§ 7. The written rules are those which have been reduced to writing by the Legislature, and constitute the Statute Law.

§ 8. The Unwritten Law consists of the Common Law, and Equity.(d)

§ 9. In one sense a great portion of the Common Law may now be said to be "written"; for it is to be found in the printed records of the various decisions of the Courts, under the name of Reports: which, as a general rule, are authoritative precedents in subsequent similar or analagous cases. But in these decisions the Judge does not make the law, he only declares what the law is. From the necessity of things, the rules of the Common Law must be general; and would often be productive of great hardship to the subject, were they not liable to be tempered by Equity, which has been defined "the correction of that wherein the law by reason of its universality is deficient."(e)

§ 10. We must make one further division before we come to our immediate subject. Municipal Law may be divided into Substantive and Adjective.

§ 11. Every individual law, properly constituted, consists of two parts, one of which is substantive, the other adjective. The substantive either declares what the law was before, or commands what it shall be for the future; and hence is classified either as Declaratory or Mandatory but if legislation stopped short here, it is manifest that the law would be imperfect, if not powerless; as for instance, if it were to be declared, that he who killed another feloniously and maliciously, should be deemed guilty of murder. Clearly it is necessary to annex the consequences of the act: and this is adjective to the other branch: for instance, that the murderer shall be hanged. The adjective portion of a law is either preventive or remedial, according as its object is to intercept an act before it is committed, or to correct or make amends for its consequences after commission. Where the law seeks to operate through prevention, it does so through the medium of either force or fear. Of the first, provisions for securing dangerous people, as lunatics; or brutes, as ferocious dogs; are instances. Of the latter all punishment, which has for its end not only the correction of the

(d) I do not allude to the Civil and Ecclesiastical Law, the Military, and Maritime Law, or the Law of the Universities, because though tolerated, they derive their authority from the Common Law of England, and are, as Blackstone calls them, leges sub graviori lege.

(e) This definition has been copied from writer to writer. Plowden takes it from Cicero, and Cicero from Aristotle.

LAW, SUBSTANTIVE AND ADJECTIVE.

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individual, but the warning of all members of a community by example, is an instance.

When the law seeks to operate remedially, it does so either by Restoration or Compensation. As an instance of the first, take the case where a specific chattel is directed to be delivered up; as an instance of the second, the ordinary case of damages, where the specific chattel has been destroyed, or contract cannot be performed, or injury can only be pecuniarily made up for.

§ 12. But it is not in this sense that the present division is to be applied. It will be perceived that we have been considering the various clauses of a law: we must divide all Municipal Law into substantive and adjective.

§ 13. The former will include all rules prescribing lines of civil conduct the latter, those which are laid down in order to enable the administrators of justice to apply the former in practice. Such are Laws of Procedure, Pleadings, and Evidence.

§ 14. The Law of Procedure is that whereby the conduct of trials, from the summons of the party to final execution of judgment, is regulated.

§ 15. The object of Pleadings() is to instruct the Judge as to the points in dispute which he is called upon to try, and to reduce the dispute to its narrowest limits. (9)

§ 16. The object of Evidence must be considered somewhat more at large. Let us suppose that a Judge is called upon to try a charge of murder. Now he knows the Substantive Law, that if A feloniously

(f) The Law of Evidence can scarcely be thoroughly understood without a knowledge of the principles of pleading, whereby the several issues are raised, the points not in dispute thrown off, and oftentimes admissions made which supersede the necessity of proof. In England the parties are left to raise their own issues. Under the Roman Law, the Magistrate did this for the parties. According to the Mofussil practice, the task is the joint work of the Judge and the parties. The parties first detailing their respective stories, and the Judge then determining what are the "points" to which evidence is to be adduced. A separate course of Lectures should be devoted to pleading; for the present we must assume that the issues are raised, at which point the Law of Evidence strikes in.

See as to Pleadings.

Reg. III. of 1802. Sec. 3-5.

Reg. XV. of 1816. Sec. X. Cl. 3, as to points.

Reg. XVI. of 1816. Sec. IX. as to impertinence, or irregularity.

Rules of Pleading of Sudder Adawlut, 1st July 1855.

