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British South Africa Company, conferring upon it large powers of administration, to develop the country lying north of Cape Colony and to extend northward the railway and telegraph systems of Cape Colony and Bechuanaland, and to encourage immigration and colonization, promote trade and commerce, and to develop and work mineral and other concessions. The term for which the charter was granted was twenty-five years, with provisions for renewal after twenty-five years, if found desirable. The territory administered by this company, whose area has been from time to time extended, is now about 450,000 square miles. About 3,000 miles of roads, post routes, etc., have been established, and are maintained by the company; about 4,000 miles of telegraph line constructed, the railroad extended north from the Cape Colony lines to Bulawayo and now being extended toward Lake Tanganyiki. About 10,000,000 acres of land have been surveyed, mining claims and farms sold, towns established, the country policed, agriculture encouraged, agricultural experiment stations established, immigration invited, and commerce greatly stimulated.
CHARTERED COMPANIES IN THE ORIENT.
In 1882 an association known as the British North Borneo Company was chartered to assume the government of the northern part of the island of Borneo in the East Indies, which territory had been transferred by the sultans of Brunei and Sulu to a syndicate, which became a part of the company. In 1888 the British Government assumed a formal protectorate over the territory, but the territory continues to be administered by the company, which is developing the country, has established internal communication, chiefly by water, made itself a member of the Postal Union, constructed telegraph and railway lines, organized a police force under European officers, issued a currency, established a tariff, and encouraged but not engaged in commerce.
CHARTERED COMPANIES IN THE GERMAN, PORTUGUESE, AND BELGIAN COLONIES.
This return by Great Britain to the use of chartered companies in developing new territory was followed by similar action on the part of the German Government, which organized a series of chartered companies for the development of its African territory; also by Portugal for the development of its territory in Africa; by Belgium for similar purposes in the Kongo, while some steps in this line have also been taken by the French Government.
CAUSES OF TIE RETURN TO USE OF CHARTERED COMPANIES.
The return at the end of the nineteenth century to the use of chartered companies, so strongly condemned at the beginning of that century, is doubtless accounted for in a large degree by the changed conditions of communication and by better opportunities for a close observation of the operations of such companies. In the earlier history of chartered companies they operated at long distances from the seat of goverment and in the absence of telegraphs communication with them occupied many weeks, and with the interior of the territory many months. Now the principal points where such companies operate are in constant communication with the seat of the home government, and many of the stations which the companies establish in the interior of their territory are connected by telegraph with the principal office, while the great improvements in steamship and mail facilities render detailed communication a matter of but a few days. Under these new charters the British Government reserves to itself the power of appointing an officer or officers to be present in the territory thus governed to constantly supervise the workings of the company, and to keep the British Government advised of all such operations. The budget of the company showing its receipts and expenses are to be submitted to the under secretary of state for the colonies for examination and approval or otherwis:. The tariffs imposed must also be subjected to scrutiny by the home Government and all of the operations of the company are thus kept constantly under the eye of the Government; while the terms of the charter give to the Government the power of preventing abuses. The powers granted to these companies, subject to such supervision, are very broad. They are permitted to establish a State, to make a form of government, establish laws and regulations, create a police force and a military force, if necessary, establish tariffs and other means of taxation, encourage immigration and agriculture, and to sell or lease land for agricultural or mining purposes. While great power over territory, property, persons, and even life is thus given to the company, the presence of official representatives of the home Government, the supervision by the home Government itself, and the fact that the principal office of the company is also at the seat of the home Government, coupled with the facility for the quick transmission of information and complaints of mismanagement, are looked upon as sufficient safeguards against the abuse or misuse of the great power thus granted.
