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quisitions to which we allude might have been thrown into the form of notes, while the text confined itself to telling the tale of India.*
One of the greatest excellences of this work consists, as we have already stated, in the large philosophical views with which it abounds: one of its chief imperfections, is the author's disposition to undervalue the laws and constitution of his native country. English law and English lawyers are never mentioned without some expression of contemptuous dislike. They no doubt have their faults; but where in the history of the world can a better system of jurisprudence be found, or a more liberal and enlightened body of practitioners? A profession, which in a century and half could boast of such ornaments as Bacon, Coke, Clarendon, Hale, Somers, Holt, Hardwicke, and Mansfield, is surely entitled to more respectful treatment than Mr. Mill has vouchsafed to grant. His objections to our jurisprudence are two in number; its forms, and the uncertainty of that portion of it which is generally distinguished by the name of the common law, and " which," says he, "has neither definition nor words to guide the discretion or circumscribe the licence of the judge." We have already had occasion to defend legal forms, on the ground that their object was twofold: First, to compel the parties to bring the precise point in dispute clearly before the court, unmixed. with extraneous matter: and, secondly, to prevent either party from taking any undue advantage of his opponent. We now add, that in every instance of supposed technical abuse which Mr. Mill has made the theme of reprobation, it may easily be shown that the accuracy of his remarks is at least very doubtful. As a proof, or rather as an illustration, of what we have asserted, we may take the following quotation.
"The rule of the lawyers for the making of propositions is truly their own. It is, to make them out of nothing. All other men, on all occasions, tell us to get knowledge first; and then to make propositions. Out of total ignorance how can any thing the result of knowledge be made?—No, say the lawyers; make your propositions, while in absolute ignorance; and, by help of that absolute ignorance, show, that even the evidence which you call for is evidence to the point. It is sufficiently clear, that when the man who endeavours to throw light upon delinquency is thus compelled to grope his way in the dark, a thousand chances are provided for delinquency to escape.
"When a rule is established by lawyers, and furiously upheld; a
* Perhaps it is scarcely worth while to remark, that in some passages slight inaccuracies occur, which, though they may possibly be mere errors of the press, somewhat puzzle the reader. For an example we refer to vol. ii. p. 509, where a motion is made upon the 30th of November, renewed on the 23d of the same month, and acted upon on the 14th of December. The first date is probably in
rule, pregnant with absurdity, and contrary to the ends of justice, but eminently conducive to the profit and power of lawyers, to what sort of motives does common sense guide us in ascribing the evil? Delinquency produces law-suits; law-suits produce lawyers' fees and lawyers' power; whatever can multiply the law-suits which arise out of delin quency, multiplies the occasions on which lawyers' power and profit are gained. That a rule to draw up the accusatory propositions before inquiry, that is, without knowledge, and to adduce evidence to nothing but these propositions, which ignorance drew, is a contrivance, skilfully adapted, to multiply the law suits to which delinquency gives birth, is too obvious to be capable of being denied.
"And what is the species of production, which their rule of acting in the dark enables the lawyers themselves, in the guise of the writing of accusation or bill of indictment, to supply? A thing so strange, so extravagant, so barbarous, that it more resembles the freak of a mischievous imagination, playing a malignant frolic, than the sober contrivance of reason, even in its least instructed condition." (Vol. iii, p. 34.)
Mr. Mill here forgets, that the office of our courts of justice is to try accusations, not to detect crimes. There are other functionaries, whose duty it is to hunt out the guilty: to judge is the sole province of the court. Of rules which compel a man to draw up his indictment in the dark, we never heard till now. Though the court which tries the indictment will not enter into any previous examinations, the parties concerned may employ every means of elucidation which occurs to them, and compel every individual to communicate what he knows of the affair. Mr. Mill thinks it a hardship, that the accuser can bring no evidence except in support of the charges specified in the indictment. To us it appears, that a contrary practice would be the cause either of oppression or of infinite delay. I am charged with certain offences; these I am ready to rebut: but in the course of the trial new accusations are brought forward, to which, as I was not aware of them, I cannot be prepared to answer. If the trial goes on without interruption, injustice must be the result of not allowing me time to repel the new accusations; if, on the contrary, proceedings are adjourned that I may have an opportunity of availing myself of all my means of defence, every criminal process will be spun out to a length that will enable it to rival a suit in Chancery. The remarks on the interest of lawyers in the increase of delinquency are carried much too far. By delinquencies must be meant actions which the law of the land punishes as criminal. Now if Mr. Mill will glance over a volume of Reports, either in the King's Bench or in Chancery, he will find, that the suits which originate from delinquencies are few in number, and very trivial in their nature.
To Mr. Mill's charge respecting the uncertainty of the com
mon law, we would reply, in the language of that science, by pleading the general issue against him. The maxims of the common law cannot be shaken, its rules are clear and distinct. But they have never been compressed into a handsome volume, promulgated, like the five codes of Napoleon, with the sanction of the state and Mr. Mill, unfortunately, is deeply convinced of the inefficiency of every system of jurisprudence, which is not composed of a regularly digested series of definitions and ordinances. For our own parts, we doubt whether such digests are ever attended with much practical benefit; and our reason is, that definitions never can provide for the endless variety of cases which come before a court of justice. We appeal to our own statute book for proof. The definition of what shall constitute a good execution of a devise of real property, is expressed in the statute of frauds with due brevity and precision: yet no title in our law has supplied a more plentiful harvest of litigation. The Marriage Act was drawn up by Lord Hardwicke, with much thought and attention; yet not only have several doubts arisen upon the interpretation of it, but it positively annulled a multitude of marriages, the validity of which neither the distinguished personage who framed the bill, nor the legislature that sanctioned it, ever meant to impeach. Mr. Mill will perhaps say, that such instances only show the mischief of want of precision in the enunciation of laws, but prove nothing against the accurate digests which are the objects of his idolatry. The truth is, that they prove much against every digest which is the fruit of human industry: for there is surely no probability that more talent, experience, and thought, will ever be brought to the formation of every title in an extensive code, than Lord Hardwicke exerted in one particular case.
