them-so far as the power to rackrent and evict at pleasure is concerned. It may well be doubted whether any serious resistance on the part of the landowning classes would be offered to the introduction of universal tenant-right, especially if such a measure were coupled with a prolongation of the term of settlement. While these pages were being penned, I received a letter from a wealthy and intelligent taluqdar, in which he writes:

"With regard to occupancy rights, I think if Government makes a permanent settlement with the taluqdars, it would not be difficult to induce them to make the same arrangement with their tenants. At the same time, I think tenants who reside in the estate of one landlord and cultivate in that of the other should not be allowed the right of occupancy."

From this to the conclusion, that rents of resident tenants should be fixed for the term of settlement, whatever that may be, does not seem a very long step.

But whether the opposition of the proprietary classes be great or small, security of tenure and fixity of rent will sooner or later have to be introduced, and the longer the delay, the greater will be the difficulty. The only way out of the miserable imbroglio of rackrenting and eviction, of suits for enhancement and claims for compensation, into which the fatal tendency to engraft the worst outgrowths of our English social economy on the Indian rural system, has involved, and is more and more deeply involving, us, is to revert to the fundamental principle underlying all Asiatic politics, the duty of the ruling power to protect the cultivator from exaction; and by abolishing the unjustifiable distinction between occupancy tenants and tenants-at-will, restore the latter to the birthright from which they have been wrongfully excluded.

The course of events in Ireland during the last forty years should surely have taught us the folly and the danger of neglecting the demand for reform until it swells into a cry for revolution. If the just claims for valuation of rents and fixity of tenure which were put forward by O'Connell, had been satisfied, England would not in our own day have been confronted by the land league with its cry for the extirpation of landlords under penalty of civil war. The cultivators are quiescent enough now, to all appearance, over the greater part of Hindústán, but, if there be any truth in history, oppression will not be quietly endured for ever. If the ryot is not to be protected from rackrenting and capricious ejectment, and all the wretchedness which they inevitably involve, let us at least be consistent, and abandon all attempts to educate him into a clear perception of his miserable condition. Let all village schools be closed, and all vernacular newspapers suppressed,

Thus the inevitable struggle of classes, of the oppressed against their oppressors, and against the Government which upholds oppression, may be-not averted, certainly-but somewhat postponed.

It is surely gratuitous foliy, as well as cruelty, to awaken a sleeping man to consciousness of suffering which we might, but will not, relieve. Better to let him slumber on, while he can, that so, perchance, there may be peace in our time. Having sown the wind, let us, if possible, leave the whirlwind to be garnered by our successors. If we have not the courage which should accompany strength, let us at least act with the prudence appropriate to timidity. It remains to speak of the Commissioner's recommendation that occupancy tenants should be allowed the power of mortgaging their rights Wherever, and as long as, this is permitted, a very large proportion of the holders of such rights will be, as the ryots of the Deccan so generally are now, the mere slaves of the money-lender. The cultivator cannot resist the temptation which the power of mortgage holds out to him, of raising money without immediate loss of the possession of his fields. He can get quite deeply enough into debt without that power, as the state of the Ouh tenantry testifies. If every tenant in Upper India were given a mortgageable right of occupancy to-day, it is practically certain that in ten years' time fifty per cent, of such rights would, to all intents and purposes, be in the hands of the money-lenders. The only thing needed to prevent so lamentable a result would be a provision that all mortgages of occupancy rights, without immediate transfer of possession notified to, and sauctioned by, the Collector of the district, should be ipso facto void. The danger is so real and certain, and the remedy so obvious and simple, that it is matter for both surprise and regret that the Commission should not have recognized the one and insisted on the other.

It is devoutly to be hoped that our troubles in Afghánistán may soon be ended by a total withdrawal from Kaudahár and a return to our old frontier, and that the question of agrarian reform may then be taken up in earnest. The best compensation we can make to the people of India for the cruel and unnecessary strain and pressure to which the Afghán war has subjected them is to put the agricultural industry of the country on a sound footing. And this can only be done by liberating the cultivator from the liability to exaction which has hitherto tied his hands and benumbed his energies. There are two courses open to usa policy of progress tempered by prudence, and a policy of stagnation interrupted by panic. It is for the Government of India to choose between them,

H. C. IRWIN,

ART. VII. CODIFICATION FOR INDIA.

N the Gazette of India for the 22nd January last appears a short

considerable moment; a (No.

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in the Legislative Department, dated 5th December 1879), enclosing the Report of the Law Commission of that year, together with the reply of the Secretary of State.

The reply is as follows:

"The Report has been considered by me in Council. In reply I request that you will express to the Commission my sense of the zeal and ability with which they have examined the important subjects referred to them, involving the consideration, not only of the provisions of the six Bills which were laid before them, but also of the principles upon which Indian Codification ought to be conducted.

"Reserving my opinion upon the abstract reasoning with respect to the principles on which Codification should be conducted, to be found in the commencing paragraphs of the Report, I will confine myself to the practical measures which are subsequently recommended. These are the laws relating respectively to Negotiable Instruments, to the subject dealt with by the Transfer of Property Bill, to Trusts, to Alluvion, to Easements, and to Master and Servant.

