How far codifica tion applicable to native law. Indian codes, and on the other to underrate their practical utility as instruments of government. Their workmanship, judged by European standards, is often rough, but they are on the whole well adapted to the conditions which they were intended to meet. An attempt has been made to indicate in this chapter the extent to which they have supplanted or modified native law and custom. It has often been suggested that the process of codification should be deliberately extended to native law, and that an attempt should be made, by means of codes, to define and simplify the leading rules of Hindu and Mahomedan law, without altering their substance. Sir Roland Wilson, in particular, has pleaded for the codification of Anglo-Mahomedan law. There is, however, reason to believe that he has much underrated the difficulties of such a task. Those difficulties arise, not merely from the tendency of codification to stereotype rules which, under the silent influence of social and political forces, are in process of change, but from the natural sensitiveness of Hindus and Mahomedans about legislative interference with matters closely touching their religious usages and observances, and from the impossibility in many cases of formulating rules in any shape which will meet with general acceptance. It is easy enough to find an enlightened Hindu or Mahomedan, like the late Sir Syed Ahmed Khan, who will testify to the general desire of the natives to have their laws codified. The difficulty begins when a particular code is presented in a concrete form. Even in the case of such a small community as the Khojas, who have contrived to combine adhesion to the Mahomedan creed with retention of certain Hindu customs, it has, up to this time, been found impossible to frame a set of rules of inheritance on which the leaders of the sect will agree. And any code not based on general agreement would either cause dangerous discontent or remain a dead letter. The misconceptions which arose about the Guardians and Wards Act, the authors of which expressly disavowed any intention of altering native law, illustrate the sensitiveness which prevails about such matters. text And what, after all, is a code? It is a text-book enacted Codes and by the legislature. Several of the Anglo-Indian codes extend books. only to particular provinces of British India. But, as clear and accurate statements of the law, they possess much authority in the provinces to which they have not been formally extended. Indeed, it was Sir Henry Maine's view that the proper mode of codifying for India was to apply a code in the first instance to a particular province, where its enactment would meet with no opposition, and gradually extend its operation after the country had become familiarized with its contents, and accepted it as a satisfactory statement of the law. When this stage had been reached, what had been used as a text-book might be converted into a law. Now, the author of a text-book enjoys many advantages over the legislators who enact a code. He can guard himself by expressions such as 'it is doubtful whether' and 'there is authority for holding.' And he can correct any error or omission without going to the legislature. If a digest such as Sir Roland Wilson's obtains general acceptance with the courts which have to administer Anglo-Mahomedan law, it will supply an excellent foundation for a future code of that law. But the time for framing such a code has not yet arrived. CHAPTER V Territorial character of Parlia mentary legislation. Principles extra BRITISH JURISDICTION IN NATIVE STATES It seems desirable to consider, somewhat more fully than has been possible within the compass of the foregoing chapters, the powers of the Indian legislative, executive, and judicial authorities with respect to persons and things outside the territorial limits of British India, particularly in the territories of the Native States of India. For this purpose it may be convenient to examine, in the first instance, the principles applying to extra-territorial legislation in England, and then to consider what modifications those principles require in their application to India. This is the more important because the Indian Act regulating the exercise of extra-territorial jurisdiction was to a great extent copied from the English Act which had been passed for similar purposes. Parliamentary legislation is primarily territorial. An Act of Parliament prima facie applies to all persons and things within the United Kingdom, and not to any persons or things outside he United Kingdom 1. In exercising its power to legislate for any part of the King's dominions Parliament is guided both by constitutional and by practical considerations. It does not legislate for a colony having responsible government, except on matters which are clearly Imperial in their nature, or are beyond the powers of the colonial legislature. And, apart from constitutional considerations, it is reluctant to deal with matters which are within the competence of a local legislature. In dealing with persons and things outside the King's limiting dominions Parliament is always presumed to act in accordance territorial with the rules and principles of international law, and its legislaenactments are construed by the courts accordingly. It would be contrary to the received principles of international tion. 1 See R. v. Jameson, [1896] 2 Q. B. 425, 430. law 1 regulating the relations between independent States for Parliament to pass a law punishing a foreigner for an offence committed on foreign territory, or setting up courts in foreign territory. It would not be contrary to those principles for Parliament to pass a law punishing a British subject for an offence committed in foreign territory, or giving English or other British courts jurisdiction in respect of offences so committed. But Parliament is reluctant, more reluctant than the legislatures of continental States, to legislate with respect to offences committed by British subjects in foreign territory. Its reluctance is based partly on the traditions and principles of English criminal law, as indicated by the averment that an offence is committed against the peace of the King, an expression inappropriate to foreign territory, and by the rules as to venue and local juries; partly on the practical inconvenience of withdrawing offences from the cognizance of local courts to a court at a distance from the scene of the offence and from the region in which evidence is most readily obtainable. The difficulty about evidence is felt more strongly by British courts than by the courts of some other countries, where there is less reluctance to try offences on paper evidence 2. 1i. e. to the principles of international law as understood and recognized by England and the United States. But continental States have asserted the right to punish foreigners for offences committed in foreign territories, especially for acts which attack the social existence of the State in question and endanger its security, and are not provided against by the penal law of the country in the territory of which they have taken place. Westlake, Chapter on International Law, p. 127. And the principles of European international law cannot be applied, except with serious modifications, to States outside the European or Western family of nations. 2 See Jenkyns' British Rule and Jurisdiction, p. 128. As to the principles on which different States have exercised their powers of punishing offences committed abroad, see Heffter, Droit International (fourth French edition), p. 86, note G. Where an offender has escaped from the country in which the offence was committed he can often be handed over for trial under the Extradition Acts, 1870 to 1895, which apply as between British and foreign territory, or under the Fugitive Offenders Act, 1881, which applies as between different parts of the British dominions. Thus the procedure under these Acts often supplies a substitute for the exercise of extra-territorial jurisdiction. These general principles appear to be consistent with the canons for the construction of statutes laid down in the Jameson case of 18961:— 'It may be said generally that the area within which a statute is to operate, and the persons against whom it is to operate, are to be gathered from the language and purview of the particular statute. But there may be suggested some general rules-for instance, if there be nothing which points to a contrary intention, the statute will be taken to apply only to the United Kingdom. But whether it be confined in its operation to the United Kingdom, or whether, as is the case here 2, it be applied to the whole of the Queen's dominions, it will be taken to apply to all the persons in the United Kingdom, or in the Queen's dominions, as the case may be, including foreigners who during their residence there owe temporary allegiance to Her Majesty. And, according to its context, it may be taken to apply to the Queen's subjects everywhere, whether within the Queen's dominions or without. One other general canon of construction is this-that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on international law, by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.' Under these circumstances the classes of cases in which Parliamentary legislation has given jurisdiction to British courts in respect of offences committed out of British territory are not numerous. The most important of them are as follows: (1) Offences committed at sea. (2) Treason. (3) Murder and manslaughter. (4) Slave trade offences. (5) Offences against the Explosive Substances Act, 1883. (7) Bigamy. (8) Offences against certain provisions of the Foreign Enlistment Act, 1870. 1 R. v. Jameson, [1896] 2 Q. B. 425, 430, Judgement of Lord Russell, L. C. J., on demurrer to indictment. 2 See 33 & 34 Vict. c. 90, s. 2. |