We dissent likewise from Mr. Mill's notions concerning the extreme imperfection of the British constitution. But his reasonings on this subject would lead us into too wide a field. However unsound they may be, they at least have the merit of being expressed without any of that spirit of intolerant bitterness, which so often disgraces political discussions. Though his work displays strong party principles, it is in no degree tainted by party feelings. Partiality to his own system never leads him to misrepresent the conduct of those who differ from him, though he sometimes deduces from their actions strained and unnatural inferences in favour of his own creed. He argues, for instance, that the King and Peers, by opposing Mr. Fox's bill, which appointed a board for the government of India, made a virtual declaration that the House of Commons was not a proper organ of government, since they held that it could not be safely trusted with the nomination of seven commissioners. He might as well have
inferred, that the constitution brands that House as unfit for the exercise of any high function, because the law does not invest it with the appointment of the judges. Mr. Mill is too acute a logician gravely to maintain that an assembly is not qualified for the discharge of any one duty, unless it is qualified for the discharge of every other. No scheme of government can stand the test of such reasoning, except despotism, which concentrates in one focus every ray of authority. The popular branch of our constitution is intended to exercise legislative power, and to superintend the motions of the executive. Whether it ought to be vested with the direct appointment of a body of ministers, is a question which may very fairly be decided in the negative, without derogating from the dignity of the representatives of the people.
The extensive circulation of Mr. Mill's history will be a benefit both to England and to India. He has remarked with truth," that good management of any portion of the affairs of any community is almost always proportional to the degree of knowledge respecting it diffused in that community." There is in every subject, connected immediately with the business of life, a certain level of knowledge, or at least of maxims, to which the generality of well-educated persons attain, and beyond which men in official situations, if they rise at all, rise only a little. Elevate this level, and the condition of the whole society is improved. The recently promulgated truths are at first confined to a few: the number of their adherents gradually increases; multitudes embrace the conclusions, who either want capacity, or will not bestow labour, to comprehend the grounds on which they rest; and individuals, who are clothed with authority, yielding to the general current, participate in this enlargement of views, or at least adopt, though perhaps they know not why, the practical rules to which it leads. A double improvement thus takes place in the art of government:-Rulers become better qualified for governing well; and the check of popular opinion, instead of acting sometimes in one direction, sometimes in another, operates more steadily in preventing them from governing ill. Amid the ignorance of Indian affairs, which has prevailed, and still prevails, throughout England, public opinion has been little better than senseless clamour; and, whatever faults might exist in the management of Eastern affairs, could never with any effect pronounce a sentence of condemnation. Of what avail was it that our relations with Hindustan were often brought before Parliament, when in that Parliament there were not perhaps more than two or three members, who possessed such a degree of information on the subject of their deliberations, as was requisite to give even a probability of a prudent determination? The few, to whom the supreme administration of our
Eastern possessions was entrusted, might be induced, by a regard to their official duties, to render themselves familiar with the origin and condition of the empire committed to their charge: but information was not easy to be procured; it lay dispersed through a vast multitude of books and documents; and their indolence had strong temptations to indulge itself, when it contemplated the supine ignorance in which the nation was plunged on every subject connected with India. An enumeration of the evils which have resulted to our Asiatic empire from the imperfect information of our rulers, and the still more imperfect information diffused throughout the community, would form a long list. The additions which shall be made to that list hereafter, will, we trust, be few in number, when compared with those which past times have furnished. When the matters contained in Mr. Mill's History shall have been rendered familiar to the public mind, men placed in situations of authority will carry into the exercise of their functions more accurate views than hitherto of the circumstances of our Eastern dominions; and at the same time their administration will be watched by the nation with a vigilance, and judged of with an enlightened impartiality, of which India has never yet experienced the benefits. Along with our ignorance, those prejudices will disappear, which have so long misled us. There is one prejudice, in particular, which prevails to a great extent, and has often been used as an irresistible argument against improvement in our system of Indian administration. We mean that prejudice which teaches that our Indian empire is of so fine a texture, and connected to Britain by so very feeble a thread, that the slightest agitation may destroy the fabric, or annihilate the hold which we have over it. For a long time the East India Company was to be maintained in its exclusive privileges, because its agents alone could behave with the decorum which Eastern manners required; private traders were to be shut out altogether, or placed under severe restraints, because they would not pay a sufficient deference to Hindu peculiarities; Europeans must not be allowed to dwell at pleasure in those regions, lest their conduct, under no regulation except that of a regard to their own interest and safety, should excite tumults; missionaries are for the same. reason to be viewed with a jealous eye; and in short all schemes of improvement must be dreaded, as pregnant with unknown dangers. We will not say, whether our dominions in Hindustan stand on so very tottering a basis, or whether the link, which binds them to England, is so weak as such representations imply. It is enough for us to observe, that our own conduct has been very different from what, on such a supposition, it ought to have been. India has met with no delicate treatment at our hands.