(s. 1) not to affect any local usage relating to any instrument in an Oriental language. It therefore preserves the customary rules as to the construction and effect of 'hundis,' or native bills of exchange and promissory notes, except so far as those rules are excluded by the agreement of the parties 1. of Pro The Transfer of Property Act, 1882, which lays down Transfer rules with respect to the sale, gift, exchange, mortgage, and perty Act. leasing of land, and on other points supplements the Contract Act, does not apply to the Punjab or to Burma (except the town of Rangoon); and, within the parts of India to which it extends, it reserves, or keeps in operation, native rules and customs on certain important subjects. For instance, nothing in the Act is to affect the provisions of any enactment not thereby expressly repealed, e. g. the Indian Acts which expressly save local usages in the Punjab and elsewhere. And nothing in the second chapter, which relates to the transfer of property by the act of parties, is to affect any rule of Hindu, Mahomedan, or Buddhist law (s. 2). The provisions as to mortgages recognize and regulate forms of security in accordance with native as well as English usage. Local usages with respect to apportionment of rents and other periodical payments (s. 36), mortgages (s. 98), and leases (ss. 106, 108), are expressly saved. And finally, there is a general declaration (s. 117) that none of the provisions of the chapter relating to leases are to apply to leases for agricultural purposes, except so far as they may be applied thereto by the local Government, with the sanction of the Government of India. Thus the application of these provisions is confined within very narrow limits. The law relating to the tenure of agricultural land is mostly regulated by special Acts, such as the Bengal Tenancy Act (VIII of 1885), and the similar Acts for other provinces. The Indian Trusts Act, 1882 (II of 1882), which codifies Trusts Act. the law of trusts, does not apply to the province of Bengal 1 1It is said, however, that the Indian banks refuse to discount hundis unless the parties agree to be bound by the Act. Easements Act. Guardian Law of torts. Subjects to which or to the Presidency of Bombay. And nothing in it is to affect the rules of Mahomedan law as to wakf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or to apply to public or private religious or charitable endowments (s. 1). The Indian Easements Act, 1882 (V of 1882), which is in force in most parts of India outside Bengal 1, also embodies principles of English law, but is not to derogate from certain Government and customary rights (s. 1). The Guardian and Wards Acts, 1890 (VIII of 1890), which declares the law with respect to the appointment, duties, rights, and liabilities of guardians of minors 2, provides (s. 6) that, in the case of a minor who is not a European British subject, nothing in the Act is to be construed as taking away or derogating from any power to appoint a guardian which is valid by the law to which the minor is subject. And in the appointment of a guardian the court is, subject to certain directions, to be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor (s. 17). The law of torts or civil wrongs, as administered by the courts of British India, whether to Europeans or to natives, is practically English law. The draft of a bill to codify it was prepared some years ago, but the measure has never been introduced. If we survey the whole field of law, as administered by the English British Indian courts, and examine the extent to which it and native consists of English and of native law respectively, we shall spectively find that Warren Hastings' famous rule, though not binding apply. law re on the Indian legislatures, still indicates the class of subjects with which the Indian legislatures have been chary of inter1 Its operation was extended by Act VIII of 1891. 2 The age of majority for persons domiciled in British India is by Act IX of 1875 (as amended by s. 52 of Act VIII of 1890) fixed at eighteen, except where before the attainment of that age a guardian has been appointed for the minor by the court, or his property has been placed under the superintendence of the Court of Wards, in which case the minority lasts until twenty-one. fering, and which they have been disposed to leave to the domain of native law and usage. The criminal law and the law of civil and criminal procedure are based wholly on English principles. So also, subject to some few exceptions 1, are the law of contract and the law of torts, or civil wrongs. But within the domain of family law, including the greater part of the law of succession and inheritance, natives still retain their personal law, either modified or formulated, to some extent, by Anglo-Indian legislation. Hindus retain their law of marriage, of adoption, of the joint family, of partition, of succession. Mahomedans retain their law of marriage, of testamentary and intestate succession, and of wakf or quasi-religious trusts. The important branch of law relating to the tenure of land, as embodied in the Rent and Revenue Acts and regulations of the different provinces, though based on Indian customs, exhibits