There are two modes of limiting the right of appeal; first, there is the pecuniary limitation, or limitation as to value ; and, secondly, there is the limitation as to the scope and grounds of the appeal.

As to the first mode of limitation not much need be said. It is a rough and ready, and, for practical purposes, often a very useful mode of restricting endless litigation about small matters. But it is not theoretically very defensible, for the difficulty and general importance of the legal questions involved in a suit are unaffected by the value of the subject-matter in litigation. With regard to appeals from India, the existing pecuniary limitation of 1000l. is, I think, a reasonably fair one, and the Judicial Committee have the power, which they occasionally exercise, of giving special leave to appeal where the value of the suit may be below that sum, but the importance of the legal questions involved in it, or its bearing upon other suits, render it one of exceptional difficulty or importance. It has, I believe, been proposed to raise the pecuniary limitation from 1000l. to 5000l. I certainly think (though it is difficult to give very definite reasons for the opinion) that the alteration would work very oppressively, and be an undue favouring of rich suitors as compared with poorer ones. perty valued at 10007., especially when it represents the estate of a Hindu family, is generally of more importance to the owners than property of the same nominal value is in England. Considering how property is generally distributed in India the existing pecuniary limitation upon the right of appeal is, I think, as high as can fairly be fixed.

Pro

It is the second mode of limitation which I propose to apply to Indian appeals. As preliminary to my proposals, it seems essential first to notice what must always be the practical defects of the Bench and the Bar of a Court of Final Appeal located in this country, for so far as judges abroad may be better placed or fitted to decide safely than judges here, it will be useful and safe to leave them uncontrolled on appeal. Next I shall sketch cursorily the procedure and course of appeals in the courts in India, and state the different gradations of the courts in India subject to the several High Courts; and in doing so I shall suggest an amendment of the procedure on appeals in India, and propose an uniform gradation of the courts throughout India. In conclusion I shall submit my proposal to limit in certain cases the scope of the appeal to the Court here to questions of law.

I assume it to be beyond question that nothing short of the court being located in England, with a Bench mainly composed of tried English judges, and a Bar frequented by the leading members of the profession here, could give satisfaction to our colonial fellow-subjects. It has, I am aware,

been suggested, as one way out of the difficulty as to Indian appeals, to establish the Court of Final Appeal in that country, but it is not worth while now to digress in order to demonstrate how, even for so vast a dependency as our Indian empire, such a scheme must turn out to be utterly unsatisfactory and inefficient. It would not, I presume, be even suggested that a like scheme would be practicable in the case of such dependencies as the Cape, Ceylon, or the West Indies. The court, therefore, must be located in this country; its Bench must be mainly composed of home-bred judges; and the home Bar will inevitably furnish the great bulk of its practitioners. Now, with all respect for home-bred English judges, it will, I think, be allowed by their admirers (and I am certainly one of them) that their professional experience as advocates, or as judges, is defective in two respects; first, they are rather municipal lawyers than jurists, and secondly, they have never been judges of fact. As to the first point, the legal education of the English lawyer is neither scientific nor profound; with very rare exceptions no one studies general jurisprudence, or attempts to compare our own with other systems of law, either ancient or modern. Then, whilst in practice as an advocate, or presiding as a judge, the English lawyer seldom acquires any real acquaintance with other systems of law; substantially he knows nothing of any law except his own, and even of that he has a practical-though not always a complete-rather than a scientific knowledge.

The greatest admirers of English law can scarcely boast that it is either systematic or scientific. When, therefore, we place home-bred English lawyers as judges in a Court of Final Appeal for our colonies and dependencies, we shall no doubt find that we have got men of cultivated acuteness, and often profoundly learned in a single, very intricate municipal law; but it is almost inevitable that they will be without sympathy for other legal systems, and will be perpetually measuring and moulding the ideas of alien systems of law so as to square with the often discordant ideas of the only law with which they are practically acquainted. There is no way that I can see of moderating this defect except an admixture of retired colonial judges, practically skilled in some one or more of the alien systems of law which the court here will have to administer. It will not be often that such a judge will be found who is otherwise also a fitting compeer with the home-bred judges, but certainly the Legislature ought not to make it impossible to give him a seat in the court when such a judge is forthcoming. That this defect in home-bred English judges is not a fanciful one will, I think, be acknowledged by those who have watched the Judicial Committee.

To speak only of those now dead and gone, we have had there judges such as Lord Kingsdown, and Lord Justice Knight Bruce in his better days, who were quick in grasping the idea of the alien law. But who has not heard some learned and patient judge in that Court struggling with a fundamental notion of the Hindu or Roman-Dutch law, and misleading himself as to its nature and extent by perpetually comparing it with the English legal notion apparently similar, and alone familiar to his mind. Then it would be as well also that the Court of Final Appeal should be saved from the ridicule attending those blunders which the Judicial Committee sometimes commit from their ignorance of the languages of our foreign dependencies. Such a passage in a judgment as the property in dispute "was then held by a family of the name of Naidoo" (9 Moore's I. A. C., 86) could not, of course, be read out in any court in the Madras Presidency without exciting laughter. Occasionally these blunders come near to mistakes of substance, as in the case where the Judicial Committee are said to have mistaken the honorific prefix "Rája-sri" in a petition for "Registrar" and held that there had been a sufficient application to that officer.

