is by no means so much danger of his transgressing the just line as Mr. Cochrane apprehends.

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22. As to the ways in which the attempt to excite disaffection may be made "by words either spoken, or intended to be read, or by signs, or by visible representations," the terms expressing them are the same as are used in the definition of defamation, and we presume that the same reasons which determined the authors of the Code not to make a distinction between written and spoken defamation, determined them likewise not to make a distinction between seditious words spoken in order to excite disaffection in the hearers, and seditious words written and intended to be read, the object being the same. These reasons are ably stated in the note to the Chapter on "Defamation.” Defamation." As to sedition, there Chapter XXV. can be little question, we conceive, that the object of exciting feelings of dis- Note R. affection to the Government may be effected more easily, more suddenly, and therefore more dangerously, by an inflammatory declamation on a popular topic, addressed to a multitude by a skilful orator, than by the circulation of written or printed papers. Mere vague words spoken at random, ought not indeed to be brought within this clause; but as in the Digest of the English Criminal Law Digest in 7th ReCommissioners it is laid down that words spoken shall not be deemed to con- port, Art. 18, Sec, stitute an overt act of any treason, unless they be words of advice, direction, or i, Chap. II. persuasion, tending to effectuate some traitorous act or design, so here must be understood significant words of advice, direction or persuasion, tending to excite the people to whom they are addressed to a degree of disaffection incompatible with a disposition to render obedience to the lawful authority of the Government, &c., and spoken under circumstances indicating a design to cause such excitement, or under circumstances from which the speaker must have known it to be likely that the words spoken by him would cause such excitement.

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23. It seems that by the Common Law of England, "generally speaking, any Russell, 1, p. 221. words, &c., tending to vilify or disgrace the King, or to lessen him in the

"esteem of his subjects," "even in common and unadvised discourse," "amount

"to a misprision punishable by fine and corporal punishment," as well as by

imprisonment, and by special statutes persons advisedly speaking against the Blackstone, 4, constitution on certain points, are liable to punishment by forfeiture of lands and P. 123. goods, and imprisonment" at the King's pleasure, or, as other authorities have it,

"during life," which the Criminal Law Commissioners propose to change into Articles 11 and 12, imprisonment for a term not exceeding three years (the maximum term of impri- Sec. 3, Chap. II. of sonment specified in the Clause under consideration as the alternative for banish- Digest. ment), and fine at discretion.

24. By Article 5, Section 3, Chapter II. of the Digest of the English Criminal 7th Report. Law Commissioners, "public speaking" is specified, together with "the exhibiting "of flags, inscriptions," &c., as means of "exciting in the minds of the subjects "of the realm hatred or contempt of the person of Her Majesty, or of Her "Government, or of the Constitution of the United Kingdom," &c. The "exhi"biting of flags" is a mode of using "signs or visible representations" within the scope of the definition in Clause 113.

25. With regard to Mr. Cochrane's objection that the provisions of this clause (touching "words intended to be read," we presume), are an attack upon the public press; we have only to observe that the objection appears to apply equally to the Law of England by which the "composing, printing, or publishing" a seditious libel tending to bring into contempt the person of Her Majesty, or Her Government, &c., is a penal offence. "Publications tending to degrade and vilify the "constitution, to promote insurrection, and circulate discontent through its "members, would," says Russell," without doubt be considered as seditious and Vol. 1, p. 220. "criminal." Such publications only, under the explanation subjoined to Clause 113, would we conceive be liable to punishment by the provisions thereof.

on Criminal Law. Blackstone, 4,

26. In England in cases of this nature the first offence it appears is punishable Note to Art. 46, at Common Law. For a second offence the punishment is by statute, the same p. 33, 6th Report as in cases of high misdemeanors, that is, we apprehend, by fine and imprisonment of Commissioners at the discretion of the Court. Formerly the offender might be sentenced to banishment for such term of years as the Court should award, but this part of the law has been repealed. The punishment proposed by the English Criminal Law Commissioners in their Digest, is imprisonment for a term not exceeding Chap. II., Sec. 3, three years. 27. Upon

330.

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p. 122.3.

Art. 4.

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27. Upon the propriety of the punishment of banishment for the offence in question, we shall be better prepared to deliver a positive opinion when we have Indian Penal Code. maturely considered the Chapter of " Punishments," which we reserve for examination ultimately.

