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Act XXX. of 1845 makes it competent to Session Judges "in adjudging a Second Report "sentence of fine to award such fine, or any part of such fine in compensation to Indian Penal Code. "the party who may have been injured, in like manner as it is competent to magistrates to award fines under Clause 2, section 39, Regulation IX. of 1816 "of the Madras Code." There is a similar provision for the Presidency of Bombay in Act IX. of 1838. The principle of compensating prosecutors out of fines levied by the Supreme Courts is sanctioned by the Statute 9 Geo. 4, c. 70, section 52. And the Act of the Government of India, No. XXXI. of 1839, section 29, following 7 & 8 Geo. 4, c. 29, sections 41 and 42, and c. 30, section 24, authorizes justices of the peace, on summary convictions, to award a fine over and above the value of property injured, &c.

504. The authors of the Code, after vindicating the punishments provided in Note A., p. 11, 12 it, proceed to explain why some others were omitted. They state particularly and 13. their reasons for omitting public exposure and flogging from their list of punishments. We are inclined on the whole, though not without hesitation, to agree with them, but there are many who are of a different opinion.

505. Sir J. Awdry says, "I greatly doubt the expediency of totally abolishing "the punishment of public exposure. It should be very sparingly used—should "be confined to crimes really scandalous, and to which we wish to teach the "people that we attach a particular opprobium. The more atrocious species of "the crimen falsi have this character. They have, moreover, this characteristic, "that whilst exposure is, as the Commissioners justly remark, the most unequal "of all punishments, the severity varies, if restricted to this class of crimes, in "a great measure with the circumstances of aggravation of individual guilt " and public mischief." Mr. A. D. Campbell, Mr. Vaughan, Mr. A. W. Begbie, and others, think this kind of punishment should be retained for perjury and forgery, and crimes against nature.

506. A considerable majority of officers of the Madras Presidency express strong objections to the abolition of flogging as a punishment. It is to be remem- Regulation II.1834. bered that the law, which abolished corporal punishment in the territories subject to the Presidency of Fort William, was not extended to Madras and Bombay.

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507. The Commissioners thus conclude their observations on the subject: "Being satisfied, therefore, that the punishment of flogging can be proper only "in a few cases, and not being satisfied that it is necessary in any, we are unwilling to advise the Government to retrace its steps, and to re-establish through" out the British territories a practice which, by a policy unquestionably humane, "and by no means proved to have been injudicious, has recently been abolished "through a large part of those territories." Neither are we prepared to recommend to Government to' recede from the position taken in 1834 on this subject. We believe that, though corporal punishment is still legal in the Presidencies of Madras and Bombay, it is much more rarely resorted to than it used to be.

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508. It is observed in Note A., that the moderate flogging of young offenders Page 13. for some petty offences is not open, at least in any serious degree, to the objections stated against the general use of this mode of punishment. On the contrary, it is admitted that in countries where a bad system of prison discipline exists, the punishment of flogging has in such cases a great advantage over that of imprisonment, namely, that the young offender is not exposed even for a day to the contaminating influence of an ill-regulated gaol. It was upon this ground, we believe, that the magistrates were authorized by Act III. of 1844, to punish offenders of tender age with stripes. At the same time, professedly as a temporary measure, until adequate improvement in prison discipline can be effected, the magistrates were authorized to sentence to corporal punishment persons convicted of petty theft. By a later Act, XVIII. of 1845, on the ground that offences committed by convicts sentenced to imprisonment for life should be punished with greater severity than such offences are punished with in other cases, such convicts are made liable to corporal punishments. This may be considered a measure of prison discipline.

509. By Clause 59 it is declared, that " where it is provided that punishment "shall be cumulative, that provision does not authorize the combining in any 330.

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"case of the punishments provided by more than two penal provisions of this Indian Penal Code. "Code."

