THE PERSONAL LAW IN BRITISH INDIA

Author(s): George C. Rankin

Source: Journal of the Royal Society of Arts , MAY 30th, 1941, Vol. 89, No. 4588 (MAY
30th, 1941), pp. 426-442
Published by: Royal Society for the Encouragement of Arts, Manufactures and
Commerce

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 426 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, I941

organisation which will teach people to show things in such a manner that when the
customer has bought them and taken them away he is as happy with them as when
he saw them in the window.

The Lecturer : I am speaking purely as a display man, not às a buyer or

a merchant. It is the display man's job to sell the goods, and if he can do that he can
regard himself as successful. The points you raise concern the merchant or the buyer,
not the display man.

Mr. E. W. Goodale, M.C., asked : Is Mr. Grieve satisfied, then, if, after he has
sold an article, his customer becomes disgruntled and never returns to the shop ?
Is it not better that the customer should come back time and again to see the display ?

The Lecturer : If the article is ot up to standard it is a matter for the buyer.

The object of the display is to sell the merchandise.

Mr. Trethowan : I am a buyer as well as a display man, and I have always

maintained that one has no right as an honest business man to create a display that
is just going to tickle the fancy in order to make a customer and then be the cause of
discontent and disappointment after the sale has been made. The display man
must remember what the house stands for, and the window should tell the true story
about that.

The Lecturer : As I said in my talk, it is a display man's job to follow the policy
of the house, and it is his duty to sell their goods in accordance with that policy.
I think the whole question rests on that.

The Chairman in proposing a vote of thanks to the lecturer, said : The object
of display is not only to sell. It must create an atmosphere for the mind's acceptance
of the object to be sold. I have always said that the object of advertising is not to
sell but to educate, because you must make people think before they act. If you put
it down as a sales force you give the wrong angle. It must build up the mind to such
a state that it creates acceptance. I therefore rank it higher than salesmanship.

The vote of thanks having been passed with acclamation, the lecturer briefly replied,
and the meeting terminated.

INDIA AND BURMA SECTION

Wednesday, February 2ist, 1941

SIR GEORGE BIRDWOOD MEMORIAL LECTURE

The Right Hon. L. S. Amery, P.C., M.P., Secretary of State for India
and Burma, in the Chair

Sir George Rankin, whom it is my duty to introduce as our lecturér, has had a
remarkably profound and long experience of law in India. He has served both on

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May 30, 1941 JOURNAL OF THE ROYAL SOCIETY OF ARTS 427

the Bench and as Chief Justice in Calcutta, and was acquainted, through the
Committees over which he presided, with legal problems all over India. Since
then he has seen India as a wThole, and in relation to other kindred problems, from
the Privy Council. No one, therefore, can speak to you on this intricate subject
with more authority than he.
The following lecture was then delivered : -

THE PERSONAL LAW IN BRITISH INDIA

By The Rt. Hon. Sir George C. Rankin, P.C., LL.D.

It was, I hope, with properly concealed surprise that I learnt

connected with Indian law would be deemed suitable for this annual lecture
founded in memory of Sir George Birdwood, an authority upon Indian art and
culture. Such subjects, however, may well be closely connected with Indian
culture, and if I take for my subject the " personal law " of the inhabitants
of India I may hope to say something not merely technical about the part
played in the law of British India by customs and beliefs that are indigenous
to India or fundamental to Indian society.
The 4 4 personal law " in India is law that is different for different people -
generally speaking, for people of different religion - in contradistinction from
the general law of the land applicable prima facie to everyone. The Hindu law
and the Mahomedan law are the most important of these personal laws. Thus
we know that a Muslim can by will dispose of not more than a third of his
estate, that he can divorce his wife at his own hand by giving her talak , that
speaking generally women will not be excluded from inheriting from him, but
that his property will descend according to the rule of the " double share to
the male." The Hindu joint family, again, is the unique product of the Hindu
law, sons under the Benares school obtaining their interest in the joint family
property at their birth, while under the Bengal school they succeed by
inheritance from their father. Under both schools daughters in the presence of
sons are entitled, not to a share, but to rights of maintenance and marriage
expenses if unmarried. In a number of matters - airily referred to sòmetimes
as religious and family matters - no attempt is made to apply the same law to
all the inhabitants, even to those >v¡ho have no connection whatever with any
other country. As was said by the eminent lawyers who composed the second
Law Commission for India (Report December 13th, 1855) :
" In the present state of the population of India it is necessary to allow
certain great classes of¡ persons to have special laws recognised and enforced
by our courts of justice with respect to certain kinds of transactions among
themselves."

I do not mean you to collect that the Hindu and the Mahomedan laws are the
only personal laws now recognised in India. Though for a long time the special
protection afforded by Acts and Regulations was intended for these two laws,
which appeared to cover all the ground ; yet so late as 1915 the statutory

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 428 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, 194I

provision* which governs High Courts in their Original Jurisdiction over the
Presidency towns, was widened and generalised. High Courts are now required
in certain matters

