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This section reproduces the enactments marginally noted so far as they appear to represent existing law. The qualifying words at the beginning of the clause represent existing law, the enactments marginally noted being, under 24 & 25 Vict. c. 67, s. 22, capable of being altered by Indian legislation.

In Warren Hastings' celebrated plan for the administration of justice, proposed and adopted in 1772, when the East India Company first took upon themselves the entire management of their territories in India, the twenty-third rule specially reserved their own laws to the natives, and provided that ' Moulavies or Brahmins' should respectively attend the courts to expound the law and assist in passing the decree. Subsequently, when the governor-general and council were invested by Parliament with the power of making regulations, the provisions and exact words of Warren Hastings' twenty-third rule were introduced into the first regulation enacted by the Bengal Government for the administration of justice. This regulation was passed on April 17, 1780.

By section 27 of this regulation it was enacted that in all suits regarding inheritance, marriage, and caste, and other religious usages or institutions, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to.' This section was re-enacted in the following year, in the revised Code, with the addition of the word 'succession.' Section 17 of the Act of 1781 constitutes the first express recognition of Warren Hastings' rule in the English Statute Law. Enactments to the same effect have since been introduced into numerous subsequent English statutes and Indian Acts,-see, for example, 37 Geo. III, c. 142, s. 13; Bombay Regulation IV of 1827, s. 26; Act IV of 1872, s. 5 (Punjab) as amended by Act XII of 1878; Act III of 1873, s. 16 (Madras); Act XX of 1875, s. 5 (Central Provinces); Act XVIII of 1876, s. 3 (Oudh); Act XII of 1887, s. 37 (Bengal, North-Western Provinces, and Assam); Act XI of 1889, s. 4 (Lower Burma). See also clauses 19 and 20 of the Charter of 1865 of the Bengal High Court, the corresponding clauses of the Madras and Bombay Charters, and clauses 13 and 14 of the Charter of the North-Western Provinces High Court.

The effect of 21 Geo. III, c. 70, s. 17, is explained in Sarkies v. Prosonno Mayi Dasi, I. L. R. 6 Cal. 794 (application for dower by the widow of an Armenian), and Jagat Mohini Dasi v. Dwarkanath Beisakh, I. L. R. 8 Cal. 582 (where it was held that there was no question of succession or inheritance).

The Indian Contract Act (IV of 1872) contains a saving (s. 2) for any statute, Act, or regulation not thereby expressly repealed. This saving has been held to include the enactment reproduced by this section, under which matters of contract are, within the presidency towns, but not elsewhere, directed to be regulated by the personal law of the party, and thus, paradoxically enough, certain rules of Hindu law have maintained their footing in the last part of British India where they might have been expected to survive. See Nobin Chunder

Bannerjee v. Romesh Chunder Ghose, I. L. R. 14 Cal. 781, where it was held that the custom of damdupat (Law Quarterly Review for 1896, p. 45) was still in force in Calcutta. If, however, any native law or custom is already inconsistent with the terms of the Contract Act, it would be held to be repealed. See Madhub Chunder Poranamah v. Rajcoomar Doss, 14 Beng. Law Rep. 76, p. 4.

The leading case on the extent to which English law has been introduced into India is the Mayor of Lyons v. East India Company (1836), reported 1 Moo. P. C. 176, and also, with useful explanatory and illustrative matter, 3 State Trials, N. S. 647. The Judicial Committee in this case laid down the principle that the general introduction of English law into a conquered or ceded country does not draw with it such parts as are manifestly inapplicable to the circumstances of the settlement, and decided in particular that the English law incapacitating aliens from holding real property to their own use and transmitting it by devise or descent had never been expressly introduced into Bengal, and that the Statute of Mortmain, 9 Geo. II, c. 36, did not apply to India. See also the famous judgement of Lord Stowell in The Indian Chief, (1800) 3 Rob. Adm. 12 at pp. 28, 29 (quoted below, p. 354); Freeman v. Fairlie, (1828) 1 Moo. Ind. App. 304, 2 State Trials, N. S. 1000; Advocate-General of Bengal v. Ranee Surnomoye Dossee, (1863) 2 Moo. P. C., N. S. 22 (law as to forfeiture for suicide); and Ram Coomar Coondoo v. Chunder Canto Mookerjee, (1876) L. R. 2 App. Cas. 186 (law as to maintenance and champerty). And as to the effect of successive charters in introducing English law into India, see above, p. 34; Morley's Digest, Introduction, pp. xi, xxiii; and Mr. Whitley Stokes' preface to the first edition of the older statutes relating to India (reprinted in the edition of 1881).