Hon. C. P. Lucas, whose thorough familiarity with colonial matters and high standing as a student of this subject have already been referred to, says on this subject: “One of the special causes or features of the new forward policy in British colonial matters is the regeneration of the system of chartered companies. It is at once cause and effect. It is an effect of a fresh outburst of colonial enterprise; and it is a cause of moving further along the path of annexation, by giving to that enterprise cohesion, organization, and a definite plan. The East India Company had but lately passed out of existence; the Hudson's Bay Company had ceded its territorial rights; the age of great chartered companies seemed wholly gone; yet in these last days, as if to emphasize the fact that a new era of colonial annexation had dawned, the trade and administration of great territories is being once more taken in hand by companies of merchants. Why has the day of these chartered companies come again? The answer will be found in threatened or actual competition in lands unoccupical hy Europeans. In the general scramble for the remaining waste places of the world the English, true to their instincts and their traditions, hare fallen back on the semiprivate agencies which on the whole worked so well for them in the past. By those who believe that Great Britain should keep moving forward in the interests of the world in general as much as in her own, the revival of chartered companies will be taken as a healthy sign. It is one of the best features of the English that they like, if possible, to keep the Government in the background, and not to have its work cut and dried beforehand. Adam Smith expressed an opinion that the government of an exclusive company of merchants is perhaps the worst of all governments for any country whatever,' but he wrote in an age widely different from the present. The essence of the old charters was monopoly of trade, the new charters, on the contrary, contain provisions specially prohibiting such monoply. With steamers, telegraphs, and newspapers, everything is now known and public opinion is quickly aroused and strongly felt. The chances of abuse are minimized, the chances of doing good work are at least as good as they ever were. On the whole, it may be said that the second birth of chartered companies is one of the hopeful as it is one of the most umexpected signs of the times
Let colony shade into protectorate, and protectorate into sphere of influence, and as skirmishers in front of the main body of organized British possessions, let trading companies go on and do their work to be absorbed hereafter in the fullness of time."
No. 4 -17
POWERS GRANTED TO COMPANIES AND THEIR GENERAL CONTROL BY TIE GOVERNMENT.
The extent of the power granted to these chartered companies and the manner in which it is exercised is illustrated by the following statements regarding their work in their respective territories, from the Imperial Institute Year-Book, the Statesman's Year-Book, and the Colonial Office List, all recognized as standard British authorities.
The National African Company, which created and developed to its present form the British protectorate now known as Nigeria, a territory covering about 500,000 square miles, with a population estimated at 30,000,000, was organized in 1882, but the charter was not granted until 1886. Meantime, however, political treaties were made by the company with about 300 native chiefs and heads of tribes or states. Stations were established in the interior, a flotilla of boats placed on the Niger River, and the work of making treaties with the local chiefs pushed with great speed and at heavy expense to prevent the territory being taken possession of by the French. After the completion of the charter and the cession of the lands by the French, an elaborate organization was built up, intertribal war checked, and pagan sacrifices and slave raiding terminated. Expeditions by the French were checkmated, and an agreement arrived at with France for a boundary line. An effort by the head of one of the large native tribes to drive the white man out of the country resulted in the organization of an army of 600 well-drilled soldiers, led by about 30 British officers, and although this small army had to contend with a force estimated at 20,000, it was successful, and hostilities were quickly terminated. The complete control of the territory having been obtained, the basis of an organization of government framed, and communication with the interior established, the territory was, in the year 1900, after thirteen and one-half years of control by the company, transferred to the Crown, and the country was subsequently organized as a trading company, under the name of the Niger Company, Limited.
The South African territory known as Rhodesia is now governed by the British South Africa Company, to which a charter was granted in 1889, the purpose being to extend northward the railway and telegraph system of Cape Colony and Bechuanaland, to encourage immigration and colonization, promote trade and commerce, and develop and work mineral and other concessions. In the year following a police force was organized, raised and equipped by the company, and an expedition organized to cut a road through a section of the country to Mount Hampden, where gold-bearing quartz was known to exist. This undertaking was successful, and the pioneers were then disbanded and, in accordance with the agreement made with them, allowed to peg off ore-bearing claims. The hostility of the natives at various subsequent dates required the raising of a military force by the company, and numerous engagements between this force and the natives occurred, and in 1896 Imperial troops were sent to the assistance of the company's police and volunteers in their struggles with the natives. Meantime towns had been established, Bulawayo, the principal town, having