" when both parties are subject to the same personal law or custom having
the force of law, to decide according to that personal law or custom, and
when the parties are subject to different personal laws or customs having
the force of law to decide according to the law or custom to which the
defendant is subject."
You will see from this that the Burmese Buddhist law, for example, might have
to be applied to a particular case ; and you will notice also that the phrase
" personal law " in the sense in which I am using it is statutory. It is not,
I think, a phrase familiar to English lawyers, and I have known some who were
rather puzzled by it; but nothing is to be gained by quarrelling with the phrase, f
It should be noticed, however, that though a British Indian court administers
the Hindu or the Mahomedan or the Burmese Buddhist law only when directed
by statute so to do, we do not usually intend by the phrase " personal law " to
include specific rules of law laid down by the Indian legislature, even if they be
prescribed solely for persons of a particular religion. Under the Indian Divorce
Act, for ex^jriple, the whole jurisdiction depends upon the parties being
Christian. I well remember how in Calcutta I had from time to time to
constitute a bench of three High Court judges to deal with the matrimonia
troubles or escapades of primitive people in the Khasia and Jaintia hills i
Assam, this judicial horse-power being required because these hill people ha
been converted to Christianity. There, however, the law applied to them w
applied by virtue of the statute's direct command, and not by reason that it wa
the law or custom followed among themselves or involved in their religion
embedded in their family life. A statute may apply only to persons of a
particular religion, but the " personal law " as understood in India is not its
statute law. The zeal for codification never in fact took effect upon the law of
the Hindus or Mahomedans. Macaulay in his speech of 10th July, 1833, on t
second reading of the bill which became the Charter Act of that year, proposed
to codify the whole law of British India, including the Hindu and the Mahomeda
law. The report (October 31st, 1840) of the first Indian Law Commission
contained like proposals. But this intension has long been abandoned. The
second Commission which was set up by the Act of 1853 anc^ sat England
recommended that " no portion either of the Mahomedan law or of the Hin
law ought to be enacted as such in any form by a British legislature." (Report,
December 13th, 1855). They considered that codification of a religious law w
undesirable and might obstruct improvement.
It is indeed a conspicuous feature of the history of law in British India th

* Government of India Act, Section 112.

t " To the Oriental mind a personal law is more familiar and appears more natural tha
a territorial law." Hall: Foreign Jurisdiction of the British Crown. 1894, page 133.

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May 30, I94I JOURNAL OF THE ROYAL SOCIETY OF ARTS 429

until comparatively recent years there was, outside the Presidency towns, no
law generally applicable as lex loci or law of the land. In England, when the
King's justices went on circuit through the country, the unwritten law applied
by them to the whole of the realm was in contrast with the particular customs
or rules of particular manors and other jurisdictions, and came to be called the
" common law." In modern times the phrase is chiefly used in contrast with
" statute law." But in India the course of history was such that only by legis-
lative enactment was a " common " law arrived at, and then only in the sense
of law applicable prima facie to everyone, though subject to particular exceptions
for particular classes. That there was no such thing as a common law for India
in 1833 may be seen from the Charter Act itself. Section 53 points to a common
or general law for India as a desideratum yet to be secured, saying that
" It is expedient . . . that such laws as might 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."
Thus in British India the common law is statutory in the main, though it is not
yet wholly embodied in enactments. The personal law is not itself statutory, but
it is administered in certain cases under the general direction contained in
certain statutes. And in a number of the statutes which embody the general
law of the land, there are savings and exemptions intended to preserve and
protect the personal law of particular communities. The Indian statute book
represents to-day a policy which was declared in advance by the second Law
Commission, in their report of December 13th, 1855 :
" 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 . . . Being
designed to be the law of India on the subjects which it embraces this
body of law should govern all classes of persons in India, except in cases
excluded from the operation of its rules by express enactment. Not only
must there however be large exceptions in respect of amenability to this
body of law, but there are important subjects of civil law which we think
that it would not be advisable that it should embrace."

The first steps of the British to introduce and administer law in India were
taken with reference to the " factories," which in due course gave rise to the
Presidency towns, and the circumstance that they were taken at a time when no
British authority had any claim to rights of sovereignty in India adds much to
their interest. The charter of 1726 set up Mayor's Courts in these towns and
came in after years to be regarded as having introduced into them the law of
England as it stood in 1726, save in so far as it was inapplicable to their circum-
stances. The troubles which arose out of the Regulating Act (1773) and the
ill-defined letters patent of 1774, which Impey himself had helped to draft as
the first charter of the Supreme Court, ended in an Act of Parliament of 1781
requiring that Court, even within the town of Calcutta, to apply to Hindus and
Mahomedans their own law in civil matters.

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430 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, 194I

We are not, however, thinking of the special problems of the Presidency towns
but about British India, and the real beginning of the personal law lies in the
grant of the diwani of Bengal, Bihar and Orissa, obtained by Clive for the Company
in 1765. As Fitzjames Stephen says, the battle of Buxar (1764) rather than
Plassey (1757)
" deserves to be considered as the origin of the British power in Bengal, as
from that time forward no native ruler exercised any real authority there.
Its immediate consequence was the grant by the Mogul Emperor of the
diwani"*

The transient and unhappy figure, who was made to effect the grant, ca
himself Shah Alum II, but though his claim by descent was good, he was neve
master of the throne, and after the defeat at Buxar of Mir Cassim he wa
more than a puppet. Mir Jaffer who had been restored to the musnud
Murshedabad died in the next year (1765) leaving a minor son to be recogn
by the Company as Nawab on terms which made him the merest figure-h
Clive had left for England in 1760, but was reappointed Governor and came ou
to Bengal again in 1765. He was able to give any form he liked to the victoriou
position just achieved by the Company. He handed back Oudh to the Naw
Wazir on condition of an indemnity : to Shah Alum he gave Allahabad and
surrounding district ; and from him as emperor he took the grant of the diw
- the civil and revenue jurisdiction - over the vast area subject to Murshedabad
It was part of the bargain that out of the revenues of Bengal, Bihar and Oriss
Shah Alum should get twenty-six lacs a year and a very large sum had als
be paid to the Nawab for expenses of government. There were other te
which I need not mention. Why, one must ask, should the Company put it
into a position of nominal dependence upon Shah Alum, upon the authorit
the Delhi emperor who was entirely in its hands ? And why pay a large
for the privilege ? The answer seems to be that the form given to the transac
" balanced a thousand disadvantages by rendering the nature of the ten
perplexed. "f Clive was anxious to give the position of the Company such a for
as might make it difficult for the Government in England to interfere with
revenue. They could not very well, on behalf of the King of England, claim
exercise an authority given by the Delhi emperor. Indeed, time was to sh
that whenever the Company's Charter required renewal at the hand
Parliament, then, in Lord Stowell's words, " the high or as I may almost
this empyrean sovereignty of the Mogul " was " brought down from the cloud
as it were, for purposes of policy." J Fitzjames Stephen has shrewdly not
that an unwillingness to deal roughly with this theory explains much of
defects of the Regulating Act of i773§. Though the purpose of obtaining