Vide post.

28. We have only further to notice in this chapter Clause 115, which provides for the punishment of persons "using any place within the territories of the East "India Company for the purpose of making preparations to commit depredations "on the territories of any power at peace with the Government of the said "territories, or for the purpose of taking refuge after committing such depredations." 29. Objection is made by several of the officers whose reports we have had under consideration, to the latter part of this clause, which proposes to punish persons taking refuge in the Company's territories. This may include subjects who have gone out to commit depredations on other territories, and have returned for refuge, and persons, not subjects, who have come in for the purpose of taking refuge after having committed depredations on another territory. It appears to us, that all that it is proper for the Government to do when the refugees are not subjects, is to refuse protection to them. The magistrates might be empowered, on the application of the proper officers of the state on whose territories the alleged depredations were made, to inquire into the cases, and if the charges shall appear to them to be well founded, to deliver the accused to be tried and punished by the laws of the country in which they committed the offences complained of. With respect to subjects, it appears to us proper to make them liable to punishment in the manner proposed. Colonel Sleeman approves of both parts of this clause, in substance, but suggests the following alteration in the form of expression-"Whoever taking advantage of his position within the East India Company's "territories shall commit depredations within those of any power at peace with "the Government of the said territories; or shall take refuge within those terri"tories after having committed such depredations, shall, &c. &c." He says, "This " is a very important enactment, and will supply the place of Regulations V. of "1809, I. of 1822, and VIII. of 1829. The Native Chiefs should be required to "observe the same rule in their relations with each other, that we here observe "in our relations with them all; and when we make them do so, our supremacy "will be really a blessing. In nothing have we so much neglected our duty as " in the license we have virtually given them to prey upon each other, or to allow "their subjects to prey upon the subjects of others.'

30. Before we conclude our remarks upon this chapter, we wish to advert again to the suggestion made by the framers of the Code as to the expediency of the interposition of the Imperial Legislature to pass a Law of High Treason for the territories of the East India Company. We conceive that offences of a treasonable nature committed against the Government of India, must, in contemplation of law, be considered as offences against the Crown. And we have consequently very grave doubts whether the Council of India is not excluded from all legislative power on the subject, by that part of the 43d Section of the Charter Act, which provides that they shall not "in any way repeal, vary, suspend or affect" "any "part of the unwritten laws or constitution of the United Kingdom of Great "Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of "the said Crown over any part of the said territories."

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Note D.

CHAPTER VI.

OF OFFENCES RELATING TO THE ARMY AND NAVY.

31. THE provisions of this chapter are intended for the punishment of persons who, not being themselves subject to military law, exhort or assist those who are subject to military law; that is to say, soldiers or sailors in the army or navy of the Queen, or of the East India Company, to commit military offences.

32. The note to the chapter explains the necessity of having provisions of this nature, because the general law respecting the abetting of offences will not reach persons abetting military delinquencies, such delinquencies not being punishable by this Code. It is also shown, that from the severity of military penal law,

justified

justified by the circumstances of those for whom it is intended, the principle of the general law of abetment which punishes the abettor with a penalty equal or proportionate to that to which the person who commits the offence is liable, could not with propriety be followed in cases of this kind. The design is to provide for the punishment of offences of this sort, in a manner more consistent with the general character of the Code.

33. Mr. Cochrane objects to the punishments for abetting mutiny and assaults upon officers, as extremely severe. They are not, however, more severe than the punishments for the same offences by the English law.

34. Mr. Cochrane further objects to there being no distinction between assaults upon officers in execution of duty, and assaults upon them off duty; upon which we have only to observe, that the Code in this respect agrees with Article 6 of the new Articles of War, contained in Act XX. of 1845.

35. Mr. Hudleston observes, that a distinction is made between mutiny and assaulting a superior, for which he does not see the ground. He might have discovered that the Code here follows the Articles of War for both the Queen's and Company's forces.

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on the Indian Penal Code.