Advocate-General.

109.-(1) His Majesty may, by warrant under his Royal AppointSign Manual, appoint an advocate-general for each of the provinces of Bengal, Madras, and Bombay (a).

ment and powers of advocategeneral.

[53 Geo.

(2) The advocate-general for each of those provinces may III, c.155, take on behalf of His Majesty such proceedings as may be 8. III. taken by His Majesty's Attorney-General in England (b).

(a) The advocate-general for Bengal is a law officer of the Government of India.

(b) See Secretary of State for India v. Bombay Landing and Shipping Company, 5 Bom. H. C. R. O. C. J., 42, and Act X of 1875, ss. 144, 146.

21 & 22
Vict. c.
106, s. 29.]

Jurisdiction

PART X.

ECCLESIASTICAL ESTABLISHMENT.

110.-(1) The bishops of Calcutta, Madras, and Bombay (a)

of Indian have and may exercise such ecclesiastical jurisdiction and bishops. episcopal functions as His Majesty may, by letters patent, [53 Geo. ÏÏÏ, c. 155, direct for the administering holy ceremonies, and for the 3 & 4 Will. superintendence and good government of the ministers of the IV, c. 85, Church of England within their respective dioceses.

SS. 51, 52.

ss. 92, 93, 94.]

s. 13.]

(2) The Bishop of Calcutta is the metropolitan bishop in India, subject nevertheless to the general superintendence and revision of the Archbishop of Canterbury.

(3) Each of the bishops of Madras and Bombay is subject to the Bishop of Calcutta as such metropolitan, and must at the time of his appointment to his bishopric or at the time of his consecration as bishop take an oath of obedience to the Bishop of Calcutta in such manner as His Majesty by letters patent may be pleased to direct (b).

(4) His Majesty may, by letters patent, vary the limits of the dioceses of Calcutta, Madras, and Bombay.

[37 & 38 (5) Nothing in this Digest or in any such letters patent Vict. c. 77, as aforesaid prevents any person who is or has been bishop of any diocese in India from performing episcopal functions, not extending to the exercise of jurisdiction, in any diocese or reputed diocese at the request of the bishop thereof.

(a) The bishops of Calcutta, Madras, and Bombay are the only Indian bishops who are referred to in the Acts relating to India. Bishops have also been appointed, under letters patent or otherwise, for Chota Nagpore, Lahore, Lucknow, Rangoon, Tinnevelly, and Travancore.

(b) As to these oaths, see 28 & 29 Vict. c. 122, and 31 & 32 Vict. c. 72, s. 14. Under 37 & 38 Vict. c. 77, s. 12, the archbishops of Canterbury or York may, in consecrating any person to the office of bishop for the purpose of exercising episcopal functions elsewhere than in England, dispense with the oath of due obedience to the archbishop. 111. (1) The Bishop of Calcutta may admit into the holy admit to orders of deacon or priest any person whom he, on examinaholy tion, deems duly qualified specially for the purpose of taking

Power to

orders.

on himself the cure of souls, or officiating in any spiritual [4 Geo. IV, c. 71, s. 6.] capacity within the limits of the diocese of Calcutta, and residing therein.

(2) The deposit with the bishop of a declaration of such a purpose, and a written engagement to perform the same, signed by the person seeking ordination, is a sufficient title with a view to his ordination.

