« 이전계속 »
mission, &c. This second Commission, composed of Sir John Romilly M.R., Sir John Jervis, Sir Edward Ryan, and Messrs. R. Lowe (now Lord Sherbrooke), C. H. Cameron, John M. Macleod and T. F. Ellis, prepared the plan of a new system of judicature, with drafts of Codes of Criminal and of Civil Procedure. They also examined, and in effect adopted, the recommendations of the first Commission regarding the substantive civil law; and seeing that such a law could not be framed within the time allowed for making all their reports, they reported as follows 1 :
'... We have given our attentive and anxious consideration to the means of remedying the great defects in the state of the laws in India to which we have now adverted; and we have arrived at the conclusion that what India wants is a body of substantive civil law, in preparing which the law of England should be used as a basis; but which, once enacted, should itself be the law of India on the subjects it embraced. The framing of such a body of law, though a very arduous undertaking, would be less laborious than to make a digest of the law of England on those subjects, as it would not be necessary to go through the mass of reported decisions in which much of English law is contained. And such a body of law, prepared as it ought to be with a constant regard to the condition and institutions of India, and the character, religions, and usages of the population, would, we are convinced, be of great benefit to that country. ...
• We have the satisfaction of being able to state that our opinions as to the defects in the state of the substantive civil law in India, and the expediency of framing and enacting a body of law for India based upon English law, are very much in accordance with the views of the Law Commissioners in India.'
The Adjec- In 1859 the Indian Legislature enacted a Code of Civil tive law codified. Procedure (VIII of 1859) and a Limitation Act (X of 1859).
In the following year the Penal Code was passed, and in 1861 a Code of Criminal Procedure (XXV of 1861). The bulk of the adjective law of India was thus for the first time codified.
Second Report of Indian Law
December, 1855, Appendix to First Report of Commissioners of 1861, p. 58.
In December, 1861, a fresh Commission, expressly based Third Com
mission. on the report of the second Commission, was issued, for the purpose of framing for India, in the words of that Report, 'a body of Substantive law, in preparing which the law of England should be used as a basis, but which once enacted should itself be the law of India on the subject it embraced ; and also for the purpose of considering and reporting on such other matters relating to the reform of the laws of India as might be referred to them by the Secretary of State.' This Commission, originally composed of Sir John Romilly M.R., Sir W. Erle C.J., Sir E. Ryan, Mr. R. Lowe, Mr. Justice Willes, and Mr. J. M. Macleod, was repeatedly renewed ?; and it submitted several reports containing drafts of proposed Rules of Law? to the successive Secretaries of State, by whom they were transmitted to the Government of India with a view to legislation. Of these drafts the first was carried through the Council in 1865 by Sir H. S. Maine, and is now the Indian Succession Act. They were received by the Secretary of State and by the Indian Legislature as instalments of a recognised public work, and not as isolated measures of legislation.
For instance, on the 13th November, 1867, the late Lord Iddesleigh, then Sir Stafford Northcote, expressed to the members of the Commission his thanks, as well as those of his Council, 'for this very valuable report (the third), constituting, as it does, another portion of that great work which is destined to confer such solid benefits on the people of India.'
* Sir W. M. James L.J. succeeded Sir W. Erle; Mr. John Henderson succeeded Mr. Justice Willes; and Mr. Justice Lush succeeded Mr. HenderBon.
* The first report (1863) contained the draft Succession Act: the second (1866) the draft Contract Act: the third (1867) a draft Negotiable Instruments Act: the fourth (1867) was a reply to certain remarks of the
Government of India as to specific performance: the fifth (1868) con. tained a draft Evidence Act: the sixth (1870) a draft Transfer of Property Act: the seventh (1870) related to the revision of the Code of Criminal Procedure. When the Commission resigned it left a draft code of the law of Insurance (fire, life, marine), which is now in the Legislative Department of the Government of India.
In 1865 the Viceregal Council passed a Marriage Act, in 1866 a Companies Act, in 1868 the General Clauses Act, and in 1869 the Divorce Act; all which Codes were drawn in India by direction and under the superintendence of Sir H. S. Maine.
On the resignation of the majority of the members of the third Commission, under the circumstances mentioned infra, P. 534, the Duke of Argyll, on the 7th July, 1870, remarked :
'I have long known, and from recent observation since I have held the seals of this office I have had better opportunities for appreciating, the high value to be placed on your labours and those of your predecessors in the same public trust. You and they have laid the foundations of a systematic jurisprudence for India, and I can only hope that those who may have to continue the work, whether in this country or in India itself, will follow successfully in the course which your wisdom and forethought have marked out for them. At the same time I am fully aware that the work which you undertook is by no means completed, and I could wish that you had felt it in your power to continue the operation of your Commission,' &c.
