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ART. VII.-A Penal Code; prepared by the Indian Law Commissioners, and published by Command of the Governor-General of India in Council. Calcutta, 1837.

IT

T has been for some time, we suspect, the opinion of all who have paid much attention to the vexata quæstio of codification, that, from a question of Theory, it has now passed into one of Practice. The possibility of making a code (for the possibility only, and not the advantage, was contested) has long since been as well proved as words can prove it, and can only be made more evident by actually trying to do that which, until done, the world will never believe can be done, at least well enough to be worth doing. And such, in truth, has been the history of most great improvements in human affairs. That civilization should exist without slavery, or a great state without monarchical government, were not generally believed possible, until seen realized. The multitude, justly distrustful of their own capacity to decide upon the evidence of general reasoning, turn a deaf ear to all demonstrations of the practicability of any great thing hitherto undone. And among such things the reduction of the whole laws of any country into a set of written enactments proceeding from the direct authority of the legislature, must as yet be considered. Of the points usually insisted upon by the later opponents of codification, the one perhaps in which they have been the most successful is in showing that the Code Napoleon (though a prodigious improvement upon the old French law) is no code, in the genuine sense of the word: for as it does not define the technical terms it makes use of, but leaves their meaning and extent to be determined by the decisions of the courts of justice, a real knowledge of the law can only be obtained, as in England, by a study of precedents and cases; and it has even been found worth while to reprint large editions of the old law books, for the light which they throw upon the principles on which the judges proceed in their interpretation of the so-called code. To frame a body of statute law which should need no such adventitious aid; which should contain in itself all the law that is necessary, all that the judge requires to enable him to execute the will of the legislator when he knows the facts of the particular case; this would be to construct a code. But this, so far as we know, has never been the object aimed at in any of the modern European attempts at codification, anterior to the one now before us.

It is because the present is an attempt to attain that object, and (so far as we can yet venture to judge) an eminently successful

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one, that we are anxious to invite to it the attention and the criticism of jurists, and of persons practically conversant with the interpretation of language. We believe that this proposed Penal Code has solved the problem; that it has actually done, so far as the penal branch of law is concerned, that which was denied to be possible, namely, to frame adequate definitions of offences, expressed in general language: definitions sufficiently accurate, to leave no doubt that complete accuracy is attainable. Doubtless, as there are imperfections in all works, and especially in all such works, examination will not fail to detect, or experience disclose, cases needful to be provided for, which the framers of these definitions have overlooked; but the emendations necessary to include such cases, can be made without disarranging the plan or disturbing the symmetry of the code; and that is enough.

The Indian Law Commissioners are a body of five persons, appointed under the authority of the last Charter Act to frame a code of law for the inhabitants of India. The propriety of such a measure at the particular juncture, appears to have been suggested by the liberty then first granted to Englishmen, for settling in India without license from the East India Company. The great influx of Europeans which was expected to ensue, impressed upon the framers of the Charter Act a sense of the necessity of so revising the laws and tribunals of India, as on the one hand to leave Englishmen no just ground of complaint against the institutions of the country in which they might come to live, and on the other to afford effectual protection to the natives against their encroachments. The anomaly of exempting Europeans from the laws and tribunals of the country, and giving them separate ones of their own, was utterly indefensible in principle; it had been found productive of the most serious oppression and denial of justice to the natives, in cases affecting Europeans, even under the more limited access to the country which the latter had hitherto enjoyed; and now, when the government was no longer to have either the privilege of prohibiting the immigration of persons objectionable in point of character, or that of supplying the defect of legal control by an arbitrary power of banishment, it became an imperative duty to withdraw all legal immunities from Europeans; to subject them to the only tribunals accessible to the people, and (so far as possible) to the only laws which those tribunals were, or could be made, competent to administer.

Such, therefore, was the more especial and peculiar motive which led to the creation of this Commission of codification. To this inducement, however, we believe may be added, without any undue compliment to the parties concerned, a sense of the importance

of the object in itself, and of the value of any experiment which might tend to accelerate its successful accomplishment. We are the more inclined to ascribe this honourable motive to the authors of the measure, inasmuch as Mr Charles Hay Cameron, the only gentleman who was sent from England specifically as a member of the Commission (and whose remarkable qualifications for such a post, are well known to all who have any knowledge of him and of the subject) was recommended to the choice of the Court of Directors and of the ministry, by the complete reform which he, as a Commissioner of Inquiry, had advised, and her Majesty's Government effected, in the courts of justice and judicial procedure of Ceylon. Alone of all known countries, that British colony now actually enjoys a judicial system constructed on the best conceptions of philosophic jurists-a system in which, without any servile deference for the authority of Bentham, the principal improvements made in the theory of the subject by that great man have been, with due consideration of local circumstances, adopted and carried into practice. system is understood to have worked admirably during the few years it has been in operation; and the introduction of it does honour to the Colonial Office. The operations of the Indian Law Commission are adding a second instance in support of a prediction once made, that the foreign dependencies of the empire will enjoy the benefits of many reforms, long before the much more compact masses of private interest which oppose themselves to such changes at home, will permit the mother country to share

in them.