(3) It must be distinctly stated in the letters of ordination of every person so admitted to holy orders that he has been ordained for the cure of souls within the limits of the diocese of Calcutta only.

(4) Unless a person so admitted is a British subject, he is not required to take the oaths and make the subscriptions which persons ordained in England are required to take and make (a).

(a) The enactment reproduced by this section appears to apply only to the Bishop of Calcutta, and is probably unnecessary, as being covered by the general language of the letters patent enabling the Bishop of Calcutta to perform all the functions peculiar and appropriate to the office of bishop within the diocese of Calcutta.

tion of

person resident in India ap

bishopric.

112. If any person under the degree of bishop is appointed Consecrato the bishopric of Calcutta, Madras, or Bombay, being at the time of his appointment resident in India, the Archbishop of Canterbury, if so required to do by His Majesty by letters pointed to patent, may issue a commission under his hand and seal, [3 & 4 Will. IV, directed to the two remaining bishops, authorizing and charging them to perform all requisite ceremonies for the 99.] consecration of the person so to be appointed.

c. 85, s.

and allow

113.—(1) There may be paid to the bishops and arch- Salaries deacons of Calcutta, Madras, and Bombay, out of the revenues ances of of India, such salaries (a), commencing from the time at which is and archthey take upon themselves the execution of their office, and deacons. [53 Geo. such [pensions (b) and] allowances as may be fixed by the ÏÏÏ, c. 155, Secretary of State in Council, but any power of alteration 4 Geo. IV, under this enactment shall not be exercised so as to impose c. 71, ss. any additional charge on the revenues of India.

ss. 49, 50.

3, 4, 5. 3 & 4

Will. IV, c. 85, ss.

90, 96, 97,

98, 100,

IOI.

5&6

Vict. c. 119, ss. 3, 4.

43 Vict. c.

3, SS. 2, 3.]

Furlough rules.

(2) There are to be paid out of the revenues of India the expenses of visitations of the said bishops, and of the providing a suitable house for the residence of the Bishop of Calcutta (c), but no greater sum may be issued on account of those expenses than is allowed by the Secretary of State in Council.

(a) As to the existing salaries, see note on s. 80.

(b) This statement of the law is not strictly accurate. Pensions, as distinguished from allowances, appear to be still paid under 4 Geo. IV, c. 71, s. 3, 6 Geo. IV, c. 85, s. 15, and 3 & 4 Will. IV, c. 85, s. 96, and not under 43 Vict. c. 3, s. 3. But it seems hardly worth while to reproduce here the specific provisions about bishops' pensions.

(c) The statutory obligation to provide a house for the Bishop of Calcutta is exhausted, but it may have been construed as including an obligation to maintain his house.

114. His Majesty may make such rules as to the leave of absence of the several Indian bishops on furlough or medical [34 & 35 Vict.c.62.] certificate as seem to His Majesty expedient.

Establishment of chaplains

land.
[3 & 4
Will. IV.

c. 85, s.
102.]

115. (1) Two of the chaplains appointed in each of the presidencies of Bengal, Madras, and Bombay must always be of Church ministers of the Church of Scotland, and are entitled to have of Scotfrom the revenues of India such salary as is from time to time allotted to the military chaplains in the several presidencies. (2) The ministers so appointed chaplains must be ordained and inducted by the presbytery of Edinburgh according to the forms and solemnities used in the Church of Scotland, and are subject to the spiritual and ecclesiastical jurisdiction in all things of the presbytery of Edinburgh, whose judgements are subject to dissent, protest, and appeal to the Provincial Synod of Lothian and Tweeddale and to the General Assembly of the Church of Scotland.

to Chris

tians.
[3 & 4
Will. IV,

Saving as 116. Nothing in this Digest prevents the Governor-General to grants in Council from granting, with the sanction of the Secretary of State in Council, to any sect, persuasion, or community of Christians, not being of the Church of England or Church of Scotland, such sums of money as may be expedient for the purpose of instruction or for the maintenance of places of worship.

c. 85, s. 102.]

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