LAW REFORM.

New Zealand Times, Volume XXXII, Issue 5017, 23 April 1877, Page 3

LAW REFORM.

Now that the questions of codification of the laws of the colony and law reform are pressing themselves upon public attention for settlement, the following memorandum on law reforms in India, sent to the New South Wales Law Reform Commission some few years ago, may ho of general interest. It is a lengthy document, but no apology is needed for our giving up so much space to it. Memorandum on Recent Law Reforms in British India. Previous to the year 1852 when the existing High Courts of Judicature were created by her Majesty for the Presidencies of Bengal, Madras, and Bombay, there existed Supreme Courts iu the towns of Calcutta, Madras, and Bombay, which had boon established by George IV. by Royal Charters, under the provisions of Aocs of Parliament giving the necessary powers for such purpose. 2. The Supreme Court of Judicature at Fort William, in Bengal (i.e. Calcutta), was established by Royal Charter, dated the 26th March, 1771. That at Madras by one dated the 28th December, 1801. That at Bombay by one dated the Bth December, 1823. 3. The charters for the Supreme Courts at Madras and Bombay were founded upon that of the Supreme Court at Calcutta, and upon the provisions of tho statute 21st George 111., c. 70. The three Supreme Courts were by their charters vested with five distinct jurisdictions —Civil, Criminal, Equity, Ecclesiastical, and Admiralty. The charters reserved to Hindus and Mahommedans their own laws and usages in suits regarding inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party. 4. Suits were filed on the “plea side” or “ equity side,” as they would have been in England ; and English common law and equity pleading and practice were, with modifications, adopted. Demurrers, exceptions, reviews, and all the artificial and technical rules of the original English common law and equity practice were in full play, much to the detriment of suitors and the public time. Special demurrers even were iu force until the Supreme Courts were abolished. 5. During the same period, i.e., up to 1862, the administration of justice in tho “ Mofussil” (an Arabic word, which means separated from the “ Suddcr,” or principal town or station) was ba.sed on regulations issued by tho Government of the three above-mentioned Presidencies, passed respectively in tho years 1793, 1802, and 1827, the plan introduced into Bengal being the foundation of the other systems. Courts were erected in the principal towns of the Zillahs, or district in tho “ Mofussil,” at the principal station of which was a Judge, one of the East India Company’s Civil servants, not bred up to the law, frequently wholly ignorant of it, and often put into tho post because too stupid for the Revenue Department, which with the Judicial Department formed the two great branches of the Indian Civil Service, and indeed does so up to the present moment. 6. Tho decisions of those up-country or

“ Mofussil” Judges were subject to an appeal to the “ Sudder Court” at the three Presidencies, presided over by former “Mofussil” Judges, and who, though conversant enough with local regulations and the manners, habits, and languages of the country, were, with few exceptions, for the most part ignorant of English law and equity, and the general principles of jurisprudence. 7. Of the law of evidence they are said to

have known little or nothing. Where there were no Acts of Parliament of the Indian Legislature to guide them ; or where there: were no local customs, or law of the defendant to bo applied, they were directed to determine according to the rule of equity and good conscience.

8. All this was extremely unsatisfactory, and from tho time the “ Act for the Better Government of India,’’ 21 and 21 Viet., c. 106, received the Royal assent (2nd August, ]8y8), by which, in consequence principally of the mutiny of the previous year, tho whole of the territories then in the possession or under tho government of tho Bast India Company were vested in her Majesty, and she took upon herself the direct rule of British India, the attention of the Homo and Indian authorities was turned towards the improvement of the administration of justice, not only throughout the enormous and thickly populated territories of the Peninsula, but in the three Presidency towns which were subject to tho jurisdiction of the three Supreme Courts.