In 1871 a new Limitation Act (IX of 1871) was carried through the Viceregal Council by Mr., now Sir Fitzjames Stephen, and in the following year the Council enacted his Evidence Act (I of 1872), the Contract Act (IX of 1872), and second editions of the Code of Criminal Procedure and the
Marriage Act. Lord In 1874 the little Code relating to European Minors (XIII of Salisbury advocates 1874) was carried by Mr., now Lord Hobhouse, and in 1877 the the con tinuance
same learned person carried the Specific Relief Act (I of 1877). of codifica- In the beginning of 1875 Lord Salisbury wrote to the tion.
Government of India ?, calling attention to the fact that the statutory provision for the appointment of an Indian Law Commission had been designedly left in force by the Indian Councils Act and subsequent legislation. His despatch contained the following passages :
* 2. It is difficult to exaggerate the value of the work which has been accomplished by the various persons and bodies who have contributed to the codification of Indian Law, and specially by the successive Law Commissions. It is no small benefit to the people who resort so freely to English Courts of Judicature, that they should possess so many branches of the law of India stated in orderly sequence and simple language. But the work is not complete, although the portion already accomplished is considerable. The Criminal Law is set forth in the Penal Code. The procedure of the Criminal Courts and most of the administrative rules essential to efficient government are contained in the Code of Criminal Procedure. A Code of Civil Procedure has been in force for several years, and when it has been revised by you, it will contain the whole procedure of the Civil Courts. These three Codes are alone complete; but the whole law of Contract, of Evidence, of testamentary and intestate succession among Europeans, of European marriage and divorce, of limitation and prescription, are contained in a series of measures of no great compass or intricacy which are ready to be made chapters of a Civil Code.
1 Legislative, No 12, dated 4th March, 1875.
*3. It is impossible to deny that these measures have removed a serious amount of complexity and confusion. But some of the chief branches of law remain still uncodified, and litigation or questions arising under them is still subject to needless uncertainty and cost. The causes which led to the suspension by the Law Commissioners of the process of codification are much to be regretted, but they form no ground for abandoning the completion of an indispensable task.'
Lord Salisbury also intimated his intention to entrust to a small body of eminent draftsmen, selected for the purpose, the task of preparing for the Legislative Council the remaining branches of the Indian Code.
To this despatch the Government of India replied, stating certain objections to the plan proposed by Lord Salisbury, and on the 20th January, 1876, his lordship answered in a despatch containing the following passages :
3. While I recognise the delicate and arduous nature of the work of codification, and feel that it must be almost impossible to execute it in such a manner as to be wholly free from the objections which you urge against it, I am convinced that the force of
1 No. 6 of 1875, 5th July.
those objections may be reduced to a minimum by skill, moderation and discretion, and that, rating these drawbacks on codified law at the utmost, they are altogether outweighed by the vast practical usefulness which has recommended this method of legislation to most of the nations of Europe.
4. But independently of these considerations, the long and continuous course of action which has been pursued by the Indian Government in all its branches forbids me to regard the question of giving a Civil Code to India as in any sense an open one.'
Lord Salisbury then related the steps taken in England
to form a Code for India, and then proceeded thus :The com- 9. On a review of these facts, I am of opinion that the complepletion of the Code is
tion of a Code of Law is an accepted policy, which cannot now be an accepted abandoned without great detriment to the people and serious dispolicy.
credit to the Indian Government. I forbear, therefore, from dwelling on the reasons which might be adduced in favour of that policy, if its continuance were now under discussion.
10. I may however observe that the need of such a Code appears to me to be even greater at this moment than when its preparation was first resolved upon, because there is now an additional agency at work which is already producing embarrassing effects, and requires to be properly directed. The amalgamation of the Presidency and Mufassal Courts having taken place before the formation of the Civil Code which they were intended to administer, it has been remarked that the general direction to follow the dictates of equity, which is alone given to them for their guidance, is apt to be interpreted by many of the Judges of Appeal by the light of English authorities with which they are familiar", but which are necessarily unknown to the litigant parties and even to the Judges of first instance. Thus, it is said, many rules ill-suited to oriental habits and institutions, and which would never recommend themselves for adoption in the course of systematic law-making, are indirectly finding their way into
· That justice, equity, and good application to a Muhammadan mortconscience'are, at least in the Bombay gage of the rule in Shuttleworth v. Presidency, equivalent to English law, Laycock, infra, p. 777, note 3: the see 2 Bom. H. C. 36, 52.
rule as to strict construction of penal 2 See for instance the decisions of laws, etc. Even where the Court has the High Courts against the existence ultimately decided against the appliof an easement to restrain interference cation of an English technicality, with privacy, infra, pp. 881, 907: the public time is wasted by the argument