* Nuncomar and Intpey, Vol. 1, page 10.

t Enquiry into the State of Bengal, by Alexander Dow, 1772, page lxxiii.
J The Indian Chief (1800) 3 Robinson's Adniiralty Reports, p. 29.
§ op. cit., Vol. i, page 14.

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 May 30, 1941 JOURNAL OF THE ROYAL SOCIETY OF ARTS 43I

grant of the diwani had no close connection with any questions of law, the form
thus given by Clive to the authority of the Company had the most important
legal consequences. It was not possible to suppose that the courts of the
Company in the exercise of the diwani were English courts, bound by their
inherent character or by the terms of the authority vested in them to apply the
law of England. It could not appear to be at all necessary to consider what
Lord Coke had said about such matters in Calvin's Case (1609, Reports, 17 Ъ),
or what Lord Mansfield was likely to say next week. The position was toto coelo
different from that produced in the Presidency towns by the charters of 1726
and 1753, whose implications were not finally determined till some years after
1772 - too late to save Nandcomar in 1775 from being hanged under an English
statute of 1729.*
The degeneration of the Mahomedan civil courts under the summary despotism
of the Nawabs of Bengal made a new system of civil justice necessary after 1765,
and called not merely for new courts to be established, but also for a new
departure as regards the law to be administered. Even the first steps were not
taken for seven years. Clive returned to England in 1767 and in 1772 Warren
Hastings came from Madras to be Governor of Bengal, with a council of some
twelve members who worked in amity with him. We have a picture of Bengal
in the book published in 1772 by Alexander Dow, a lieutenant-colonel in the
Company's service, called An Enquiry into the State of Bengal. It is a very
gloomy picture. The administration of the diwani had since 1765 been put in
the hands of two Indians as naib diwans and Dow describes the regime of the
Bengal naib Mahomed Resa as a " boisterous tyranny." Whether it did or did
not deserve all the condemnation which it has received, the Directors of the
Company had, by their letter of August 28th, 1771, informed the Council at
Calcutta that they wanted " to stand forth as Dewan and by the agency of the
Company's servants to take upon themselves the entire care and management of
the revenues." To that end Hastings and four of his colleagues were made a
" committee of circuit " to devise plans for the collection of revenue and the
administration of justice. They put forward a plan which was adopted by the
Council on August 2 1 st, 1772, and which they claimed to be
" adapted to the manners and understandings of the people and exigencies of
the country adhering as closely as possible to their ancient usages and
institutions."

We are not at the moment concerned with the collection of revenue, or with the
criminal law, or even with the arrangements for manning the civil courts, but
the 27th article of that Plan of 1772 read as follows :
" That in all suits regarding inheritance, marriage and caste and other
religious usages and institutions, the laws of the Koran with respect to

* Before Sir William Jones came out to India m 1783 the view was gaining ground in
England and India that general statutes passed after 1726 had not application to Calcutta.
See his charges to the Grand Jury, June 10th, 1785, and December 4th, 1788. Works,
Vol. 3, pages 10 and 32.

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432 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, 194I

Mahomedans and those of the Shaster with respect to Gentoos shall be

invariably adhered to. On all such occasions the Molavies and Brahmins
shall respectively attend to expound the law and they shall sign the report
and assist in passing the decree."
This provision has controlled the course of law down to our own time in Bengal,
Agra, Assam and Madras. The Civil Courts Act for Bengal, Agra and Assam
(XII of 1887) speaks of " the Muhammadan law " and " the Hindu law "
(Section 37) - a merely verbal improvement.*
The language of 1772 was repeated in 1780 by a formal Regulation made under
the Act of 1773. It was several times repeated in succeeding years, and, as
Section 15 of Regulation IV, found place in the Cornwallis code of 1793. You
may notice that it is express upon certain matters and silent upon other matters
which might seem to be equally important. It deals with certain cases and says
nothing about other cases. It deals with Mahomedans and Gentoos, but with
no other classes. It does not say what is to happen if the Hindu or the
Mahomedan law contains no provision for a particular case.
In 1781, however, something was added to the provisions of 1772. Impey
had in 1780 accepted office as judge of the Sudder Diwani Adalat, the court of
appeal in Calcutta from the Company's civil courts throughout the province.
As you know, by this he brought much trouble on himself, but by hard work he
had in 1781 drafted a code for the civil courts. He added the word " succession "
to the word " inheritance " in the article which has been quoted, and by an
article numbered 60 he made a notable provision which also has remained to our
own day one of the pillars of the legal system :
" That in all cases within the jurisdiction of the mofussil dewanny adalat for
which no specific directions are hereby given, the respective judges thereof
do act according to justice, equity and good conscience."
In that same year, 1781, Parliament had passed an Act to resolve the difficulties
which the Supreme Court had encountered or created under the Regulating
Act of 1773. The 17th section of the new Act provided that the Supreme Court
should have power to entertain all suits against the inhabitants of Calcutta :
" Provided that their inheritance and succession to lands, rents and goods,
and all matters of contract and dealing between party and party, shall be
determined in the case of Mahomedans by the laws and usages of
Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos ;
and where only one of the parties shall be a Mahomedan or Gentoo by the
law and usages of the defendant."
That part of this proviso which refers to matters of contract and dealing has
no counterpart in Hastings' regulation of 1772. Until the passing of the Indian
Contract Act in 1872, the Supreme Courts and the High Courts, their successors,
were in the Presidency towns obliged to administer the Hindu and Mahomedan

* " Though the Mahomedan law purports to be founded essentially on the Koran, most
of the rules and principles which now regulate the lives of Muslims are not to be found
there." - Ameer Ali : Mahomedan haw, 4th edition, Vol. I, page 8.

