1

Excerpts from Vivian Bose , “ Migration of the Common Law: India ”, 76 Law
Quarterly Review 59 ( 1960 )

The only certainty about the migration of the common law of England into
India is that the English brought it , their judges administered it and that it infiltrated
deep into the laws of the country and has, to some extent , moulded its thoughts and
customs.

* * * *
The English first came to India as trading companies under a series of charters
granted by successive English sovereigns. The earliest is of Elizabeth in 1600. It gave
the company power to make reasonable laws for the good government of the
company and its officers , provided they were not contrary to “ the laws , statutes or
customs of the English realm.” Sir James Stephen thinks that this first introduced the
laws of England into India.

These companies grouped themselves in settlements called factories and

fortified them and by gradual stages treated them as English territory although no
sovereignty was claimed and that of the Indian rulers was acknowledged. This made
their position anomalous. Ordinarily , they would have been governed by the Indian
rulers and would have been amenable to their laws . But they found that those laws
were unsuited to English society and ideas , so a charter of 1661 empowered the
company to exercise civil and criminal jurisdiction “ according to the laws of the
Kingdom ”1, in the factory areas. Later charters authorized the establishment of
Courts of Judicature to decide “ according to justice , equity and good conscience and
according to the laws and customs of merchants …… and by such ways and means as
the Judges should think best. ” 2

The earliest of these courts was established in 17263. They were called Mayor’s
Courts but their authority only extended to English subjects and to such Indians as
chose to submit their jurisdiction. Morley4 , differing from Sir James Stephen , says
that the common law of England was introduced into India by the Charter of 1726
and also the English statute law as it prevailed in that year.

1
Charter of Charles II , 1661
2
Charter of Charles II , 1683 ; Charter of James II , 1686 ; Charter of William III , 1698
3
Charter of George I , 1726
4
Morley’s Digest , Vol. I ( 1850) , p.ix
 2

But the activities of these companies were not confined to the factories ; and
their officers gradually assumed the management of affairs in the interior of the
country as well. But the power that they exercised was undefined , so in 1765 Clive
persuaded King Shah Alum to grant to the company at Calcutta a firman , or edict , to
collect or administer the revenues of Bengal , Bihar and Orissa. This involved the
establishment , not only of officers to collect the revenue , but also of courts to
administer civil and criminal justice.

These courts were directed to follow the Moghul pattern as nearly as they
could , namely , to administer the Mohamedan law in criminal cases ; and in civil
cases , the laws of the parties . But it was soon found that some of them , such as those
of mutilation for theft and stoning for sexual immorality , could not be administered
by English courts ; nor could the customs of sutee and infanticide be tolerated.5 So
the local laws were modified from time to time by a series of Regulations until in
1860 the whole of the indigenous criminal law was abrogated and the Indian Penal
Code was substituted in its place. So also the Mohamedan law of evidence , which
incapacitated unbelievers from testifying in cases that affected Muslims , was replaced
by the Indian Evidence Act in 1872. Both Codes are based on the common law of
England and make remarkably few departures from it. They are still in force almost as
they stood when enacted. Subsequent legislation has effected only a few minor
alterations.

Between the years 1765 and 1774 the English government decided to assume
to itself the sovereign powers that had been conceded by the Moghul Rulers of India
and one of the things it did was to establish Supreme Courts at Calcutta , Madras and
Bombay between 1774 and 1823. Those courts were empowered to determine suits
against all inhabitants in their areas in matters of inheritance and succession to lands ;
and in matters of contract and dealings between party and party , in the case of
Mohamedans , by the laws and usages of Mohamedans , and , in the case of Gentoos (
Hindus ) , by the laws and usages of the Gentoos ; and where only one of the parties
was a Mohamedan or a Gentoo , by the laws and usages of the defendant. But the
extent of this jurisdiction was undefined , so for a time there were parallel courts , one
set deriving authority from the Crown and the other from the company . This
naturally led to friction.

Another problem also had to be faced . Many Indians ……. were not then ,
either Hindus or Mohamedans . They were for instance ,the Portugese and American
Christians ; also Parsees , Sikhs , Jains , Buddhists and Jews . The tendency of the
courts was to leave them in enjoyment of their own family laws except in so far as

5
Advocate – General of Bengal v. Ranee Surnomoye Dassee ( 1863) 9 Moo.I.A. 387 , P. 409
 3

they showed a disposition to place themselves under English law. Therefore , without
any rules to guide them , judges had to choose between English Acts of Parliament ,
the English Common Law , Hindu and Mohamedan Law , usage , scripture , Charters ,
Letters Patent and Regulations.