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510. Sir J. Awdry commends" the expressly providing for cumulative punish"ment" as "very good." Sir H. Seton, as we have already remarked, questions the propriety of this arrangement which runs through the Code, and is a distinguishing feature of it. Mr. Norton says, Mr. Norton says, "I conceive the doctrine of cumulative punishment to be unjust in principle, and calculated to perplex, as the "illustration to Clause 60 may serve to indicate. I conceive the plain law of "one punishment for one offence, without breaking substantive offences into separate offences, is the best law." We have before mentioned what we take to be the principal reason for the arrangement in question, namely, to provide discriminately for aggravations which the English law provides for indiscriminately, by allowing a much greater latitude in the punishments for the primary offences. It will be found, we think, that the arrangement does not consist, as Mr. Norton imagines, "in breaking substantive offences into separate offences," but in prescribing appropriate punishments for the substantive offences, according to the definitions of them, without extrinsic aggravations, and providing that where an extrinsic aggravation does occur which amounts to an offence under any clause of the Code, the penalty of that offence may be added to the penalty of the primary offence. For example, the penalties for house-trespass are laid down in Clause 426, and it is provided in Clause 427, that "if any person commits " house-trespass in order to the committing of another offence, and actually com"mits that other offence, the punishment shall be cumulative," that is, the offender shall be liable to the punishment of that other offence as well as to the punishment of house-trespass. The punishment of either offence intended to be applied where there is no extrinsic aggravation, would be insufficient by itself; but the addition to be made in consequence of the extrinsic aggravation is not left to arbitrary discretion, the nature of the aggravation determines it, the Judge has to consider whether it amounts to an offence, and if it does, he will add the 7th Report, p. 97. punishment of that offence. The Commissioners on the English Criminal Law remark, that" one of the principal_imperfections incident to the system of "punishment adopted by the law of England, is the want of regular gradations "of punishment corresponding with the aggravations incident to large classes "of crimes.' "At present," they say, "such aggravations, though not defined, do, in fact, enhance the punishment, yet the malefactor is not only without "notice of the intention to prove the circumstances which operate in aggrava"tion, but is without warning that they will be regarded as aggravations." Under the arrangement adopted in the Code, the offender will have the most precise information both of the primary charge, and of the secondary charge alleged by way of aggravation, which, if proved, will subject him to a certain additional punishment. We repeat, that we cannot but think that the method of the Code, as it limits discretion, is conducive to exactness in the meeting of punishment, while it will tend to the advantage of the offender by apprizing him specifically of the aggravation he has to answer for.

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Note A., p. 3.

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511. We have now to notice the provisions for the commutation of sentences. "It will be seen," say the Commissioners, " that we have given to the Govern"ment a power of commuting sentences in certain cases without the consent of "the offender. Some of the rules which we have laid down on this subject will "be universally allowed to be proper. It is evidently fit that the Government "should be empowered to commute the sentence of death for any other punish"ment provided by the Code. It seems to us also very desirable that the "Government should have the power of commuting perpetual transportation for perpetual imprisonment. Many circumstances, of which the executive autho"rities ought to be accurately informed, but which must often be unknown to "the ablest Judge, may, at particular times, render it highly inconvenient to carry a sentence of transportation into effect. The state of those remote pro"vinces of the empire, in which convict settlements are established, and the way "in which the interests of those provinces may be affected by any addition to "the convict population, are matters which lie altogether out of the cognizance "of the tribunals by which those sentences are passed, and which the Govern"ment only is competent to decide."

512. Mr.

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512. Mr. Norton, we believe, stands alone in objecting to these arrangements. He says, "the arbitrary authority (Clause 42), to change transportation for life into imprisonment for life, which may be possibly rigorous, and which may be far the Indian Penal Code. "severer punishment, is, in my opinion, uncalled for, and may be unjust." Considering that imprisonment for life is made generally the alternative for transportation for life; and adverting to the circumstances referred to in the Note, which may sometimes render it inexpedient to carry a sentence of transportation into effect, we are not surprised that there is none who agree with Mr. Norton in pronouncing the provision for this commutation "uncalled for," or in surmising that it "may be unjust." Sir J. Awdry says, "the power of the Execu"tive Government to commute transportation, as distinct from the general prero"gative of mercy, is, I think, grounded on sufficient reason." This power of commutation is practically exercised in England under section 10, 5 Geo. 4, c. 84, by which it is lawful for the Secretary of State to order convicts, under sentence of transportation, to be confined in any place appointed for the purpose by Her Majesty in England, until, it may be, they "shall become entitled to their liberty."

513. By Clause 42, a sentence of transportation may be commuted also for banishment from the territories of the East India Company. Mr. Norton says, this is a mode of punishment which " appears almost impracticable." "How it "is to be enforced is not provided." Mr. Norton must have overlooked Clause 205, which provides that a person returning from banishment "shall be punished "with transportation for a term which may extend to seven years, to which "banishment for life shall always be added."