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May 30, I94I JOURNAL OF THE ROYAL SOCIETY OF ARTS 433

laws of contract, while the civil courts throughout Bengal, Bihar, Agra and
Madras were under no such obligation, though they were free to do so if they
thought this to be right as a matter of good conscience. Indeed, in the rule of
damdupat - the rule which forbids a lender from recovering more by way of
interest than the amount of the principal sum lent - the High Court of Calcutta
on its original side still applies the Hindu law of contract, holding this rule to
be not inconsistent with and thus not abrogated by the Contract Act.
Reverting, however, to the provincial civil courts, we must notice more
particularly the system of law prescribed for them in 177 z and 1781. If there is
"one thing more certain than another, it is that the phrase " justice, equity and
good conscience " was not intended to point to the law of England or the
doctrines of the Court of Chancery. These the judges of the provincial courts
did not know and had no means of ascertaining from the mass of decisions under
which they lay. Indeed, Regulation VII of 1832, after using the well-worn
phrase, goes on to say, very sensibly :
" it being clearly understood however that this provision shall not be con-
sidered as justifying the introduction of the English or any foreign law, or
the application to such cases of any rules not sanctioned by those principles.' '
The phrase itself was not wholly new in India, as a charter of Charles II (1683)
had empowered the Company to erect courts of judicature " to decide according
to equity and good conscience and according to the law and custom of merchants."
Similar phrases were coming into use, in Lord Mansfield's time as Chief Justice
(1756-88) and afterwards, in connection with the action for " money had and
received." But, of course, the abstract notion of justice does not afford of itself
a system of laws or supply guidance sufficient for every particular case, and the
phrase " justice, equity and good conscience " has been described as " throwing
the reins on the neck of the judges." At first the discretion conferred by it was
used by the English servants of the Company in a liberal spirit :
" The Courts of this country have invariably applied in practice the
Mahomedan law to a variety of cases other than those coming under the
denomination of inheritance, marriage, caste, and even if immemorial and
recognised practice did not legalise the action of the Courts, it cannot be
said that when this Court administers to Mahomedans their own law,
they do otherwise than administer justice according to equity and good
conscience."*

In this way the Mahomedan law of pre-emption has been applied in Bengal
though not in Madras, and in both provinces the Mahomedan law of gift (saved
by the Transfer of Property Act, 1882) is enforced when applicable.
But to-day a different doctrine prevails. " Justice, equity and good conscience",
said Lord Hobhouse in 1887, when delivering the judgment of the Judicial Com-
mittee ( Waghela v. Shekh Masludin L.R. 14, Indian Appeals 89, 96), is " generally
interpreted to mean the rules of English law if found applicable to Indian society

* Zohorooddin Sirdar v. Baharoollah Sirdar, 1864, Gap No. Weekly Reporter, 187.

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 434 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, 1941

and circumstances.,, This doctrine may be traced back to a dictum in 1865 of

Sir Richard Couch when a judge of the High Court of Bombay {Dada v. Babaji ,
2 Bombay High Court Reports, 38). That it was not the original intention of
the phrase when introduced in 1781 we have already seen. It was unknown to
Macaulay, if we may judge from his second reading speech of 1833, and to the
first Indian Law Commission, if we may judge from their Report (October 31st,
1840) proposing to make the law of England a lex loci for India. The last of the
Indian Law Commissions (Sir Whitley Stokes, Sir Charles Turner and Sir
Raymond West) in their Report dated November 15th, 1879, refer to the
doctrine of Sir Richard Couch with some surprise, though they also defend it :
" Mofussil munsiffs speaking no language but their vernacular were told at
last by a Chief Justice through their superiors that they were bound to
dispose of the litigation of the Marathas according to the principles of
English law which the Courts at Westminster would bring to bear on the
same cases . . . This which might seem a reductio ad absurdum of
the assumptions on which the highest Courts of India had for years pro-
ceeded was after all not a mere logical disproof of the premises from which
it was inferred. It was but a somewhat premature anticipation of the
result to which things were inevitably tending.
At the present time the whole law of " tort " or civil wrongs in British India
depends upon this doctrine. It is true, as the learned Commissioners have put
it, that
" the English race could effectively construct - could even imitate - no
civilisation but the English and of this the English law is a vital part."
Whether this plea is demurrable or not I will not argue, but I must observe that
the authority vouched by Sir Richard Couch for his observation, a judgment
of the Judicial Committee delivered by Lord Kingsdown in 1862,* does not in
my opinion support it. Sir Richard Couch may have been misled by the
headnote : he expressed himself somewhat differently soon afterwards in
another case.f
When Warren Hastings in 1772 laid döwn the lines which have since been
followed, Parliament had not yet interfered at all with the exercise of the power
conferred on the Company by the grant of the diwani. The Supreme Court had not
come into existence. British-born subjects, other than servants of the Company,
were not then allowed to settle in the mofussil save at the pleasure of the Company.
Although the arbitrary character of the restriction was modified by the Act
of 181 3, it was only by the Act of 1833 that the right to reside and to hold
land in India was thrown open to Englishmen. In the civil courts which
Hastings was planning to establish, the judges were to be English servants of the
Company, untrained in law, English or other, and very often junior rather than
experienced persons. The language of these courts was to be Persian. The

* V arden v. Luckpathy, 1862, 9 Moore's Indian Appeals, 307.

t Webbe v. Lester, 1865, 2 Bombay High Court Reports, 52, 56.

