in the Courts of the Madras Presidency. 29 



there in a decree from Madras. It is bad enough that the uni- 

 form administration of the law should be broken in upon by 

 local usages, which really are known to the people, and which 

 are cherished by them. But it is worse, when those local 

 usages are invented for the people, and are distasteful to them. 

 A commission to take evidence on the spot upon all matters of 

 special usage, would not only get rid of the danger of palm- 

 ing off new traditions as old ones, but would also probably 

 reveal the fact that many of the old traditions have become 

 obsolete and unsuitable to the wants of the community. 



The next point is a more difficult one. It is obviously 

 impossible to lay down rules as to the circumstances under 

 which Judges should vary from the law which they are 

 bound to administer. But there is no doubt that great room 

 would be left for the spontaneous and unconscious legis- 

 lation of the people, if litigants were always shut out 

 from taking in appeal points of local or national law, which 

 they had not taken in the original Court. For instance, the 

 Malabar law does not allow of a suit for division, and if such 

 a suit were brought, and the defendant took the point, he 

 ought to have the benefit of it. But if he simply denies 

 that the plaintiff is a member of the family, that amounts 

 to a waiver of his own legal right to remain under all cir- 

 cumstances undivided, and I cannot see why the Court 

 should force upon him the benefit of a law, which he is wil- 

 ling to dispense with, or of whose existence he is not aware. 

 Of course it would be completely different where the law 

 was one of those broad principles of jurisprudence, which 

 every Court, in every stage of proceedings, ought to main- 

 tain. As, for instance, where tjie action was brought upon 

 an immoral or illegal contract. 



Our main reliance, however, for all radical changes, must 

 be upon direct legislation. If enlightened Natives, who 

 know the feelings and wants of their countrymen, and espe- 



