Neither are they "usages" in the sense in which that term is defined in Lord Halsbury's compilation. Most of the usages given effect to among Hindus and Mahommedans have little or no connection with trade or business, and very many of them are purely local. It can hardly be denied that much harm has already resulted, and much more may yet accrue, through the failure to recognize these fundamental differences. All will agree with Mr. Mayne that, at one time at least, far too much stress was laid upon the ancient texts by which the people of India, more especially the Hindus, were supposed to be bound, to the neglect of the customs and usages by which they were really governed. It ought to be possible to frame rules by which, without too great laxity, the actual usages in force in any community, sect, or family could be given effect to, without having recourse, even nominally, to the tests required by English Law to validate a custom.

Without going so far as to permit any community, sect or family to be a law unto themselves, the ultimate test might surely be, what rules are now recognized as binding on them, not for how long a time they have been observed.

This, it is submitted, is only an extension of the advice given by the Privy Council in the famous Ramnaad case.1

The duty, therefore, of a European judge who is under the obligation to administer Hindu Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage."

It may well be that the vagueness and uncertainty as to what really constitutes a valid custom, which is discernible in the Indian decisions, has not been altogether an evil. It has rendered possible, capriciously it may be, but still not altogether ineffectually, the recognition of changes in the customs and outlook of the people of India which might have been rejected had the more rigid rules of English Law been rigorously adhered to. But, from a legal point of view, nothing can be more deplorable than the uncertainty such confusion induces as to the rights of individuals, and even of whole communities.

On the assumption that the present state of the law in England and India has been approximately accurately indicated, the result of this discussion would appear to be:

1 12 Moo. I.A. 397.

I. That the distinction drawn by English lawyers between "" custom" and usage" does not exist in India.

2. That there being in England no such thing as a personal law," in the sense in which that expression is used in India, English rules as to the necessary proof and characteristics of customs and usages, cannot usefully be applied.

3. That the confusion manifested in the English law on the subject, becomes worse confounded when sought to be applied in Indian Courts.

4. That " usage" and custom "being really synonymous terms as applied to the personal law of a Hindu or Mohammedan, their identity should be judicially recognized, and appropriate rules framed for their enforcement, without regard to the distinctions and refinements of English Law.

I

NOTES ON EGYPTIAN LAW.

[Contributed by SIR MALCOLM MCILWRAITH, K.C.M.G., K.C.]

Criminal Law Reform in Egypt.-The April number of L'Egypte Contemporaine (No. 65, April 1922) contains two articles on this subject, one by Mr. J. E. Marshall, a Judge of the Native Court of Appeal, and the other by Mr. J. Wathelet, a Belgian jurist, and one of the Government counsel. Mr. Marshall criticizes severely the Egyptian Penal Code on the somewhat strange ground that "there must be a fault somewhere, or the penal laws would have justified their existence by eradicating crime." No doubt there are many faults in the Egyptian penal laws, as there are in those of most other countries, but have penal laws anywhere succeeded in "eradicating crime"? Would it not, indeed, be difficult to find any country of importance where crime is not, more or less continuously, on the increase? Mr. Marshall's own panaceas are the punishment of flogging, the introduction of the jury system, and the establishment of a Court of Criminal Revision, which is to be organized" in such perfection as may be humanly possible, and in such condition as may suffice for the needs of the future, as well as the present." Few mundane legislators reach such a standard. Flogging, for grave crimes, in lieu of, or in addition to imprisonment has frequently been advocated in Egypt; and with an ignorant callous peasantry, for whom imprisonment holds no terrors and scarcely any hardships, it obviously has much to recommend it. But poignant memories among the people of the great abuses of the "kourbash" (whip), by which Egypt, in pre-Occupation days, was largely governed, have hitherto been too strong to permit of its revival by a legislative measure, in any form whatever. As to the jury system, there would, assuredly, be great advantages in training the fellaheen to take an intelligent and responsible part in the administration of the criminal law. But, up to the present, whenever the intervention of a popular element in criminal trials, in however restricted a degree-as in the case of lay Assessors for the Assize Courts has been proposed by British administrators, such proposals have met with violent and determined opposition from the most enlightened and leading Egyptians themselves, and notably from the Legislative Council, who are, after all, the best judges of the morality and capacity of their own countrymen. It is very doubtful if it will be found that their views have radically altered under the new conditions, which involve the withdrawal of many safeguards.