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May 30, I94I JOURNAL OF THE ROYAL SOCIETY OF ARTS 435

early Regulations show that the courts were expected to deal with cases - other
than cases of the classes mentioned in the Regulation " inheritance, marriage,
caste, etc." - by inducing the parties to have them decided by arbitrators of their
own choice. This was the method for " cases of disputed accounts, partnerships,
debts, doubtful or contested bargains, non-performance of contracts and so
forth " (Article 26 of Judicial Regulation I of 1780). In later years Sir Thomas
Munro,* a very distinguished administrator in Madras, noted with surprise that
the judicial code said nothing about trial by panchayet , which he considered to
be the only form of trial regarded by " the natives " as fair and legal. Judges,
arbitrators, commissioners - these were not in his view what the Indian wanted.
Colebrooke's views were somewhat differentf : he thought that a right of appeal
from arbitrators was the thing desired. It appears, moreover, that the popularity
of district munsiffsy first appointed in 1816, made ineffectual in Madras the effort
to revive the old method of panchayet ( Cambridge History of India , Vol. 6,
page 43), though this was continued in the Deccan after its annexation in 1818.
Perhaps Munro thought too exclusively of Hindus, among whom the saying
goes that " the pancha is the supreme deity." In any case judges, arbitrators
and " law officers " were what the Indian got in 1772. Full credit for the
scheme belongs to Hastings personally. In a paper read to the House of Lords
by him at his trial in 1791 he claimed that
" the establishment formed for the administration of the revenue, the
institution of the courts of civil and criminal justice . . . were created
byme."t
The standpoint of Hastings, as of his successors Cornwallis and Wellesley,
was not so much determined by any of the manifest defects of technicality which
we now discern in the law of England as it then stood ; but rather, as is disclosed
by the celebrated letter§ of Sir William Jones to Lord Cornwallis (March 19th,
1788), by a desire to
" assure the Hindu and Mussulman subjects of Great Britain that the private
laws which they severally hold sacred . . . should not be suppressed
by a new system . . . which they must have considered as imposed
on them by a spirit of rigour and intolerance."
So, too, in his Analysis (1805) John Herbert Harington lays stress on India's
sad lack of qualification to derive advantage from " our complex though excellent
system of municipal law," rather than on its defects of narrowness or technicality ;
but he does say that it would be impossible to introduce it, that it is not suitable
to the genius of the people ; and he emphasises that
" the inhabitants Mahomedans as well as Hindus were in possession of their
respective written laws, under which they had acquired property by
descent, purchase, gift and other modes of acquisition."

* Minute, 15th August, 1807. Life , by Sir A. J. Arbuthnot, 1881, VoL II, page 4.
t Strange : Elements of Hindu Law, 1825, Vol. I, page 319.
t Nuncomar and Imbev, Vol. I. page 24.
§ Lord Teignmouth's Life of Jones, page 306. Jones's Works ¡ Vol. 3, page 31.

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436 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, I94I

It is not probable that anyone should have seriously proposed that the religious
and family laws of the people should be wholly ignored. But the policy of 1772
was exceptionally broad-minded and enlightened, being free altogether from the
assumption that the law of England need have anything to do with the matter.
Alexander Dow considered that on some points the Hindu and Mahomedan laws
must be enforced, and that on others they were inhuman and could not be
enforced. He thought that the English law of succession to land by primo-
geniture should be abolished and lands divided equally among sons. But
subject to this he held that it was
" absolutely necessary for the peace and prosperity of the country that the
laws of England in so far as they do not oppose prejudices and usages
which cannot be relinquished by the natives should prevail. The measure,
besides its equity, is calculated to preserve that influence which conquerors
must possess to retain their power." {op. cit . p. cxliii).
Long afterwards the Indian Law Commission, of which Macaulay had ceased
to be a member on leaving India in 1838, argued in a report dated October 31st,
1840, that
" according to the analogy of the general principles of international juris-
prudence the English law became the lex loci of British India as soon as it
became British.' *

These and other opinions incline one to think that to Clive's arrangement for
the grant of the diwani and to the practical good sense of Warren Hastings is
due the fact that there was never fastened upon the country the English law of
the eighteenth century, with its double set of courts for law and equity, its forms
of action, its notions of procedure, arrest upon mesne process, and so forth.
The policy of administering to Hindus and Mahomedans their own laws on
the lines laid down in 1772 has been described by Lord Bryce in an admirable
study of our Indian law* as "the line of least resistance." " They accepted and
carried on what they found," he says of the British. " Where there was a native
law they applied it." Now it may have been the line of least resistance : a less
tolerant policy might have created more difficulties than it solved. But it was
uphill work. The first difficulty was to find the law. No one played a greater
part in conquering the initial difficulties than Sir William Jones, and his letter
to Lord Cornwallis stated them plainlyf :
" The principle of decision between the native parties in a cause appears
perfectly clear ; but the difficulty lies (as in most other cases) in the
application of the principle to practice ; for the Hindu and Mussulman
laws are locked up for the most part in two very difficult languages,
Sanskrit and Arabic, which few Englishmen will ever learn, because neither
of them leads to any advantage in worldly pursuits ; and if we give judgment
only from the opinions of the native lawyers and scholars we can never be
sure that we have not been deceived by them."

* Studies in History and Jurisprudence, Vol. 1, page 116.

f Lord Teignmouth's Life , page 306.

