« 이전계속 »
TABLE OF CONTENTS.
This work contains the principal Codes of law which have, during the last twenty-six years, been enacted by the Governor-General of India in Council. The first volume deals with Substantive Law, and contains the Penal Code, the Succession Act, the General Clauses Act, and the Acts relating respectively to Contract, Negotiable Instruments, Transfer of Property, Trusts, Easements, and Specific Relief. The second volume deals with Adjective Law, and contains the Code of Criminal Procedure, the Code of Civil Procedure, the Evidence Act, the Limitation Act, and (in an appendix) the Acts relating respectively to Court-fees, Stamps, and Registration. Repeals and amendments effected by subsequent legislation are shown in their proper places. Each Code is preceded by an introduction giving a general view of its objects and contents, pointing out its principal divergencies from English law, and making suggestions for its amendment. The foot-notes to the sections embody or refer to the rulings of the Indian High Courts on their wording and the English decisions on which many of them are founded.
It is hoped that such a work will be useful in India, not only to the judges, legal practitioners, and law-students, for whom it is primarily intended, but also to bankers, traders, public servants, and future legislators; and that in England and the Colonies it will be welcome to lawyers who have to advise on Indian settlements, titles, and contracts : to merchants and others transacting business with India : to candidates for the Indian Civil Service: to all who take an interest in the efforts of English statesmen to confer on India the blessings of a wise, clear, and ascertainable law, and especially to those who are interested in what is still, in London and
New York, the burning question of Codification. Origin of The scheme of giving to British India a complete and definite the scheme of Indian system of law probably originated in a correspondence which codifica
took place about 1829, between Sir Charles Metcalfe and tion.
the Judges of Bengal. It was adopted by Parliament on the renewal of the Charter in 1833. In the debates which preceded the passing of that measure, Mr. Charles Grant, the President of the India Board, called attention (June 13th 2) to 'the defects in the laws of India, in the authority for making them, and in the manner of executing them.' His colleague, Mr. Macaulay, said a few days later, in a speech on the same subject, 'I believe that no country ever stood so much in need of a code of law as India, and' (he added, alluding to the supposed facility of obtaining the enactment of a code when it had obtained the approbation of the Government) 'I believe also that there never was a country in which the want might be so easily supplied.' Our principle,' he said, 'is simply this,—uniformity when you can have it; diversity when you must have it; but, in all
cases, certainty.' The Act 3 which gave effect to these views recites that it is 'expedient that such laws as may be applicable in common to all classes of the inhabitants of the said territories, due regard being had to the rights, feelings, and peculiar usages of the people, should be enacted,' and provides for the appointment of a Law Commission in
India, with the fullest powers to inquire and report. The first This Commission, composed of Messrs. T. B. Macaulay, Indian Law Com- J. M. Macleod, G. W. Anderson and F. Millett, met in 1834,
and, under the instructions of the Local Government, the Commissioners employed themselves, in the first instance, in the preparation of the draft of a penal code. So completely was it understood that the Penal Code only formed part of
1 Evidence of Sir E. Ryan, Lords Committee, 15th March, 1853.
? Hansard, 3rd Ser., vol. 18, p. 698. 3 3 & 4 Wm. IV. c. 85, sec. 53.
a larger design, that the Commissioners, in transmitting their draft to Lord Auckland, the Governor-General, made the following remarks :
*Your Lordship in Council will be prepared to find in this performance those defects which must necessarily be found in the first portion of a code. Such is the relation which exists between the different parts of the law, that no part can be brought to perfection while the other parts remain rude. The Penal Code cannot be clear and explicit while the substantive civil law and the law of procedure are dark and confused. While the rights of individuals and the powers of public functionaries are uncertain, it cannot always be certain whether those rights have been attacked, or those powers exceeded?'
The general revision of the civil and criminal law of India was regarded by the Court of Directors and by the Government in India as the undoubted duty of the Law Commission. The Court, in a despatch dated June 29, 1836, assuming that the attention of the Commissioners had been called to the complaint of the East Indians?, that it was not clear by what civil law their rights were determined unless they resided within the jurisdiction of the Supreme Court,' expressed, for the guidance of the Commissioners, its 'opinion as to the points which ought to be chiefly regarded in determining the general system of judicial establishments, and of laws, civil and criminal, applicable to all classes of the inhabitants of India. And in the following year the Government of India sent the correspondence on this and other subjects to the Law Commissioners, with directions to take them into consideration in the proper place,'—in the course of the general revision of the Civil Code 3.
The next Charter Act, 16 & 17 Vict., c. 95, provided for The second the appointment of a Commission in England, to examine
mission. and consider the recommendations of the Indian Law Com
1 Letter of 14th October, 1837, prefixed to Draft Penal Code.
* i.e. the people of mixed blood, descended from British fathers and
Native mothers, and sometimes called
3 Bengal Legislative, No. 13, 20th March, 1837.