supplied a legal foundation for the administrative regulations of the Punjab. He did not shrink from such problems as those involved in Hindu wills and Brahmo Somaj marriages. He helped to build up the system of interstatal law, which regulates the relations of the dominant power to the protected States in India. He took an active part in the executive work of the Governor-General's Council. He wrote a monumental minute on the Indian Judicial system. And he beguiled such intervals of leisure as were afforded by railway journeys and the like by analyzing, in an octavo volume, some of the shibboleths of modern Liberalism. His term of office lasted only half the ordinary span, but he compressed into it enough work for five law members-οἷοι νῦν βροτοὶ εἰσίν. He left the Legislative Council breathless and staggering, conscious that they had accomplished unprecedented labours, but not free from some misgivings as to the quality and durability of the work for which they were partially responsible.

The misgivings were not wholly without foundation. Fitzjames Stephen was a Cyclopean builder. He hurled together huge blocks of rough hewn law. It is undeniable that he left behind him some hasty work in the Indian Statute Book, some defective courses of masonry which his successors had to remove and replace.

The period of reaction against excessive legislation which followed his departure from India was not only natural, but necessary and useful. Five years more, and the pendulum swung again in the direction of codification, this time with greater vehemence than was, in his later judgment, desirable. In the minute which he wrote for the Secretary of State on the proposals of the Indian Law Commission which sat in Mr. Whitley Stokes' time, he was sceptical about the expediency or feasibility of schemes for a comprehensive Civil Code, hinted that codification had probably been carried as far, or nearly as far, as sufficed for the practical needs of India, expressed grave doubts about the advisability of attempting to import into India the English law of trusts, and commented with some severity on some of the provisions inserted by the Commissioners in their codifying Bills. One of Mr. Whitley Stokes' last acts was to repeal the Criminal Procedure Code of 1872 and replace it by the Code of 1882. This was perhaps in accordance with his former chief's theories as to the expediency of periodical revision of the Codes, but that chief doubted whether the Code of 1882 was an improvement on its predecessor. We are not always satisfied with the mode in which our friends or pupils carry our theories into practice.

During the years which immediately followed his return from

India Fitzjames Stephen made vigorous endeavours to adapt his Indian legislation to English uses. He drew a Bill for codifying the English law of evidence, which was introduced into Parliament but did not advance beyond a first reading. His draft Code of criminal law and procedure was a more ambitious project and excited great interest in legal circles. After having been introduced into Parliament by Sir John Holker in 1878 it was referred for revision to a Commission consisting of the draftsman and three other judges, who presented their report and draft Code in 1879. The part of it which related to procedure was introduced as a Government measure in 1882, and was the first subject referred to the Grand Committee on Law which was set up experimentally in that year. After a few sittings, in which small progress was made, the Bill was abandoned. From the point of view of technical accuracy some of the provisions of the Bill were open to criticism. It may be that its failure to become law was advantageous rather than detrimental to Sir James Stephen's reputation, for it left his fame to rest on the solid fact of what he had done for India, and on the belief of what he might have done for England but for the ineptitude or perversity of a popular legislature. But it gave a check to the cause of codification in England. It confirmed the indisposition of Parliament to take codifying measures on trust, even when backed by the highest legal authorities. And it confirmed the doubts of experts as to whether the kind of codification which had been found suitable for India would suffice also for England.

The Indian Codes have been made the subject of much uncritical admiration, which ignores their real merits and defects. The Indian Penal Code is far the best of them. In point of form its system of propositions, exceptions and examples constituted a new departure, which amounted to a stroke of genius. In point of substance it will compare favourably with any of the Continental Codes. Yet it could not be enacted for England without extensive alterations. Whenever the work of codifying the English criminal law is again taken seriously in hand, it is doubtful whether the admirable Penal Code which Mr. Justice Wright drew for Jamaica would not afford a better foundation to build upon than either the Indian Penal Code or the Judges' Bill of 1879. Next in order of practical importance to the Penal Code come the two Codes of Procedure, Civil and Criminal, the Evidence Act and the Contract Act. The greater part of the Code of Civil Procedure would, in

1 The Succession Act applies only to an extremely limited class of persons. It is still difficult to say how far the later Codes associated with Mr. Whitley Stokes's name have been put into practical operation.