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 May 30, 1941 JOURNAL OF THE ROYAL SOCIETY OF ARTS 437

Under the scheme of 177 2 the English judges in the civil courts were to get
their law from the pandits and moulavies . These " law officers " lasted as an
institution from 1772 till 1864, when they were abolished, not before their
usefulness had come to an end. There was no system for training them, as
Sir Thomas Strange was to point out (1825)* î their qualifications were not
always great, nor temptation always absent. It was imperative that the texts
should be made available to the judges themselves, and the labours of Jones,
Henry Colebrooke, the Macnaghtens, and Strange were directed to the trans-
lation of the original authorities and the exposition of their contents. Sir W. H.
Macnaghten and Sir Thomas Strange made special use of the answers given by
" law officers " of civil courts in decided cases. It is difficult to express
sufficiently the debt which India owes to the labours of Jones among his pandits
at Calcutta and in vacations at Krishna-nagar, and of Henry Colebrooke among
his manuscripts - multis circumfusum Indorum libris - at Mirzapore.f Both had
to learn Sanskrit in India in the midst of their official work, though Jones was
an accomplished scholar in Arabic and other languages before he sailed for India
in 1783, never to return. Without the aid of a modern grammar they had to
circumvent what a pious writer called

" the admirable craft of the devil which had led the Brahmin philosophers
to form a language at once so rich and complicated, in order to conceal
their religious dogmas and mysteries, not merely from the vulgar but from
men of instruction."J

Jones was a great believer in light coming from the East ; and as he was an
optimistic and enthusiastic pioneer his scholarship is now said by the omniscient
to belong to the p re-scientific age. Henry Colebrooke is accounted the " first
great Sanskrit scholar of Europe," and certainly is its greatest Sanskrit lawyer.
But here again to Warren Hastings himself much was due. On the opening day
of the Sudder Diwani Adalat - March 18th, 1773 - Hastings as a member of the
Court proposed the compilation of a digest of Hindu law by a committee of
pandits . This was carried out : it was translated into Persian from the Sanskrit
and from Persian into English by Nathaniel Brassey Halhed, whose book A Code
of Gentoo Laws was published in 1776. Hastings, for the Mahomedans, not
only founded the madrasa at Calcutta, but arranged for a translation of the
Hedaya into Persian, which was Englished by Charles Hamilton in 1791.
Hastings well understood what his policy of 1772 involved. He writes in 1773
expressing the need for " a well-digested code of laws compiled agreeably to the
laws and tenets of Mahomedans and Gentoos."§ The purpose of Jones's letter
of 1788 to Lord Cornwallis was to set on foot the compilation of a code covering

* Elements of Hindu Law, 1825, Preface, page xxi.

f Life of H . T. Colebrooke, by Sir T. E. Colebrooke, page 265.
Î ibid., page 55.
§ Morley's Digest, Vol. 1, page 181.

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 438 journal of the royal society of arts May 30, 1941

the laws of contract and inheritance in both these systems and arranged
the method of Justinian's Pandects with extracts from the original authori
Jones died in 1794 before this work had progressed very far, but the Diges
the pandit Jagannatha - entitled with some unconscious humour The Sea of
Solutions of Legal Disputes , but a great and authoritative work for all that
finished before long, and an English translation by Colebrooke was publishe
1797. It had the defect of containing side by side discordant opinions of wr
belonging to different schools of Hindu law : " the best book for a counsel
the worst for Judge," it seems to have tormented somewhat the courts in M
to whom the Dayabhaga did not matter.
But if the first great difficulty was to find the law, a second difficulty
over the need to eliminate from it certain doctrines and practices whic
English ideas were intolerable, e.g., the practice of sati , exclusion from inher
on the ground of apostacy from the Hindu religion, the institution of slave
The usages as to sati , slavery and apostacy died hard. The Supreme Court wo
not tolerate sati and it had to be carried out in the suburbs outside the M ar
ditch and beyond its jurisdiction.* In Morley's Digest f may be found refere
to decided cases kwhere persons charged with assisting at an illegal sati
acquitted by the Nizamat Adalat at Calcutta in 1822 on the ground that
not proved that there was any irregularity in the sati , and where it was ru
by the same court in 1829 that t^ie charge should specifically state the illeg
in the procedure and the conviction rest on proof of such illegality. In
however, sati was made illegal by Regulation XVII of that year, and in
following years relations of the widow who aided and abetted her in her sac
are found to be receiving sentences of six months' or one year's imprisonme
An appeal against the Regulation was made to His Majesty and referred
Privy Council. Ram Mohun Roy - that great-hearted Bengali in whose f
had taken place " an hysterical and unhappy sacrifice " - acted as agent for t
party which supported the Regulation. In Greville's Memoirs under
June 25th, 1832, one may read not only how Dr. Lushington made two
able and ingenious speeches in support of the appeal, but how narrow w
majority by which it was dismissed. Again, as to slavery, it was held in
by the Sudder Diwani Adalat and by the Governor- General in Council
" that the spirit of the rule for observing the Muhammadan and Hindu
was applicable to cases of slavery though not included in the letter of i

* By orders made in 1812, 1815 and 1817 notice to the police was required a
compulsion, drugging or intoxication prohibited. For an account of a sati at Hugli
1829 see С. E. Buckland's Bengal under the Lieutenant Governors, 1901, Vol. 1, page
Also see Sir W. Sleeman : Rambles and Recollections, Vol. 1, chapter iv, for a s
the Nerbudda.
t Vol. 2.

J Ed. Henry Reeve, 1874, Vol. 2, page 307.

§ W. H. Macnaghten's Principles of Hindu Law , Vol. 1, page 113.

