of the British statutes relating to this organization. Among other things, these statutes constitute a legislative machinery in India. To them does this book relate. But it leaves untouched, or only alludes incidentally to the great body of legislation passed by this machinery. The statutes in question extend over a century and a-quarter; they are very numerous, and often run across or overlap one another, whereby intricacy is produced. The consolidation of them into one enactment, preserving all that have living force and repealing all those that have become obsolete, has long been notoriously a crying want. From 1873 to 1876 attempts were made to thus consolidate the law. But they failed apparently because endeavours were also made to take that opportunity of introducing some changes into the law; and in our parliamentary history such endeavours have often had the effect of delaying consolidation altogether. Consequently in this case the draft digest of 1873-6 remained inoperative. Sir Courtenay Ilbert having returned from the East, where he served as Law Member of the Government of India-and, being one of the Parliamentary Counsel-took this draft in hand and brought it up to date. Here then was an excellent draft digest prepared by the most competent person possible, and admirably executed. It ought apparently to have been taken up by the Government of the day in England, with a view to its being passed into law through Parliament after due consideration, or with any emendation of detail that might be necessary, provided that the measure related to consolidation only, without any alteration of the law. But this was not done, as it ought to have been, perhaps on account of the want of time, by reason of the pressure of Parliamentary engagements. The authorities, however, seem to have approved of Sir Courtenay Ilbert's digest being published separately in a book for the benefit of all concerned. Such is the origin of the present book of about 600 octavo pages, including a capital Index, and also an Explanatory Preface. As already mentioned the nucleus of the book is the Digest itself; but it is preceded and followed by some Chapters of value and interest. The official world would say that the book is turned out in a thoroughly workmanlike manner, and doubtless the legal world will think the same. The first chapter is a historical introduction, that is, a resumé of the circumstances under which first the Crown and then the Parliament in England from century to century built up the - constitution of the Government in India. In general terms these circumstances are known to history; but never before, perhaps, have they been so exactly stated in reference to the law as enacted from time to time. This Chapter, extending over 110 pages, as a legal and historical exposition has great merit. It is followed by a clear and popular summary of the existing law. Then follows the digest itself which, if properly dealt with by Parliament, would reduce the mass of legislation to a manageable and intelligible statute of 124 sections, including definitions. These are judiciously divided into twelve sections relating to-the Crown, the Secretary of State and his Council in London-his powers respecting the application of the revenues of India-his position in respect of contracts and liabilities-the Governor-General over all British India and his Council - the several Provincial Governments in India under the Governor-General, technically called “Local Governments" which name has a confusing sound for English ears-the several Legislative Councils in India-the regulation of salaries payable from the revenues of India the Civil Service of India the Indian High Courts-the Ecclesiastical Establishments— offences and penalties, that is high misdemeanours, now happily almost unknown-and to the digest is appended a full schedule of all the statutes in question, shewing how far each of them is reproduced or not reproduced in the digest, with reasons, too, in each case. Supplementary to the digest there is a statement of the statutory rules prescribed under authority of law for the functions and proceedings of the several Legislative Councils. The next Chapter reproduces the charters granted by the Crown to the several High Courts in India, which superseded the Supreme Courts well known to history. Then follows a Chapter on the application of English law to the natives of India, which to a general reader is perhaps the most interesting portion of the book, while it serves as a capital introduction for the law student. After this there comes a disquisition on British Jurisdiction in Native States, a somewhat curious and recondite subject; nevertheless it is treated in an instructive, even an attractive manner. In the concluding Chapter is comprised a selection of illustrative documents; and indeed the reproduction of these documents is most appropriate; they will rivet the attention of every person who reflects upon what India has been, what she now is, and what she may become. Thus we have verbatim the charter granted by Queen Elizabeth to the East India Company, the beginning of all this imperial greatness-the grant by the Mogul Emperor of the "Dewanee," or civil government, to the Company of Bengal, Behar and Orissa, the first of those territorial acquisitions which have ended in covering the Indian continent and peninsula-the elaborate despatch from the Company to their Governor-General in 1833, when they had surrendered their old mercantile status and had become solely territorial administrators-minutes, despatches, speeches on the powers or functions of the Legislative Councils by Lord Dalhousie, Sir Barnes Peacock, Sir Charles Wood, all three figures being prominent in Indian history-the Proclamation by the Queen on assuming the government of India in 1858 after the war of the Mutinies the warrant of appointment of a Viceroy and GovernorGeneral of India-the letters patent appointing the last Bishop of Calcutta which have a special interest inasmuch as they include a summary of all the appointments of Metropolitans in India from the very first-the covenant entered into by each member of that covenanted, now called the imperial, Civil Service, known during recent generations as the finest service in the