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CHAPTER IV

APPLICATION OF ENGLISH LAW TO NATIVES OF

INDIA ?

ENGLISH law was introduced into India by the charters Intro

duction of under which courts of justice were established for the three

English presidency towns of Madras, Bombay, and Calcutta. The law into

India. charters introduced the English common and statute law in force at the time, so far as it was applicable to Indian circumstances. The precise date at which English law was so introduced has been a matter of controversy. For instance, it has been doubted whether the English statute of 1728, under which Nuncomar was hanged, was in force in Calcutta at the time of his trial, or of the commission of his offence. So also there has been room for argument as to whether particular English statutes, such as the Mortmain Act, are sufficiently applicable to the circumstances of India as to be in force

1 This chapter is based on a paper read before the Society of Comparative Legislation in 1896.

Among the most accessible authorities on the subject of this chapter are Harington's Analysis of the Bengal Regulations, Beaufort's Digest of the Criminal Law of the Presidency of Fort William, the introduction to Morley's Digest Indian Cases, the editions published by the Indian Legislative Department of the Statutes relating to India, of the general Acts of the Governor-General in Council, and of the Provincial Codes, and the Index to the enactments relating to India. The numerous volumes of reports by Select Committees and by the Indian Law Commissioners contain a mine of information which has never been properly worked.

The best books on existing Hindu law are those by Mr. J. D. Mayne and by West (Sir Raymond) and Bühler, written for the Madras and Bombay points of view resp vely. Sir R. K. Wilson has published a useful Digest of Anglo-Mahomedan Law. Reference should also be made to the series of Tagore Law Lectures. Mr. C. L. Tupper and Sir W. H. Rattigan have written on the customary law of the Punjab.

On the general subject dealt with by this chapter see Bryce, Studies in History and Jurisprudence, Essay II.

there'. But Indian legislation, and particularly the enactment of the Indian Penal Code, has set at rest most of these

questions. Charter of George II's charter of 1753, which reconstituted the mayors' 1753.

courts in the three presidency towns of Madras, Bombay, and Calcutta, expressly excepted from their jurisdiction all suits and actions between the Indian natives only, and directed that such suits and actions should be determined among themselves, unless both parties should submit them to the determination of the mayor's court. But, according to Mr. Morley, it does not appear that the native inhabitants of Bombay were ever actually exempted from the jurisdiction of the mayor's court, or that any peculiar laws were adminis

tered to them in that court ?. Warren It was not, however, until the East India Company took Hastings' * Plan of over the active administration of the province of Bengal that 1772.

the question of the law to be applied to natives assumed a seriously practical form. In 1771 the Court of Directors announced their intention of 'standing forth as Diwan'; in other words, of assuming the administration of the revenues of the province, a process which involved the establishment, not merely of revenue officers, but of courts of civil and criminal justice. In the next year Warren Hastings became Governor of Bengal, and one of his first acts was to lay down a plan for the administration of justice in the interior of Bengal. What laws did he find in force ? In criminal cases the Mahomedan Government had established its own criminal law, to the exclusion of that of the Hindus. But in civil cases Mahomedans and Hindus respectively were governed by their personal laws, which claimed divine authority, and were enforced by a religious as well as by a civil sanction.

1

The question is discussed at length in Mr. Whitley Stokes's preface to the first edition of The Older Statutes relating to India, reprinted in his Collection of Statutes relating to India (Calcutta, 1881). See also the Mayor of Lyons v. East India Company, 3 State Trials, N. S., 647, and the other authorities cited in note (a) to s. 108 of the Digest.

? Morley's Digest, Introduction, p. clxix.

The object of the East India Company was to make as Gradual

modificalittle alteration as possible in the existing state of things. tion of Accordingly the country courts were required, in the adminis- criminal tration of criminal justice, to be guided by Mahomedan law. But it soon appeared that there were portions of the Mahomedan law which no civilized Government could administer. It was impossible to enforce the law of retaliation for murder, of stoning for sexual immorality, or of mutilation for theft, or to recognize the incapacity of unbelievers to give evidence in cases affecting Mahomedans. The most glaring defects of Mahomedan law were removed by regulations, and an interesting picture of the criminal law, so patched and modified, as it was administered in the country courts of Bengal about the year 1821, is given in Mr. Harington's Analysis of the Bengal Regulations. The process of repealing, amending, and supplementing the Mahomedan criminal law by enactments based on English principles went on until the Mahomedan law was wholly superseded by the Indian Penal Code in 1860 2. A general code of criminal procedure followed in 1861, and the process of superseding native by European law, so far as the administration of criminal justice is concerned, was completed by the enactment of the Evidence Act of 1872.