a white population of 7,500. Banks had also been established at Salisbury, Bulawayo, Umatilla, and other places. Hospitals had been erected, equipped, and maintained at a high state of efficiency. Two thousand seven hundred and thirty-four miles of public roads had been constructed, with 860 miles more under construction, and telegraph lines to the extent of about 4,000 miles had been built. Railroad lines had been extended to all of the principal centers thus governed, and work is now progressing to carry these lines northward to Lake Tanganyika, at the northern terminus of the company's territory. A mail service has been established throughout Rhodesia, the inland mails being carried by native runners. The number of post-offices in operation on March 31, 1900, was 54. The number of letters and post cards dispatched during the year was 834,000, of which 610,000 were to places in South Africa. The postal revenue was £18,167 and the expenditure £26,122. The number of telegrams sent and received was 296,000, and the revenue from telegraphs £25,300 and the expenditure on telegraph service £24,725. There is, in addition, an extensive telephone system in operation. About 10,000,000 acres of land have been surveyed and the sales of towns and suburban stands in six principal places in 1897 amounted to about £100,000. The capital of the company, which originally was £1,000,000, has been increased to £5,000,000. The estimated revenues for the year ending March 31, 1901, were £126,800, and the expenditures £781,317. Whittaker's Almanac for 1901 thus describes the method of government of Rhodesia: “Southern Rhodesia is administered by the company under a charter of 1889, as amended by the orders in council of 1894 and 1898. The senior administrator is now advised by an adininistrative council of seven and a legislative council of eleven members, the latter comprising two elected representatives from each province. The proceedings and enactments of both councils are subject to the sanction of the high commissioner, as representing the Crown, and his deputy, the resident commissioner, is present, without a vote, at their sittings. The laws in force in Cape Colony up to June 10, 1891, have continued in force in southern Rhodesia, as far as they are applicable, while from 1891 to 1899, when the legislative council was first convened, laws were amended or enacted by the ordinances of the directors and regulations of the administrator in council, and the proclamations of the high commissioner. Municipal self-government has been established for Bulawayo and Salisbury, under mayors and town councils. Justice is administered by the resident magistrates and judges, the sanction of the Crown, as represented by the high commissioner, being required for all judicial appointments of every rank. Trial by jury was established in 1899. There is an appeal to the high court at Cape Town, and thence to the privy council.”
A FRENCH VIEW OF CHARTERED COMPANIES.
No such company has yet been chartered by the French Government, says Lanessan. “The Parliament to be sure had under discussion a bill of this nature in 1891, but, judging by the preliminary discussion which has taken place, it is not likely that the bill will be passed in the near future, for, if any, this measure lends itself least to parliamentary discussion. The Government had requested the simple right to charter such colonization companies by executive decrees under the form of regulations regarding public administration. It was found that the demands went too far, and the Senate committee, to which the matter was referred first of all, began by trying to limit its powers; this attempt, however, was not successful, as the whole subject proved to be too delicate. On the other hand, among the superior council of the colonies the prevailing opinion was in favor of a severe and minute control by the State over the companies; so much so that the existence of the latter became impossible. No company could be expected to invest considerable capital in a risky enterprise and to be subject at the same time to daily interference by the State, for this would have meant certain ruin to it; on the other hand, no government could be found which would have accepted the responsibilities resulting from the obligation of such a strict control which the Senate expected it to exercise. Given the atmosphere of suspicion and distrust prevailing in French Parliament, I doubt whether a minister could be found of sufficient courage to accept all the responsibilities resulting from daily interference with the affairs of a financial company such as the chartered company of South Africa, the German company of East Africa, the Niger company, etc. For all these reasons I doubt very much whether we will succeed in organizing in France colonization companies similar to those which are now conquering Africa in the interests of our rivals.
"In an official report, dated June 10, 1895, Mr. André Lavertujon submitted to his colleagues of the Senate the followivg considerations regarding affairs in Africa and the subject of colonization companies: “The only title which a civilized nation may claim
to occupy uncivilized territory can be derived from the obligation common to all mankind to bring under cultivation the remaining part of the earth, our common habitat. If this provision of the natural law is obeyed by us not better than by the Negroes, then we have no pretext to take their place. Having coveted and grabbed so much, how are we to continue without putting to use what we have? We have, therefore, to restrain and suppress in a stoic manner the desire which pushes us every day to fill our hands with more and more. On the contrary, we must empty them as quickly as possible by turning over our holdings to other hands either less weak or less full. It is thus only that we shall escape moral bankruptcy.'
EGERTON ON MODERN CIIARTERED COMPANIES.
