CHAPTER IV.

ADMINISTRATION OF JUSTICE IN BRITISH INDIA.

SECT. I.-LAWS IN FORCE IN BRITISH INDIA GENERALLY. SECT. II.-LAWS AND JUDICIAL PROCEDURE APPLICABLE TO BRITISHBORN SUBJECTS-THE SUPREME COURTS. SECT. III.-LAWS AND JUDICIAL PROCEDURE APPLICABLE TO THE NATIVE POPULATION OF INDIA-CIVIL COURTS-CRIMINAL COURTS AND POLICE. SECT. IV. THE INDIAN LAW COMMISSION.

SECT. I.-LAWS IN FORCE IN BRITISH INDIA
GENERALLY.

In the legal and judicial Administration of India, the uniform principle of British policy in respect of Territories acquired by conquest or cession, has been adopted.

The laws and system of jurisprudence, Mahomedan or Hindoo, to which we have succeeded, have, in every case, been recognised as valid, until superseded by the supreme authority of the British Government. The circumstance that this authority has, in the casc of British India, been in some degree delegated to a chartered Company, has occasioned no difference in the practical application of the rule.

In the territories of the East India Company, as in all British dependencies similarly acquired, and not possessing Representative Institutions, the do

minant country has exercised its legislative powers, either by Order in Council, or by Act of Parliament.

At the present time, both the Imperial Parliament and the Governor-General in Council have the power of legislating for India; but there are certain exceptions to the power of the latter authority, by one of which it is restrained from interfering with any Act of Parliament passed subsequently to 3 & 4 Will. IV. cap. 85, and applying to India. Acts not so made applicable by the British Parliament are sometimes made so by the local Legislature.

All laws passed by the Governor-General in Council extend, unless specially limited in their application by the Acts themselves, to all inhabitants, whether British or Native, of all territories within the Company's Charter.

Drafts of all laws, previously to being enacted, are published in the newspapers at all the Presidencies, in order that any parties thinking themselves likely to be affected by them, may apply to the Government. The publication does not take place at any fixed time before the enactment is passed; but it is usually from six weeks to two or three months. This practice of preliminary publication originated with the Court of Directors, and was adopted with the view of preventing precipitate legislation, by interposing a delay between the proposing and passing of a legislative Act.

The laws themselves, when they become such, are published in English-in Oordoo, a higher dialect of

Hindustanee-and in other Native languages, according to the part of India to which they may apply.

Power is reserved to the Imperial Parliament (before which all such laws are to be laid) to alter or repeal them.

SECT. II.-LAWS AND JUDICIAL PROCEDURE APPLICABLE TO BRITISH-BORN SUBJECTS IN INDIA-THE SUPREME COURTS.

British-born subjects and their descendants, resident in India, whether in the service of the Company or otherwise, are, with certain exceptions,* amenable only to British law, as administered by the Courts called the Supreme Courts, now existing at Calcutta, Madras, and Bombay. The history of this exemption, from the ordinary tribunals of the country, is described in the appendix to the first report of the Indian Law Commissioners, wherein also the present constitution and jurisdiction of the three Supreme Courts is minutely described.

The first Charter of the East India Company which contained any provision for the administration of justice was that of the 13th Charles II., which empowered the Company to appoint Governors and other Officers to govern their plantations, forts, fortifications, factories, or colonies, and authorised the

*The exceptions are cases of oppression of the natives, or judicial malversation, cognizable by the ordinary tribunals, which also try civil suits between natives and British subjects.

Governor and Council so appointed to "judge all persons belonging to the said Governor and Company, or that should live under them, in all cases, whether civil or criminal, according to the laws of the kingdom, and to execute judgment accordingly."

By the 35th Charles II. the Company were empowered to erect Courts of judicature, "consisting of a person learned in the civil laws, and two merchants, who were to decide according to equity and good conscience, and according to the laws and customs of merchants." And similar provisions were contained in the subsequent Charters down to the period of the union of the old and new Companies.

By the first Charter granted to the United Company, which was that of the 13th George I. in 1726, a Mayor's Court was established at each of the settlements "to be a Court of Record, to try, hear, and determine all civil suits between party and party that should arise within the towns of Madras, Bombay, and Calcutta, or within any of the factories subject thereto, between all persons there residing, or who, at the time of action accrued, did reside or be within the said towns, or the precincts, districts or territories thereof, and to determine according to justice and right."

From the decisions of this Court an Appeal was given to the Governor and Council, whose decision was declared to be final in all suits under 1000 pagodas; but if the suit exceeded that amount a further appeal was given to the King in Council.

* A pagoda is about eight shillings.

The criminal jurisdiction was given to the Governor and Council, who were appointed Justices of the Peace, with power to hold Courts of Quarter Sessions, and Oyer and Terminer and Gaol Delivery, for the trial of all offences except treason, committed within the said towns, or within any of the factories subordinate, or within ten miles of the same. They were also empowered to grant probates of wills.

By the Charter of the 26th George II. upon the surrender of the previous Charter, the Mayor's Court and the Court of Oyer and Terminer and Gaol Delivery were again established at the three settlements, and similar provisions made-with this difference, that the native inhabitants of the respective towns were excepted from the civil jurisdiction of the Mayor's Court, unless with their own consent; and the criminal jurisdiction of the Court of Oyer and Terminer was limited to the trial of offences committed within the said towns, or within any of the factories or places subordinate thereto, the words "or within ten miles of the same" being left out.

A Court of Requests was also established, to which natives were liable for suits under five pagodas.

By the Act 13th George III. c. 63, so much of the said charter as related to the establishment of the Mayor's Court at Calcutta was cancelled, and His Majesty was empowered to grant a Charter or Letters Patent for the erection of a Supreme Court of Judicature at Fort William in Bengal, to consist of a Chief Justice and three other Judges, being barristers of England or Ireland, of not less than five years'