Finally, as regards the Court of Criminal Revision, this, again, is an old controversy. Mr. Marshall endeavours to support it by the argument that, inasmuch as England considers a Court of Criminal Appeal indispensable, a relatively backward country such as Egypt can hardly maintain that it is unnecessary. The argument is, however, by no means conclusive, for Mr. Marshall omits to take into consideration, or at any rate to mention, that a large part, probably the main part, of the task of the Court of Criminal Appeal in England, viz. all that relates to the decision of points of law, is performed in Egypt, quite efficiently, by the Court of Cassation. The English Court of Criminal Appeal very rarely interferes with findings of fact. Incidentally, the writer of this paper does not help his case, nor strengthen his authority, by the assertion that "in Egypt, every change in the crirainal law" has had, as a result, that "a greater length of time has elapsed between the commission of the crime and its punishment," for the most cursory examination of the criminal statistics for the ten years which succeeded the great change made by the establishment of Assize Courts would prove this statement to be quite remarkably inaccurate and misleading.1 A more practical, if less ambitious, contribution to the discussion of remedies for an admittedly grave state of affairs, is Mr. Wathelet's very interesting paper on the Correctionalization" of crimes. The present position is that, owing to the great increase of crime in Egypt of late years, the trial-lists of Assize Courts are choked with a mass of offences which, though technically "" crimes in Egyptian law (i.e. roughly, felonies, as distinguished from misdemeanours), and, as such, triable by Assize Courts only, are, in the particular circumstances of the case, of relatively minor importance. Such offences would, in France or Belgium, under the system known as "correctionalization," be withdrawn from the Assize Courts and sent to the Correctional Tribunals, which deal with misdemeanours only. It is proposed that a similar system should be adopted in Egypt, and the proposal seems worthy of serious consideration. The danger lies, of course, in the great discretion thus entrusted to committing magistrates, who may fail to discriminate with judgment. But in such matters some risks must be run, and the situation is clearly such that it has become imperative to find an issue.

Land Transfer in Egypt.-The March number of L'Egypte Contemporaine—the admirable organ of the Egyptian Society of Political Economy, Statistics and Legislation-is entirely devoted to the reform of the land laws by the introduction of the system of registration of title, generally known as the "Torrens system," in lieu of the existing system of registration of deeds, without any official guarantee of their accuracy or

1

" The interval between the commission of a crime and the final sentence on the offender was reduced by the new system from an average of 230 days to 71 (see Report for 1905, p. 16). Though it has now unfortunately gone up to 106 days, it is still less than half the time formerly required for the judicial repression of a crime (see Report for the year 1915 by the Judicial Adviser, p. 32).

"

t

NOTES ON EGYPTIAN LAW.

231

validity. This is a matter which, for many years, has closely engaged the attention of the Egyptian Government and its principal legal advisers. It is indeed manifest that a sound, simple and expeditious system of land transfer must be a matter of paramount importance in a community the mass of whose population lives by agriculture, and the aggregate wealth of which resides, almost entirely, in the value of its urban and rural land. Still more is this the case in a community whose agricultural classes are almost entirely uneducated, very quarrelsome and litigious (the cause-lists of the tribunals are literally choked with land claims), and deplorably addicted to the forgery of title-deeds and the fraudulent removal of landmarks. For such a community a system of official registration of title, with a guarantee of its validity, after an administrative investigation, presents obvious and substantial advantages over one in which the registration of deeds implies no proof of title. For these reasons the adoption of "livres fonciers," i.e. the Torrens system, was, so far back as 1904, strongly urged by the Egyptian Government on the Foreign Powers (without whose assent it was powerless to act, so far as foreigners are concerned) and the official reports of the Judicial Adviser at that time (1904-1908) contain lengthy arguments in favour of its adoption. The matter was referred to an International Commission which, in the latter year, reported favourably on the scheme; but, owing mainly to purely political opposition, the Government failed to secure the necessary unanimity among the Powers, the proposals were shelved, and the existing abuses and inconveniences perforce continued to subsist. Then came the war, and all such questions remained dormant. At length, when the great struggle seemed to be nearing its end, the project was taken up once more, in 1917. A commission was appointed to study it afresh, and this body has recently issued a series of six reports, addressed to the Council of Ministers, which recommend action in the direction of the original proposals, though on more tentative and gradual lines. The present position of the question is set forth in two papers, contained in the publication referred to at the commencement of these observations, one by an Italian jurist and ex-judge of the Mixed Tribunals and formerly one of the Government lawyers (Mr. Bernardi), and the other by the Director of the Cadastral Survey in Egypt (Mr. Sheppard). This latter paper constitutes a particularly lucid and exhaustive exposition of the whole problem, and contains practical details of the manner in which the proposed reforms would work, which are of special value and cannot fail to prove of great interest to all concerned with this complicated subject. So far as it is possible to judge from these documents, the present situation does not appear to differ very materially from that with which the Egyptian Government and its advisers had to deal a dozen years agosave that recent events are scarcely likely to facilitate, for some time to come, the introduction of far-reaching innovations of any kind. Now, as then, the main difficulty of establishing any system of guaranteed title is the inadequacy, for this purpose, of the existing Cadastral Survey.