modifica

law.

The object of the East India Company was to make as Gradual little 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 1. 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the Mahomedan criminal law by enactments based on English principles went on until the Mahomedan law was wholly superseded by the Indian Penal Code in 18602. 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.

3

ance of

rules as to

With respect to civil rights, Warren Hastings' plan of 1772 Observdirected, by its twenty-third rule, that in all suits regarding native marriage, inheritance, and caste, and other 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 "It had been previously superseded, in 1827, by a written code in the Bombay Presidency (Morley, Digest, Introduction, pp.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.

of expounding the law and giving assistance in framing the decrees1.

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,

1 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 ing the rules of Warren Hastings which had been embodied Loci Act. in previous regulations, qualified their application by a provision which attracted little attention at the time, but afterwards became the subject of considerable discussion 2. 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.

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, 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); 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, clxxxiii.

Whenever, therefore, in any civil suit, the parties to such suits may be of different persuasions, where one party shall be of the Hindu and the other of the Mahomedan persuasion, or where one or more of the parties to such suit shall not be either of the Mahomedan or Hindu persuasion, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled. In all such cases the decision shall be governed by the principles of justice, equity, and good conscience; it being clearly understood, however, that this provision shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by those principles.'

In the year 1850 the Government of India passed a law (XXI of 1850) of which the object was to extend the principle of this regulation throughout the territories subject to the government of the East India Company. It declared that So much of any law or usage now in force within the territories subject to the government of the East India Company as inflicts on any person forfeiture of rights or1 property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be enforced as law in the courts of the East India Company, and in the courts established by Royal charter within the said territories.'

This Act, which was known at the time of its passing as the Lex Loci Act 2, and is still in force, excited considerable opposition among orthodox Hindus as unduly favouring converts, and has been criticized from the Hindu point of

1

1 An attempt has been made to argue that this phrase was an accidental misprint for rights of property.' But there seems no foundation for this suggestion.

2 This title is a misnomer. It was properly applied to other provisions which were subsequently dropped. See the evidence of Mr. Cameron before the Select Committee of the House of Lords in 1852.

view with respect to its operation on the guardianship of children in a case where one of two parents had been converted from Hinduism to Mahomedanism.

neither

Maho

It will have been observed that Warren Hastings' rule Law applicable to and the enactments based upon it apply only to Hindus and persons Mahomedans. There are, of course, many natives of India Hindus who are neither Hindus nor Mahomedans, such as the Portu- nor guese and Armenian Christians, the Parsees, the Sikhs, the medans. Jains, the Buddhists of Burma and elsewhere, and the Jews. The tendency of the courts and of the legislatures has been to apply to these classes the spirit of Warren Hastings' rule and to leave them in the enjoyment of family law, except so far as they have shown a disposition to place themselves under English law.

to local

and the

When Mountstuart Elphinstone legislated for the terri- Rules as tories then recently annexed to the Bombay Presidency, usage in Anglo-Indian administrators had become aware that the Bombay sacred or semi-sacred text-books were not such trustworthy Punjab. guides as they had been supposed to be in the time of Warren Hastings, and that local or personal usages played a much more important part than had previously been attributed to them. Accordingly, the Bombay regulation deviated from the Bengal model by giving precedence to local usage over the written Mahomedan or Hindu law1. Regulation IV of 1827 (s. 26), which is still in force in the Bombay Presidency, directed that The law to be observed in the trial of suits shall be Acts of Parliament and regulations of Government applicable to the case; in the absence of such Acts and regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant, and, in the absence of specific law and usage, justice, equity, and good conscience alone.' The same principle has since been applied

1 It is also important to observe that the Mahomedan criminal law had not been introduced into the territories under Bombay to anything like the same extent as into Bengal. See on this subject the Judicial Letters from Bombay of July 29, 1818, pars. 186 seq., printed in the Reports to Parliament on East India Affairs for the year 1819.