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May 30, I941 JOURNAL OF THE ROYAL SOCIETY OF ARTS 439

In the Supreme Court, Sir William Jones in his second charge to the Grand
Jury (June 10th, 1785)* had affirmed that
" the condition of slaves within our jurisdiction is beyond imagination
deplorable . Hardly a man or woman exists in a corner of this
populous town who hath not at least one slave child . . . many of
you, I presume, have seen large boats filled with such children coming
down the river for open sale at Calcutta.*' '

But he had appeared to accept " domestic bondage " not amounting to " absolute
unconditional slavery by which one human creature becomes the property of
another." " I have slaves," he said
" whom I rescued from death or misery but consider them as other servants
and shall certainly tell them so when they are old enough to comprehend
the difference of the terms."

As an Indian institution slavery was a different thing from the slavery, e.g., of
the West Indies. Both H. T. Colebrooke and W. H. Macnaghten entertained
a favourable view of it.f " Bondage by domestic ties " is Sir George Campbell's
variant of Jones's phrase J. But in 1833 slavery as such had become abhorrent to
public opinion in Britain : laws merely to prevent trafficking in slaves would not
content it. The Charter Act of that year required the Company to abolish
slavery. Act V of 1843 forbade the Indian courts to recognise the status of
slavery, though in practice slavery did not end for many years thereafter.
In 1850 the Freedom of Religion Act, in the face of vehement opposition and
of petitions signed by 60,000 Indians living in and around Calcutta, § ordained
that no-one's rights of inheritance or property should be forfeited by reason of
his change of religion or loss of caste. It had been to some extent anticipated
in Bengal by a Regulation of 1832, and it was advocated by the missionary
interest. William Morley argued strongly against it.|| The Hindu Widow
Remarriage Act of 1856 and the later statutes amending doctrines of the Hindu
law are beyond my present scope ; and the advent of representative institutions
has of late years given a different aspect to such matters.
But the greatest difficulty of all in the scheme of 1772 was not at first apparent.
In the article which I have quoted from the Regulation of Warren Hastings, the
references to the laws of the Koran and the Shaster remind one that to Warren
Hastings and his contemporaries it was not in doubt that these laws were written
laws. This was insisted on by Harington as we have seen. I leave you to think
of the date, say, of the Mitakshara (a.D. iooo-iioo), the Dayabhaga (a.d. 1200-
1400), the Hedaya (a.D. 1196). Take the Hindu law. As Sir Francis Oldfield
has well said :

* Works of Sir William Jones, 6 Vols., 1799, Vol. 3, page 12.

t Morley : Digest, Vol. 1, page 589.
J Modern India, by George Campbell, 1852, page 188.
§ Life of Fitz J ames Stephen , by Leslie Stephen, page 260.
I) Digest, Vol. i, page clxxxi.

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440 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, I94I

" It was for the British Courts when late in the eighteenth century they
undertook to administer law resting on these remote foundations to acquaint
themselves with this literature written in Sanskrit and with the development
of legal conceptions during the intervening period."*
The subsequent development could be ascertained to some extent from the
pandits , who would know the existing law and usage. But they invariably claimed
to base their opinions on the shastras , and all the English writers upon the
Hindu law - Jones, Colebrooke, Strange and both the Macnaghtens - give as the
main reason for the need for access to the original texts, that the pandits cannot be
relied upon unreservedly. Many invidious reflections upon the pandits might be
quoted. But in not a few instances in which the pandits were found out, having
quoted a wrong authority or none, or having misquoted some text, it was probably
true that they were stating fairly enough the modern usage. The Dayabhaga had
in a sense modernised the previous law - as Mayne puts it, had " burst the
fetters " ; and, except for the custom of impartiability which governed the succes-
sion to certain large estates, I cannot find that in Bengal and Bihar custom had
seriously disturbed the written law. But in the work of Raghunandana and in the
Fatawa Alamgiri Bengal had, if not modern authority, at least comparatively
modern guidance on the lines of the Dayabhaga and the Sunni law which were the
laws of the province. According to such eminent Madras lawyers as Mr. J. D.
Mayne and Sir Francis Oldfield, Madras wTas in much greater need of guidance as
to the progress of the law during the previous four centuries and the manner in
which it was actually being understood. In the opinion of these authorities the
result in that province of accepting as conclusive the Mitakshara and the opinions
based on it was as if " a German were to administer English law from the
resources of a library furnished with Fleta Glanville and Bracton and ending
with Lord Coke."f Perhaps the note is pitched a little high, but in Bombay
Mountstuart Elphinstone J noticed the same difficulty as regards Hindu law :
" We talk of Menu but we might just as well talk of the twelve tables in
modern Rome " he says to one correspondent. (Letter, 3rd September,
1820). And " The Dhurm Shaster, it is understood, is a collection of
ancient treatises neither clear nor consistent in themselves, and now buried
under a heap of more modern commentaries, the whole beyond the know-
ledge of perhaps the most learned pundits and every part wholly unknown
to the people who live under it. Its place is supplied in many cases by
known customs founded in deed on the Dhurm Shaster but modified by
the convenience of different castes or communities and no longer deriving
authority from any written text." (Minute, 22nd July, 1823).
Elphinstone did not merely notice this difficulty : he grappled with it.§ In the
Elphinstone Code, as it is called, Regulation IV of 1827 prescribes that the rule

* Cambridge History of India, Vol. 6, Chapter xxi, page 389.

f Mayne, Hindu Law and Usage, 6th edition, page 44. Cambridge History of India ,
Vol. 6, Chapter xxi, page 390.
Í Life, by Sir T. E. Colebrooke, 1884, Vol. 2, pages 113 and 116.
§ He was Governor of Bombay 1819-1827.