H. E. Egerton, discussing chartered companies, in his History of English Colonial Policy, 1897, says: "The period of Greater Britain has also to find an answer to the question how to recognize the necessity of development and expansion without laying a heavy burden on the present generation of taxpayers. The answer has been found in the revival of the system of chartered companies, a system which played so great a part in past colonization. The recent unpleasant experiences in connection with the British South Africa Company have surrounded the subject with an atmosphere of suspicion and controversy, from which it is most desirable to escape. At the outset we may note the happy coincidence which produced at the right moment the right men to retrieve the mistakes of governments. So far as Uganda and Nigeria are concerned, it seems clear that but for Sir W. Mackinnon and Sir George Goldie (the heads of the respective countries) they would have been lost to Great Britain. The question with regard to Rhodesia is less clear, though its development would as yet hardly have begun but for the action of the British South Africa Company. In discussing the general question of development by means of chartered companies, a broad distinction must be drawn between companies administering lands where Europeans can only go and trade, as on the Niger, and companies administering lands where the climate permits European immigration, as in Rhodesia. The main business of the former company is trade, and, like the East India companies, they became rulers only in consequence of trade. In their case there seems no question as to the usefulness of chartered companies. Their true work is, in the words of Sir George Goldie, 'the establishing of a state of things which would offer fresh security for the creation of a vast commerce with, and the much needed means of communication in, the rich regions of the central Soudan. When that work was completed, the time would have arrived for the absorption of the company hy the Imperial Government.' In such cases we may accept Mr. Lucas's language: “As skirmishers in front of the main body of organized British possessions, let trading companies go on and do their work, to be absorbed hereafter in the fullness of time.' As I understand the matter, the British South Africa Company undertook more than it was able to perform. But when the other kind of company is in question the answer is more difficult. It is easy to draw false conclusions from the conspicuous case of the British South Africa Company. It will not happen once in a thousand years that a chartered company has behind it, concentrated in one person, the wealth and capacity of Mr. Rhodes.
Of course, in the abstract there is very much to be said for the direct administration of the Crown. We may well believe that, just as the State is especially ill fitted to carry on the business of trade, so trading companies are wise in leaving to the State its own peculiar province of administration. It is hardly possible that a private company should be able to secure the same general level of excellence in its officers as can the State. There is one argument in favor of continuing the present administration which seems conclusive. It has been already pointed out that the British South Africa Company is by no means an ordinary example of a chartered company, and that, but for an extraordinary combination of circumstances, it would have been by this time a thing of the past. But, given this extraordinary combination of circumstances, there can be no question but that the work of development is being far more rapidly carried on than would be possible under Imperial administration. The British treasury would never have sanctioned the expenditure of an annual sum sufficient to develop the country, and in the absence of a system under which the lands might be opened out, British control must have spelt stagnation, at least for some years. The alternative was not between an ideally administered British Crown colony and the rule of the chartered company, but between things as they are and the continuance of a savage despotism.”
LAWS AND LAWMAKING IN THE COLONIES.
The creation and administration of laws and the maintenance of order is, of course, an important feature in the improvement of the material, mental, and moral condition of the people of the colony. Without the maintenance of law and order, the development of industry, thrift, education, religious institutions, and all the things which tend to such improvement, could not exist, nor could the satisfactory development of the colony, in any form, be assured without the establishment of a civil government with laws and regulations properly framed and administered. A temporary government may be administered by the military, but in all cases of successful colonization such control in a comparatively short time gives way to civil administration.
In general terms, it may be said that the method adopted by successful colonial managers has been to adopt and adapt the system of laws existing in the territory in question, provided a definite system exists; and if it does not, to borrow that which does exist in contiguous territory.
Ireland, in his Tropical Colonization, says on this subject: “Generally speaking, in all cases where a law has not been passed by a local legislature relative to any particular subject, the law of the sovereign state governing the same subject is held to apply in those colonies which were settled by Englishmen, while in those colonies obtained by conquest or cession from a European power the law of the state which formerly legislated for the colony is applicable.”