514. The authors of the Code anticipated objections to Clauses 43 and 44. In the latter of these they provide that "whenever a person not both of Asiatic Note A., p. 4. "birth and of Asiatic blood commits an offence so serious that he is sentenced "to two years of simple imprisonment, or to one year of rigorous imprison"ment, it shall be competent to the Government to commute that punishment "for banishment from the territories of the East India Company." In the former they provide that, if a person of the same description commits an offence so heinous as to be visited with a sentence of imprisonment for seven years or more, the Government shall have "the power of substituting an equal term of "transportation for that term of imprisonment, and of excluding the offender, "after the expiration of the term of transportation, from the territories of the "East India Company.' "We are satisfied," they say, "that both humanity and policy require that those provisions, or others very similar to them, should be adopted." Their reasons for this opinion they state as follows: "the phy- Page 3. "sical difference which exists between the European and the Native of India, "renders it impossible to subject them to the same system of prison discipline. "It is most desirable, indeed, that in the treatment of offenders convicted of the "the same crime and sentenced to the same punishment, there should be no apparent inequality. But it is still more desirable that there should be no real inequality, and there must be real inequality unless there be apparent inequality. "It would be cruel to subject an European for a long period to a severe prison discipline in a country in which existence is almost constant misery to an "European who has not many indulgences at his command. If not cruel it "would be impolitic, It is unnecessary to point out to his Lordship in Council "how desirable it is that our national character should stand high in the esti"mation of the inhabitants of India, and how much that character would be "lowered by the frequent exhibition of Englishmen of the worst description, placed in the most degrading situations, stigmatized by the Courts of Justice, "and engaged in the ignominious labour of a gaol." The reasons they give for not suffering Europeans who have been convicted of serious crimes and have suffered punishment, afterwards to reside in this country, are of a similar character to those last stated. It would be impolitic, for their degradation and vicious habits tend to reflect disgrace on the Government. Parliament, when it threw open a large part of India to British subjects, directed the local Legislature to provide against dangers which might be expected from the influx of men of lawless habits and blasted character. No regulation can promote more effectually, or in a more unexceptionable manner, the end which Parliament had in view, than that now proposed.

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515. Sir J. Awdry says, "the observations (of the Commissioners) on transpor"tation, appear just as regards this country, but they have properly qualified "their application to Europeans" (in allowing the term of transportation to be short of life.) "The banishment from India of foreign criminals seems to me "most properly made a part of the Code." On the other hand, Mr. Cochrane and Mr. Norton make objections to those clauses. Mr. Cochrane, indeed, protests against them as containing "terrible enactments," "in his view wholly "unjustifiable." He objects in principle to the interference of Government for the purpose of superadding punishments to those affixed by courts of justice, which he thinks is within the scope of these provisions, as both impolitic and unjust. Notwithstanding the explanations offered in the Note, he cannot see that transportation involving imprisonment with labour in some British Colony, situated in a temperate climate, is, to a European, a favourable commutation for imprisonment with labour in an Indian gaol. He says, "The observations of "the Commissioners on the subject of the imprisonment of Europeans, would apply rather to the regulating such imprisonment, than furnish any reason for vesting the Government with a power so terrible as that which the 43d and "44th sections seek to confer." "I know of no such physical difference which "should, in any degree, entitle such provisions to be passed." He contends that the provisions in these clauses allowing banishment for life do, in effect, produce inequality of punishment between Europeans and Natives, that the socalled commutation involves really additional punishment.

516. Mr. Norton says, "I think both Clause 43 and Clause 44, under which, "after part of a sentence of imprisonment may have been endured by a person "not of Asiatic birth or blood, that imprisonment may be arbitrarily changed to transportation in some cases, and to banishment for life in others; and that, "although possibly but a few months of imprisonment may have to be undergone, authorize the power to confound and overthrow all justice, equality and "humanity in sentences." Upon this we must remark, that instead of a few months, there must remain under Clause 44 two-thirds of the whole term of imprisonment, which ranges from one year, when the law requires that it shall be of the description termed "rigorous," and two years when the description is not specified, to any period short of seven years; while under Clause 43, the remaining term must be at least five years.

517. Mr. Vaughan conceives that "punishment may be provided for Europeans "under the rules for rigorous imprisonment, and labour may be enforced against "them, with no more danger to health than it is now voluntarily performed by "soldiers, artificers, &c." "Small European gaols may be established at healthy European stations, and European attendants may be selected from steady men "not fit for active service, to whom it would afford an extra provision."

518. Mr. Hudleston and others offer objections, which we need not particularly notice; Mr. A. D. Campbell thus refers to them: "To Clauses 43 and 44, not only Mr. Hudleston, but many other officers in the interior object, I think, on "insufficient ground. For under the explanation given, banishment from the "Company's territories, even for life, is plainly intended in mitigation, not in "enhancement of the sentence specified, when passed on Europeans, and "transportation as regards them is not to be perpetual. But though the policy "and humanity of these enactments seem to be vindicated, I doubt their impartiality; and, on this point, would direct attention to the strong opinion given by a native, V. Sreenavasiah, Naib Serishtadar in Chingleput, who, with reference "to the desire of the Law Commission, to save Englishmen of the worst de"scription from being placed in degrading situations, and engaged in the "'ignominious labour of a gaol equally with the natives of India,' compares such "exemption with the indulgence of the Hindoo Law in favour of Bramins, ""ridiculed by the European nations,' and concludes that any distinction made "in the punishment of Englishmen and Natives,' will, instead of upholding, lower the British character in the eyes of the public."

