« 이전계속 »
and of local, special, and personal laws; and, lastly, in the exemptions of the backward parts of India called the Scheduled Districts 1 from the operation of rules too elaborate for their inhabitants or administrators. In writing the introductions and notes, I have freely used Sources of
the introthe Statements of Objects and Reasons by which, according ductions to the practice of the Indian legislatures, all Bills are accom- and notes. panied, and the reports of Select Committees by which they are followed. The speeches made in the Viceregal Council have also furnished some valuable matter. The introduction to the Penal Code is to a large extent founded on Macaulay's notes to the draft. The introduction and notes to the Succession Act are for the most part taken from my own edition of that Code. In the introductions and notes to the Codes of which I was the draftsman, I have embodied the memoranda made before and while drawing the Bills. Some useful hints have also been got from the commentaries published in India by Messrs. Chalmers, Collett, Field, Henderson, J. M. Macpherson, Macrae, Mayne, Morgan and A. G. Macpherson, Rattigan, and Shaw, and from a letter received in the beginning of 1886 from Mr. R. J. Crosthwaite, now Judicial Commissioner of the Central Provinces. But my principal source of help has been the decisions of the High Court judges ? published in the Indian Reports from 1862 to 1886 inclusive-decisions which not only throw light on the ideas and customs of the people of India 3, but are, as a rule
Instruments Act, sec. 1: the Transfer of Property Act, secs. 2, 98, 106, 108, 117, 129: the Trusts Act, sec. 1 : the Easements Act, secs. 2, 18, 20.
1 They are enumerated in Act XIV of 1874, sched. I.
. But few cases relating to the Indian Codes have hitherto come before the Judicial Committee of the Privy Council.
• See, for instance, in the case of the Penal Code, infra, pp. 117, n. 2 : 123, n. 5 : 127, notes 1, 3: 145, n. 6 : 149, n. 1: 170, n. 2 : 194, n. 5 : 205, n.
1: 207, n. 2 : 208, notes 1, 3: 209, n. 5: 210, n. 3: 218, n.9: 219, n. 3 : 230, n. 7: 232, n. 5 : 238, n. 2 : 249, n. 5: 250, n. 7: 253, n. 4: 269, n. 1: 281, notes 2, 3, and 4: 283, n. 8: 288, n. 2 ; in the case of the Contract Act, infra, pp. 546, n. 1 : 559, notes 3, 4: 594, n. 4: 648, n. 3: in the case of the Negotiable Instruments Act, p. 673, n. 3: in the case of the Transfer of Property Act, pp. 770, n. 5: 801, n. 4: in the case of the Specific Relief Act, 978,
Criticisms on the Codes.
(if I may say so without impertinence), admirable for their logicality and learning. Of these judgments none can be read with more pleasure, and few with more profit, than those of the Hindú Muttusámi Ayyár and the Muhammadan Sayyid Mahmud. For the subtle races that produce such lawyers", no legal doctrine can be too refined, no legal machinery can be too elaborate.
A word in conclusion as to the criticisms which I have ventured to make on the Codes for which Macaulay, Sir Barnes Peacock, Mr. William Macpherson (the draftsman of the Succession Act and the Contract Act), Sir Henry Maine, Sir Fitzjames Stephen, and Lord Hobhouse are answerable either personally or officially. Mr. Pollock (and no one, surely, is better entitled to express an opinion on the subject) says ? that the Indian Codes are the best models yet produced ; at the same time they are by no means faultless. It is easy to see various points in which they are capable of improvement, though it must be remembered that for the purposes of Indian administration labour and ingenuity would not improbably be thrown away in working them up to the refined exactness which is an English lawyer's ideal.' Feeling as I do the justice of this courteous censure, my criticisms have been made with a view to the amendment by the legislature of the Codes to which they relate, and not with any pleasure in picking holes in the work of men who, in the opinion of all competent judges, rank with the greatest among the many benefactors that England has given to India.
Reports of the High Court of Judicature for the North
Western Provinces, by Munshi Hanuman Pershad and
Lálá Lálita Pershad, vols. i-iv, Agra, 1867, 1868. gra F. B.
Reports etc. containing Full Bench Rulings, Agra, 1867. All.
Indian Law Reports, Allahabad Series, vols. i-viii, Alla
habad, 1876-1886. Ben. ....... Bengal Law Reports, vols. i–xv (1868–1875). Ben. F. B.. Full Bench Rulings of the High Court at Fort William,
1876–1886. Bom. H.C. Reports of Cases decided in the High Court of Bombay,
vols. i-xii, Bombay, 1867-1875. Borr.
Borrodaile's Reports of Civil Causes adjudged by the Court
of Sudur Udalut for the Presidency of Bombay, vols. i, ii,
Bombay, 1825. Bouln.
Reports of Cases in the Supreme Court at Fort William
(1856-1859), by C. Boulnois. Bourke
Reports of Cases ... in the High Court of Judicature at
Fort William, by Walter M. Bourke, Calcutta, 1867. Cal.
Indian Law Reports, Calcutta Series, vols. i-xii, Calcutta,
Reports of Cases in the Supreme Court of Judicature at
Fort William, Calcutta, by J. W. Fulton, 1845. Hyde.
Reports of Cases, etc., by E. Hyde. Two vols., Calcutta, 1864. Ind. Jur., N.S. The Indian Jurist, New Series (Jan. 1866-Sept. 1867). Mad,
Indian Law Reports, Madras Series, vols. i-ix, Madras,
1876–1886. Mad. H.C. Reports of Cases decided in the High Court of Madras, vols.
i-viii, 1864-1876. Marshall Reports of Cases on Appeal, Calcutta, by W. Marshall, 1864. Morl. Dig.
