Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/614

 600 IV. THE NINETEENTH CENTURY manism remained unpolluted by European ideas. Yet they have not stood unchanged, for the effect of the more careful and thorough examination which the contents of these two systems have received from advocates, judges, and text- writers, both native and English, imbued with the scientific spirit of Europe, has been to clarify and define them, and to develop out of the half-fluid material more positive and rigid doctrines than had been known before. Something like this may probably have been done by the Romans for the local or tribal law of their provinces. In those departments in which the pre-existing customs were not sufficient to constitute a body of law large enough and precise enough for a civilized Court to work upon, the English found themselves obliged to supply the void. This was done in two ways. Sometimes the Courts boldly applied English law. Sometimes they supplemented native custom by common sense, i. e. by their own ideas of what was just and fair. The phrase " equity and good conscience " was used to embody the principles by which judges were to be guided when positive rules, statutory or customary, were not forthcoming. To a magistrate who knew no law at all, these words would mean that he might follow his own notions of " natural justice," and he would probably give more satis- faction to suitors than would his more learned brother, try- ing to apply confused recollections of Blackstone or Chitty. In commercial matters common sense would be aided by the usage of traders. In cases of Tort native custom was not often available, but as the magistrate who dealt out sub- stantial justice would give what the people had rarely ob- tained from the native courts, they had no reason to com- plain of the change. As to rules of evidence, the young Anglo-Indian civilian would, if he were wise, forget all the English technicalities he might have learnt, and make the best use he could of his mother-wit.* For the first sixty years or more of British rule there was accordingly little or no attempt to Anglify the law of the singularly lucid and useful treatise of Sir C. P. Ilbert (formerly T,e<ral Member of the Viceroy's Council) entitled The Oovernment of India.
 * For the facts given in the following pages T am much indebted to