These conflicting jurisdictions and uncertainity about the law led to confusion
and the judges reported to Parliament in 1833 that
“ In this state of circumstances , no one can pronounce an opinion or
form a judgment. .”

This led to the establishment of High Courts between 1862 and 1865. These
courts amalgamated the parallel courts that were then functioning and had sole
authority in the principal factories , by then known as Presidency towns. They were
also made Courts of Appeal over all courts in the interior. The report also led to a
codification of the laws. But until that happened the laws that these High Courts were
called upon to administer were the same as before , namely , the personal or
customary laws when the parties were subject to the same personal law or custom of
the defendant.

This left a large field uncovered and in such cases the civil courts were
directed to act in accordance with “ justice , equity and good conscience” . English
judges naturally interpreted this to mean the rules and principles of English law. In
this way , indigenous law and usage were supplemented and codified and , in some
cases , superseded by the English law, the bulk of which was the common law.

So far as codification is concerned , one reason that compelled its introduction

was the chaos in which the laws were ; but there was also another. Ilbert says that –
“ it became necessary to draw up for the guidance of untrained judges and magistrates
a set of rules which they could easily understand , and which were adapted to the
circumstances of the country”6

But though the bulk of the laws ( excluding the personal laws ) was codified ,
the Codes did no more than set out in codified form the principles of the common law
with only minor modifications. Among the great Codes that are still in force almost as
they stood when enacted are the Penal Code, the Contract Act and the Indian
Evidence Act. The law of torts has never been codified. Its application in India is
based on common law principles and English decisions are still followed.

6
Government of India ( 2nd ed., 1907 ) , p. 339.
 4

But the common law of England was not applied indiscriminately .

Modifications were found to be necessary even in the factory areas ; and outside that
the need for discrimination was even greater ; for example , it would have been
monstrous to enforce the English criminal law of bigamy in a country where
polygamy was allowed and practiced ; so also in the realm of contract it was found
desirable to retain the indigenous system of negotiable instruments known as
hundis……………….

Because of the tremendous impact that the English common law has had on
Indian laws , even the codified ones , judges resort freely to English decisions for the
elucidation of point that are obscure and many references to English decisions will be
found even in the Supreme Court of India. Judges and lawyers here feel and hope that
this inter- play of thought will continue for a long time because it is a healthy thing
and will prevent stagnation , as codified laws tend to become outworn without the
constant stimulus of fresh ideas……………..

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 5

Excerpts from the Introduction by the Lord Chancellor

Chancellor to the Migration of the
Common Law Series in 76 Law Quarterly Review 41 ( 1960)

………………It
……………… did occur to me , however , that some of you might be wondering “
why is this law you are talking about called the common law.” This adjective came
into use some seven hundred years ago to describe the law common to the whole of
England. About two hundred years ago Blackstone , one of the great English writers
on law , divided English law into written or statute law and unwritten or common
law, and went on to say that the latter consisted first and foremost of general customs.
This was the law , he said , by which “ proceedings in the King’s ordinary courts of
justice are guided and directed” . The doctrines are not set down in any written
statute or ordinance , but depending on immemorial usage”. The validity of these
usages was decided by the judges who swore to decide it, “ according to the law of the
land” . Records of these judgments were preserved and it was the rule to abide by
former precedents when the same point came up in litigation.

You may , then , well ask “ was not the result of this that the law remained
rigid and static?” . Fortunately the answer is “ No” ; it is completely wrong to suppose
that because the common law is based on precedent it is inflexible and incapable of
expansion ; when, hundred of years ago , my predecessors on the Woolsack thought
that the existing law was becoming too rigid they corrected this tendency by
introducing new rules which became known as “ the rules of equity” because they
were designed to work substantial justice……………Two great men as well as great
lawyers , one an Englishman , Lord Wensleydale , and the other an American , Mr.
Justice Holmes , have put it well : Wensleydale said that the common law was “ a
system which consisted in applying to new combinations of circumstances those rules
which we derive from legal principles and judicial precedents”; Holmes thought that “
the life of law is not logic but experience”

* * * * * * *

Every lawyer , if not every schoolboy , knows why common law spread in the
first place : it was the simple rule of law , enunciated as long ago as 1608 in Calvin’s
Case , that the English transported English law with them when they entered a
territory where no civilized law was practiced . But the curious thing is that the
common law has so flourished in those territories that , even where the original
political ties have been broken , the system of law has remained , and today nearly
one-third of the population of the world is governed by that system.