a struggle and compromise between English and Indian principles. It will have been seen that the East India Company began Attempt to govern by attempting to govern natives by native law, Englishmen natives by by English law. This is the natural system to apply in native law, Englisha conquered country, or in a vassal State-that is to say, in men by English a State where complete sovereignty has not been assumed by law. the dominant power. It is the system which involves the least disturbance. It is the system which was applied by the barbarian conquerors of the provinces of the Roman Empire, and which gave rise to the system of personal law that plays so large a part in the long history of the decay of that empire. It appears to be the system now in force in Tunis, where the French have practically established an exclusive protectorate, and where French law appears to be administered by French courts to Frenchmen and European foreigners, and Mahomedan law by Mahomedan courts to 1e. g. the Mahomedan rules as to the right of pre-emption, which are expressly recognized by the Punjab Laws Act, 1872 (as amended by Act XII of 1878), and by the Oudh Laws Act, 1876. Causes of its failure. the natives of the country. It is the system which is applied, with important local variations, in the British protectorates established in different parts of the world over uncivilized or semi-civilized countries. The variations are important, because the extent to which native laws and usages can be recognized and enforced depends materially on the degree of civilization to which the vassal State has attained. The system broke down in India from various causes. In the first place there was the difficulty of ascertaining the native law. Warren Hastings did his best to remove this difficulty by procuring the translation or compilation of standard textbooks, such as the Hedaya, the Sirajiyah, and the Sharifyah for Mahomedan law, the Code of Manu, the Mitakshara, and the Dayabhaga for Hindu law, and by enlisting the services of native law officers as assessors of the Company's courts. His regulations were based on the assumption that the natives of India could be roughly divided into Mahomedans and Gentus, and that there was a body of law applicable to these two classes respectively. But this simple and easy classification, as we now know, by no means corresponds to the facts. There are large classes who are neither Mahomedans nor Hindus. There are various schools of Mahomedan law. There are Mahomedans whose rules of inheritance are based, not on the Koran, but on Hindu or other non-Mahomedan usages. Hinduism is a term of the most indefinite import. Different text-books are recognized as authoritative in different parts of India and among different classes of Hindus. Even where they are so recognized, they often represent what the compiler thought the law ought to be rather than what it actually is or ever was. Local, tribal, caste, and family usages play a far larger part than had originally been supposed, and this important fact has been recognized in later Indian legislation. Then, the native law, even where it could be ascertained, was defective. There were large and important branches of law, such as the law of contract, for which it supplied insufficient guidance. Its defects had to be supplied by English judges and magistrates from their remembrance, often imperfect, of principles of English law, which were applied under the name of justice, equity, and good conscience, And lastly, native law often embodied rules repugnant to the traditions and morality of the ruling race. An English magistrate could not enforce, an English Government could not recognize, the unregenerate criminal law of Indian Mahomedanism. Thus native law was eaten into at every point by English case law, and by regulations of the Indian legislatures. Hence the chaos described in the passage quoted above from the report of the Calcutta judges. codifica This chaos led up to the period of codification, which was Reason for ushered in by Macaulay's Commission of 1833, and which, tion. after the lapse of many years, bore fruit in the Anglo-Indian codes. In India, as elsewhere, codification has been brought about by the pressure of practical needs. On the continent of Europe the growth of the spirit of nationality, and the consequent strengthening of the central Government and fusion of petty sovereignties or half-sovereignties, has brought into strong relief the practical inconvenience arising from the co-existence of different systems of law in a single State. Hence the French codes, the Italian codes, and the German codes. If codification has lagged behind in England, it has been largely, perhaps mainly, because England acquired a strong central Government, and attained to practical unity of law, centuries before any continental State 1. Indian In India it became necessary to draw up for the guidance Merits of of untrained judges and magistrates a set of rules which Codes. they could easily understand, and which were adapted to the circumstances of the country. There has been a tendency, on the one hand, to overpraise the formal merits of the 1 See Chap. viii of my Legislative Methods and Forms. |