9. In 1861, an Act, 21 and 25 Viet., c. 10-1, iv.is passed by tho Imperial Legislature, authorising her Majesty to erect and estab'ish in Calcutta, Madras and ilomhay respectively, High Courts of J udicature upon tho ruins of the Supreme and Suddor Courts, in which new High Courts the then existing Judges of the Supreme and Sudder Courts were to be Lie first Judges, and the Act provided that whore such new High Courts should be established tho old Supreme and Suddor Courts were to ceaso to exist. Tho Act (sent herewith) is short and well worthy o f perusal. 10. Accordingly in 1802 her Majesty by three Royal charters or letters patent, exercised such power, and erected in Calcutta, Madras, and Bombay High Courts of Judicature respectively, and directed (by clause 37) that until otherwise provided, the proceedings in civil suits of every description I should bo regulated by the GhH of Civil I Procedure,” passed by tho Council of the Governor-General of India (for the “Mofussil Courts!, and being Act VIII. of 1859, and that the criminal law to bo administered should (virtually) bo the Indian Penal Code, passed by the Council of the Governor-General of India in 1860 for the whole of British India, including tho three Presidency towns, and being Act XLV. of 1860. 11. The charters or letters patent of the three High Courts arc viutatis Mutandis, exactly the same, and I have forwarded to Mr. Cowper a small volume published by authority of the High Court of Bombay, and compiled by Mr. Justice Gibbes, one of the Judges, containing (I) the Imperial Act of 1861, authorising the establishment of the High Courts ; (II) Tho Charter or Letters Patent of the High Court at Bombay, dated 1862 ; (III) The Amended Charter or Patent, dated 1365 (the one now existing) ; and (IV) The Rules of the High Court of Bombay, framed by tho Judges in and since 1862.

12. Great fears were entertained by many that tho Code of Civil Procedure (Act VIII. of 1859), which had been framed in England by the “ Indian Law Commissioners,” but was passed in India, would not be found sufficiently elastic to embrace the classes of business falling within the original jurisdiction of tho High Courts, but its powers of expansion have falsified such fears most completely.

13. Technicalities, demurrers, and all such rubbish, which impoverished the _ suitors, brought grist to the legal mill, and impeded , the progress of public business, were swept away, and have now for eight years been matters of history ; and I am confident that all are agreed as to the great improvement effected by the simple system of procedure in force throughout British India since tho establishment of. the High Courts in 1862. I speak, too, with ample means of knowledge, having been brought up by my father, one of the ablest pleaders of his day, and who as a pleader had at oue time thirteen pupils, and by that very accomplished pleader and thorough lawyer, Mr. Hugh Hill, afterwards a Judge of the Court of Queen’s Bench. 11. It must he remembered that the amount of litigation in British India is really enormous. Estates in Bengal and the north-west provinces especially are very large, and those forming the subject of litigation frequently involve the title to property worth £20,000 and even £60,000 a year. The Hindu is said to be never so happy s when engaged in a law-suit.

15. Tho Hindu law is extremely complicated, and numerous points in it relating to inheritance and succession are oven far fiom settled. It is unlike European law, inasmuch as it is not progressive, but being based on what Hindus suppose to be Divine authority, and to have been actually revealed from Heaven, has to bo discovered from passages and texts in translations of hooks in Sanskrit, the earliest of which are frequently consulted. The Institutes of Menu is admitted even by Max Muller to bo older by many centuries than the Christian era, whilst Sir W. Jones puts it at 800 years before Christ.

16. Then there are five distinct schools of Hindu law, each recognised and followed in five different parts of British India, so that treatises which are of the greatest authority in Bengal have no weight whatever in Benares, or in the Mahratta {i.e, Bombay) or in tho Madras . schools, or in what is called the Mithila school, which prevails in a small district north-east of Patna on the Ganges. 17. Tlie Mahommcdau law too, though much more simple, and, of course, many centuries more recent, is still in many points by no means easy to determine. According to the followers of Islam it was revealed from heaven, and is therefore unchangeable. It is divided into two schools, the Sunni or Orthodox School, and the Shiya, the latter being the law of Persia and the Persians.

IS. The population of British India, which since 1862 has been subject to “The Civil Procedure Code,” “ Tho Indian Penal Code,” and “ Tlie Criminal Procedure Code,” would seem to be second only to that of China.