* * * * * * *
 6

…..[T]he first most striking feature of the common law is that it puts justice before
truth. The issue in a criminal prosecution is not basically , “ guilty or not guilty?” but “
can the prosecution prove its case according to the rules?” These rules are designed to
ensure “ fair play” , even at the expense of truth. Perhaps the most obvious example of
this principle is the rule that a prisoner cannot be made to expose himself to cross –
examination if he does not want to. ……………………..

Secondly , the common law developed in a country where the “ Rule of Law” –
which accords so well with that instinctive craving for justice – has long been
observed. ………………………..The Rule of Law is not , of course , a peculiarity of
the common law countries , but so steeped in it were , and are , the common lawyers
that they have taken it with them wherever they have gone.

It is not only through its principles , but also through its personalities that the
English legal system has been so readily accepted by others. Our legal profession is
peculiar , but its structure brings to the fore those practitioners who are honest ,
fearless and independent, and this in its turn has meant that the common law judges
have achieved a position in our society which is unrivalled by any foreign judiciary.
Like other men they are fallible , but their integrity and independence have , and
rightly , earned the respect and confidence of the whole world. Again , the instinct
for justice makes men of every nation ready to see their own disputes decided by
impartial and independent tribunals , and a legal system which fosters a tradition of
impartiality and independence in its judiciary is bound to derive therefrom a lasting
strength which is independent of the substantive rules it applies.

Lastly , the common law has always relied largely on the ordinary citizen .
There is the magistrate and the juror , who are not lawyers. And there is that familiar
figure known to lawyers as “ reasonable man” . He is the ordinary prudent person by
whose standard civil liberties are governed .Thus our lawyers and judge have a close
relationship with people who are not experts practicing some esoteric science. This
has made them particularly aware of change in ordinary standards of conduct and
thought , and a legal system which keeps in touch with those for whose service it
exists is one they will hesitate to throw lightly away. Those are , in my opinion , the
basic reasons why common law has proved such a successful migrant. ……..

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 7

Excerpts from A. L. Goodhart , “ What is the Common Law ” , 76 Law Quarterly

Review 45 (1960 )

[N]o country which has not at some time or other been part of the British
Empire has ever voluntarily adopted the common law . When , Turkey in 1926 ,
decided to replace its antiquated legal system by a modern one it took its criminal law
fro the Italian Code and it civil law from the Swiss and German ones. In the same way
, Japan based it new system on Continental law , in spite of its close commercial
relationship with Great Britain and the United States. These are only two illustrations
of the fact that whenever there has been a choice between the common law and the
roman law , which is , of course , the basis of the modern continental codes , the
decision has always been in favour of the Roman law.

There are , I believe , three reasons for this. The first is that this Roman Law is
in the form of a code , and is therefore far more convenient than I the common law
which is a strange amalgam of case law and of statutes. The basic common law
principles were originally established by the judges when they decided cases on the
theory that they were declaring the customary law of the Kingdom . Today , statutes
are far more important than case law , but this is a development in large part of the
past two centuries . We still must find the common law in the Law Reports and in the
Statute Book.

The second reason is that the language of the common law is difficult to
understand because it still contains many terms that are not only technical but are
also medieval in character. …….The famous French author , Stendhal , so greatly
admired the purity of the language in the French code that he made it his practice to
 8

read a few sections of it every morning before he began work on his novels. It I
difficult to believe that an English novelist would read an English statute or a
reported case in similar circumstances.

The third reason for the popularity of Roman law is that it is concerned with
private law as contrasted with public law . It deals with such subjects as private
property , contracts , commercial law , and civil wrongs against individuals. These are
clearly separated from the public law which directly concerns the State and controls
the exercise of State authority. The Roman law , which , of course , recognized the
absolute authority of the Emperor , held that “ What is pleasing to the Ruler has the
force of law ” . It is , therefore , possible for any country to adopt the Roman civil law
without creating a conflict between the law and its political system , however
autocratic the system may be. Thus the most famous of all modern codes – the French
code – was created by Napoleon and still bears his name.

