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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 or 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?, 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 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.

? 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.

2

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. It will have been observed that Warren Hastings' rule Law ap

plicable to and the enactments based upon it apply only to Hindus and

persons Mahomedans. There are, of course, many natives of India

neither

Hindus who are neither Hindus nor Mahomedans, such as the Portu- nor,

Mahoguese 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. When Mountstuart Elphinstone legislated for the terri- Rules as

to local tories then recently annexed to the Bombay Presidency, usage in Anglo-Indian administrators had become aware that the Bombay

and the 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 lawl. 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.

to the Punjab, which is pre-eminently the land of customary law, and where neither the sacred text-books of the Hindus nor those of the Mahomedans supply a safe guide to the usages actually observed. In this province the Punjab Laws Act 1 expressly directs the courts to observe any custom applicable to the parties concerned, which is not contrary to justice, equity, or good conscience, and has not been altered or

abolished by law, or declared by competent authority to be void. Native Native Christians have for the most part placed themselves, Christians

or allowed thems lves to be placed, under European law. and Arme

As long ago as 1836 the Armenians of Bengal presented nians.

a petition to the Governor-General, in which, after setting forth the destitution of their legal condition, they added, 'As Armenians have ceased to be a nation since the

year

of our Lord 1375, and no trace of their own law is now to be discovered?, your petitioners humbly submit that the law of England is the only one that can, upon any sound principle,

be allowed to prevail 3.' Parsees. The Parsees have obtained the enactment of an intestate

succession law of their own (XXI of 1865). Justice, In matters for which neither the authority of Hindu or equity, and good

Mahomedan text-books or advisers nor the regulations and

other enactments of the Government supplied sufficient science.

guidance, the judges of the civil courts were usually directed to act in accordance with justice, equity, and good conscience.' An Englishman would naturally interpret these words as meaning such rules and principles of English law as he happened to know and considered applicable to the case; and thus, under the influence of English judges, native law and usage were, without express legislation, largely

supplemented, modified, and superseded by English law. State of The inquiries and reports which preceded the Charter Act passing of of 1853 directed attention to the unsatisfactory condition

* IV of 1872, s. 5, as altered by XII of 1878, s. 1. ? This, of course, is merely the statement of the Bengal Armenians of 1836. See Dareste, Études d'Histoire du Droit, pp. 119 sqq.

3 Morley's Digest, Introduction, p. clxxxvii.

con

law at

of the law in British India at that time, and, in particular, Charter

Act of to the frequent difficulty of ascertaining what the law was

1833. and where it was to be found. The judges of the Calcutta Supreme Court, after describing generally the state of the law, went on to say: ‘In this state of circumstances no one can pronounce an opinion or form a judgement, however sound, upon any disputed right of persons respecting which doubt and confusion may not be raised by those who may choose to call it in question ; for very few of the public or persons in office at home, not even the law officers, can be expected to have so comprehensive and clear a view of the Indian system as to know readily and familiarly the bearings of each part of it on the rest. There are English Acts of Parliament specially provided for India, and others of which it is doubtful whether they apply to India wholly, or in part, or not at all. There is the English Common Law and Constitution, of which the application is in many respects still more obscure and perplexed; Mahomedan Law and Usage ; Hindu Law, Usage, and Scripture; Charters and Letters Patent of the Crown ; regulations of the Government, some made declaredly under Acts of Parliament particularly authorizing them, and others which are founded, as some say, on the general power of Government entrusted to the Company by Parliament, and as others assert on their rights as successors of the old Native Governments; some regulations require registry in the Supreme Court, others do not ; some have effect generally throughout India, others are peculiar to one presidency or one town. There are commissions of the Governments, and circular orders from the Nizamut Adawlut, and from the Dewanny Adawlut; treaties of the Crown; treaties of the Indian Government; besides inferences drawn at pleasure from the application of the “ droit public,and the law of nations of Europe, to a state of circumstances which will justify almost any construction of it, or qualification of its force 1.'

1 See Hansard (1833), xviii. 729.

First It was for the purpose of remedying this unsatisfactory
Indian
Law Com- state of things that an Indian Law Commission was appointed
mission.

under the Charter Act of 1833, with Macaulay at its head.
The commission sat for many years, and produced several
volumes of reports, which in some cases supplied the basis

of Indian legislation. But it was not until 1860 that the Penal Indian Penal Code, its most important achievement, was placed Code,

on the Indian Statute Book. The first edition of the Code Codes of Civil and of Civil Procedure had been passed in 1859, and the first edition Criminal Proce- of the Code of Criminal Procedure was passed in 1861. The dure, &c.

law of Procedure has been supplemented by the Evidence Act (I of 1872) and the Limitation Act (XV of 1877), and by the Specific Relief Act (I of 1877), which stands on the borderland of substantive and adjective law. These Acts apply to all persons in British India, whether European or native, and wholly displace and supersede native law on the subjects to which they relate.

But when the time came for codifying the substantive civil law, it was found necessary to steer clear of, and make exceptions with respect to, important branches of

native law. Indian The Indian Succession Act, 1865 (X of 1865), which is Succession Act.

based on English law, is declared by s. 2 to constitute, subject to certain exceptions, the law of British India applicable to all cases of intestate or testamentary succession. But the exceptions are so wide as to exclude almost all natives of India. The provisions of the Act are declared (s. 331) not to apply to the property of any Hindu, Mahomedan, or Buddhist. And the Government of India is empowered (s. 332) to exempt by executive order from the operation of the whole or any part of the Act the members of any race, sect, or tribe in British India, to whom it may be considered impossible or inexpedient to apply those provisions. Two classes of persons have availed themselves of this exemption -Native Christians in Coorg, and Jews in Aden. The former

1 These are now represented by Act XIV of 1882 and Act V of 1898.

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