39 & 40 Written order by governor general a justification for any act in any court in India. [21 Geo. (c) subject to the original criminal jurisdiction of any high court in respect of any misdemeanour at common law, or under any Act of Parliament, or in respect of any act which if done in England would have been a misdemeanour. (2) The exemption under this section from liability to arrest and imprisonment extends also to the chief justices and other judges of the several high courts. (a) The enactments reproduced by this section apply only to the original jurisdiction of the high courts, and are not excepted from the legislative power of the governor-general's council by 24 & 25 Vict. c. 67, s. 22. The exemptions from jurisdiction granted by 21 Geo. III, c. 70, and reproduced in this section, were granted in consequence of the proceedings in the Cossijurah case. See above, p. 54; Mayne, Criminal Law of India, 3rd edition, p. 326; and Jehangir v. Secretary of State for India, I. L. R. 27 Bom. 189. 106. Subject to any law made by the Governor-General in Council, the order in writing of the Governor-General in Council for any act is in any proceeding, civil or criminal, in any high court acting in the exercise of its original jurisdiction, a full justification of the act, except so far as the act extends to any [European] British subject of His Majesty (a); but nothing in this section exempts the governor-general, or III, c. 70, ss. 2, 3, 4.] any member of his council, or any person acting under their orders, from any proceedings in respect of any such act before any competent court in England. Procedure in case of oppres (a) The expression in the Act of 1780 is 'British subjects,' which of course must be construed in the narrower sense. As to the circumstances out of which this enactment arose, see above, pp. 54 foll., and Mill's British India, iv. 373-375; Cowell's Tagore Lectures, p. 72; Nuncomar and Impey, ii. 189. As to the limitations formerly imposed on the powers of the Indian Governments in dealing with European British subjects, see In re Ameer Khan, 6 B. L. R. 446, and the notes on ss. 63 and 79 of this Digest. The enactments reproduced by this section do not apply to the Governments of Madras and Bombay. They are applied to the existing high courts by the conjoint operation of 39 & 40 Geo. III, c. 79, s. 3; 4 Geo. IV, c. 71, s. 7; and 24 & 25 Vict. c. 104, s. II, but appear to affect only the original jurisdiction of the high courts. 107.-(1) (a) Subject to any law made by the GovernorGeneral in Council, if any person makes a complaint in nor-gene council. [21 Geo. III, c. 70, ss. 5, 6.] writing, and on oath, to the high court at Calcutta of any sion, &c., oppression or injury alleged to have been caused by any order by gover of the governor-general, or any member of his council, ral or his and gives security to the satisfaction of the high court to prosecute his complaint by indictment, information, or action before a competent court in Great Britain within two years from the making of the same or from the return into Great Britain of the person complained against, he is entitled to have a true copy of any order of which he complains produced before the high court, and authenticated by the court, and he and the persons against whom he complains may examine witnesses on the matter of the complaint. (2) The high court must, if necessary, compel the attendance and examination of witnesses in any such case in the same manner as in other criminal or civil proceedings. (3) Sections forty to forty-five of the East India Company Act, 1772, apply in the case of proceedings under this section as in the case of the proceedings referred to in those sections. (a) The provision reproduced by this section has remained a dead letter from the date of its enactment, appears to be unnecessary, and could be repealed by Indian legislation. It does not apply to the Madras High Court, Re Wallace, I. L. R. 8 Mad. 24. The sections referred to in sub-section (3) give jurisdiction to the Court of King's Bench, now the High Court, and provide for the taking of evidence in India, and its admissibility in England. Law to be administered. 13 Geo. III, c. 63. adminis tered in cases of ance and succes sion. 108. Subject to any law made by the Governor-General in Law to bo Council, the high courts, in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras, or Bombay, as the case may be, shall, in matters of inheritance and succession to lands, rents, and goods, and in matters of contract and dealing between party and party, when III, c. both parties are subject to the same personal law or custom 70, s. 17. 37 Geo. having the force of law, decide according to that personal ÏÍI, c. law or custom, and when the parties are subject to different 142, 8. 13.] personal laws or customs having the force of law, decide according to the law or custom to which the defendant is subject. This section reproduces the enactments marginally noted so far as they appear to represent existing law. The qualifying words at the beginning of the clause represent existing law, the enactments margin. ally noted being, under 24 & 25 Vict. c. 67, s. 22, capable of being altered by Indian legislation. In Warren Hastings's celebrated plan for the administration of justice, proposed and adopted in 1772, when the East India Company first took upon themselves the entire management of their territories in India, the twenty-third rule specially reserved their own laws to the natives, and provided that Moulavies or Brahmins' should respectively attend the courts to expound the law and assist in passing the decree. Subsequently, when the governor-general and council were invested by Parliament with the power of making regulations, the provisions and exact words of Warren Hastings's twenty-third rule were introduced into the first regulation enacted by the Bengal Government for the administration of justice. This regulation was passed on April 17, 1780. 