s. 1. Appointment to Council of Reproduced by s. 3 (6). s. 3. Power to fix salaries and Reproduced by s. 113 (1). allowances of bishops and archdeacons of Calcutta, Madras, and Bombay. Saving as to salaries at com- Not reproduced. Personal. mencement of Act. 8. 4. Charges on Indian revenues Reproduced by ss. 80, 113. 8. 5. Power of Governor-General in Such laws to have same force as Acts Not reproduced. There is no of Parliament. such provision in 24 & 25 Vict. c. 67. to be judicially noticed by Not reproduced. As to Indian all courts. courts, see Indian Act I of Restriction on legislation af- Reproduced by s. 63 (3). s. 6. Power to place Indian Marine Left outstanding. Vict. c. 14, The Indian Councils Act, 1892. Not reproduced. 8. 1. Increase of number of mem- Reproduced by ss. 60, 71, 73. 8. 2. bers of Indian legislative councils. Business at legislative meet- Reproduced by ss. 64, 77. s. 3. Meaning of expressions re- Reproduced by s. 60. 8. 4. Vacancies in number of addi- Reproduced by s. 88. CHAPTER IV APPLICATION OF ENGLISH LAW TO NATIVES OF INDIA 1 duction of India. ENGLISH law was introduced into India by the charters Introunder which courts of justice were established for the three English presidency towns of Madras, Bombay, and Calcutta. The law into 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 of 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 respectively. 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. Charter of 1753. Warren 1772. there'. But Indian legislation, and particularly the enactment of the Indian Penal Code, has set at rest most of these questions. George II's charter of 1753, which reconstituted the mayors' 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 administered to them in that court 2. It was not, however, until the East India Company took Plan of over the active administration of the province of Bengal that 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. |