Report on the 66 tical experience, says "I have read the Code over several times very carefully, Indian Penal Code." and can honestly say, that at every reading it has grown more and more upon my esteem. I am persuaded that it might be put immediately in force with great advantage to the people of India; and that it would soon become all that "could be desired, under the fostering care of the Legislative Council and Law Commission, in the manner pointed out in the 25th para. of the letter of the Law "Commission to the Governor-general of India." Colonel Sleeman suggests certain alterations and additions as likely to be useful. We may note in particular, that he proposes to add clauses for the punishment of seduction and adultery, and making it penal to sell or buy human beings, in order to put an end to slavery in India. 34. Of the Judges of the Sudder Court at Bombay, and of the officers subordinate to that court whose opinions are recorded, not one disapproves of the Code absolutely; some express unqualified approbation of it; others express approbation with certain reserves and qualifications; and one or two, apparently approving in general, suggest additions and modifications by which they think it may be amended. 35. Of the two Judges of the Madras Sudder Court whose opinions are recorded, one* expresses unqualified disapprobation generally. The other disapproves of the Code for the most part, but dissents from the adverse comments of his colleague in many places, and expresses approbation of particular portions. Of the subordinate officers, a generally unfavourable opinion of the work is expressed by about a fourth part, and a generally favourable opinion by about one-half; of the rest, some may be taken as approving on the whole, but objecting to particular portions, and suggesting modifications, others as disapproving on the whole, but expressing approbation of particular portions, and a few as offering particular objections, but not giving a decided opinion on the whole. 36. We would draw attention especially to the able report of Mr. J. F. Thomas, a judicial officer of great experience (now Chief Secretary to the Government of Madras) referred to by the Judges of the Madras Sudder Court, as containing many important and judicious observations and suggestions. 37. We shall be found in the sequel to give due consideration to the valuable comments of Mr. Thomas, in reviewing the particular provisions to which they apply. We shall now merely note the general opinion expressed by Mr. Thomas. "Looking upon the Code as a whole, and as a substitute for the existing Regulations, I consider it chiefly valuable as a compendium of the latest and most enlightened views of penal jurisprudence, applied with much judgment to the wants and circumstances of India. The extensive use of pecuniary penalties, "with the important object of rendering them the means of indemnifying parties injured; the chapter on Abetment, and the introduction of the discriminating principle of the French Code in cases of perjury, are a few of the instances of great and highly valuable improvements to which I allude. There is also a "comprehensiveness in the definitions of offences which will, I think, do much to remedy an evil of the present system under which crimes may either be com"mitted with impunity, or, are only brought within the jurisdiction of the courts, "under some uncertain provisions of the Mahomedan Law (Section VII. Regu"lation X. 1816), unknown to the officers presiding in the courts, and which "ordinarily annex the arbitrary penalty of ookoobut, leaving it therefore discretionary with the courts to adjudge any, or little or no punishment. This evil "cannot exist under the new Code; whilst the comprehensiveness of the defi"nitions will also render the constant interference of the Legislature, and frequent " additions to the penal laws, unnecessary. 66 "The entire abrogation of the Mahomedan Law, relieving the criminal jurisprudence of the country from a barbarous incumbrance, will also be found a "most important improvement, and I consider the Code, on the whole, well cal"culated to form the basis of a greatly improved system. It is, I am of opinion, "capable "capable of being at once made law in the provinces, and substituted, with but "little modification, for the present Regulations of the Government." 38. Having thus briefly indicated the general tenor of the reports upon the Penal Code which have been referred to us for examination; we shall now notice particularly some of the objections that have been made to the plan of the work, and to the leading principles of the Code. 39. We conceive that we are not required on this occasion to discuss the reasonings which are to be found in several of these reports on the expediency of codification in general, or as regards the Penal Law of India in particular, but that, with Sir J. Awdry," assuming the necessity of a Penal Code as the only "means of providing for the wants of a population which has no one system of jurisprudence applicable to all," and, with Sir H. Seaton, deeming that "the "best justification of it is to be found in the necessity of some system, and the "absence of any satisfactory one," we are to consider, whether the Code which has been proposed is fitted in its principles and in its substantive provisions for the purpose which it was designed to serve, and is capable, with or without modification, of being brought into practical operation as a general system-whether it may be advisable for the Legislature to adopt it, not as a body of law already perfect, which its authors never pretended it to be, but as a systematically digested Statute of Crimes and Punishments based upon sound principles, and defined with a precision before unknown, sufficiently complete to be acted upon, and which when brought into operation may be reasonably expected to work immediately an important improvement in the administration of criminal justice, by methodizing it, and rendering it more easy, certain and equal; looking to its being gradually matured and advanced towards perfection in the manner contemplated by the Commissioners, by which the Legislature will be enabled easily to supply the defects, correct the errors, and reconcile the inconsistencies, discovered by experience. 