An Analytical Digest of all the reported Cases decided in
the Supreme Courts of Judicature in India, etc., by
W. H. Morley, London, 1850, vols. i-iii. Morton
Decisions of the Supreme Court of Judicature at Fort
William, by T. C. Morton, Calcutta, 1841. N.W.P. = Reports of Cases heard and determined in the High Court,
N.W. Provinces, vols. i-vii, Allahabad, 1873-1875. Perry........... Cases illustrative of Oriental Life and the application of Eng.
lish Law to India, by Sir Erskine Perry, London, 1853. S. D. A.
Reports of Cases determined in the Courts of Sudder
Dewanny Adawlut, vols. i–xxiv, Calcutta, 1846-1871. Sevestre......... = Reports of Cases on Appeal, by A. Sevestre, vol. ii, Calcutta,
1866. The Weekly Reporter, Appellate High Court, vols. i-xxvi,
by D. Sutherland, Calcutta, 1864-1876. Suth. 1864.
Sutherland's Reports of Decisions of the Appellate High
Court from January to July, 1864, Calcutta, 1867. Suth. Sp. N. ...
Special Number of the Weekly Reporter ... containing Full
Bench Rulings from July 1862 to July 1864, Calcutta. Tayl. & Bell.... Reports of Cases heard and determined in the Supreme
Court of Judicature at Fort William in Bengal, vols. i and
ii, Calcutta, 1851-1853. With the exception of Maddock's reports of cases temp.
Plumer V.C. and Leach V.C., the English Reports bave been cited in the usual manner.
TEXT-BOOKS AND COMMENTARIES CITED.
Anson, Principles of the English Law of Contract, 4th ed., Oxford, 1886.
Courts of the Punjab, London, 1878. BULLEN and LEAKE, P ecedents of Pleading8, 4th ed., London, 1882. BURGE, Commentaries on Colonial and Foreign Law, London, 1838. Byles, On Bills of Exchange, 14th ed., London, 1885. CHALMERS, The Negotiable Instruments Act, Calcutta, 1882. COLLETT, The Law of Specific Relief in India, Calcutta, 1882. COOTE, Prob. = Coote's Common Form Practice in granting Probates and
Administration, 9th ed., London, 1883. Cunn. & S., The Indian Contract Act, by H. S. Cunningham and H. H. Shep
hard, 4th ed., Calcutta, 1883. DANIELL, Practice of the Chancery Division, 6th ed., London, 1882. DARBY & B., Darby and Bosanquet's Treatise on the Statutes of Limitation,
London, 1867. Dart, Vendors and Purchasers, 5th ed., London, 1876. DAVIDSON, Precedents in Conreyancing, 3rd ed., London, 1873, 1876, 1877,
1880. DRAGE, The Criminal Code of the German Empire, London, 1885. ELPHINSTONE, Norton and CLARK, Rules for the Interpretation of Deeds,
London, 1885. FIELD, The Law of Evidence in British India, 4th ed., Calcutta, 1884. FISHER, The Law of Mortgage, 4th ed., London, 1884. Fry, On Specific Performance of Contracts, 2nd ed., London, 1881. GALE, The Law of Easements, 5th ed., London, 1876. GODDARD, The Law of Easements, by J. L. Goddard, 3rd ed., London, 1884. GRANT, Law relating to Bankers, 4th ed., London, 1882. Hawkins, On the Construction of Wills, London, 1863. Hedáva, The Hedaya or Guide ; a Commentary on the Mussulman Laws ;
4 vols., London, 1791. HENDERSON, Code Cr. P. = The Code of Criminal Procedure, and ed., Cal.
Succ. The Law of Intestate and Testamentary Succession in India,
HOLLAND, The Elements of Jurisprudence, 3rd ed., Oxford, 1886.
and Adoption, Calcutta, 1885. Kent, Comm.=Commentaries on American Law, by James Kent, 13th ed.,
Boston, 1884. (This edition contains notes by Mr. Justice Holmes.) KEBR, On Injunctions, 2nd ed., London, 1878. On Receivers, 2nd ed., London,
1882. LEAKE, Digest of the Law of Contract, London, 1878. LEWIN, Law of Trusts, 8th ed., London, 1885. LINDLEY, Ptp. = On the Law of Partnership, 4th ed., London, 1878. LIVINGSTON, Works of Edward Livingston on Criminal Jurisprudence, 2 vols.,
New York, 1873.
Macpherson, Calcutta (no date).
H. L. A Treatise on Hindu Law and Usage, 3rd ed., Madras, 1883.
1884. Mitra, The Law of Limitation and Prescription, by Upendra Náth Mitra,
Calcutta, 1885. M. & M., The Indian Penal Code, with notes by W. Morgan and A. G. Mac
pherson, Calcutta, 1861. N. Y. Civil Code (draft). The Civil Code of the State of New York, reported
complete by the Commissioners of the Code, Albany, 1865. N. Y. Cr. Pr. Code Annotated Code of Criminal Procedure of the State of
New York, 4th ed., by Donnan, Albany, 1885. N, Y. Penal Code Annotated Penal Code of the State of New York, by
Donnan, ibid. PEACHEY, On the Law of Marriage and other Family Settlements, London,
1860. POLLOCK, Principles Principles of the Law of Contract, 4th ed., London,
Torts = The Law of Torts, London, 1887.