With respect to civil rights, Warren Hastings' plan of 1772 Observdirected, by its twenty-third rule, that ' in all suits regarding native

rules as to marriage, inheritance, and caste, and other 3 religious usages

family and institutions, the laws of the Koran with respect to law. Mahomedans, and those of the Shaster with respect to Gentus (Hindus) shall be invariably adhered to.' 'Moulavies or Brahmins 'were directed to attend the courts for the purpose

See also Sir R. K. Wilson's Introduction to Anglo-Mahomedan Law, p. 113; and for a description of the criminal law of India as it existed in 1852, see the evidence given in that year by Mr. F. Millett before the Select Committee of the House of Lords on the East India Company's Charter.

? It had been previously superseded, in 1827, by a written code in the Bombay Presidency (Morley, Digest, Introduction, pp. cliv, clxxvi).

3 The use of 'other' implies that marriage and inheritance were treated as religious institutions.

ance of

of expounding the law and giving assistance in framing the decrees

The famous Regulating Act' of 1773 empowered the Governor-General and Council of Bengal to make rules, ordinances, and regulations for the good order and civil government of the settlement at Fort William (Calcutta) and other factories and places subordinate thereto, and in 1780 the Government of Bengal exercised this power by issuing a code of regulations for the administration of justice, which contained a section (27) embodying the provisions and exact words of Warren Hastings' regulation. A revised code of the following year re-enacted this section with the addition of the word 'succession.'

The English Act of 1781 (21 Geo. III, c. 70), which was passed for amending and explaining the Regulating Act, recognized and confirmed the principles laid down by Warren Hastings.

Whilst empowering the Supreme Court at Calcutta to hear and determine all manner of actions and suits against all and singular the inhabitants of Calcutta, it provided (s. 17) that their inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans by the laws and usages of the Mahomedans, and in the case of Gentus (Hindus) by the laws and usages of Gentus; and where one only of the parties shall be a Mahomedan or Gentu, by the laws and usages of the defendant.' It went on to enact (s. 18) that ' in order that regard should be had to the civil and religious usages of the said natives, the rights and authorities of fathers of families and masters of families, according as the same might have been exercised by the Gentu or Mahomedan law, shall be preserved to them respectively within their said families ; nor shall any acts done in consequence of the rule and law of caste respecting the members of the said families only be held and adjudged a crime,

This direction was repealed by Act XI of 1864.

although the same may not be held justifiable by the laws of England. Enactments to the same effect have been introduced into numerous subsequent English and Indian enactments 1.

These provisions of the Act of 1781, and the corresponding provisions of the Act of 1797 relating to the recorders' courts of Madras and Bombay (afterwards superseded by the supreme courts, and now by the high courts), are still in force, but are not included in the list of English statutory provisions which, under the Indian Councils Act of 1861 (24 & 25 Vict. c. 67), Indian legislatures are precluded from altering. Consequently they are alterable, and have in fact been materially affected, by Indian legislation. For instance, the native law of contract has been almost entirely superseded by the Contract Act of 1872 and other Acts. And the respect enjoined for the rights of fathers and masters of families and for the rules of caste did not prevent the Indian legislature from abolishing domestic slavery or suttee. A Bengal regulation of 1832 (VII of 1832), whilst re-enact- The Lex

Loci Act. ing the rules of Warren Hastings which had been embodied in previous regulations, qualified their application by a provision which attracted little attention at the time, but afterwards became the subject of considerable discussion ?. It declared that these rules are intended and shall be held to apply to such persons only as shall be bona fide professors of those religions at the time of the application of the law to the case, and were designed for the protection of the rights of such persons, not for the deprivation of the rights of others.

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1

See e. g. 37 Geo. III, c. 142 (relating to the recorders' courts at Madras and Bombay), ss. 12, 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, 8. 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); and clauses 19 and 20 of the Charter of 1865 of the Bengal High Courts, the corresponding clauses of the Madras and Bombay Charters, and clauses 13 and 14 of the Charter of the North-Western Provinces High Court.

2 See Morley's Digest, Introduction, pp. clxxiii, clxxxjii.

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