In India a penal code has been, after many years of study, created, based largely upon English laws and regulations, while the civil laws are largely based upon native customs, and the laws themselves are administered in the lower courts, and in many cases in those of higher grade, by natives of India. With this, of course, is incorporated much that is new, reflecting the views of the best students of this subject in England and in India. In the Netherlands colonies the Dutch have adapted the laws and customs which were in force among the natives, strengthening them with some general principles from the laws of their own country. Europeans and persons assimilated with them are subject to laws nearly similar to those of the mother country, but the natives are subject to their own customs and institutions. In Cape Colony, Ceylon, British Guiana, and other places where the British have succeeded the Dutch, they have adopted and adapted the Roman Dutch law which prevailed under the Dutch administration. In Rhodesia, Bechuanaland, and other colonies and protectorates which are adjacent to Cape Colony the laws of that colony have been extended over the new territory, with certain modifications. The French have, to a greater degree, transferred to their colonies the laws and regulations of the mother country, and this has been commented upon by writers, even among the French people, as less likely to give satisfactory results than the methods employed by England and Netherlands, in which existing laws and regulations are adopted and adapted and enforced through cooperation of the natives with a few trained representatives of the home government.
Lucas, in his introduction to the 1891 edition of Lewis's Government of Dependencies, says: “Nowadays it can hardly be said that Great Britain introduces, or is likely to introduce, into her colonial possessions, her laws, language, and religion, without due regard to the interests of the dependency. The French laws and language and the Roman Catholic religion are in no way tabooed in lower Canada, for instance, or in Mauritius. The Roman-Dutch law is still the basis of the legal system in the old Dutch coloniesthe Cape, Ceylon, and British Guiana. At the same time, as Mr. Froude has warned us, it is still the tendency of Englishmen to imagine that English institutions are suited to all races and circumstances, to forget that the native is not a European, and to allow, if not invite, their dependencies to adopt forms of government too advanced for half-civilized people.”
Caldecott, in his English Colonization and Empire, 1897, says of the laws of the colonies: “The British Empire exhibits forms and methods of government in almost exuberant variety. The several colonies at different periods of their history have passed through various stages of government, and in 1891 there are some thirty or forty forms operative simultaneously within our Empire alone. We find one retlection arising in our minds, however, when we survey the history of this complicated variety, namely: That we are looking at the natural growth of an organism which in its development has taken different forms in adaptation to different needs. No cast-iron mechanism is before us, but a living society exhibiting vital principles, both in what it continues to retain and what it drops or adds by way of aiteration. The Briton is supposed to be of a rigid character, but in government he has proved himself to be the most elastic of all Europeans."
Morris, in his History of Colonization, says: “If indeed England does not any longer make statutes for them (the colonies) with the same universality of application as in former centuries, it is not the less true that each is caring for itself and its own needs. The measures voted are as diversified in their scope as the characteristics of the regions and races in which and over which they have force. Although be it ever remembered that the old common law is the accepted standard of imperial legislation, constituting for this reason one of the fundamental bonds in the ngth of the edifice. The Magna Charta of rights so varied as to suit the requirements of 344,000,000 individuals is in its forms so manifold as to be marvelous."
SYSTEMS OF LAWS IN THE PRINCIPAL COLONIES OF THE WORLD,
The following statement, condensed from the British Imperial Institute Year-Book, the British Colonial Office List, the Statesman's Year-Booz, and Lalor's Cyclopædia of Political Economy, presents a view of the methods of government in British, Dutch, and French colonies, and especially those territories which were populated and had an established form of government and regulations when their control was assumed by the present governing country.
In Canada and Australia the laws are for obvious reasons based upon English law, the population being of English extraction and experience, and living under conditions such as to justify and suggest the adoption and adaptation of English law for their government. The details of the laws created for and now in force in Canada and the Australian colonieg, will therefore be unnecessary.
Algeria.—The administration of justice in the case of Europeans is the same as in France, the governing country. The natives remain, so far as the civil law is concerned, under the law of Islam, but crimes and misdemeanors committed by Musceimen are punished accorling to French law. Civil cases are judged in most instances by the cadis. Councils, called medjeles, may revise the judgment of the cadis, but an appeal, properly speaking, is only made to the court of appeals at Algiers, and tribunals at Oran and Constantine, to which are attached Musselman officials for this purpose. There is an appeal court at Algiers and in the arrondissements are sixteen courts of first instance, and there are also commercial courts, and justices of the peace with extensive powers. Criminal justice is organized as in France, and Musselman justice administered to the natives by the cadis is appealable to the French courts. Musselman magistrates receive premiums for a knowledge of French.
