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Published online by Cambridge University Press: 24 December 2009
In 1946 the School of Oriental and African Studies is celebrating the bicentenary of the birth of Sir William Jones: in 1948 University College, London, will celebrate that of Jeremy Bentham. In this there is something more than an accidental approximation of dates. All subsequent scientific English thinking about law is traceable to these two men. The English School of Analytical Jurisprudence; the great tide of law reform which swept through nineteenth-century England; the codification (the word is his own coinage) of law not only in England and India but in many different parts of the world: these things admittedly sprang from the genius of Jeremy Bentham. Sir William Jones's influence was smaller in volume, though almost as widely diffused. He had neither the apostolic fervour of reform nor the overflowing vitality which carried Bentham on with undiminished vigour to eighty-four years: he died before reaching his forty-seventh birthday. But his influence was, none the less, considerable. The first of our Orientalists who was also a lawyer, Colebrooke, Sutherland, Wynch, and other Sanskritists, the Macnaghtens and the Baillies followed in his footsteps. In particular Colebrooke, greatest of them all, and Ian Baillie came directly under his influence. But it is equally true, though less generally recognized, that he is the forerunner of the other great English school of legal philosophy, the historical and comparative school, and that the work of Sir Henry Maine and his successors might have lacked some of its most distinctive elements if Jones's translation had not rendered the Institutes of Manu available to Maine when he was writing Ancient Law. Indeed, Maine's whole career might have been different; for just as his known interest in Oriental legal systems led to Jones's appointment as a judge of the Supreme Court of Calcutta, so it was the interest in Indian ideas evinced in Ancient Law which led to Maine's appointment as law member of the Governor-General's Council, and so to all his later work on similar topics.
page 807 note 1 Halhed and Hamilton, who preceded him as translators of legal works, could hardly be called lawyers, and both were completely in the hands of their Persian munsbis, with results which are debatable as applied to Arabic, but disastrous as applied to Sanskrit.
page 807 note 2 Of these Sir William Macnaghten is the only one after Jones who was eminent alike as lawyer, arabist, and sanskritist. Sir George Knox in modern times is reputed to have had wide linguistic knowledge, but has left no evidence of it beyond a familiarity with Sanskrit shown in his recorded judgments.
page 808 note 1 The whole passage deserves immortality both as a splendid specimen of Bentham's own style at its best and as a just tribute to Blackstone's.
page 808 note 2 Italics, throughout this essay, are the present writer's.
page 808 note 3 The word of course is used in its classical sense of recondite, “sought out.”.
page 810 note 1 The authority usually cited is the charge of Tindal, C.J., to the Grand Jury of Bristol, 1832, note to R. v Pinney (1832) 5 C. and P. 254, quoted and approved in Phillips v. Eyre (1870) L.R. 6 Q.B.I. The speech of Lord Mansfield on the next reassembling of Parliament after the riots contains a statement of the same principles. It is not quite clear whether Jones's pamphlet or Mansfield's speech came first: apparently the pamphlet.
page 811 note 1 It was equally strongly commended by the neighbouring Grand Jury of Flint.
page 811 note 2 “Governed in this manner by a principle that is principle that is recognized by all men, the same arrangement that would serve for the jurisprudence of any one country would serve with little variation for that of any other” (Fragment, preface).
page 811 note 3 “History,” he says, with reference to Blackstone, “is a branch of instruction which our author, though not rigidly necessary to his design, called in not without judgment to ornament on the dull work of simple demonstration. This part he has executed with an elegance which strikes everyone;
page 811 note 4 “If he (Blackstone) has not enriched her (jurisprudence) with that precision which is drawn only from the sterling treasury of the sciences, has decked her out however to advantage from the toilette of classical erudition”
page 813 note 1 Lord Raymond, 916.
page 813 note 2 D. 50.17.23 and D. 13.6.5.2.
page 813 note 3 (1854) 9 Ex. 341, 96 R.R. 742.
page 814 note 1 The same mistake was repeated by Maine, both in “Ancient Law” and (though in a different form) in “Village Communities”. In the latter treatise he appreciates the supreme importance of custom, but is apparently still unaware of the fact that Yājnavalkya, not Manu, is the principal foundation of the literary law, and that the most important commentaries are commentaries on Yājnavalkya, not Manu.
page 815 note 1 Possibly, however, this is merely accidental vehemence. The rest of Maine's criticism, that the Athenian courts gave excessive opportunity to an advocate to confound questions of law and fact is just, but might equally well be said of nations whose greatness in the realm of law is unquestionable.
page 816 note 1 Christian theology from St. Augustine, even from St. Paul, to Maine's own time had given prominence to the doctrine of Man's innocency in the Garden of Eden and of the Fall from Grace, a doctrine which was supposed to be inconsistent with the idea of evolution; and Christian eschatology had been other-worldly in outlook. The tribute, therefore, slight as it is, shows insight.
page 817 note 1 Jones's only published legal works other than those cited above are his addresses to the Grand Jury of Calcutta and the condensed reports of some of his judgments contained in Morton's Decisions. These contain nothing of interest from our present point of view, but it is perhaps worth noting that in the address to the Grand Jury (4th December, 1788) he gives it as the opinion of the majority of the Court at that date that the statute making forgery a capital offence did not apply to India—in other words, that Nuncomar, though rightly convicted, suffered an illegal sentence.