(9) Thus if A sue B for land which he alleges B deprived him of fourteen years since, B may answer that the claim is barred by the Regulation of Limitations. A replies that his right has been acknowledged by B within the last 12 years. B might rejoin that it had not been so acknowledged, which would be the only issue to be tried. This would be an issue of fact. Or suppose a similar case in the Supreme Court B might reply that the acknowledg ment was not in writing. This would be an issue on law-but would still be the only issue to be tried.

and maliciously kill B, A is guilty of murder. He knows too that the penalty for this crime is death. But these are general abstract propositions. Before he can apply the Substantive Law to the case before him, he must be satisfied that the Facts are such as to warrant its application. In other words, that the murder has been committed by the party charged. This is to be done by Investigation.

§ 17. In England the Jury are sole Judges of the facts.

§ 18. In India, except in criminal trials before the Supreme Courts, at which a Jury is empannelled, the Judges are Judges both of law and fact. So in Musadee Mahomed Cajum Sheerajee v. Meerza Ally Mahomed Sooshy, (h) it was held, that as by the constitution of the Supreme Courts, the Judges sit as Judges and Jury, the same weight is to be given to their Judgment as to a verdict in England, when the Judge who tried the cause is not dissatisfied with the verdict.() Under Reg. III. of 1802, S. 16, Cl. I, the Native Law Officers are to attend at civil trials to expound the law.

Under Reg. VII. of 1802, S. XV. Cl. I, the Mahomedan Law Officer is to deliver his Futwah in criminal cases.

Under Reg. X. of 1827, jurors may be summoned on criminal trials; but from the impracticability of finding fitting persons, this Regulation has hitherto been a dead letter.

Under Act VII. of 1843, S. 32, Cl. 1, 2, 3, the Judge may appoint assessors to assist him; but as he is not bound by their opinion, it follows that as a general proposition the Judge in India practically decides the questions of fact.

§ 19. That which the parties produce to the Judge in order to enable him to form his opinion upon the truth of the facts stated in the Pleadings, or such of them as remain to be tried under the various issues, is called Evidence; distinguished from Arguments offered to show how such Evidence bears upon the various points to be established.

§ 20. If Evidence amounts to conviction it is then called Proof. (*)

(h) 6. Moore's I. A. p. 27.

(i) One result of this is to render it often difficult to judge on the propriety of appealing from an original decision, because it is not always easy to ascertain where the source of error lies, whether with regard to law or fact. In the case cited in the text, it is laid down that the Court of Appeal will not distrust the Judgment of a Court in India upon a question of credibility of witnesses, unless it is manifestly clear from the probabilities attached to certain circumstances in the case, that the Court below was wrong in the conclusion drawn from such Evidence. This principle should govern all Courts of Appeal.

(k) Note a common inaccuracy as to terms, especially prevalent in Courts Martial, where the Witnesses are usually denominated the Evidences.

§ 21. The Law of Evidence is symmetrical and logical. Lord Erskine eloquently says that "its rules are founded in the charities "of religion,—in the philosophy of human nature-in the truths of history, and in the experience of common life." (m) Whether this character was altogether deserved at the date it was delivered, we may well doubt with Bentham; but now that in an enlightened spirit many of the obstacles in the way of getting at the truth have been removed, the praise is not misplaced; and the knowledge or belief that our studies are concerned about a subject of so elevated a quality, may well inspire us with curiosity, and stimulate us in our labors.

§ 22. It is proposed to consider Evidence under three heads. 1st.-As to Principles; by which I mean those elementary principles upon which the Law of Evidence is founded.

2nd. As to Kind.

3rd. As to the Instruments of Proof.

§ 23. Before proceeding further, it may be advisable to state once for all, that at the present day the English Law of Evidence, with such exceptions as circumstances necessitate, hereafter to be pointed out, is the guide in the Courts of the Mofussil. It is a fallacy sometimes uttered that the Mahomedan Law is the guiding rule. On the 28th May 1829, the Foujdaree Adawlut stated to Government they considered themselves by Reg. I. of 1818 released from following the Mahomedan Law of Evidence, and that they had accordingly turned to the Law of England as their legitimate guide, and as the acknowledged source of the provisions previously enacted, in the Regulations of the Madras Government, for the conduct of judicial procedure. (") This has never been questioned since: and Mr. Arbuthnot (formerly Register to the Sudder Adawlut) expressly states in the Preface to his Select Reports that the English Law now generally obtains.