19. No general census of the territories now called by the Imperial Parliament “ British India” has ever yet boon taken. Political reasons have hitherto prevented the supremo Government attempting it. Judging, however, from tho success which attended those taken at different times during the last few years in the Punjaub, in the North West Provinces and the Central Provinces, a general census of the whole of British India is according to present arrangements to be taken in October, 1871. 20. At present the population (I give only that of the larger provinces) is supposed to be about 40,000,000 in Bengal ; 30,000,000 in the N. W. Provinces, of which Agra formerly, and Allahabad now, is the capital ; 14,000,000 in the Punjaub, 24,000,000 in Madras, 12,000,000 in Bombay, including the Province of Sund, and 9,000,000 in the Central Provinces, of which Nangpoor is the seat of the Chief Commissioner.

It is believed by those most likely to know that the Queen has in British India about 180.000. of subjects. Many think the census next year will show nearly 200,000,000. 21. The towns, too, are very large. Tho census of the town and island of Bombay taken in February, 1864, gave upwards of 800.000, which is second only to London in tho British dominions. Madras has 700,000, and Calcutta about 500,000.

22. Tho Judges of the High Court at Calcutta are thirteen in number, the Chief Justice (our Bombay C. J. —Sir Richard Couch—was promoted to that post in May last, on Sir Barnes Peacock’s retirement) getting £7200 a year, and the twelve Puisnes £SOOO each. The Judges at Madras are live in number, the C. J. getting £GOOO a year, and the Puisnes £ISOO each. The Judges at Bombay are seven, with same scale of pay as at Madras. The Judges of the High Court of the N. W. Provinces (erected since 18G2) are six in number, and those of the Chief Court of the Pnnjaub are I think three or four. The pay of the two last I do not know.

23. In framing the Indian codes, the Legislature felt itself at liberty to refer to first principles, and to select whatever was valuable from the codes of other countries besides England.

21. The first in point of date that was framed, “ The Indian Penal Code,” was drawn by Lord Macaulay (then Mr. Macaulay, and legal member of the Governor-General’s Council) more than a quarter of a century ago; and after having been improved and sanctioned by the Indian Law Commissioners, was passed in 1860, and became tho law of British India, including the three Presidency towns, and took effect on January 1, 1862. 25. Although lawyers did not quite profess to understand or like it at first, it has worked its way, and is now received with general approbation ; and certainly to have tho whole criminal law (except certain local and other special laws) in 511 sections, in the clear terse English of Macaulay, and without the technical jargon o£ English criminal law is an enormous gain.

26. I arrived in Bombay in January, 1861, and, therefore, saw the practical working of an old system daring eleven months. I prosecuted aud defended a great number of prisoners, until I was made her Majesty’s Ad-vocate-General in March, 1866, when, as I thus became the confidential legal adviser to the Government, they refused to allow me to appear oa behalf of prisoners ; after which I

prosecuted for Government all the important oases. Since I Lave been on the Bench (/.e. since April, 1869), I have prosified at two criminal cssions, and I can say without the slightest Imitation, and with a perfect recollection of the practice of the criminal courts in New South Wales, that our present system in India is a vast improvement on all the old ones I have seen since I was called to the Bar in 1850. 27. In 1860, grand juries were abolished in British India by Act XIII., of 1865, and now criminal cases are tried in the Presidency towns on “charges” sent up by the magistrate, and, as is generally the case, amended by the clerk of the Crown, whilst in cases involving capital punishment, and in all other cases which the Judge may think proper, pri--1 snuers are tried by a special jury of twelve I (being those persons who used to be summoned on the grand juries) with very great advantage to the interests of justice. 28. The penal code has been amended in one or two slight instances, hut it has worked so well that no serious amendment is contemplated. It is based much on the French penal code in arrangement. There is a short bill now before the Legislative Council of India, at Simla, to amend some of tile sections further. I enclose a copy. 29. The Civil Procedure code, passed in 1559, is very simple, and though not perfect, gives great satisfaction. 30. A plaint is filed in the Prothonotary’s office, stating the facts in a narrative form, and is verified by the plaintiff or his agent on solemn affirmation. The Judge in chambers looks it over (I was Judge in chambers during the first five months of this year), and if it discloses n cause of action he accepts it, if not he rejects it. If ho accepts it and it is a short or undefended cause it is marked by him as such and comes on for hearing in about a month, on a Tuesday which is a “short cause” day. If the Judge sees it is a contested suit he marks it as a “long cause” and calls for a “ written statement,’ which the defendant files in the Prothonotary’s office in a few weeks, and in which he states his defence in a simple narrative form, in paragraphs, and without prolixity or argument. 31. The suit is called on for disposal in its turn in the “ Long Cause List.” Counsel on both sides state what issues they wish raised, the Judge frames them then and there, hears the evidence of both sides, and the arguments if any law is involved ; decides off-band, or, in cases of difficulty, takes time to consider. When ho gives his decision, he records his finding on the issues, which he can amend or add to up to the last moment, and generally gives costs to the successful party. If parties are dissatisfied with his finding on the law or facts, they lodge a memorandum of appeal within twenty days from the decision, and lodge with the Prothonotary £SO for costs, and the appeal is heard before two other barrister-judges as soon as convenient. The Appeal Court sits, at least it ought to sit, twice a month. 32, In any case where the property in dispute is over £IOOO an appeal lies to the Privy Council as a matter of course. 33. There have never been juries in civil causes in India, and I think the general feeling of suitors and of all concerned is that the decision of a Judge alone is much better than if he had the assistance of a jury of twelve, or even of four (as in Australia). 31, Wo have no motion for new trials, but if parties are dissatisfied, they can appeal in every case within twenty days as a matter of course