this country, bear the more modest name of Rules of Court, and nothing would be gained by substituting it for the existing High Court and County Court Rules. If England could borrow from the Code of Criminal Procedure simple forms of indictment such as have been authorized by Parliament for use in Scotland and at courts-martial, and were proposed by the Criminal Procedure Bills of 1878-82, it would have little else to learn from that Code. The art of legal exposition has made such advances during the last twenty years that English lawyers of this generation could not well be satisfied with the Evidence Act or the Contract Act. With regard to the theory of relevancy embodied in the Evidence Act, the author himself abandoned it with characteristic frankness on being satisfied that its philosophical foundation was unsound. The enactment for England of the codes which have been passed for India would in many respects be a retrograde step. But it would be a mistake to measure these codes by an English standard. Their real merit consists in the fact that they are, on the whole, suitable and sufficient for the needs which they were intended to meet. What was urgently needed for India was a guide for the judge or magistrate who has had no legal training, who derives little or no assistance from his Bar, and who has to work at a distance from a law library. And it is surprising how little suffices for this purpose. For many years the Bombay Presidency got on fairly well with Elphinstone's Code. The simple Punjab Code, of which Sir Richard Temple was the principal author, met the chief requirements of that Province during the early years of British administration. For carrying work of this kind the requisite step further, Fitzjames Stephen was admirably adapted. His Procedure Code supplied a handy set of working rules for the up-country magistrate. His Evidence Act keeps magistrates and their pleaders to the point. The Contract Act, supplemented by a little common sense, will usually put the up-country judge on the right track for deciding the few questions of contract which come before him. Nor is it only to the untrained judge that the Contract Act is of use. For its educational value to the student those who are conversant with Indian Civil Service examinations can with confidence vouch. And it is probably to their educational value that Sir James Stephen's labours for the codification of English law will owe their most enduring fame. If his Criminal Code failed to find a place in the English Statute Book, his digests of English Criminal Law and Criminal Procedure are, and will long remain, the best guides to those subjects which can be obtained either by the English or by the foreign student.

Amongst modern systems of law, English law stands unrivalled

in the vigour and independence of its development, in the wealth of its materials, in the substantial justice and good sense of its principles. But its history has never been written, and in point of form it is still, for the most part, a 'tortuous and ungodly jumble.' These two reproaches Sir James Stephen has done more than any man to remove. He brought his great literary ability to bear on a subject which had been monopolized by the writers of professional text-books. His History of English Criminal Law traces with the pen, not of a compiler or of an annalist, but of a historian, the stages by which the Criminal Law of England has been gradually developed. His Digest maps out in intelligible and orderly fashion the broad results of that development.

The two works stand in intimate relation to and supplement each other, for the History not only describes the growth of the English criminal law in the past, but discusses its features critically with a view to improvement in the future, reviews the points of resemblance to and differences from corresponding and derivative systems in other countries, and examines the bearings of his subject on other kindred ones, legal, moral, metaphysical, social, and political. The History corrects, fills in, and amplifies the 'General Sketch' which had been published nearly thirty years before, and embodies the matured results of knowledge and experience gained during some forty years as a writer, a barrister, a legislator and a judge. It thus marks the culminating point of, and appropriately completes, the labours of a lifetime. It was not in Sir James Stephen's nature to rest and be thankful. Had it been so, he might have been spared to us longer. But when he laid down his pen at the close of the third volume of his History he might justly claim to have accomplished when hardly past his prime the main task which he had laid out for himself at the beginning of his career, and to have supplied what is perhaps the most solid and permanent contribution to the English legal literature of the century. The achievement of such results was due, not to good fortune, but to exceptional literary skill, unflagging industry, and unfaltering tenacity of purpose.

C. P. ILBERT.

Difficulty of the most

general

W

THE NATURE AND MEANING OF LAW1.

E find in all human sciences that those ideas which seem to be most simple are really the most difficult to grasp with ideas in all certainty and express with accuracy. The clearest witness to this sciences. fact is borne by the oldest of the sciences, Geometry. No difficulty whatever is found in defining a parabola, or a circle, or a triangle. When we come to a straight line, still more when we speak of a line in general, we feel that it is not so easy to be satisfied. And if it occurs to us to ask the geometer what is the relation of his 'length without breadth' to the sensible phenomena of space, matter, and motion, we shall find ourselves on the verge of problems which are still too deep for all the resources of mathematics and metaphysics together. A philologist will be ready enough with his answer if we question him on the Greek or the Slavonic verb. If we ask him what is a verb in general we may have to wait a little, and if we ask him to account for language itself we shall find ourselves again in a region of doubt and contention. It is not surprising, then, that the student approaching the science of law should find the formal definiteness of its ideas to vary inversely with their generality. No tolerably prepared candidate in an English or American law school will hesitate to define an estate in fee simple: on the other hand, the greater have been a lawyer's opportunities of knowledge, and the more time he has given to the study of legal principles, the greater will be his hesitation before the apparently simple question, What is Law?

No com

plete

theory

without

but ap

In fact, a complete answer to this question is not possible unless and until we have a complete theory of the nature and functions of law of human society. Yet we cannot afford to wait for such a theory, for we are born into a social and political world from which we complete theory of cannot escape. Rule, custom, and law beset us on every side. society: Even if at this or that point we go about to defy them we cannot proximate ignore them; and the possible points of revolt, as reflection will generali- show, are really but few even in such kinds of life as are called lawless. We have to abide the law whether we will or no; and to abide it, on the whole, in obedience rather than in resistance. The French Revolution seemed, and in many respects was, a fundamental catastrophe: but it appeared, as things resumed a settled

zation

needful.

1 The introductory chapter of a work in preparation, founded on lectures delivered at Oxford.