6 By section 27 of this regulation it was enacted that in all suits regarding inheritance, marriage, and caste, and other religious usages or institutions, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to.' This section was re-enacted in the following year, in the revised Code, with the addition of the word 'succession.' Section 17 of the Act of 1781 constitutes the first express recognition of Warren Hastings's rule in the English Statute Law. Enactments to the same effect have since been introduced into numerous subsequent English statutes and Indian Acts,-see, for example, 37 Geo. III, c. 142, s. 13; Bombay Regulation IV of 1827, s. 26; Act IV of 1872, s. 5 (Punjab) as amended by Act XII of 1878; Act III of 1873, s. 16 (Madras); Act XX of 1875, s. 5 (Central Provinces); Act XVIII of 1876, s. 3 (Oudh); Act XII of 1887, s. 37 (Bengal, North-Western Provinces, and Assam); Act XI of 1889, s. 4 (Lower Burma). See also clauses 19 and 20 of the Charter of 1865 of the Bengal High Court, the corresponding clauses of the Madras and Bombay Charters, and clauses 13 and 14 of the Charter of the North-Western Provinces High Court. The effect of 21 Geo. III, c. 70, s. 17, is explained in Sarkies v. Prosonno Mayi Dasi, I. L. R. 6 Cal. 794 (application for dower by the widow of an Armenian), and Jagat Mohini Dasi v. Dwarkanath Beisakh, I. L. R. 8 Cal. 582 (where it was held that there was no question of succession or inheritance). The Indian Contract Act (IV of 1872) contains a saving (s. 2) for any statute, Act, or regulation not thereby expressly repealed. This saving has been held to include the enactment reproduced by this section, under which matters of contract are, within the presidency towns, but not elsewhere, directed to be regulated by the personal law of the party, and thus, paradoxically enough, certain rules of Hindu law have maintained their footing in the last part of British India where they might have been expected to survive. See Nobin Chunder Bannerjee v. Romesh Chunder Ghose, I. L. R. 14 Cal. 781, where it was held that the custom of damdupat (Law Quarterly Review for 1896, p. 45) was still in force in Calcutta. If, however, any native law or custom is clearly inconsistent with the terms of the Contract Act, it would be held to be repealed. See Madhub Chunder Poramanick v. Rajcoomar Doss, 14 Beng. Law Rep. 76. The leading case on the extent to which English law has been introduced into India is the Mayor of Lyons v. East India Company (1836), reported 1 Moo. P. C. 176, and also, with useful explanatory and illustrative matter, 3 State Trials, N. S. 647. The Judicial Committee in this case laid down the principle that the general introduction of English law into a conquered or ceded country does not draw with it such parts as are manifestly inapplicable to the circumstances of the settlement, and decided in particular that the English law incapacitating aliens from holding real property to their own use and transmitting it by devise or descent had never been expressly introduced into Bengal, and that the Statute of Mortmain, 9 Geo. II, c. 36, did not apply to India. See also the famous judgement of Lord Stowell in The Indian Chief, (1800) 3 Rob. Adm. 12 at pp. 28, 29 (quoted below, p. 384); Freeman v. Fairlie, (1828) 1 Moo. Ind. App. 304, 2 State Trials, N. S. 1000; Advocate-General of Bengal v. Ranee Surnomoye Dossee, (1863) 2 Moo. P. C., N. S. 22 (law as to forfeiture for suicide); and Ram Coomar Coondoo v. Chunder Canto Mookerjee, (1876) L. R. 2 App. Cas. 186 (law as to maintenance and champerty). And as to the effect of successive charters in introducing English law into India, see above, p. 34; Morley's Digest, Introduction, pp. xi, xxiii; and Mr. Whitley Stokes's preface to the first edition of the older statutes relating to India (reprinted in the edition of 1881). Advocate-General. ment and 109. (1) His Majesty may, by warrant under his Royal AppointSign Manual, appoint an advocate-general for each of the presidencies of Bengal, Madras, and Bombay (a). (2) The advocate-general for each of those presidencies may take on behalf of His Majesty such proceedings as may be taken by His Majesty's Attorney-General in England (b). (a) The advocate-general for Bengal is a law officer of the Government of India. (b) See Secretary of State for India v Bombay Landing and Shipping Company, 5 Bom. H. C. R. O. C. J., 42, and Act V of 1898, ss. 194 (2), 333. powers of advocate- 8. III. Jurisdiction [53 Geo. PART X. ECCLESIASTICAL ESTABLISHMENT. 110. (1) The bishops of Calcutta, Madras, and Bombay (a) of Indian have and may exercise such ecclesiastical jurisdiction and bishops. episcopal functions as His Majesty may, by letters patent, III, c. 155, direct for the superintendence and good government of the 3 & 4 Will. ministers of the Church of England within their respective IV, c. 85, dioceses. 88. 51, 52. 88. 92, 93, 94.] 8. 13.] (2) The Bishop of Calcutta is the metropolitan bishop in India, subject nevertheless to the general superintendence and revision of the Archbishop of Canterbury. (3) Each of the bishops of Madras and Bombay is subject to the Bishop of Calcutta as such metropolitan, and must at the time of his appointment to his bishopric or at the time of his consecration as bishop take an oath of obedience to the Bishop of Calcutta in such manner as His Majesty by letters patent may be pleased to direct (b). (4) His Majesty may, by letters patent, vary the limits of the dioceses of Calcutta, Madras, and Bombay. [37 & 38 (5) Nothing in this Digest or in any such letters patent Vict. c. 77, as aforesaid prevents any person who is or has been bishop of any diocese in India from performing episcopal functions, not extending to the exercise of jurisdiction, in any diocese or reputed diocese at the request of the bishop thereof. Power to admit to holy orders. (a) The bishops of Calcutta, Madras, and Bombay are the only Indian bishops who are referred to in the Acts relating to India. Bishops have also been appointed, under letters patent or otherwise, for Chota Nagpore, Lahore, Lucknow, Nagpur, Rangoon, Tinnevelly, and Travancore, and an assistant bishop has been appointed in Madras. (b) As to these oaths, see 28 & 29 Vict. c. 122, and 31 & 32 Vict. c. 72, S. 14. Under 37 & 38 Vict. c. 77, s. 12, the archbishops of Canterbury or York may, in consecrating any person to the office of bishop for the purpose of exercising episcopal functions elsewhere than in England, dispense with the oath of due obedience to the archbishop. 111.—(1) The Bishop of Calcutta may admit into the holy orders of deacon or priest any person whom he, on examination, deems duly qualified specially for the purpose of taking |