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the House expressly distinguished between the prisoners executed with trial and without trial, and only appeared to condemn the latter; and the Under Secretary of State, while asserting that the former were legal, did not defend the latter. All the acts done by military authority during the prevalence of the state of war or rebellion would be out of the pale of ordinary law. But there would still remain the question of the propriety of the executions, which might, nevertheless, deserve censure. As already observed, the degree of censure, if any, to be ascribed, would depend upon all the circumstances, as they appeared at the time, and all the circumstances would have to be considered; and a just and temperate judgment formed upon them by the Viceroy of India. We may, however, venture to observe that martial law is essentially a matter for military authority and military judgment, and there is always danger that civilians may be carried away by the cruelty of panic, or the excesses of inexperience.

Since writing the above, we find that Mr. Cowan has been dismissed, and his superior, Mr. Forsyth, removed to another district. No doubt this decision was sound, and though we are not yet informed of the grounds on which it was arrived at, it is not for the writer, as a lawyer, to enter into that question at all. He carefully abstained from doing so in the Jamaica case, maintaining, as Mr. Justice Willes said in his judgment, that the propriety of the measures taken on such occasions must rest entirely with the Government. The Crown, or its representative, has an undoubted right and duty to exercise a judgment as to the conduct of its officers on such occasions. For the very reason that, assuming honesty, their acts on such occasions are out of the pale of ordinary law, they are responsible to the Crown for the exercise of their power. This the author maintained in his former work on the subject, and though he then also maintained that a governor or commander was not liable for excesses they had not authorised or approved, in this case the acts done were the personal acts of the officials censured, and who were undoubtedly liable for their own errors of judgment, if errors there were. Into that question the author does not

it is out of his province as a lawyer. All that concerns him as a lawyer is to maintain, as he did on a former occasion, as matter of law, that such cases are out of the scope of ordinary law, and that it is for the Crown in the first instance. to exercise its power for the suppression of rebellion, but not less to discharge a still higher and nobler duty, by vindicating, as regards all its subjects, of whatever class, or colour, or creed, the sacred rights of humanity.

II.-GROTESQUE LITIGATION IN INDIA.

NOTHING probably will strike an English lawyer in India

more forcibly than the varied and peculiar forms of litigation, of which every court in the country is capable of producing specimens. On the one hand, he may watch the administration of much pure English law through the various forms of actions which arise out of contracts and torts, and the forms of relief which English courts of equity afford. The peculiarity, but more properly the simplicity, of the procedure by which the law is administered would no doubt most excite his admiration. On the other hand, however, he sees that same procedure employed in the administration of quite another law-the enforcement of rights arising out of an archaic code of ordinances, and customs whose origin is lost in the mists of antiquity. Respect for the laws and usages of the country, and the idea that they must be preserved to the people, have had the effect of bringing before our tribunals a class of litigation which is best described by the word grotesque.

The Hindu law boasts of a written code, scattered though it be among various books, the most ancient of which is the well-known "Institutes of Menu." Several abstruse commentaries and digests on various subjects of law-contract, inheritance, adoption, marriage, and so forth-compose the bibliotheca legum of the Hindus. The religious element, however, which enters into the entire texture of Hindu law is remarkable. Almost every one of its rules points to some religious dogma or usage. Many of its precepts are merely enunciations of doctrines that lie at the foundation of their mystic philosophy. So blended and mixed up are moral lessons, religious duties, and purely legal obligations, that it is often difficult to distinguish them. By an old Regulation of the East India Company, passed in 1793, and re-enacted for the purpose of extending it to all the civil courts in the country, it is directed that in suits regarding succession, inheritance, marriage, and caste, and all religious usages and institutions, the Hindu laws with regard to Hindus were to be considered the general rules by which judges were to form their decision. Here, therefore, by the side of the written law there are also to be recognised and enforced a large body of usages and customs. As might well be expected, this mine of law and custom not only produces a large amount of litigation, but such litigation as sometimes assumes the most ludicrous and grotesque character,

If, therefore, the suit be one for "account," or for "goods sold," or "money lent," or for damages, there is generally not found much difficulty in applying to it the general principles which in English law govern like cases. But let a member of a Hindu family, joint in food, worship, and estate, break away from his ancestral home and rush into court, we are then immediately plunged amid questions the most important and intricate. The rights of the several parties are to be ascertained and declared, and the whole family-system, archaic as it is, must be narrowly studied. Here family relations are found totally behind the age we live in. Mothers the perpetual wards of their sons, daughters under grave disabilities as to succession and inheritance, and brothers with their families and remote kinsmen, apparently enjoying a mutual dependence on one another. Conditions of society, which the scientific lawyer regards in the light of fossil remains of an age long past, and fit only to theorize upon, are here studied at once for immediate practical purposes. The suit goes on, and must be decided on principles recognised by such a state of society. Meanwhile, the "Kurta," or manager of the family estate, is a prominent figure in these proceedings, and sometimes the family priest is an actor in it. The family god, too, has no small share of the interest directed to it. The right to worship him is in dispute, and the Christian judge has probably to search the Hindu Scriptures-the shastras and the purduas to determine how many days in the year Shiva ie to be worshipped by this member of the family, and how many weeks Vishnu is to be adored by another.