The

It was judiciously considered fitting that, of the five Commissioners who were appointed to give laws to India, three should be Company's servants, of tried abilities and the requisite local knowledge; while the remaining two should be persons sent from England, and conversant with the general principles of lawmaking. Of these two Mr Cameron was one; the other was Mr Macaulay, who, having been appointed a member of the Legislative Council of India, assumed, in addition to his rather scanty functions as such, that of President of the Law Commission. Mr Cameron's health having prevented him from taking part in the later proceedings of the Commission, the letter to the Governor-General in Council, which accompanies the project of a penal code, is signed only by the other four members; and a greater share of the labour of completion than was at first anticipated has devolved upon the accomplished President of the Commission, whose style, pruned of whatever would be unsuitable to the character of the work in hand, is distinctly visible in every

part of the volume before us, in which it was possible that style should be discernible.

It is not in its particular application to the circumstances of India, but as a specimen of codification in general, that this proposed body of penal law has claims on the attention of the English reader. We shall therefore omit all consideration of the appropriateness of the punishments, whether as to quality or quantity, and shall confine our notice to the definitions of offences, and the nomenclature and expression of the code at large.

The first four chapters are of a general kind, comprising all those explanations and directions which may be given once for all; and which, in an unsystematic mass of enactments like the English statute book, are either said over again in every statute (sometimes even in every clause of every statute) or left unsaid altogether. Such, for instance, are these-"The pronoun he is used of any person, whether male or female.” "The word man denotes a male human being of any age; the word woman denotes a female human being of any age." "The words to do a thing denote omissions as well as acts."

"The word act denotes

as well a series of acts as a single act; the word omission denotes as well a series of omissions as a single omission." These simple instances, with many of a more complicated character, compose the first chapter, entitled "General Explanations." The remainder of the generalities are comprised in the three succeeding chapters" Of Punishments;" General Exceptions;" and "Of Abetment." In these chapters some, though not many terms, which require definition, are left undefined, the definition in those instances properly belonging not to the penal, but to the civil code, which has not yet been commenced; and in general it may be remarked, that since all offences are such by virtue of their being violations of rights, the attempt to define offences until rights have been defined (which is the business of the civil code), must be attended with peculiar difficulties; but this code has demonstrated the possibility of surmounting these difficulties in a far greater degree than could have been anticipated. Under the chapter of "General Exceptions" we fear that offences by culpable negligence would in many cases escape punishment; but culpable negligence, when productive of actual mischief, is itself, in the more serious cases, made a distinct offence by the subsequent chapters of the code; and in minor cases it may be presumed to be the opinion of the Commissioners that liability to a civil action for damages is the appropriate remedy.

The remaining chapters (chap. v to xxvi) are those which treat of the separate classes of offences; and the best mode of exhibit

ing the peculiarities and the general execution of the code will be to extract at length the first section of one of the most important of its chapters the section "Of Offences affecting Life."

"294. Whoever does any act, or omits what he is legally bound to do, with the intention of thereby causing, or with the knowledge that he is likely thereby to cause, the death of any person, and does by such act or omission cause the death of any person, is said to commit the offence of voluntary culpable homicide.'

66 ILLUSTRATIONS.

"(a). A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in, and is killed. A has committed the offence of voluntary culpable homicide.

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(b). A, with the intention or knowledge aforesaid, relates agitating tidings to Z, who is in a critical stage of a dangerous illness. Z dies in consequence. A has committed the offence of voluntary culpable homicide.

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(c). A, with the intention or knowledge aforesaid, gives Z his choice whether Z will kill himself, or suffer lingering torture. Z kills himself in consequence. A has committed the offence of voluntary culpable homicide. (d). A, with the intention or knowledge aforesaid, falsely deposes before a court of justice that he saw Z commit a capital crime. Z is convicted and executed in consequence. A has committed the offence of voluntary culpable

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homicide.

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(e). A is hired to guide Z through a jungle. In the midst of the jungle, A, no circumstance having occurred to release him from his legal obligation to guide Z through the jungle, with such intention or knowledge as aforesaid, leaves Z. Z dies in consequence. A has committed the offence of voluntary culpable homicide.

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(f). A being legally bound to furnish food to Z, who is the mother of a sucking child, omits to furnish her with food, intending or knowing it to be likely that Z's death may be the consequence of the omission. Z survives, but the child is starved to death in consequence of the failure of milk, which is caused by A's omission. Here, even if A did not know of the existence of the child, he has committed the offence of voluntary culpable homicide. (9). A keeps Z in wrongful confinement, and is, therefore, legally bound (see clause 338) to furnish Z with what he knows to be necessary to prevent Z from being in danger of death. A knowing that Z is likely to die if medical advice be not procured, illegally omits to procure such advice. Z dies in consequence. A has committed the offence of voluntary culpable homicide.

"(h). A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing himself to be likely to cause, Z's death, induces B to fire at the bush. B fires and kills Z. Here, B may be guilty of no offence, or if his firing was, under the circumstances, a rash act, he may be guilty of the offence defined in clause 304. But A has committed the offence of voluntary culpable homicide." *

The cases of justifiable homicide are not defined in this chapter, having been provided for in the chapter of General Exceptions.