It is true that the Law provides for the Native Law Officer giving his Futwah, but this can easily be set aside; for by Reg. XV. of 1803, Sec. II. Cl. 3, the Judge may put a second question, and act upon the answer. Thus, suppose the case of a fact proved by only one witness, and that a woman. The Mahomedan Law Officer might declare the case not proved, because according to the Mahomedan Law the evi

(1) 24. State Trials, p. 966.

(m) See observations, New York Code, § 1661.

(n) Arbuthnot's Select Reports, Preface, page XXVII.

dence of a woman is not receivable. The Judge might then asksuppose the woman were a man? The second Futwah would declare that under such circumstances the fact would have been proved. The Judge may then act upon the second Futwah.(0)

Under Act I. of 1840, the Foujdaree Adawlut is relieved from Futwahs.

In the Supreme Courts, it is true, the Charters provide that in cases of Contract and Inheritance the respective Laws of Hindus and Mahomedans are to be observed.

But notwithstanding this, which applies to their substantive law, the facts are to be established in accordance with the English Law of Evidence.(p)

Thus the proposition stated in the commencement of this Section is proved true.

(o) The sooner such expedients, clumsy and foolish as they are, are expunged from the Statute Book, the better.

(p) On questions of contract or inheritance between Natives, the Court will investigate according to the English, and not according to the Native rules of evidence. Syed Ally v. Syed Kullee Mulla Khan. 19th Jan. 1813. 2 Str. 191.

The rules of evidence are the same in India as in England, and no allowance is made for the character of the Natives. Sreemutty Nubbocoomary Dossee v. Goursoonder Seal. 24th June 1842. 1 Fulton, 15.

It may not be out of place to show on what principle this depends. It is settled by the comity of nations that when a foreigner submits to the jurisdiction of a Court, though he has a right to demand that his contracts, &c. made in his own country shall be judged of according to his own law, yet he must in all respects conform to the procedure of the Court in which he sues. Or as it is put, (see Story's Conflict of Laws, § 557) in those matters which relate "ad litis ordinationem," the " lex fori" obtains ; in those which relate " ad litis decisionem.” the "lex loci contractus." And as above shown, Evidence is part of the Adjective Law. A curious consequence has been deduced from this. By the Hindu Law, the limitation of Actions with regard to personality is ten years (extended by Reg. II. of 1802, S. 18, Cl. 4, to twelve years) and although the Supreme Court Charter provides that their Law of Contract shall prevail, it has nevertheless been held by the Privy Council in Ruckmaboye v. Lulloobhoy Mottichund, Moore's Ind. App. vol. 5, p. 234, that the English Law of Limitation, which gives only six years, shall prevail against Hindus. See also Donn v. Lippman, II. Cl. and Fin. p. 1.

The exception to the 12 years rule of Limitation in the 4th Clause of Sec. 18, of Reg. I. of 1802, arises where the "complainant can show by clear and positive proof that he had de"manded the money or matter in question, and that the defendant had admitted the truth "of the demand or promised to pay the money; or that he directly preferred his claim, &c." This exception may be satisfied by proof of a verbal promise or acknowledgment by the party charged. And so the law formerly stood in England; but so great were the evils of reviving old claims by mere parol testimony, that 9 Geo. IV. c. 14 (commonly called Lord Tenterdon's Act) was passed, requiring such acknowledgment to be in writing. By the Legislative Act VI. of 1840, that Act has been extended to India; and it is conceived that within the Supreme Court's jurisdiction such a promise by a Native must now be in writing. This, on parity of reasoning to the argument on which the Law of Limitation has been held to apply. For though the Hindu Law does not require any contract to be in writing, yet as Lord Tenterdon's Act affects the evidence of a contract, and evidence is part of the procedure as to which the lex fori obtains. This question was raised in the case of P. Moorasaumy Pillay v. Rajamhal Ummall in the Supreme Court in the 1st Term of the present year (1858) on a point reserved. Owing to the death of the Plaintiff judgment was not delivered. I argued against the applicability; but my opinion was from the first in favor of the Defendant, and I have little doubt that the Court will require a written acknowledgment, whenever the point comes to be decided. The inclination of the Legislature is to shorten the term for Limitations. See Act XII. of 1851, Sec. XI.