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eyes of the British administrators, and local laws and customs became a matter for their consideration, not merely on their own merits, but on account of the value that the Indians attached to them. The British had, in fact, begun to appreciate the character and necessity of a native policy. They had defeated their European rivals, the French and the Dutch, but they did not know at the time how complete their victory had been, and they were to be disquieted by the dread of French intervention for half a century to come. They also began to realise the immensity of India. The territories which Clive had conquered for them were small compared to those which remained beyond. The great name of the Mogul still inspired respect and awe. The British were little acquainted with the peoples they had conquered, but realised their magnitude. England was far off, and distracted from the affairs of India by her European (and presently by her American) policy, while the Company provoked her jealousy and hatred. She could not be relied on for any great assistance in Asia. The Company's officials in Bengal and Madras thus found themselves in a position of unstable equilibrium. Imprudent conduct, and measures which irritated the conquered peoples, might lead these, peaceable as they were, to overthrow, by their mere mass, a Government which was much more feeble than it seemed to be, and the work of 150 years might thus be undone in an hour. What course, then, was to be pursued? This question was to give birth to, and procure the triumph of, a true native policy. It was necessary not to make the natives discontented, but at the same time not to weaken the prestige of the European, or to sacrifice the Western morality which he represented. Now i native policy consists in practising the art of respecting the belief of others without the appearance of weakness, and defending one's own ideas without the appearance of brutality.
Such then were the ideals of an Indian policy in regard to the law itself which the British rulers have put before themselves. M. Chailley has referred, and rightly, to the serious blunders which have been made in feeling the way towards the goal. It is necessary, therefore, to remind ourselves of the enormous difficulties which confronted the Company in its early days when a few merchants undertook with very little forethought and "in a fit of absence of mind " political responsibilities over millions of people whom they did not understand, and with hardly a vestige of that administrative 1 Our italics.
machinery which was so essential. There can be little wonder, therefore, that there were blunders.
The most unfortunate of these was the attempt, in accordance with the Regulating Act in 1773, to introduce English law to a people who could scarcely hope to understand it or appreciate its virtues. "The new English judges," writes Captain Kaye, “carried with them the most inflated ideas of the beauties and benignities of the English law. They went out to save, and they destroyed. Instead of maintaining order and preserving peace they threw the settlement into confusion, and engendered the most unseemly strife. Instead of a blessing they conferred a curse upon the people and instead of security, terror." The situation is portrayed with remarkable clearness by Macaulay in his essay on Warren Hastings.
The results of this experiment proved so disastrous that it was decided that English law should no longer be applicable to natives of the country. In their instructions to Lord Cornwallis the Directors expressed their desire "to accommodate their views and interests to the subsisting manners and usages of the people, rather than to any abstract theories drawn from other countries, or applicable to a different state of things." Even in suits between Indians within the jurisdiction of the Supreme Court account was to be taken of the personal law of the parties concerned, whether Hindu or Muhammadan. Thus was the great principle laid down and established that respect should be paid to the beliefs and usages of the people. Changes and modifications, however, were necessary from time to time, and these were provided in the shape of regulations which were promulgated by the Governor-General in Council for the benefit of Bengal in accordance with the Regulating Act of 1773, and by the Governments of Madras and Bombay, who were granted similar powers in 1800 and 1823 respectively.
Again, however, did the experiment fail. What seemed so excellent in theory broke down in practice. There was hopeless confusion and a lamentable lack of definition as to what was the law and what was not. Sir Courtenay Ilbert
has explained the confusion that prevailed in the following words:
At that date there were five different bodies of statute law in force in the (Indian) Empire. First, there was the whole body of statute law existing, so far as it was applicable, which was introduced by the Charter of George I, and which applied, at least, in the presidency towns. Secondly, all English Acts subsequent to that date which were expressly extended to any part of India. Thirdly, the regulations of the Governor-General's Council which commence with the Revised Code of 1793, containing forty-eight regulations, all passed on the same day (which embraced the results of twelve years' antecedent legislation) and were continued down to the year 1834. They only had force in the territories of Bengal. Fourthly, the regulations of the Madras Council which spread over the period of thirtytwo years from 1802 to 1834 and are (were) in force in the Presidency of Fort St. George. Fifthly, the regulations of the Bombay code which began with the revised code of Mr. Mountstuart Elphinstone in 1827, comprising the results of twentyeight years' previous legislation, and were also continued until 1834, having force and validity in the Presidency of Bombay.
The Act of 1833, therefore, made provision for a comprehensive consolidation and codification of Indian laws, “due regard being had to the rights, feelings, and peculiar usages of the people." An account of the work performed by the two Law Commissions is given below.
Codification of Laws in British India
Source." Legislative Methods and Forms," by Sir Courtenay Ilbert. (Clarendon Press, Oxford.)