The second defect in the professional experience of homebred English judges, to which I referred, is their want of experience as judges of fact. The objection applies as much to Equity judges as to the others, considering the absurd system of recording and discussing evidence in the Chancery Courts. To present as an advocate a one-sided view of the evidence for the acceptance of the jury, or to sum up as a judge both sides, and then tell the jury if they believe one view they will find one way, and if they believe another they will find the opposite, is an entirely different task from that of having to fill, at the same time, the double office of judge and jury, not only to apply the law to the facts, but to rightly characterize the witnesses, and justly appreciate the probabilities of the evidence, and then to give satisfactory reasons in a judgment for the conclusions arrived at. Now, the Judicial Committee, as at present constituted, are judges of fact as much as of law. To be sure, it used to be a maxim of the Judicial Committee not to dissent from the local courts in our foreign dependencies upon conclusions of fact, except in very clear cases; but of late years, at least, there has been a marked abandonment of this rule, and I think that this is one of the main reasons why of late the judgments of the Judicial Committee have given less satisfaction abroad than they used to do. In any Court of Final Appeal that may be constituted in this country, most of the judges must be without practical experience in deciding questions of fact, and to this must be

added the further difficulty that the evidence on which they will be required to decide, will very generally be that of foreigners, with whose habits of thought, morals, manners, and languages, they are utterly unacquainted, and to whose evidence it would be in the highest degree dangerous to apply the like tests, or the same standard of credibility that may be used in judging the evidence of witnesses in England.

It would thus far seem probable that a restriction upon the right of appeal as to questions of fact might be imposed. I pass on now to consider whether the process which suits undergo in the courts in India may point to the same mode of limitation as safe and useful.

All the courts which are subject to High Courts, and the High Courts themselves in their appellate jurisdiction, are governed by the Code of Civil Procedure. The system of appeals therein provided is, that from the decision of the Court of First Instance there is one appeal, technically called a regular appeal, upon the whole case to the next superior court. The decision on regular appeal upon the issues of fact in the suit is final, though the court come to conclusions upon the evidence quite different from those of the Court of First Instance, and this is the defect in Indian procedure above alluded to as needing amendment. From a judgment on regular appeal there is an appeal (except in certain petty cases) to the High Court, but limited to the questions of law in the suit, technically called a special appeal. This system of appeals is supplemented by provisions for the new trial of a suit wholly or in part. If the decision is based upon some preliminary question and is reversed upon appeal, the suit is remanded to the lower court for trial upon the merits. If the case has been imperfectly investigated the appellate court may itself receive further evidence if sitting on regular appeal or may require the lower court to receive and transmit it, or may retain the suit on its file but remit one or more issues of fact for the decision of the lower court. The issue remitted may be one already recorded in the suit or one newly framed by the appellate court, and the finding in either case may be required either upon the evidence already recorded, or partly upon such evidence excluding something improperly admitted or including something improperly rejected as evidence, or partly upon existing evidence and partly upon fresh evidence, or wholly upon fresh evidence to be received by the lower court. The finding when returned may be objected to, and the hearing of the appeal then proceeds in the superior court. But a High Court sitting on special appeal cannot decide any issue of fact, but must (if needed) require the lower court to record its finding, and is concluded by it. Hence this result of the

present discordance between the law of the Judicial Committee and of the courts in India, that if the suit comes home on appeal, the questions of fact may be re-opened, and the dilemma arises that either the process of special appeal was waste of time, or the re-opening of the facts here is wasteful litigation.

But the Code of Civil Procedure does not prescribe the jurisdiction of the several grades of courts nor regulate the order of appeal from one to the other. All this is done by local laws, and great and needless variety exists in this respect in the several presidencies of India. The following facts are sufficient to indicate this variety of laws. The lowest Court of First Instance is everywhere that of the Munsiff, but the pecuniary limit of its jurisdiction varies. In Bengal and the North-West Provinces the limit is a subject matter not exceeding 100l. in value; till lately it was 301. In Madras the limit is also 1007. in value, but is not for all suits calculated in the same mode. In Bombay the limit is 500l.

The highest local court subordinate to a High Court is everywhere that of the Zillah or Civil Judge. But between this court and those of the Munsiff there is in Bengal and the North-West Provinces everywhere one intermediate court. In Bombay there are two grades of intermediate courts, while in some provinces of Madras there is one such intermediate court, and in others there is none at all. In Bengal, the North-West Provinces, and Bombay, the original jurisdiction of the intermediate court is unlimited, and practically the Zillah Judge exercises no original jurisdiction. In Madras his original jurisdiction always begins at 1000l. in value, and, where there is no intermediate court, whenever the value exceeds 1007.

Further, the order of preferring appeals from one court to the other varies. Thus, in Bengal and the North-West Provinces the regular appeal lies to the High Court in all suits above 500l. in value, in the rest it is to the Zillah Judge and there is only a special appeal to the High Court. In Bombay the regular appeal lies in all suits to the Zillah Judge, who may refer certain of them to intermediate courts, and it may be said with practical accuracy that the High Court in Bombay hears nothing but special appeals. In Madras the regular appeal to the High Court lies only from a judgment of the Zillah Judge, and what is the value of the suit so appealable depends upon whether or not there is an intermediate court in the province from which the suit comes. In all other suits the regular appeal lies to the Zillah Judge, and only a special appeal to the High Court.

I have purposely abstained from speaking of the courts in the Punjaub or in other provinces of India, not considered to be sufficiently advanced to be fully subject to the ordinary