-33. I may mention 'that a considerable number of suits filed are of a purely equitable character, such as partnership and aclmiuistratration suits, suits for a partition of ancestral landed property, suits on mortgages. , 36. In 1808 there were 1200 suits filed in the High Court of Bombay. There were twenty-five appeals from the decisions of a single Judge, 917 motions in Court, and 2028 orders in Chambers. In 1869 there was a considerable falling off. In 1870, 6 7 8 suits have been filed up to date. 37. In 1808 these were 139 cases tried during the five criminal sessions of the High Court. 38. We sit the whole year round except during the hot weather vacation of a mouth in May, and during another month’s vacation in October (the unhealthy mouth, after the monsoon), and we have ten days holiday at Christmas, and four or five at Easter. There are, besides, occasional days when the Courts do not sit on the occasion of some groat Hindoo, Mahomraeda'n, or Parsec holiday sanctioned by Government, 39. The above returns, which are the last I have had access to, and are taken from the “ General Report of the Administration of the Bombay Presidency for the year IS6B-9,” are for what is called the “ Original Jurisdiction,” civil and criminal (ie., the Island of Bombay), and do not include the Appellate branch of the Court, which (like the old Sudder Court) hears civil and criminal appeals from the Mofussil or up-country districts, and confirms, reverses, or alters the sentences of death passed in the Mofussil districts. -10. The Mofussil Courts have a “ Criminal Procedure Code, passed by the Council of the Governor-General of India, in 1861 (Act XXV. of 1861), and which was partially amended by an Act of 1869. It does not apply to the Presidency towns. It works well, and especially so the provision that the magistrate and the Judge may examine the prisoner, though he is not bound to answer. What he says is recorded, and often enables the Judge to arrive at the truth of a case much better than if the prisoner’s mouth were shut. The Judges are, I believe, unanimous in favor of this provision, which affords an innocent prisoner an opportunity of explaining his conduct, whilst a guilty one is very apt to invent a parcel of lies, and so strengthen the case against himself. 41. I have hastily thrown together the above observations, as by the Sydney Manning Herald of the 18th August, 1870, which reached me on the 10th instant, I see that a Commission on the Law Courts and Law Reform has been appointed in New South Wales, and that the Commissioners had issued a circular inviting suggestions, and particularising eleven subjects as meriting special attention. 42. As the objects sought to be obtained by the appointment of such commission were many years ago the subject of anxious consideration by the Indian Law Commissioners (among whom were men of the very highest legal ability in England), and by authorities in India, and as the experimental and unfettered legislation in India on the same subjects has succeeded here most admirably, and England herself being in the process of fusing and doing away with the absurd distinction between law and equity, and is legislating so as to give to one High Court the power of dealing out full justice to the parties without the necessity of resorting to any other tribunal, I thought that Mr. Cowper (even though possibly out of office when this reaches him) would be glad to know, and perhaps to communicate to others, what has been done in India of latoyears in improving the Courts, and the law administered in them, and in simplifying their procedure, considering more especially the very great and beneficial results which have been obtained by fusing law and equity, and by the introduction of the Civil and Criminal Procedure Codes and of the Penal Code, all based on rational principles and a common sense view of things. 43. I send by book post by the present mail tho last editions of the following works, for Mr. Cowper to lay before the Commissioners if he should think the above remarks worthy of thoir attention, viz.:— (<6) Indian Penal Code, edition of 1369. (b) Criminal Procedure Code, edition of 1809. (r) The Act of Parliament Letters Patent, original (1862) and amended (1865), constituting the Bombay High Court and the rules framed thereunder, edition of 1867. A new edition of the Civil Procedure Code is now in the press at Calcutta, and is daily expected to be issued. I will forward a copy by the first mail that leaves after it roaches Bombay. 44. My view upon the eleven points on which the Commissioners invito suggestions are, from practical experience the Bar and on tho Bench here during tho last eight years, as follows : 1, Fuse wholly law and equity. Such change