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519. On the point last adverted to by Mr. Campbell, Mr. Vaughan says, "for exposure of the European character, one would think that the writers had "never seen those which unhappily are too frequent wherever an European corps appears. The Natives have not such a high opinion of red and white faces as "to suppose all who possess them to be immaculate; and I should think it well "to let them see that justice is administered equally to all."

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520. These

520. These clauses, as stated in the Note, are intended primarily to admit of the Government relieving European offenders from a mode of punishment, which in general, it is conceived, would, from the influence of the climate, be a more severe infliction upon them than upon Natives. But the expression used to designate the class of persons to whom they are to " apply, is not both of "Asiatic birth and of Asiatic blood." Referring to Clause 32, it will be found, that "the words 'a person of Asiatic blood,' denote a person whose father or "mother, or grandfather or grandmother, was of Asiatic birth, and as far as can "be discovered of pure Asiatic extraction." The expression, no doubt, was widened as above to admit of persons native of temperate climates out of Europe being put on the same footing as Europeans in this respect.

521. Mr. Norton says, "I do not understand the difference meant between 66 persons of Asiatic birth and of Asiatic blood (both of which qualities are to combine "to bring parties under Clause 43), if a person born of an Asiatic father or "mother is of Asiatic blood, Clause 32." Though several other persons have commented on the definition in Clauses 43 and 44, of the parties affected thereby, none but Mr. Norton has failed to perceive that by a person of "Asiatic birth" in contradistinction from a person of "Asiatic blood," is meant one who was born in Asia.

522. Mr. Vaughan objects to the definition as rendering persons liable to be transported, who, though they could not be proved to be of Asiatic blood strictly according to Clause 32, are presumably of Asiatic extraction. How hardly would these clauses operate," he says, "against any with even a tinge of "Asiatic blood, which ought to be sufficient to give them a claim to residence "till sentence of transportation is passed by a Court, and even in the case of an European in regard to such offences as are intended in Clause 44, can there "be any necessity to banish him from the territories of the Company, to tear "him away from landed property, and a family partly of Asiatic blood." Mr. Greenhill puts the case of the son of Indian parents born at Malta, or Constantinople, who, though he may have been all his life resident in India, not being of Asiatic birth, would, he apprehends, be liable to transportation and banishment, at the pleasure of Government, under Clauses 43 and 44 respectively.

523. Mr. G. W. Bacon objects to these clauses, because by the definition, "a child of an Englishman born in wedlock is deprived of his father's rights, "and vested with those of his maternal grandmother, if she be a native of any part of Asia;" and because a person "whose grandmother was a native of "India is (erroneously as he conceives) presumed to be so physically different "from a pure European, as to feel little annoyance from confinement for seven years and upwards in the gaols, and under the climate of this country."

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524. We must say that Mr. Bacon's objection appears to us well founded. For clearly a person who was merely born in Asia, but who was brought up from infancy, and educated in England, whose mother was of English birth, and whose father and paternal and maternal grandfathers were both of English birth and English blood, could not be relieved by Government under these clauses, if his maternal grandmother were of Asiatic birth; that is, born somewhere in Asia; it may be on the confines of Europe, and were, "as far as could be "discovered, of pure Asiatic extraction." Again, Again, a native of Siberia, being both of Asiatic birth and Asiatic blood, according to the definition, could not be relieved under these clauses, though confinement in an Indian gaol would, no doubt, cause as much suffering to him as to an European.

525. These appear to us to be very strong objections to the definition in question, and to the terms employed, subject to that definition in Clauses 43 and 44. But we are unable to suggest an amendment which would remove the difficulty, and be otherwise unexceptionable. We do not attach a great degree of importance to any of the considerations which suggested the introduction of the clause we are examining into the Code, except the first-mentioned, the consideration that a long imprisonment in an Indian gaol is a much more severe punishment to an European to whose constitution the climate is unfavourable, than to a Native. For the end in view on this consideration, namely, the relief of parties who from their constitution and habits are unfitted to endure such punishment, it appears to us that the provision in Clause 45, empowering the Government to commute the 330. punishment

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