But when we turn to the different history of the common law we find that its
most striking feature is its public law : it is primarily a method of administering
justice . It was through the establishment of the Royal Courts of Justice that the
common customs of the realm were transmuted into the common law. Almost from
the beginning , and certainly from the thirteenth century onward , the principle was
accepted that the King was under the law. This was finally established when in 1215
the barons met King John on the field of Runnymede , and forced him to affix his seal
to the articles of Magna Carta – the great Charter which we still recognise as the
foundation stone of our liberties. ……………….Magna Carta crossed the oceans in
the seventeenth and eighteenth centuries because the Colonists brought these
doctrines with them. ………

Perhaps the most distinctive part of the common law was – and still is – the
jury system under which no man can be convicted of felony unless he has been found
guilty by a jury of twelve ordinary citizens . It is obvious that this system is the most
effective guard against governmental tyranny ever devised if – and this is an essential
if – the ordinary citizen is prepared to show courage and independence. The
independence of the jury was finally established in 1670 in Bushell’s case . Bushel
had been committed to prison when the jury , of which he was a member , had
acquitted William Penn of unlawful assembly against the manifest evidence.
Chief Justice Vaughan , however , held that a jury was not bound to follow the
directions of the judge . Again , at the end of the eighteenth century the juries refused
to convict the accused in a series of famous libel cases which established the freedom
of the Press.
 9

The second essential feature of the common law is found in the writ of habeas
corpus . By that writ the body of any man who claims , or whose friends claim , that
he is being unlawfully detained must be brought into court so that the legality of his
detention may be established. It has been said that each word of this writ is of more
value than is a library of books in praise of liberty. Habeas corpus is the key that
unlocks the door to freedom.

The third principle of the common law is found in the independence of the
judiciary. The judges are not the servants of the government : they are the servants of
justice, and it is their function to see that justice is done not only between individuals
, but also between the individual and the State. This is due in part to a fortunate
chance. Edward I , in the thirteenth century , chose his judges from the leaders of the
Bar instead of from the civil service , and this method has been followed ever since in
the commonwealth countries. These leaders had not been subject to the orders of the
Crown while they were at the Bar , so it was natural that when they became judges
they showed the same independence.

This separation of the judges from the processes of government has led to the
establishment of the adversary system of trial which is a unique feature of the
common law . Under the Continental system the judge plays a leading and active part
in attempting to establish the truth. It is for him to question the witnesses. As a result
, the impression may be given that the judge is hostile to the prisoner who is being
tried before him. The theory of the common law is that justice can best be achieved
by giving each party the fullest opportunity to present his own case. The judge is the
arbiter between two adversaries. This aloofness of the judge is a guarantee against the
introduction of evidence which may be unfairly prejudicial to the accused , and
against the use of arbitrary force by the police , because evidence so obtained will be
rejected by the judge at the trial. It is for this reason that the judge has been rightly
called the watch- dog of liberty.

The fourth principle is summed up in the phrase “ An Englishman’s home is

his castle” . ……. In simple language it means that under the common law no one ,
however great the position he may hold , may open my door unless he does so under
the specific authority of the law. This is the hallmark of government under the law.

These are the principles which are recognized in all countries where the
common law rules. It is true that in the eighteenth century it was held that they were
fully applicable only in those colonies , such as those in America , which had been
settled , and not to those that had been conquered . This distinction existed more in
theory than in practice , because even in the latter the fundamental principles of the
common law were recognized , and have remained a living force ever since.
 10

…….. When we turn to the private law part of the common law we find that it has a
more chequered career . In the American colonies the private common law was only
regarded as applicable in so far as it was consonant with the conditions of the country.
At one time it seemed probable that this part of the common law would be rejected
for a simpler and more easily understandable system based on the Roman law, but
tradition was too strong. It was particularly fortunate that in 1765 , ten years before
the American Revolution , Sir William Blackstone , an Oxford man , published his
Commentaries on the Laws of England , the most influential law book in legal history.
It fulfilled in large part the functions of a code. The result has been that , apart from a
number of more or less superficial differences , the private law in the various common
law countries tends to be substantially the same except in so far as it concerns the
personal law , such as the law of inheritance , marriage and divorce. In particular ,
they all recognize the concepts of the trust and of the reasonable man which are all
particularly English……………….
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