had shown how hard it is to express the law in a set of definite propositions without reducing its elasticity and impeding its further development. His arguments scarcely touch penal law, still less the law of procedure, for these are not topics in which much development need be looked for. But the future career of the Contract Act and of the projected Code of Torts, when enacted, may supply some useful data for testing the soundness of his doctrine.

One reason why these Indian experiments have so little affected English opinion may be found in the fact that few Englishmen have either known or cared anything about them. The British public has not realized how small is the number of persons by whom questions of legal policy in India have during the last seventy years been determined. Two or three officials in Downing Street and as many in Calcutta have practically controlled the course of events, with little interposition from outside. Even when Commissions have been sitting, the total number of those whose hand is felt has never exceeded a dozen. It was doubtless much the same in the Roman Empire. Indeed the world seldom realizes by how few persons it is governed. There is a sense in which power may be said to rest with the whole community, and there is also a sense in which it may be said, in some governments, to rest with a single autocrat. But in reality it almost always rests with an extremely small number of persons, whose knowledge and will prevail over or among the titular possessors of authority.

Before we attempt to forecast the future of English law in India, let us cast a glance back at the general course of its history as compared with that of the law of Rome in the ancient world.

VIII. COMPARISON OF THE ROMAN LAW WITH ENGLISH LAW IN INDIA.

Rome grew till her law became first that of Italy, then that of civilized mankind. The City became the World, Urbs became Orbis, to adopt the word-play which was once so familiar. Her law was extended over her Empire by three methods:

Citizenship was gradually extended over the provinces till at last all subjects had become citizens.

Many of the principles and rules of the law of the City were established and diffused in the provinces by the action of Roman Magistrates and Courts, and especially by the Provincial Edict.

The ancient law of the City was itself all the while amended, purged of its technicalities, and simplified in form, till it became fit to be the law of the World.

Thus, when the law of the City was formally extended to the whole Empire by the grant of citizenship to all subjects, there was not so much an imposition of the conqueror's law upon the conquered as the completion of a process of fusion which had been going on for fully four centuries. The fusion was therefore natural; and because it was natural it was complete and final. The separation of the one great current of Roman law into various channels, which began in the fifth century A. D. and has continued ever since, has been due to purely historical causes, and of late years (as we shall see presently) the streams that flow in these channels have tended to come nearer to one another.

During the period of more than four centuries (B. C. 241 to A.D. 211-7), when these three methods of development and assimilation were in progress, the original law of the City was being remoulded and amended in the midst of and under the influence of a non-Roman population of aliens (peregrini) at Rome and in the provinces, and that semi-Roman law which was ad

ministered in the provinces was being created by magistrates and judges who lived in the provinces and who were, after the time of Tiberius, mostly themselves of provincial origin. Thus the intelligence, reflection, and experience of the whole community played upon and contributed to the development of the law. Judges, advocates, juridical writers and teachers as well as legislators, joined in the work. The completed law was the outcome of a truly national effort. Indeed it was largely through making a law which should be fit for both Italians and provincials that the Romans of the Empire became almost a nation.

In India the march of events has been different, because the conditions were different. India is ten thousand miles from England. The English residents are a mere handful.

The Indian races are in a different stage of civilization from the English. They are separated by religion; they are separated by colour.

There has therefore been no fusion of English and native law. Neither has there been any movement of the law of England to adapt itself to become the law of her Indian subjects. English law has not, like Roman, come halfway to meet the provinces. It is true that no such approximation was needed, because English law had already reached, a century ago, a point of development more advanced than Roman law had reached when the conquest of the provinces began, and the process of divesting English law of its archaic. technicalities went on so rapidly during the nineteenth century under purely home influences, that neither the needs of India nor the influences of India came into the matter at all.

The Romans had less resistance to meet with from religious diversities than the English have had, for the laws of their subjects had not so wrapped their roots round religious belief or usage as has been the case in India. But they had more varieties of provincial custom

to consider, and they had, especially in the laws of the Hellenized provinces, systems more civilized and advanced first to recognize and ultimately to supersede than any body of law which the English found.

There is no class in India fully corresponding to the Roman citizens domiciled in the provinces during the first two centuries of the Roman Empire. The European British subjects, including the Eurasians, are comparatively few, and they are to a considerable extent a transitory element, whose true home is England. Only to a very small extent do they enjoy personal immunities and privileges such as those that made Roman citizenship so highly prized, for the English, more liberal than the Romans, began by extending to all natives of India, as and when they became subjects of the British Crown, the ordinary rights of British subjects enjoyed under such statutes as Magna Charta and the Bill of Rights. The natives of India have entered into the labours of the barons at Runnymede and of the Whigs of 1688.

What has happened has been that the English have given to India such parts of their own law (somewhat simplified in form) as India seemed fitted to receive. These parts have been applied to Europeans as well as to natives, but they were virtually applicable to Europeans before codification began. The English rulers have filled up those departments in which there was no native law worthy of the name, sometimes, however, respecting local native customs. Here one finds an interesting parallel to the experience of the Romans. They, like the English, found criminal law and the law of procedure to be the departments which could be most easily and promptly dealt with. They, like the English, were obliged to acquiesce in the retention by a part of the population of some ancient customs regarding the Family and the Succession to Property. But this acquiescence was after all partial and local; whereas the English have neither applied to India the more technical parts of their own law, such as that

relating to land, nor attempted to supersede those parts of native law which are influenced by religion, such as the parts which include family relations and inheritance. Thus there has been no general fusion comparable to that which the beginning of the third century A. D. saw in the Roman Empire.

As respects codification, the English have in one sense done more than the Romans, in another sense less. They have reduced such topics as penal law and procedure, evidence and trusts, to a compact and wellordered shape, which is more than Justinian did for any part of the Roman law. But they have not brought the whole law together into one Corpus Iuris, and they have left large parts of it in triplicate, so to speak, that is to say, consisting of rules which are entirely different for Hindus, for Musulmans, and for Europeans.

Moreover, as it is the law of the conquerors which has in India been given to the conquered practically unaffected by native law, so also the law of England has not been altered by the process. It has not been substantially altered in India. The uncodified English law there is the same (local statutes excepted) as the law of England at home. Still less has it been altered in England itself. Had Rome not acquired her Empire, her law would never have grown to be what it was in Justinian's time. Had Englishmen never set foot in India, their law would have been, so far as we can tell, exactly what it is to-day.

Neither have those natives of India who correspond to the provincial subjects of Rome borne any recognizable share in the work of Indian legal development. Some of them have, as text-writers or as judges, rendered good service in elucidating the ancient Hindu customs. But the work of throwing English law into the codified form in which it is now applied in India to Europeans and natives alike has been done entirely by Englishmen. In this respect also the more advanced civilization has shown its dominant creative force.