ticular department of the Law. These volumes will be necessarily unconnected and very rude and imperfect; but if I have health and strength to complete the whole of the Lectures which it is proposed to give, I trust that I shall find leisure to knit together the various pamphlets into one body upon a connected and systematic plan. And this will be the more necessary, because from the view which I take of the exigencies of my office, that is, to raise up a practical body of Pleaders, I shall take up the various subjects not in the order into which they would fall in a Logical Treatise upon the Law, but according to the importance which I conceive

Law of evidence.

attaches to them. Thus the first Lectures will be upon the Law of Evidence: the most important of all branches in my judgment; because my experience of the Decrees of Mofussil Courts incontestably proves to me that by far the greatest number of errors therein are traceable to a want of knowledge of the settled principles upon which Evidence is to be received and rejected. When a man is once thoroughly imbued with the rules by which he ought to be guided in this all-important particular, the mastery of the substantive Law, which defines what are men's rights, may be acquired by his own industry; for he has only to read and master the various provisions of the Law on that head to know what they are though he must strive after something better than a mere verbal knowledge of the Regulations. "Scire leges," says Celsus in the Pandects, non hoc est verba earum tenere, sed vim et potestatem ;"" to know the Laws is not to retain their words, but their force and power;" while a facility in the procedure of the Courts will come with practice. If then he is well grounded in those admirable rules which have been laid down by the most experienced and intellectual for the investigation of facts, or in other words, the Law of Evidence, . he may trust to his own sound sense for applying correctly

66

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HINDU, MAHOMEDAN, MERCANTILE, CRIMINAL LAW. 234

to those facts the substantive Law of the land; and to his own care for doing this in accordance with those forms which the Procedure of the Courts has settled as the most convenient and certain for securing this desirable end.

Hindu and Maho medan Law.

§ 35. Having gone through the Law of Evidence, we shall next investigate the Principles of Hindu and Mussulman Law, which are the substantive Laws of by far the great majority of the inhabitants in this Presidency, and one or other of which will in all but exceptional cases be the Law to guide both Judge and Advocate in their daily practice.

Mercantile Law.

§ 36. To this we shall add some of the principal topics of the Mercantile Law of England; such for instance as the Law of Contracts, of Partnership, of Promissory Notes, of Bailment, of Shipping, of Insurance, and the like, because the study of these subjects will throw a light upon the principles which regulate the ordinary dealings of mankind at large, although of course there will be found many provisions of a local nature peculiar to the Law of England.

Criminal Law.

§ 37. I next propose to treat of the Principles of Criminal Law. Should there be a Criminal Code promulgated for India before we reach that stage, the Code itself will of course form the text of the Lectures on that subject; otherwise, avoiding the subtleties and technicalities which have during a long course of years sprung up in the English Criminal Law, we shall go through those general principles which are common to all Countries, as crime itself, whether of force or fraud, is much of the same character in every clime. With this portion of our studies will be incorporated such of the Regulations as provide for the Criminal Procedure of the Courts, should the expected Code not introduce a new procedure for its own execution.

235

Civil Procedure.

CIVIL PROCEDURE.

§38. I next propose to take up the Civil Procedure of the Mofussil Courts. It is not improbable that before we reach this stage we may have a New Code prepared for us by the Indian Law Commission in England. Most sincerely do I hope we may, for the Regulation Law of this Presidency, while it is concerned but very little about the substantive Law of the Land, is almost entirely devoted to Procedure; and as Regulation upon Regulation and Act upon Act has been passed to remedy the evils of the day, and not upon any uniform plan, the confusion which prevails is much like that which at present disgraces the English Statute Book. There have however been sundry efforts to reduce this to something like intelligible order, and here we shall not be altogether without Text-Books to guide and assist us. Mr. Macpherson in Calcutta, and Mr. Baynes in Madras, have published respectively volumes of considerable utility, (1) and of the assistance that at hand we must liberally avail ourselves—and this will embrace the important subject of Pleading. When you are thus advanced,

Pleading.