British Guiana.-The Roman-Dutch law is in force in civil cases, modified by orders in council and local ordinances. The criminal law is based upon that of Great Britain and administered in the same manner, except that there is no grand jury. The existing municipal authorities are a mayor and town council in the cities of Georgetown and New Amsterdam, and village incorporations in nineteen smaller places.
(yprus.The courts which were in existence at the time of the occupation by the British have been superseded since 1882 by a new system of courts which consists of a supreme court of criminal and civil appeal, six assize courts, six district courts, six magistrate Courts, and a series of village courts. Actions are divided into “Ottoman” and “foreign,” according to the nationality of the defendant or defendants, and in foreign actions the president of the court alone generally exercises jurisdiction, as also in criminal cases against non-Ottomans. The Musselman courts are presided over by cadis, but their duty is strictly confined to jurisdiction in religious cases affecting the Mohammedan population.
Fiji.—The executive council consists of a governor and four official members. The legislative council of a governor and six official and six unofficial nominated members. To the natives a large share of self-government has been conceded. Their system of village and district councils has been recognized and improved and supplemented by an annual meeting of the chiefs and representatives from each province presided over by the governor. The regulations recommended by these bodies have to receive the sanction of the legislative council before becoming law. The colony is divided into seventeen provinces, each under the control of a European commissioner, or roko tui, a chief native officer. Each province is subdivided into districts, and the laws are administered through the head officers, who are termed “bulis.” Taxes are paid in the form of produce.
Gold Coast.-The law of the Gold Coast Colony, on the western coast of Africa, is the common-law doctrines of equity and statuies of general application enforced in England in 1874, modified by a large number of local ordinances passed at various periods since that date. The criminal law was modified in 1892, and criminal and civil procedure are regulated by a supreme court ordinance. Justice is administered by the supreme court, provisional courts, and inferior courts. Native law is administered in all the courts in so far as it is not incompatible with any statute or ordinance and not repugnant to natural justice.
Tiongkong.-The English common law forms the basis of the legal system, modified by colonial ordinances. The adıniralty act of 1890 recognized the jurisdiction of the supreme court in admiralty cases.
Jumaica.-The laws are based on English law with many modifications by the local councils. There is a high court of justice and
petty magistrates' courts throughout the island. The resident magistrates, besides holding courts of their own, preside in the courts of petty sessions. There are elected periodically boards in the parishes with jurisdiction o':er roads, markets, sanitation, poor relief, etc. There are several direct taxes on land, houses, horse carriages, etc., which are devoted entirely to improvements and administration in the parish in which they are collected.
Mauritius.—The law is based on the Code Napoleon and other French laws introduced when Mauritius was controlled by the French Government, but these have since been substantially modified by colonial ordinances.
Natal.—The legal system is based upon the Roman-Dutch law which is in force in Cape Colony, modified by local legislation in reference to the English and their descendants. In 1875 steps were taken to supersede the tribal organization in the native population. A law was enacted establishing a native high court to administer justice to the natives and place them under the ordinary criminal law of the colony, except as regards political crimes, crimes arising out of native customs, and crimes declared triable under any local native law, all of which are reserved for the native high court.
Straits Settlements.—The law in force is adapted by local ordinances from English and Indian law; the Indian penal code, with slight modifications, having been adopted, while the civil procedure is based on the English judicature acts. There is a supreme court with sessions at Singapore and Penang every two months, and quarterly at Malacca, and it holds civil sittings monthly at Singapore and Penang, and once a quarter at Malacca. In the Malay Federated States, which are administered by the governor of the Straits Settlements, local laws and regulations are in force, but have in many cases been amended through the influence of the British resident in each of the States.
India.-Sir James Stephen says of the penal code of India that it “may be described as the criminal law of England freed from all technicalities and superfluities and modified in some few particulars to suit the circumstances of British India.” The following description of the laws in force in British India is condensed from Sir John Strachey's work, India, which M. Chailley-Bert, who has made a careful study of conditions in India in his La Colonisation de l’Indo-Chine, commends in the highest terms.
