History of the Parsis : including their manners, customs, religion and present position : with coloured and other illustrations : in two volumes

CHAP. V.] ENGLISH COMMON LAW. 263

(and it will be equally applicable to Parsis living within the ordinary original civil jurisdiction of the High Court), had led to results diametrically opposed to the feelings of the Parsi community, and totally inconsistent with their view of conjugal relations and marital rights.

“Indeed it hardly requires instances to prove that such must necessarily be the result of applying the English common law of property as between husband and wife to any other people than the English. That law stands alone in the jurisprudence of the world. It is only rendered endurable to the English themselves by the cumbrous device of marriage settlements, an expedient, as is well known, almost always resorted to where there is any property or expectation of property on the lady’s side ; an expedient, which, wherever it is resorted to, amounts to the institution by contract and convention of a law pro hac vice, and as between the parties, which sets aside the strict law of the land. In 1858 the English Legislature, by the Act for protecting the separate earnings of married women, set aside by statute so much of this law as had previously made these earnings in all cases the prey of the husband; and it hardly admits of a doubt that if the English nation can ever acquire for itself a code of substantive civil Jaw, one of the most welcome modifications of the existing common law would be the exchange for a more civilised system of the barbarous and feudal rule of the common law by which the wife, for all purposes of property, is merged in the husband, or, to use language both historically and technically more correct, by which the Feme is Coverte by the Baron.”

On this head, therefore, the Commission was unanimously of opinion that the Parsi community of Bombay had established the existence of a social grievance which called for a legislative remedy, and that they had made out a case for special legislative protection against the further application to them of the English common law of Baron and Feme.