Inns of Court comprise the following courses of study :
52. Of these, the first and fourth branches might, with advantage, be studied by the candidate for judicial appointment in India; and I would add, a general view of English law, such as is given in Blackstone's Commentaries.
53. I suggest that the weight of the examination should be thrown on the jurisprudence and civil law branch.
54. That the student should be called upon to show that he has studied the Institutes of Justinian, with some selected portions of the Pandects, by the aid of a commentary.
55. He should also have studied some recognized treatise on modern civil law, and show an acquaintance with some of the principal divergences between civil and English law, and the fundamental principles of the conflict of laws, and of legal hermeneutics.
56. It should, however, be distinctly understood, that the examination will not be based on any particular treatise or commentary (save, of course, the prescribed texts of Roman Laws), but on civil law and jurisprudence, as a subject.
57. As regards constitutional law and legal history, a fair knowledge of Mr. Hallam's history might be accepted; and, for the Encyclopædia of English law, a modern edition of Blackstone might be taken as a basis of examination.
58. The course of study might, perhaps, be most conveniently indicated by the compilation of a large number of examination questions on each branch of learning.
59. Study in India. The young civilian, arrived in India, will be subject to the general rules relating to the Civil Service; his attention will be directed to the acquisition of native languages and of administrative knowledge; and I have no intention of proposing any such change of system as would interfere with objects of such commanding importance.
60. But I must distinctly express my opinion that it is too common to find young civil servants loitering away their time for the first year or two after their arrival; and, from personal observations, I believe a bad effect is produced among the native servants of Government by witnessing such waste of time on the part of young men who are paid, what a native considers, a handsome salary.
61. I therefore, without hesitation, recommend that young civil servants should be called upon to do more work than they are required to do at present.
62. I see no reason at all why law studies should not be pursued at the same time with linguistic, if not administrative studies.
63. A language cannot be crammed. A certain efflux of time is required for the acquisition of a new vocabulary and mode of speech. Two hours a day for a year would probably do more for a student than more than twice two hours a day for six months.
64. I have no certain knowledge of the average daily time spent by young civilians in learning the native languages. Immediately before the examination, no doubt, there is a good deal of cramming, and the candidate's whole working day is consumed in reading and conversation with the Moonshee.
But, probably, any young man, who resolutely, from the day of his arrival, devoted not more than two or three hours a day to learning one of the vernacular dialects, would attain the appointed standard as quickly as it is now reached by the average of young civil servants.
65. At any rate, I have no doubt that junior civil servants might be fairly required to pursue legal and lingual studies pari passu.
66. All young civilians might, perhaps, be permitted and invited to attend the law school at Bombay; but those who select the judicial branch, with the assent of Government, should be compelled to do so.
67. The course of study laid down for them should, I think, be confined to a few
Legal education branches of law of very great practical importance, and which most demand the assistof civil ser
ance of a teacher.
68. I would select the elements of property law, the law of contracts, the law of evidence, which should be treated with as little technicality and as much reference to general principle as possible.
69. I would recommend such text-books as Savigny on Possession, Smith on Contracts, Pothier on Obligations, and Mr. Justice Story's popular works; Mr. Norton's Treatise on Evidence is, I believe, well adapted for an Indian law student.
70. Besides these subjects, the professor should give, in lectures, a general outline of the several systems of law prevailing in India, to be filled up by the student for himself; and I would strongly recommend Lex loci Report of the Indian Law Commission as a subject for private study.
71. It cannot be too often repeated, that the professor would be prudent to abstain as much as possible from the ultra-technical language of English law, and to bear in mind, as a constant warning against that besetting tendency of English lawyers, that every provincial judge's decision will have to be recorded in a semi-barbarous native language, which has no equivalents to English law terms, and is incapable of expressing scholastic subtleties.
72. After a year or 18 months, an examination should be held (not by the law professors), and the students passed for the judicial branch or sent back for further study.
73. The passed men should be assigned each to a judge, for the purpose of practical training on a system nearly the same as that which is described as prevailing in Germany in an appendix to the Inns of Court report before quoted.
74. Mr. Greenwood in his report states (sec. 30) with reference to the passed law student in Prussia, "When successful, the candidate is sworn in as auscultator (hearer "or apprentice to the law) at one of the inferior tribunals (tribunals of first instance, "Kreis and Amts-Gerichte); here, under the instruction of some member of the college "of judges, to whom he is assigned as a pupil, he familiarises himself with the whole "course of judicial business, from the office of simple clerk or writer in the several "bureaus up to that of the judge. He makes digests of the cases before the court, with "detailed augmentations, and his own conclusions thereupon, for the opinion of the
judges. He makes reports and protocols, and takes down evidence, draws up and "registers proceedings for the use of the court. He acts as clerk to the magistrates in "criminal proceedings, and learns to draw judgments and decrees both in civil and 'criminal matters. During the whole of the period thus spent, the 'hearer of law' is "required not to discontinue his theoretical studies, more especially directing his "attention to the divergencies of the Roman, the Prussian, and the Germanic systems "of law. Every quarter the 'hearer' is required to make a report in writing to the "court of his studies and occupations during that period, and must apply for and "receive from the members of the tribunal, attestations as to the duration of his several "occupations, the activity, diligence, and ability exhibited in the course of them. These "certificates must be exhibited when he applies to be admitted to his second exami"nation."