“In 1793 the issue of formal and definite legislative enactments in India began in the series of laws known as the Bengal, Madras, and Bombay regulations. These, and such acts of Parliament as applied to India, constituted, apart from Hindu and Mohammedan law, of which I must speak separately, the civil and criminal law of British India. Before the transfer of the government to the Crown the administration of criminal justice was in an unsatisfactory condition. * In 1853, when the East India Company's charter was renewed, and again in 1861, commissions were appointed to prepare a body of substantive law for India, and to the work of these commissions and to the eminent men who have held the office of legal member of council we owe the succession of excellent laws which have been passed by the Indian legislature and which form chapters in a system of codified law.
* In 1861 the supreme and sudder courts were abolished by act of Parliament, and in substitution for them high courts with both criminal and civil jurisdiction established. The judges of the high courts are in part English barristers and part members of the Indian civil service, and there are usually in each court one or more native judges chosen from the native judicial service or from the pleaders. These high courts are the courts of appeal from the district courts, criminal and civil, and their decisions are final, except in certain cases in which an appeal lies to the judicial committee of the privy council in England.
The code of criminal procedure is in force throughout British India, and among all the laws of India there is no one more important than this, which regulates the machinery by which peace and order are maintained and crime prevented and punished. It describes the constitution of all the criminal courts, defines the powers which each court can exercise, classifies the offenses under the penal code, regulates the manner in which police investigations are to be carried on, the power of the police to make arrests, the proceedings to be taken for keeping the peace, for the removal of public nuisances, and to make all inquiries and trials, and the admission of bills for the revision of sentences. In every province there is a certain number of divisions, in each of which a court of sessions is established, and in every sessions division are a certain number of districts, to each of which the magistrate, called the district magistrate, is attached. To enable the magistrate or judge to exercise jurisdiction over European British subjects he must be appointed a justice of the peace, and the justice of the peace himself must be a European British subject. There are three classes of magistrates: (1) Courts of presidency magistrates and magistrates of the first class, who can pass sentences of imprisonment not exceeding two years and fine not exceeding 1,000 rupees; (2) courts or magistrates of the second class, who can impose sentences not exceeding six months and fine not exceeding 200 rupees; (3) courts or magistrates of the third class, who can pass sentences of imprisonment not exceeding one month or fine not exceeding 50 rupees. In certain cases, and under certain restrictions, magistrates of the first class can pass sentences of whipping. Until 1872 British subjects could only be tried by one of the high courts except in trivial cases. Since that time it has been provided that European British subjects should be tried by magistrates of the highest class, who are also justices of the peace, but it was necessary that the magistrate or judge should himself be a European or British subject. The law has since been so modified that if a native judge be appointed to the post of district magistrate or sessions judge his powers in regard to jurisdiction over European British subjects will be the same as those of an Englishman holding a similar office. This provision, however, is subject to the condition that every European British subject brought to trial may claim the right of trial by a jury of which not less than one-half shall be Europeans or Americans. In case a sufficient number of Europeans and Americans can not be found to constitute a jury the case must be transferred to another district. Until the year 1836 European British subjects were under the jurisdiction of the supreme courts alone. It was then decided that they should be made amenable to the civil courts of the country, and that in this respect no distinction should be maintained between them and natives. Since that time no distinctions of race have been recognized in the civil courts throughout England. At the present time native judges preside over the great majority of the courts. Excepting the higher appellate tribunals almost the whole administration of civil justice is in their (the natives') hands. They exercise jurisdicition in all classes of civil cases over natives and Europeans alike, and no word of objection of the latter is ever heard. A lord chancellor did not give the native judges too high a character when he said, in the House of Lords in 1883, as the result of his experience in Indian cases appealed to the privy council, that 'in respect of integrity, of learning, of knowledge, of soundness, and satisfactory character of the judgments arrived at the judgments of the native judges are quite as good as those of the English. I think that the highest authorities in India would even go further and say that, excepting the high courts, the native judgments are the better of the two. In disposing of business of this sort superior knowledge of the language and habits of the people gives to the natives many advantages over the Englishmen.
“While the codification of the criminal law of British India is complete, the codification of the civil law is a far more difficult task. Both Hindus and Mohammedans are in possession of great bodies of law, parts of which are believed by them to be of more or less divine origin, containing elaborate instructions on every sort of subject affecting property, inheritance, and the relations of life. Unless native customs and feelings and prejudices are repugnant to humanity and justice we are bound to respect them, and the mere suspicion