40. In the prefatory letter to the Governor-general in Council, the Law Commissioners declare that the system of Penal Law contained in the Code is "not "a digest of any existing system," and that no existing system had furnished "even the ground-work" for it. In another place in the same letter, after repeating that they had not thought it desirable, for reasons stated, "to take as the ground-work of the Code any of the systems of law now in force in any part "of India," they say they had however "compared the Code with all those "systems, and taken suggestions from all, though they had not adopted a single provision merely because it formed a part of any of these systems," adding "we have also compared our work with the most celebrated systems of Western jurisprudence, as far as the very scanty means of information which were "accessible to us in this country enabled us to do so. We have derived much "valuable assistance from the French Code, and from the decisions of the French "courts of justice on questions touching the construction of that Code. We have "derived assistance still more valuable from the Code of Louisiana, prepared by "that eminent jurist, the late Mr. Livingstone." 66 41. Upon the ground of the above declaration the Commissioners are severely censured in several of the reports. The course taken by them is denounced as "irreconcileable with the dictates of practical wisdom," and as leading almost inevitably to erroneous conclusions. The Code is spoken of slightingly as "an "invention" "based upon theoretical, not practical principles," and this is said to be" a demerit fatal to the whole work." But while the Commissioners are so much blamed for rejecting all the systems of law at present in force in India, or, to speak more correctly, for not following any of them implicitly in laying the ground-work of their Code, those who find fault with them in this respect are not at all agreed as to what they ought to have done. 42. The * NOTE.--They say, "in a work so extensive and complicated as that on which we have been employed, there will inevitably be, in spite of the most anxious care, some omissions, and some "inconsistencies." "We have done as much as could reasonably be expected, if we have furnished "the Government with that which may, by suggestions from experienced and judicious peisens, be "improved into a good Code." Report on the Indian Penal Code. Report on the 42. The Commissioners came to the determination to frame a new Code upon Indian Penal Code. a plan of their own, because they found, as they thought, not "even the rudi"ments of a good Code," in any of the three systems contained in the Regulations of Bengal, Madras and Bombay, and because they deemed the artificial and complicated system of the English Criminal Law which prevails within the local jurisdiction of Her Majesty's Courts to be unsuitable. 43. Now, with respect to the former, we find that Mr. Norton, the Advocategeneral at Madras, one of those who condemn the Commissioners for the course they have taken, is obliged to observe that "the reasons assigned for rejecting the "Penal Laws prevailing in the provinces of India as a ground-work for a sys"tematic general Code of Criminal Law for India, are forcible and obvious. "These laws are inconsistent with each other, they are sometimes inconsistent "with plain justice, they are inadequate, and they are vague in point of expres"sion." But he takes a different view respecting the English Criminal Law, which, in opposition to the Commissioners, he recommends "as supplying a safe "and firm ground-work, and ample materials for constructing a Penal Code for "this country, subject to such modifications with respect to the condition, habits "and usages of the people, as the statute organizing the Indian Commission points out;" while, on the contrary, as has been already shown, Sir R. Comyn, the Chief Justice at the same Presidency, emphatically declares that the English system is one which he should be very far from advocating the extension of. There are some again who would have a body of criminal law for this country, composed by a combination of the Regulations of Government, with the principles of English law administered by the Supreme Courts; while others, eschewing English law, would harmonize the laws contained in the Regulations of the several Presidencies, and thereby construct a general system. 44. From the tenor of some of the animadversions upon the plan pursued by the Commissioners, it might be supposed that they had proceeded entirely upon theoretical views of their own, rejecting all the aids to be obtained from the laws actually in force in India; whereas, although they followed none implicitly, they took suggestions from all, so that Sir J. Awdry remarks how little (with certain grave exceptions) the Code departs from the substantial principles of the Law of England; and Mr. Norton, on the other hand, finds fault with it as paying too much deference in some parts to the body of law contained in the Regulations for the guidance of the Company's Courts. The truth is, that the Commissioners not only took suggestions from the laws actually in force in India, but borrowed also from the legislation of the most civilized countries of Europe, thus availing themselves of the practical wisdom embodied in many various codes, while at the same time they sought instruction in the works of learned jurists, calling in the lights of science, or the "philosophy of jurisprudence," to use the phrase quoted by Mr. Norton, to help them in judging of the aptitude of the provisions. contained in these codes, and in devising new provisions where none of them supplied rules which they approved. Such new provisions and the principles upon which they are founded, are in general fully expounded and defended in the Notes to the Code, and the reasonableness of the principles and the fitness of the provisions are to be considered impartially, without permitting the judgment to be influenced by prejudices against them as innovations and untried theories. 