IX.

Further, a power of appeal is given (provided LECTURE the High Court declares the case is a fit one for such appeal and under such condition as it may establish or require) from any judgment, order or sentence of the High Court made in the exercise of original criminal jurisdiction, or in any criminal case where any point or points of law have been reserved for the opinion of the High Court.

The High Court is directed by its Charter in all cases of appeal to certify and transmit to the Privy Council, a true and correct copy of all evidence, proceedings, judgment, decrees, and orders had or made in such cases appealed, so far as the same have relation to the matters of appeal, such copies to be certified under the seal of the Court. A copy of reasons given by the Judges for or against the judgment or determination appealed against was also directed to be certified and transmitted. The High Courts are also bound to execute the judgments and orders of the Privy Council.

LECTURE X.

THE SUPERIOR COURTS.

Separation between Courts of Presidency Town and Mofussil-In laws and procedure-First attempts to amalgamate them-Abolition of Supreme Courts-Bill introduced to establish High Courts-Indian High Courts' ActCharters of the High Court-Civil jurisdiction of Bengal High CourtOriginal-Extraordinary original-Appellate-Insolvent-Criminal-Maritime-Testamentary and intestate-Matrimonial-Madras and Bombay High Courts North-West Provinces-Result of the establishment of High Courts— Punjab Chief Court-Retention of the old Presidency Town System-Insolvency Courts-Insolvency jurisdiction in the Mofussil-Vice Admiralty Courts -Divorce Courts.

Separation HITHERTO I have endeavoured to trace the history

between

Presidency

Courts of of the judicial institutions which were established Town and in the Presidency Towns and Mofussil, to account

Mofussil.

for their wide separation, their dissimilar origin, their long retention, and the very slight tendency towards amalgamation which they had exhibited. The inconveniences of such double system were numerous, but the differences in the procedure observed, and in the laws administered by these rival institutions, as well as the existence of a strong party feeling in favor of maintaining tribunals which should exercise exclusive jurisdiction over Europeans, rendered such system extremely diffi cult to abolish.

X.

In laws

dure.

With regard to the laws administered, the Courts LECTURE established by the Crown and Parliament for the most part applied English law, both civil and and procecriminal; exceptions being made in favor of Hindus and Mahomedans, that in suits against parties of either of those religions, by whomsoever they might be brought, whether by Europeans or Natives, the law of the defendant should prevail. Their proceedings also were governed by the English law of procedure. Until 1834, they for the most part were amenable only to the legislative authority of Parliament, and to such Regulations of Government as the Supreme Courts might choose to acknowledge and register.

The Mofussil Courts, on the other hand, had nothing to do with English law, but were amenable in all respects to the Regulations of Government, and when Hindu or Mahomedan law did not apply, or when no Regulations were applicable, were directed to proceed according to justice, equity, and good conscience. That is to say, in cases for which no law was provided, the Judges were authorized to use the best discretion they possessed. Originally the number of cases for which no specific law existed, must have been considerable. For, setting aside Hindu and Mahomedan law, there was no law of contract, no law of succession, no territorial law, no law of evidence, no law of administration of deceased estates. The wide field, from which all

X.

LECTURE specific law was absent, was gradually reclaimed, as it were, and brought within the limits of civilization. But the process was very gradual, and until the establishment of the Indian Law Commission and the Imperial Legislature in 1834 could hardly be said even to have commenced. From that date however it proceeded very slowly, and it is only within the last few years-and I had almost said the last two or three years-that any serious progress has been made.

First attempts to amalgamate them.

The procedure of those Courts was such as was from time to time prescribed by the Regulations, which, by the constant process of repeal and amendment, at last gave a very uncertain and obscure expression to the rules which they provided.

Before the work of amalgamating these two rival sets of judicial institutions could possibly be proceeded with, it was absolutely necessary to make some attempts to bridge over the wide gulf which separated the laws which they respectively administered, and the procedure which they respectively observed. The abolition of the East India Company, the assumption of direct responsibility of government by the English Crown, and the consolidation of the Indian Empire under the Queen, which occurred in 1858, favored the work of amalgamation which the influences of a century had impeded and prevented. Policy suggested that in re-establishing and consolidating the new empire something

X.

more was required than an imperial army, govern- LECTURE ment, and legislature. A uniform criminal law, a uniform system of Courts, of civil and criminal procedure, and in the end a uniform civil law, so far as exclusive rights to personal laws, based upon religion, would permit, and as far as practicable, equal liability to the jurisdiction, were required as a basis upon which to found a just as well as an imperial administration.

In the next three years after the proclamation of the Queen, first the Civil Procedure Code, and then the Criminal Procedure Code, and almost immediately afterwards the Penal Code, all of which had been long in preparation were enacted. They applied to the whole empire, and all Courts were governed by the procedures therein laid down, except the Supreme Courts and those established by Royal Charter.

of Supreme

When these Codes had been passed, a very Abolition long stride had been made in the direction of one Courts. uniform system for the administration of justice in India. The next step was to abolish the Supreme Courts in the three Presidencies and the anomalous procedure observed in them and constitute in each Presidency town a High Court of Judicature which should be supreme over all the Courts both in the Presidency towns and also in the Mofussil. The plan had long been in contemplation; in fact the continued existence of the Supreme Courts, alien