we shall endeavour to give you the habit of readily bringing your knowledge to bear in a practical way, by discussions and trials after the fashion of the ancient "mootings" of the English Inns of Court. (2)" Reading," saith Bacon, "maketh a full man, conversation a ready man, and writing an exact man therefore if a man write little, he had need have a great memory; if he confer little, he had need have a present wit; and if he read little, he had need have much cunning, to seem to know that he doth not." Thus by the course which we shall pursue we shall seek to supply the defects of all parties. Our written notes will we hope lead to accuracy and exactness our Lectures will secure

1. Many useful treatises on Law and Practice have been published since this Address was delivered.

2. Lord Guildford said that no man could be a good lawyer who was not a good "put-case."

JURISPRUDENCE-POLITICAL PHILOSOPHY.

:

236

solidity and soundness; and our discussions readiness and dexterity. Those whose quick parts often produce carelessness from a too dangerous facility of comprehension, and those with weak memories, will be corrected and aided by the practice of taking notes of what they hear the shy and bashful will obtain self-confidence and presence of mind by our "mootings;" while the idle will be necessitated to acquire substantive knowledge by their attendance at the Lectures. "So," to use once more the words of Bacon," every defect of the mind may have a special receipt."

Jurisprudence.

§ 39. And here it might be argued that

we should pause, having certainly complet

ed all that is absolutely necessary for enabling a student to launch out into practice. For it will be seen that we shall have run through the Substantive Law which determines men's rights both in civil and criminal matters: we shall have discussed the Pleadings necessary for bringing those matters to an issue between the parties, we shall have taught the Procedure by which the Courts are guided from first to last in the adjudication of Causes, and we shall have imbued the student with those plain principles of the Law of Evidence, which are essential for ascertaining the facts to which the Substantive Law is to be applied, and determining how they are to be ascertained. Upon the whole then this appears a complete curriculum of empirical knowledge; but yet there remains a branch without some effort to cultivate which, certainly our task would be very incomplete. For hitherto and up to this point, though we have been discussing the Laws themselves, Substantive and Adjective, we have been totally silent respecting those common principles on which all Laws are founded: and hence it is contemplated to conclude with that which, is as it were, the crown of the entire course, Lectures upon General Jurisprudence; and to this I propose to add a topic not unfrequently confounded with it, that of Political Philosophy.

237 DISTINCTION BETWEEN JURISPRUDENCE AND POLITICAL PHILOSOPHY.

Common

confusion

between Political Philosophy and Jurisprudence.

§ 40. It is astonishing how frequently the science of Political Philosophy, by which I understand the history and principles of the various forms of Government invented by mankind, those of Monarchy, Aristocracy, and Democracy, and their several modifications; their excellencies and their vices; has been confused and mixed up with that which is properly called General Jurisprudence. The same remark holds good with respect to Political Economy. For instance, Montesquieu, in his Spirit of the Law, scarcely broaches his subject, before he wanders away from Jurisprudence into Political Philosophy; and looking over the examination papers which have been published from time to time by various institutions on the subject of Jurisprudence, we cannot fail to be struck with the little importance which is attached to this science itself, how large a margin has been allowed to the other two.(1) Desirable as a familiar acquaintance with both the theory of Government and the history of constitutional Law on the one hand, and a knowledge of the worldwide principles of Political Economy on the other are to the man of education, it is clear, that in this country they can be comparatively but of rare occurrence to the practising Lawyer. At any rate it is error to confound them with Jurisprudence, of which they form no part, as is sufficiently apparent upon a little accurate consideration. Of course the study of the laws which regulate the constitution of our own

1. By way of example take the following examination Paper on Jurisprudence set at the London University in the year 1852 :

Define a pure monarchy. Define a pure aristocracy. Define a pure democracy. Define a mixed government. To which of the pure form's does the present government most nearly approach? Is the monarchical element strongest in England, in France, or in the United States of America? With respect to the election of representatives, state the advantages and disadvantages-a Of open or secret voting. b Of voting by lists or separately for each candidate, or for each two candidates, or for each three. c Of voting at a pre-determined place and time, or by means of voting-papers left at the houses of the voters, and collected by a public officer.