45. After all, the novelty which is so much animadverted upon is more imaginary than real, and is to be found more in form than in substance. On this point we find Sir J. Awdry remarking, that although some beneficial principles are as far as he is aware newly developed in the Code, the amount of really new matter contained in it is not so great as to give the Commissioners a claim to originality, while he "thinks them entitled to the far greater praise of having "seldom much disregarded the experience and recorded moral sense of the "world." 46. The system of definitions and illustrations of definitions which has been adopted in this Code, is much criticised and censured. The following are the explanations which the Commissioners have given of this leading feature of their plan. "One peculiarity in the manner in which this Code is framed will "immediately strike your Lordship in Council. We mean the copious use of "illustrations. These illustrations will, we trust, greatly facilitate the under standing of the law, and will at the same time often serve as a defence of the "Law. "Law. In our definitions we have repeatedly found ourselves under the necessity Report on the "of sacrificing neatness and perspicuity to precision, and of using harsh ex- Indian Penal Code. pressions, because we could find no other expressions which would convey our' "whole meaning, and no more than our whole meaning. Such definitions standing 66 66 66 by themselves might repel and perplex the reader, and would perhaps be fully comprehended only by a few students after long application. Yet such defi"nitions are found in every system of law which aims at accuracy. A legislator 66 may, if he think fit, avoid such definitions, and by avoiding them he will give "a smoother and more attractive appearance to his workmanship; but in that case he flinches from a duty which he ought to perform, and which somebody must perform. If this necessary, but most disagreeable work be not performed by the lawgiver once for all, it must be constantly performed in a rude and imperfect manner by every judge in the empire, and will probably be performed "by no two judges in the same way. We have, therefore, thought it right not "to shrink from the task of framing these unpleasing, but indispensable parts of "a code; and we hope that when each of these definitions is followed by a "collection of cases falling under it, and of cases which, though at first sight they appear to fall under it, do not really fall under it, the definitions and the reasons which led to the adoption of it will be readily understood. The illustrations "will lead the mind of the student through the same steps by which the minds "of those who framed the law proceeded, and may sometimes show him that a phrase which may have struck him as uncouth, or a distinction which he may "have thought idle, was deliberately adopted for the purpose of including or "excluding a large class of important cases. In the study of geometry it is 66 66 "found that a theorem which, read by itself, conveyed no distinct meaning to the "mind, becomes perfectly clear as soon as the reader casts his eye over the "statement of the individual case taken for the purpose of demonstration. Our "illustrations, we trust, will in a similar manner facilitate the study of the law." "We have, in framing our definitions, thought principally of making them precise, and have not shrunk from rugged and intricate phraseology, when such phraseology appeared to us to be necessary to precision. If it appeared to us "that our language was likely to perplex an ordinary reader, we added as many illustrations as we thought necessary for the purpose of explaining it. The “definitions and enacting clauses contain the whole law. The illustrations make nothing law which would not be law without them. They only exhibit the "law in full action, and show what its effect will be on the events of common "life." 66 "Thus the Code will be at once a statute book and a collection of decided 66 cases. The decided cases in the Code will differ from the decided cases in the English law books in two most important points. In the first place, our illus"trations are never intended to supply any omission in the written law, nor do they ever, in our opinion, put a strain on the written law; they are merely instances "of the practical application of the written law to the affairs of mankind. Secondly, they are cases decided not by the Judges, but by the Legislature, by "those who make the law, and must know more certainly than any Judge can "know what the law is which they mean to make." 66 47. The Commissioners on the Criminal Law of England "did not think it 4th Report, p. XVI. "expedient to illustrate the abstract rules and propositions in the digest framed 66 by them by particular cases or examples, excepting in the few instances where "such illustrations were found already moulded into rules, and therefore forming