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May 30, I94I JOURNAL OF THE ROYAL SOCIETY OF ARTS 44I

by which Courts are to decide should be, first, Acts and Regulations ; if none,
the usages of the country ; if none, the law of the defendant. But he fully
appreciated that the first thing needful was to ascertain in each district whether
there was any book of acknowledged authority either for the whole or any branch
of the law : then and then only to ascertain the exceptions thereto and the
customs and conditions existing independently thereof. The works of Steele
and Borradaile carried out these principles.*
When in the forties of last century the territories now known as the Punjab
came under British administration, " personal law " presented itself from a
different angle. It was not dealt with definitely or systematically until the
Punjab Laws Act of 1872 elaborated the list of subjects mentioned in 1772 and
as regards them gave to custom precedence over the Hindu and Mahomedan
laws. In that province the village community is fundamental : as the result of
successive waves of conquest and migration distinctions of race, speech, culture
and even religion had become overlaid, only a minority of the population being
governed by the strict provisions of the Hindu or Mahomedan law. It became
necessary to ask, with Sir George Campbell, " What or who is a Hindu ? " and
to consider whether it was true to say, e.g., of the Jats that their customs modified
the Hindu law or rather on the contrary that Hindu law modified their customs.*)*
But in the Birdwood Lecture of 1926, Sir Michael O'Dwyer himself has discussed
this subject with unique authority and shown how all efforts of moulavi and
pandit to impose the doctrines of the Koran and Shastras have been withstood
alike by Mahomedan and Hindu, whose customary law regarding land is based
on the principle of agnatic succession through males, the root principle of the
immemorial village community.

The Chairman, in proposing a vote of thanks to the lecturer, said : As I recall

to my mind the personality of Sir George Birdwood, and his omnivorous interest
in- every by-way of history or custom, I feel sure that he would have been immensely
interested both in the analytical and in the historical part of Sir George's lecture.
What impressed me more than anything else in it, perhaps, was the debt which
India, and the law of India in particular, has owed to the constructive and at the
same time sympathetic and broadminded outlook of Warren Hastings, a man who
never came to India with quite that firm conviction which Macaulay possessed,
that everything British was better than anything Indian, but on the contrary believed
that however cumbrous and, perhaps to eighteenth century eyes, distorted, Indian
philosophy or religious custom might appeal, it was something well worth studying
for its own sake, as a matter of scholarship, as a matter of administration, and above
all, as a necessary contribution to a sympathetic understanding of the Indian people.
For me, at any rate, the importance of the work of Warren Hastings has been greatly
enhanced by what the lecturer has told us this afternoon.

* Steele : Law and Custom of Hindoo Castes , 1827. Borradaile's Reports and his edition
of the Mayuka, c. 1827.
t Speech in Legislative Council, March 26th, 1872.

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 442 JOURNAL OF THE ROYAL SOCIETY OF ARTS May 30, I941

Sir Atul Chatterjee, G.C.I. E., K. C.S.I. (Chairman of the Council), briefly
supported the motion and also proposed a vote of thanks to the Chairman. The
vote of thanks having been passed with acclamation, the meeting terminated.

CORRESPONDENCE

Apprenticeship

A few years ago, when Rotary of Great Britain made Apprenticeship one of
planks in its platform, all the twenty-five Clubs in the Kent and East Sussex Dis
adopted a proposal made by the Maidstone Club to organise an Exhibition of Y
Craftsmanship, with the object of encouraging a revival of Indentured Apprent
ship. It was a big project. Entries were invited from every trade in the Distri
and youths already indentured, unindentured apprentices, trade boys - all we
to be invited to exhibit, at only a nominal entrance fee, and there was plenty of m
available for costs, contributed by Rotary Clubs and individual members. The
County Press - every paper - co-operated with whole columns of publicity.
Now, it was stipulated that each entry should have the approval of the entrants'
employers, and that the employer's name would be given in every case as well as that
of the entrant, so that every entry accepted would have been an advertisement
for the employer. Accordingly, every Club deputed its " contact men " to call
on likely firms, with a view to inducing them to share in Rotary 's effort, but one by
one, all their reports came in with the identical story. Apart from a few engineering
firms in Erith, Dartford and Gravesend, they said that employers were not interested,
and conversations with the contact men revealed the real state of affairs, " Not
interested " stood for either a refusal to permit their lads to enter, or a cover for the
fact that they had no craftsmanship or individuals to exhibit. The struggle went on
for two or three months more, but in the end Rotary had to retire beaten - by the
employers.
If Mr. Blakemore would like a copy of the final report upon the scheme, represent-
ing the findings of twenty-five Rotary Clubs in Kent and East Sussex, I should
be pleased to have one made for him, for I was organising secretary for the scheme
and my knowledge is based on experience.
Mr. Roe's suggestion that to " remove the Blind Alley Population is the way to
progress for good," is briefly answered by drawing a parallel. How do we remove
a " slum or tenement population " ? Surely by clearing the slums and demolishing
the tenements. It is the same with the Blind Alley Population. Destroy the Blind
Alley occupational tenements and slums first, for they create the population. But,
as with the vested interests of property, so with the vested interests of Big Business.
It is the dividends which háve won, and all " the kind-hearted people who want
to help those in misfortune " in the world will not heal the sore. It will be for the
Government when peace comes to declare a new war in the interests of Craftsmanship
and the Trades by compelling manufacturers to take and train boys from the
elementary schools.
Finally, let me refer to Mr. Blakemore 's inclination to blame it all on the parents.
I agree that most parents seek the work for their boys which gives them the " biggest
penny," and I also agree that apprentices working side by side with the blind alley
boys earning twice their pay, get disgruntled, but let us go back to the prime cause.
The employers again. They offer big " piece work " earnings to operatives, so-called

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