"I am of opinion that, in the case of the Bills relating to Negotiable Instruments, Transfer of Property, and Alluvion, which have already been introduced into the Legislative Council, and referred to Select Committees, the Report of the Law Commissioners should be communicated to the several Committees, which might then proceed to report upon the measures in the usual course. As to the remainder of the drafts, which have not yet been introduced into the Legislature, I shall not object, if you so decide, to their introduction, in order that the Select Committees to which they will in ordinary course be referred may, with the Commissioners' Report before them, proceed to report upon the Bills.

"I also request that all the Bills referred to in this despatch, as settled by the Committees, may be retranslated and recirculated in India, and be submitted to me with the Reports of the Committees before any further steps are taken regarding them."

The publication of these orders gives a favourable opportunity for a brief review of the whole subject of Indian Codification, so far as it has yet gone. The details of the Bills provisionally

T

sanctioned need not, indeed, give us much trouble; nor would it be possible to give them due consideration in this place. They form, together with the Probate and Administration Act just passed (No. V. of 1881), chapters of an avowedly projected Civil Code for the whole Empire, which will ultimately, not only incorporate all existing enactments and judicial precedents, but will revolutionise the manners and customs of races wedded to old historical systems. It is therefore chiefly as forming parts of such a destined Code that their study is proposed to the readers of a literary periodical; and the Report of the Commissioners may perhaps be examined, briefly, with interest and even profit from the point of view expressly postponed by the Secretary of State in Council. For, as will have been perceived, the orders quoted, while sanctioning the undertaking of legislation upon certain definite subjects, distinctly withhold all expression of opinion as to the portion of the Report which professes to deal with the general principles of Indian Codification.

In any study of such a subject as Codification for a country, it is a needful preliminary to understand what is meant. Now it is plain that the word "Code" may imply two different things; and great confusion would arise if they were not to be carefully distinguished. In its most general sense, it means the whole Corpus Juris of a nation or large community, such as the Code of New York, the Prussian Code, etc. In its more restricted sense, it means the rules drawn up in regard to a special subject ; such as the Code of Signals, the Civil Leave Code, the Indian Penal Code, and such like.

A Code in the first sense is a most serious and difficult undertaking. A common body of law supposes a social body with common ideas and interests; and amid the great diversities of human life, such things are the exception rather than the rule. It cannot perhaps be positively laid down that Codification must always be proceeded by complete unification, because (after a certain amount of discordance has been surmounted) the use of a common Code may tend to draw men still closer together, and the two processes may then go on side by side. But "a certain amount must be taken for a reality; where there is no precedent leaning to union a Code will not help. This is shown clearly by the state of things in France, where in the old monarchy-when Normaudy and Brittany, Acquitaine and Burgundy, Languedoc and Languedoil were loosely held together by a federal tie-it was found impossible to fuse together the droits coûtumiers and the Civil Law; and (as Voltaire said) a traveller had to change his laws almost as often as he changed his post-horses. So in the Roman Empire, it was not till the year 290 A.D. after Goths, Gauls,

Germans, Africans, Spaniards, Greeks. and Dacians had received the freedom of the city, and were living under homogeneous institutions, that the first collection of edicts became possible; and then only in the form of a Digest or private handbook without legislative force. Generations elapsed before the Emperors ventured to give sanction to such collections; and even the celebrated Code of Justinian was hardly a "Code" in the larger moderu meaning. The Goths, on succeeding to the Western Empire, enacted a new Code incorporating their own national ideas; but this speedily underwent sub-division as their Empire broke up. The Codex Legum Barbarorum disintegrated into no less than four divergent systems; then followed the feudal system and the growth of a mass of local customs which led towards the chaos of which France was, and Britain still is, a conspicuous example. The Scottish law preserves a likeness to the old Roman law; the Channel Islands have the old Norman system modified by experience and use; English law is in a state of confusion and complexity at home, while its introduction into Ireland is commonly held answerable for much of the trouble from which that country is never long free. No common Code is possible for Christendom, nor even, so far as can be seen, for the United States of North America.

an

Thus, then, we see that Codification in its larger sense is a process which must be accompanied, if not necessarily proceeded, by national integration; and we thus obtain a datum, or starting point, for all discussion regarding its introduction into Empire like British India. So long as the varying sources of thought and action continue to affect bodies of men set in varying external circumstances, all attempts to govern them by a strictly uniform system must be artificial, aud the apparent unity must fly asunder as soon as administrative pressure is removed or even slackened.

The Ain Akbari show that a general body of uniform law formed part of the scheme of the great, but premature, organiser whose name it bears. It may be doubted whether any oriental despot could at any period do all that Akbar attempted to do; it is quite certain that his efforts were rendered impossible by the then existing conditions of time and place. Yet, as efforts, they were omnilateral, and included a strenuous endeavour. Akbar sought to supersede the quasi-divine authority of the two great prevailing systems among his subjects, and to fuse them in a common whole which should add a general spirit of human morality to the peculiar advantages of both. One morning in March. 1579 the imperial Reformer appeared in the pulpit of his grand mosque at Fatehpur ("the goodliest in the East" says Fitch) to preach in the character of "the Mujtahid of the age. As the