was successfully carried out in India in 18(52, and England is about to adopt the same course. 2. Abolish common law and equity procedure Acts, and substitute a simple method of procedure, hire the civil procedure code of India. Let Judges try ail civil cases without juries, and try capital and all very important and difficult cases at the sessions with special juries selected froip merchants and the “ upper 10,000,” 3. Abolish all rules of pleading in civil suits as they have been abolished in India since 1862. Lord Mansfield defined pleading as a statement of facts in a legal form. I prefer our present plan in India of stating facts, whether in “ plaint” or “ written statement,” in a “simple narrative form,” in the first person, and in paragraphs. In 199 suits out of 500 filed in India, the facts stated in the plaint and written statement are quite sufficient for all purposes ; and the Judge with the assistance of the counsel “ frames the issues” with no difficulty whatever. Eules of pleading are utterly useless under such a simple and inexpensive system. 4. New trials are unnecessary when a Judge tries causes by himsolf. 5. Let an appeal lie, under certain restric-

tions, to two or more other Judges. 0. Costs, as they always have been iu India, should be in the discretion of the Judge, who cannot do better than follow the plan of the Lords of the Judicial Committee of the Privy Council, and generally award them to the successful party, 7. Sit during the year, except during vacations, circuits, and holidays. Terms arc useless iu these days of sinqple procedure, and the reasons which centuries ago occasioned this creation in England are no longer applicable. Wo have iu Bombay four terms, each of twenty days, a relic of the Supreme Court, but the only difference that I have been able to discover between a term day and another day is that in term time the Judges wear or ought to wear a blue silk gown instead of a black one. If, however, it is a very hot (and Corpo di Bacco ! when is it not so here ? where the glass is never below 68 or 70 at any part of the year, and where there is not a fire-place in any house in this island except in a kitchen) I wear the black silk gown I constructed when Attorney-General of New South Wales. • No Judge or barrister in India wears a wig, the heat is too great, and punkas are pulled in Court all the year round, and in the churches. 8. Try all civil cases by a Judge alone.

9. Consult the Indian Penal Code and Jeremy Bentharn, the French and other Codes of Europe and the United States, if Macaulay’s code is not approved of. 10. A Bill has been drafted (I believe by the Indian Law Commissioners), and was introduced into the Legislative Council of India a few days ago, but with hesitation and apparent distrust by tho present legal member of the Governor-General’s Council (Mr. Fitzjames Stephen, Q. 0., the author of a History of Criminal Law), by which it is proposed to make almost everything evidence. Tho subject is a difficult one, and I have no clear opinion as to what I would suggest, save that I think that the reception of evidence should he less limited and somewhat more liberal than it is, leaving the Judge to determine its effect. Our two Indian Evidence Acts (XV. of 1862, and II of 1865) are printed at the end of the volume (b), which I send. I do not see that our law requires much alteration. 11. Adopt the Indian plan of trying heavy or important criminal cases by special juries, and only summon common juries for ordinary criminal cases. The High Court Criminal Procedure Amendment Acts (applicable only to the Presidency towns), which work very well, are given at the end of the volume (a) sent herewith.

Lyttelton H. Batley. High Court, Bombay, September 27, 1870.