part of the existing law." "It appears to us," they said, "that if an example "falls clearly within the terms of the rule, it is useless as an illustration, because the rule is explicit without it; if, on the other hand, the example borders upon "the verge of the rule, or does not fall clearly within its terms, it either renders "the rule doubtful, or the example itself constitutes the law. An illustration cannot, as is already observed, be of any use as a law, except to remove some "doubt which would otherwise occur as to the proper application of the law to the case proposed, or to that and others of a similar kind. But this very necessity proves the law to be imperfect, and shows the framer of the law to have "been aware of an imperfection which ought to have been remedied by using "terms which either plainly excluded or included the proposed predicament. Laws must frequently be ambiguous in their application, because it is impos 66 66 66 166 "sible Report on the “sible to foresee all the various combinations of circumstances to which it may Indian Penal Code. " be necessary to apply them; but it would argue great negligence not to use "terms which should clearly comprehend a case not only within the knowledge "of the law-maker, but even suggested by him. 48. The India Law Commissioners observe, that "to unite precision and simplicity in definitions intended to include large classes of things, and to exclude "others very similar to many of those which are included, will often be utterly impossible." They thought that this difficulty might be best overcome by the use of illustrations. The English Commissioners, apparently feeling the same difficulty, had recourse to the expedient of adding to the definitions expository clauses, where the definitions themselves are not sufficiently explicit, or where technical expressions are necessarily used, to "interpret them into popular language, and give them a precise meaning." After giving their reasons, as above, for not resorting to illustrations," in order to guard against any misapprehension "of their meaning," they say, "We do not assert that illustrations are not useful "as leading to a knowledge and understanding of the law, but that they ought "not to form a part of the law, so as to supersede or vary it, or to be of con"current authority. There is, perhaps, no abstract rule or position in any science "to the understanding of which the mind may not conveniently be led by the "aid of familiar examples; they are indeed frequently the very steps by which "the rule was first discovered, and its truth or propriety tested, and in either "case must necessarily be included within it. It is, however, to be remarked, "that none but plain and obvious examples are conducive even to the purposes "of instruction; for predicaments to which the application of the proposed rule "was doubtful, would serve to perplex rather than enlighten the mind." Here they appear to come pretty nearly to an agreement with the framers of the Indian Code, who, in the passage above quoted, in effect declare that they do not intend their illustrations "to form a part of the law so as to supersede or vary it," or to be of concurrent authority," so as to make anything law which would not be law without them, but simply to serve the same office as the expository clauses in the digest of the English Commissioners, particularly those which are described in the following words: "We have, with a view to render the rules contained "in the digest more generally intelligible, frequently applied the rules of law to "a detail of facts, where a more general and abstract enunciation of those rules "would have been sufficient." 66 49. On this part of the plan of the Indian Law Commissioners Sir J. Awdry observes," Their method of illustration by examples is excellent. It is the ་་ 46 practice in other sciences, and the want of it has been felt in law. Mr. Living"stone occasionally uses it, but in a manner confused between illustration and "enactment. Here it occupies its proper place, distinct from the enactment. They truly say that precision could not always be made consistent with neatness "and perspicuity. They have preferred, and rightly, precision. Their sentences are hardly more harsh, and are far less prolix and involved, than those of legislation in general. But still they often are and must be harsh, and at any "rate the synthetical apprehension of them is difficult to miuds not accustomed to accurate thinking; but an instance of the rule in action will lead the mind "analytically to it. The examples ought, however, in my opinion, only to be "looked at like those in grammar, simply to lead the mind to apprehend the rule, not to define its limits in doubtful cases, or the example becomes part of "the rule, and their statement that the definitions and enacting clauses contain "the whole law' will be falsified. A fictitious example should only illustrate; "real examples, like real history, may instruct.' 50. We understand the authors of the Code to have intended their illustrations to serve precisely the same purpose as examples in grammar; and as of examples in grammar or in any science it is not to be supposed that they ever "supersede or vary" the rule they are intended to illustrate, the same is in fairness to be presumed of the illustrations deliberately put forth to exemplify the intended action of the enactments contained in the Code. They show as far as they go what the authors of the Code meant by the enactments. And it would be as unreasonable for a judge to refuse to decide according to the illustration annexed to any enactment, in a case exactly parallel, as it would be in a student, in attempting to apply a rule of grammar, to refuse to follow the example set for the |