75. I think it unnecessary to pursue this branch of my recommendations into greater detail. I may add, however, that it is during this period of "auscultation," and not before, that the civilian would be expected to master the written law which he will have to administer, the system of judicial procedure, and the salient points of Hindoo and Mahomedan law, tacitly or expressly recognized by the provincial tribunals.
76. The expense of my recommendations cannot be exactly estimated. The allowances paid in England to civilians and examiners (if any) would be inconsiderable. Some extra remuneration to the law professors, or an extra professorship, would be necessary if the civilian students formed a separate class, as I think they ought.
77. A small expense would be advisable for the purpose of providing a selection of law books for each court, and a complete law library ought certainly to be founded in Bombay for the use of the law schools. This last would be an expense properly belonging to the university.
78. It remains to consider the case of young civilians now in the country or presently to arrive. I believe that there are several young men who could be spared without inconvenience for a course of at least six months legal study. I think in that time they might acquire such an insight into the leading principles of the law of contracts and evidence as would enable them to pursue their studies unassisted.
79. There is the law school at Bombay, in which such instruction is now being given, and I should be happy if my services could in any way be made use of by Govern
80. If desired, I shall be happy to write further on the subject of the two last paragraphs.
I have, &c.
E. J. HOWARD,
No. 8,038.-Memorandum by the Chief Secretary.
20th October 1859.
The Chief Secretary believes that the soundness of the conclusions at which Mr. Howard has arrived, and on which he has brought to bear a valuable store of professional learning and experience, will be generally admitted. It is certain that a foundation of legal knowledge should be laid in England, but it seems to the Chief Secretary that the
acquirement of such fundamental knowledge might be tested at the general examination Legal education
There is no doubt that the first year or two of a young civilian's residence in this
The Chief Secretary has reason to believe that Mr. Le Geyt, the Bombay member of the Legislative Council, is at present engaged in the consideration of a scheme for attaining this very object, which Government had in view when they called for this report from Mr. Howard, namely, the securing a more certain and a more scientific legal education to those civilians who are intended to fill judicial offices in India. He begs, therefore, to suggest that this report, with the former proceedings on the subject, be sent to Mr. Le Geyt, for any observations with which he may be good enough to favour Government.
No. 8,039.-Minute by the Governor, subscribed to by Mr. Malet.
21st October 1859.
Mr. Howard has favoured us with a very interesting and valuable paper, in answer to our inquiry what is the best mode of securing to our young civilians such an amount of legal instruction as shall qualify them for the judicial bench, under the altered circumstances in which our Mofussil judges will be placed by the spread of legal education, and by the formation of a highly educated native bar.
I certainly do not feel myself competent to review the whole of Mr. Howard's recommendations, especially those which relate to the studies to be pursued in England. I agree with him that the course of study should be submitted to Sir Richard Bethell, or to some other high legal authority in England who may be willing to give his attention to it, and in whom Her Majesty's Government place entire confidence.
I may venture also to express my entire concurrence in Mr. Howard's remarks upon the insufficiency of any legal system existing in India as the basis of scientific legal study, and in his preference for the study of the Roman civil law over that of England. I think there can be no doubt that "the time and labour required for the thorough study of the "English law, in consequence of its unsystematic character, are very great, far more "than a young Indian civil servant could devote to it, and a superficial study of so vast "a fabric of legal doctrine would, in the majority of cases, be positively mischievous to "him." Equally true is it (as observed by the Committee of the Council of Advocates, Edinburgh, 1854, quoted by Mr. Howard,) that, "the (Roman) civil law constitutes the "basis of nearly all the law of Europe;' a code of which this can be said, and which has maintained its authority through so many centuries, and through so many revolutions and vicissitudes, and among people so different in character and in civilization from each other, and from the Roman world in the days of Justinian, must surely be a fitter subject of study in the abstract than a system which, whatever its excellencies in the eyes of Englishmen, is confessedly founded upon precedents, and not upon principles, and which, to quote again from Mr. Howard's letter, "retains many feudal and other techni"cal 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."
With regard to the studies and judicial training which are to be carried on in India, I may be permitted to express my general concurrence in Mr. Howard's remarks.
I do not see why all young civilians should not be compelled to attend the law school at Bombay, especially if a separate class is instituted for them. The only drawback that I see to this arrangement is, that it will necessitate the residence of a number of young men at Bombay, where they will be apt to encourage each other in habits of extravagance.
I have no doubt that the course of study, choice of books, &c., recommended by Mr. Howard, are well calculated for the object in view; his warning against ultra technical phraseology will, I hope, not be thrown away upon our law professors.
The Prussian system of attaching passed students to one of the inferior tribunals could hardly be carried out in its integrity in this country.
It is, moreover, desirable that all young civilians should go for a year or two (at least) into the revenue department, where they will become familiarized with the people, and with a state of society so different from that which they have been accustomed to at home. This I should consider a more essential part of the training of a future judge, than the knowledge of forms and of the actual working of a court which is acquired by Prussian auscultators. These, however, are not wholly to be neglected, and, after a year or two's probation under the collector and magistrate, I think it would be a good plan if