Customs again which are immemorial create rights which are brought before our tribunals for recognition, which no courts under the sun are called upon to consider. "It has been said by an ancient Indian lawyer, that when the judges of the Sudder Courts were first set to administer native law, they appear to have felt as if they had got into fairyland, so strange and grotesque were the legal principles on which they were called to act. But after a while they became accustomed to the new region, and began to behave themselves as if all were real and substantial. As a matter of fact, they acted as if they believed in it more than did its native inhabitants. Among the older records of their proceedings may be found injunctions, couched in the technical language of English Chancery pleadings, which forbid the priests of a particular temple to injure a rival fane, by painting the face of their rival red instead of yellow, and decrees allowing the complaint of other priests that they were injured in property and repute because their neighbours rang a bell at a particular moment of their services. Much Brahminical ritual, and not a little doctrine, became the subject of decision. The Privy Council

in London was once called upon to decide in ultimate appeal on the claims of rival hierophants to have their palanquin carried cross-wise instead of length-wise; and it is said that on another occasion the right to drive elephants through the narrow and crowded streets of one of the most sacred Indian cities, which was alleged to vest in a certain religious order as being in possession of a particular idol, was seriously disputed, because the idol was cracked."*

In one case, an appeal came up to the late Sudder Court, in 1854, in which thirteen parties as plaintiffs sued twenty-six barbers, to compel them to shave them. It appears that a succession of barbers, of a particular caste, had lathered and shaved the ancestors of the plaintiffs from time immemorial. From father to son the same razor had come down as an heirloom, destined to shave the chins of certain families, their heirs and successors for ever. At last, however, prompted by some evil genii, the barbers absconded, and, as a result, the beards of the plaintiffs appeared, which being repugnant to the spirit of the shastras, the judge was asked to have the plaintiffs duly shaved, which he declined to do. In another case, certain parties sued certain individual barbers, praying that the latter might be compelled to pare the nails of the former. The first court found that it had been the custom of the defendants to perform this service for the plaintiffs, and passed a decree compelling the defendants to perform it. The barbers being indignant, appealed. The Lower Appellate Court held that such a suit will not lie; and, as is the custom of litigants in India, an appeal was immediately made to a higher tribunal. It was gravely urged in special appeal to the High Court, that a suit will lie for the enforcement of an established usage having the force of law. The High Court, in its turn, solemnly say (see Weekly Reporter, vol. i.), "We have carefully considered this argument, but looking at the facts of the case, we think it should be governed by the decision of the late Sudder Court, 2nd November, 1854, page 465, in which thirteen parties sued twenty-six barbers to compel them to shave them, and which appears to us to be on all fours with this. It is, indeed, urged in that case that any barber may have been resorted to, and here the individual defendants must perform the service, otherwise plaintiffs lose caste. But that was not the ground of that decision. It was that the claim was of doubtful principle, and not one of which the courts could enforce execution." The special appeal was accordingly dismissed.

Probably it was a fortunate circumstance that the court so decided, for if (in the shaving case, at least) a decree for the

"Village Communities in the East and West," p. 45,

plaintiffs had finally been made, both the judges and the plaintiffs would assuredly have found themselves under the tyranny of an exceedingly "doubtful principle." If the barbers had refused to carry out the decree and had sullenly put away their razors, then probably (as in the case where a defendant being ordered refuses to sign a document to the plaintiff, the judge may sign it in his stead) the honourable judges would have been compelled to consider the question, whether they should not shave the plaintiffs themselves. If, again, the defendants (barbers) had shown a cheerful disposition, and were prepared to shave the plaintiffs in terms of the decree, why, in that case even, it is of exceedingly "doubtful principle," and a question the casuists have nowhere decided, whether it is just to a man's wife that he should intrust himself to the hands of a barber against whom he holds a decree carrying costs, which costs, at the time of shaving, happen to be still due and unpaid.

THE

III.-MALICIOUS WOUNDING.*

By C. S. GREAVES, Q.C.

HE decision of one point in Reg. v. Ward † is open to such serious doubts, and is calculated to produce so much difficulty in the cases to which it applies, that it ought to be fully discussed.

The prisoner was indicted for unlawfully, maliciously, and feloniously wounding W. J. C., with intent to do him grievous bodily harm. As nothing turns upon the facts in the point I shall discuss, it is unnecessary to state them. Cockburn, C.J., left the question of intent charged in the indictment to the jury, but directed them that if they took the more favourable view of the case, they should find the prisoner guilty of unlawfully wounding; which they did. But, thinking it deserving of consideration whether a wounding occasioned by an act done without any actual malice or intention of offering violence to the prosecutor would be sufficient to constitute an "unlawful and malicious wounding" within the meaning of the statute (14 & 15 Vict. c. 19), the learned Chief Justice reserved the question for the consideration of the judges. After argument on the part of the prisoner, and

* In our last number we inserted an article on this subject written from another point of view.

† 26 Law T. R., 43.

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