The scheme of giving to British India a complete and definite system of laws probably originated in a correspondence which took place about 1829 between Sir Charles Metcalfe and two judges of Bengal. It was adopted by Parliament as the renewal of the Indian Charter Act in 1833. The Charter Act of 1833 provided for the appointment by the Governor-General in Council of a law commission to inquire into the jurisdiction, powers and rules of the existing courts of justice and police establishments and into the nature and operation of laws prevailing in any part of British India, and to make reports thereon and to suggest alterations, due regard being had to the distinctions of castes, difference of religion and the manners and opinions prevailing among different races and in different parts of the said territories.
In pursuance of the powers thus conferred, the first Indian Law Commission was appointed in the year 1834. It consisted originally of Macaulay and of three civil servants of the Company -one from each Presidency. After about two years this Commission published Macaulay's draft of the Indian Penal Code, which was subsequently revised by Mr. Drinkwater Bethune, Sir Barnes Peacock, and others, and did not become law till 1860, long after the first Indian Law Commission had ceased to exist. The Commission seems to have lost much of its vitality after Macaulay's departure from India. It lingered on for many years and published periodically bulky volumes of reports, but did not succeed in effecting or inducing the Government to effect any measure of codification, and was finally allowed to expire. The last of the Indian Charter Acts, that of 1853, refers to the labours of the Commissioners by reciting that "they have in a series of reports recommended extensive alterations in the judicial establishments, judicial procedure, and laws established and in force in India and have set forth in detail the provisions which they have proposed to be established by law for giving effect to certain of their recommendations, and such reports have been transmitted from time to time to the Court of Directors, but on the greater part of such reports and recommendations no final decision has been made."
Accordingly, the Act of 1853 provided for the appointment of a new commission, which was instructed to make a diligent and full inquiry into and to examine and consider the recommendations of the previous Commissioners, and the enactments proposed by them for the reform of the judicial establishments, judicial procedure, and laws of India, and such other matters in relation to the reform of the said judicial establishments, judicial procedure, and laws as might be, by or with the sanction of the Commissioners for the affairs of India, referred to them for their consideration.
This second Commission was appointed on November 9, 1853. It consisted of eight members, including Sir John (afterwards Lord) Romilly, Sir John Jervis, Sir Edward Ryan, and Mr. Robert Lowe. At the time of their appointment the intention of amalgamating the Queen's and Company's Courts in the presidency towns of India (known as Supreme and Sudder Courts) had already been announced to Parliament, and the Commissioners were instructed to address themselves in the first instance to the consideration of the preliminary measures necessary for this purpose, in particular to the preparation of a simple and uniform code of procedure.1
1 Letter from Board of Commissioners for Affairs of India to India Law Commissions, dated November 30, 1853.
The Commissioners sat in London till the middle of 1856 and presented four reports in which they submitted plans for the amalgamation of the Supreme and Sudder Courts and a uniform code of civil and criminal procedure, applicable both to the High Courts formed by that amalgamation and to the inferior courts of British India. They also adverted to the wants of India in respect of substantive civil law, and they submitted their views as to the best mode of supplying those wants.
The recommendations of these Commissioners resulted in important legislation both in Parliament and in the Legislative Council of India. Macaulay's Penal Code was taken up and revised, and was passed into law in 1860. A Code of Civil Procedure was passed in 1859 and a Code of Criminal Procedure in 1861. By the Act of Parliament of 1861 "for establishing High Courts of Judicature in India" (24 & 25 Vict. c. 104) the old Supreme and Sudder Courts at Calcutta were amalgamated into the present Chartered High Courts, and provision was made for establishing another High Court in the NorthWest Provinces. Thus by 1861 India had acquired a Penal Code and Codes of Civil and Criminal Procedure. The Procedure Codes were doubtless rough and capable of much improvement, but they constituted an enormous advance on the chaotic and incomplete regulations by which they had been preceded.
Another unfortunate feature of the judicial system at the time of Warren Hastings was the competition and the rivalry between the Supreme Court and the Company's Courts. The interference of the Supreme Court destroyed the authority of the Company's Courts, and rendered the collection of revenue almost impossible. And by refusing to recognise the Nabob, in whose hands the criminal administration was vested, and by entertaining suits against judges for trespass or false imprisonment, the Supreme Court brought criminal justice to a standstill. The Act of 1781, however, protected the Executive from interference in its official duties; it recognised the Company's Courts; it laid down the fundamental principle that the Indian inhabitants "were entitled to the personal application of their own law," but at best the position remained unsatisfactory. The Supreme Court exercised jurisdiction in criminal matters over all inhabitants living within the area of the presidency town and over all Europeans wherever they might live. Thus, a European in the