world. Throughout the work there are copious annotations referring to everything that can be thought of or desired. There is a table of important cases that have been cited. There is also a list of the Governor-Generals, of the Presidents of the Board of Control, and of the Secretaries of State for India, with the date for each one of them from the beginning down to the present time. More particularly there is a handy and useful table for the chronology of India in relation to the British, giving the date of every important event from the year 1453 to 1897. In a brief review like the present there is no space to advert to the many really wondrous topics comprised in this book, legal though it be in all essentials. But enough has been said to shew that it constitutes a valuable addition to English literature regarding the Eastern Empire, and that it reflects honour on its learned author. R. T. The Science of Law and Law Making. By R. FLOYD CLARKE. New York: The Macmillan Company. 1898. Carried out to its logical consequences the work of Mr. Clarke must be regarded as the vigorous plea of an advocate against all legislation. The Common Law, he contends, is rich in analogies, and the function of the law courts is after arriving at a conviction, in any case, of what is just, to select from the mass of previous decisions, and of principles derivable from them, such as will sustain the conclusion they wish to arrive at. Failing precedents they must make new rules and invent new principles, as nearly harmonious as may be with the general tone of former utterances on kindred questions. Their analysis of the facts, and the reasons they give for the conclusions they arrive at, make their judgments more useful, more applicable to the actual needs of social existence, than any attempted synthesis of abstract definitions and directions in a code. The Common Law, he says, proceeds from fact to fact; a code prevents this process by interposing some hazy general principle defectively abstracted from the cases, which by the compiler's ignorance or prejudice, becomes so intangible as to afford no trustworthy guidance in any except the simplest cases. He succeeds in shewing that many attempts at codification at least have been failures. His own State of New York appears to have been the most unlucky of all in its experiments. The American lawyers appear in their sphere to have imitated the early philosophers who dogmatized on the constitution of the universe before they had analysed a drop of rain, but their rashness and its consequences afford us proof that what they attempted is essentially undesirable and impossible. Mr. Clarke admits that "when cases become obscure and contradictory, or a departure is made along a wrong line of public policy, then the defect can and should be cured by a statute." He admits, too, the "difficulty of extracting from the numerous cases the true rationes decidendi-the chance order of development-the absence of unity and coherence-the uncertainties, the incongruities, the contradictions-the enormous and increasing bulk." But if in any great branch of the law, each instance of these admitted evils should be cured by a statute, what would the bulk of the statutes be? How many new points of contention would be presented? How would fresh incongruities and contradictions, real or invented, be avoided? The multitude of disjointed statutes would but make confusion worse confounded, and a cry would arise for a revision and coordination of the scattered enactments. They would have to be placed in proper relation to the propositions with which they were naturally connected. These propositions themselves would have to be reduced to a consistency of expression, which they too often lack, even when consistent in matter. A code of greater or less scope would emerge from the mass of particular laws, amendments, consolidations and harmonizings which would grow up on Mr. Clarke's system. Why not perform the operation promptly and systematically when a certain stage of development has been reached, rather than by a series of patchwork overrulings of the Courts' decisions while litigants. continue to be ruined, and social progress hampered, by a still surviving general deformity? If, then, legislation is to be allowed at all save in the fragmentary or even false sentences of Courts professing to administer old law while they are creating new, it must, in order to attain any completeness and consistency, be reduced to a symmetrical arrangement of principles and rules, and so far approach the code system. If this is not to be allowed, then all jural progress will be at the mercy of the lawyers. Yet, taking the development of a nation's law, as Mr. Clarke insists, as an outgrowth from its expanding intelligence and ethical consciousness, it cannot safely be left to the appreciation and control of any one class, least of all to the class whose education and prejudices are most likely to blind them to the defects of a system by whose mysteries they themselves gain a certain distinction. The voices of contending counsel are not the sole means by which the social needs of a people in the jural sphere can find due expression. The judgments delivered from the bench-learned and able though they be-are not the last word of ethical progress. They are, in fact, perpetually narrowed and trimmed, to outward appearance at least, into conformity with some precedent in such an artificial way that the longed-for principle is as intangible as ever, and parties have to go on fighting at ruinous cost, until at last fifty cases establish what might have been set forth in three lines of a statute. Mr. Clarke speaks with admiration of the decision of particular cases on the analogy of other particulars, but unless the cases are identical, there must be a deduction from the first of some principle within which the second is brought. The principle must be susceptible of expression, and equally so in a law as in a judgment. But then, it appears, we never know what the principle really is until by argument it is extricated from the mass of immaterial facts in which it is involved. The second decision then also labours under the same defect, and the search for certainty is merely the chase of an ignis fatuus. Things are not |
