English lived had not been perceptibly affected by Indian customs, it was very confused and troublesome to work. That the learning of the judges sent from home to sit in the Indian Courts was seldom equal to that of the judges in England was not necessarily a disadvantage, for in traversing the jungle of Indian law the burden of English case lore would have too much impeded the march of justice. The first period of English rule, the period of rapid territorial extension and of improvised government, may be said to have ended with the third Maratha war of 1817-8. The rule of Lord Amherst and Lord William Bentinck (1823-35) was a comparatively tranquil period, when internal reforms had their chance, as they had in the Roman Empire under Hadrian and Antoninus Pius. This was also the period when a spirit of legal reform was on foot in England. It was the time when the ideas of Bentham had begun to bear fruit, and when the work begun by Romilly was being carried on by Brougham and others. Both the law applied to Englishmen, and such parts of native law as had been cut across, filled up, and half re-shaped by English legal notions and rules, called loudly for simplification and reconstruction. The era of reconstruction opened with the enactment, in the India Charter Act of 1833, of a clause declaring that a general judicial system and a general body of law ought to be established in India applicable to all classes, Europeans as well as natives, and that all laws and customs having legal force ought to be ascertained, consolidated, and amended. The Act then went on to provide for the appointment of a body of experts to be called the Indian Law Commission, which was to inquire into and report upon the Courts, the procedure and the law then existing in India. Of this commission Macaulay, appointed in 1833 legal member of the Governor-General's Council, was the moving spirit: and with it the work of codification began. It prepared a Penal Code, which however was not passed into law until 1860, for its activity declined after Macaulay's return to England and strong opposition was offered to his draft by many of the Indian judges. A second Commission was appointed under an Act of 1853, and sat in England. It secured the enactment of the Penal Code, and of Codes of Civil and of Criminal Procedure. A third Commission was created in 1861, and drafted other measures. The Government of India demurred to some of the proposed changes and evidently thought that legislation was being pressed on rather too fast. The Commission, displeased at this resistance, resigned in 1870; and since then the work of preparing as well as of carrying through codifying Acts has mostly been done in India. The net result of the sixty-six years that have passed since Macaulay set to work in 1834 is that Acts codifying and amending the law, and declaring it applicable to both Europeans and natives, have been passed on the topics following: Crimes (1860). Criminal Procedure (1861, 1882, and 1898). Evidence (1872). Limitation of Actions (1877). Specific Relief (1877). Probate and Administration (1881). Contracts (1872) (but only the general rules of contract with a few rules on particular parts of the subject). Negotiable Instruments (1881) (but subject to native customs). Besides these, codifying statutes have been passed which do not apply (at present) to all India, but only to parts of it, or to specified classes of the population, on the topics following: Trusts (1882). Transfer of Property (1882). Succession (1865). Easements (1882). Guardians and Wards (1890). These statutes cover a large part of the whole field of law, so that the only important departments not yet dealt with are those of Torts or Civil Wrongs (on which a measure not yet enacted was prepared some years ago); certain branches of contract law, which it is not urgent to systematize because they give rise to lawsuits only in the large cities, where the Courts are quite able to dispose of them in a satisfactory way; Family Law, which it would be unsafe to meddle with, because the domestic customs of Hindus, Musulmans, and Europeans are entirely different; and Inheritance, the greater part of which is, for the same reason, better left to native custom. Some points have, however, been covered by the Succession Act already mentioned. Thus the Government of India appear to think that they have for the present gone as far as they prudently can in the way of enacting uniform general laws for all classes of persons. Further action might displease either the Hindus or the Musulmans, possibly both: and though there would be advantages in bringing the law of both these sections of the population into a more clear and harmonious shape, it would in any case be impossible to frame rules which would suit both of them, and would also suit the Europeans. Here Religion steps in, a force more formidable in rousing opposition or disaffection than any which the Romans had to fear. In such parts of the law as are not covered by these enumerated Acts, Englishmen, Hindus and Musulmans. continue to live under their respective laws. So do Parsis, Sikhs, Buddhists (most numerous in Burma), and Jains, save that where there is really no native law or custom that can be shown to exist, the judge will naturally apply the principles of English law, handling them, if he knows how, in an untechnical way. Thus beside the new stream of united law which has its source in the codifying Acts, the various older streams of law, each representing a religion, flow peacefully on, The question which follows-What has been the action on the other of each of these elements? resolves itself into three questions: How far has English Law affected the Native Law which remains in force ? How far has Native Law affected the English Law which is in force? How have the codifying Acts been framed-i.e. are they a compromise between the English and the native element, or has either predominated and given its colour to the whole mass? The answer to the first question is that English influence has told but slightly upon those branches of native law which had been tolerably complete before the British conquest, and which are so interwoven with religion that one may almost call them parts of religion. The Hindu and Musulman customs which regulate the family relations and rights of succession have been precisely defined, especially those of the Hindus, which were more fluid than the Muslim customs, and were much less uniform over the whole country. Trusts have been formally legalized, and their obligation rendered stronger. Adoption has been regularized and stiffened, for its effects had been uncertain in their legal operation. Where several doctrines contended, one doctrine has been affirmed by the English Courts, especially by the Privy Council as ultimate Court of Appeal, and the others set aside. Moreover the Hindu law of Wills has been in some points supplemented by English legislation, and certain customs repugnant to European ideas, such as the self-immolation of the widow on the husband's funeral pyre, have been abolished. And in those parts of law which, though regulated by local custom, were not religious, some improvements have been effected. The rights of the agricultural tenant have been placed on a more secure basis. Forest-rights have been ascertained and defined, partly no doubt for the sake of the pecuniary interests which the Govern ment claims in them, and which the peasantry do not always admit. But no attempt has been made to Anglify these branches of law as a whole. On the other hand, the law applicable to Europeans only has been scarcely (if at all) affected by native law. It remains exactly what it is in England, except in so far as the circumstances of India have called for special statutes. The third question is as to the contents of those parts of the law which are common to Europeans and Natives, that is to say, the parts dealt by the codifying Acts already enumerated. Here English law has decisively prevailed. It has prevailed not only because it would be impossible to subject Europeans to rules emanating from a different and a lower civilization, but also because native custom did not supply the requisite materials. Englishmen had nothing to learn from natives as respects procedure or evidence. The native mercantile customs did not constitute a system even of the general principles of contract, much less had those principles been worked out in their details. Accordingly the Contract Code is substantially English, and where it differs from the result of English cases, the differences are due, not to the influence of native ideas or native usage, but to the views of those who prepared the Code, and who, thinking the English case-law susceptible of improvement, diverged from it here and there just as they might have diverged had they been preparing a Code to be enacted for England. There are, however, some points in which the Penal Code shows itself to be a system intended for India. The right of self-defence is expressed in wider terms than would be used in England, for Macaulay conceived that the slackness of the native in protecting himself by force made it desirable to depart a little in this respect from the English rules. Offences such as dacoity (brigandage by robber bands), attempts to bribe judges or witnesses, the use of torture by policemen, kidnapping, the offering |