36. It is asked, are common soldiers and sailors only intended, and if so, is it sufficiently clear? It appears that in the Articles of War for the land and sea forces of Her Majesty and the Company respectively, the terms officers and soldiers, and officers and seamen, are used in contradistinction, and we presume that when the terms soldiers and sailors or seamen are used by themselves, as well as when, as in Clauses 118 and 119 of this chapter, a superior officer is referred to, they are meant to signify common soldiers and sailors. In the Digest of the English Criminal Law, in the section of offences relating to the army and navy, the expres- Chap. II., Sec. 6, sion is, "Any person serving in Her Majesty's forces by sea or land," which we Art. 1. conceive includes officers as well as common soldiers and sailors.

37. We have supposed that by the terms "soldiers and sailors," are meant persons in the army and navy, considering the latter term to signify exclusively ships of war, but this term is not used in the text, and we doubt whether the expression" sailor in the service of the Queen or of the East India Company," by itself, can be held to denote only a sailor employed in a ship of war, and subject accordingly to military law; for the East India Company have ships which do not belong to the Indian navy, and are not ships of war, and we imagine that not all the vessels employed as packets, revenue cruisers, &c., in Her Majesty's service, are deemed to be ships of war, and navigated under the laws applicable thereto. It may be better to substitute for the words " in the service," the specific words" in the army or navy" of the Queen or of the East India Company, which are mentioned in the title of the chapter, or to enlarge the expression as follows:Any person employed in the army or navy of the Queen or the East India Company, and subject to the laws and Articles of War for the government "of the military or naval forces of Her Majesty or the East India Company;' if it should be thought proper to include officers as well as common soldiers and sailors.

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38. We have to remark, that in the "exception" to clause 124 the word "husband" has been inserted, apparently through inadvertence, by transcribing verbatim the "exception" to Clause 107, which otherwise is appropriate, and which was evidently intended to be adopted in this place mutatis mutandis. If the exception to Clause 107 be altered as we have suggested in our former Report, this First Report, p.232. exception will need to be altered in the same manner, as well as by the omission of the word above mentioned.

CHAPTER VII.

OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY.

39. THERE is no provision in this chapter for the offence of "riot" unless where twelve or more persons are assembled riotously, whereas by the law of England the offence of "riot" may be committed by an assembly of three or more

persons. 330..

B

40. By

40. By the first printed draft an assembly of four or more persons might be a "riotous assembly." In the original manuscript draft the number of specified is three or more, according to the English law.

persons

41. By the law of England, when 12 or more persons riotously assembled, being commanded by proclamation to disperse, disobey such command by remaining together riotously for the space of an hour, it is an aggravated offence punishable by transportation for life. By the Bombay Code it is rebellion, punishable by imprisonment for 10 years, or fine, or both, when 12 or more persons assemble for riotous or rebellious purposes not amounting to treason. By the Madras Code 12 or more persons assembling for such purposes, or for the purpose of interfering with or obstructing the collection of the public revenue, and refusing to disperse, are punishable by imprisonment for a like period. It is an offence for any number of persons to assemble in a manner indicating an intention to commit an unlawful act, &c., if they refuse to disperse upon the order of the magistrate, but it is lightly dealt with, the punishment being a fine not exceeding 50 rupees, or imprisonment not exceeding one month.

42. The objects specified in Clause 127, any of which being designed by an assembly of 12 or more persons, gives the assembly the character of " riotous," are, 1st, the overawing the Government of India, or of any Presidency, or any public servant or body of public servants; 2d, resisting the execution of any law; 3d, committing any assault, mischief or criminal trespass; 4th, wrongfully restraining any person; 5th, putting any person in fear of hurt or assault; 6th, wantonly insulting or annoying any person; lastly, an assembly is to be deemed "riotous," if it is attended with circumstances which may reasonably excite apprehensions that its object is one of those aforesaid. Now, excepting the first object, which it may be admitted is not likely to be attempted by an assembly which does not number more than 12 persons, it appears to us that there is none of those mentioned which may not probably be attempted riotously by a number of persons less than 12; and we cannot but think that the law will be inefficient for the purpose of repressing riots, if the number which shall be held to constitute a riotous assembly, be not reduced. We would suggest, in accordance with the English law, that three or more be substituted for twelve or more persons. We would then introduce into Clause 130, the words "of twelve or more persons,' after the words "riotous assembly." The offences would by this alteration be, simple rioting, the offender being one of three or more persons constituting a "riotous assembly; rioting, the offender being one of 12 or more persons constituting a "riotous assembly," with the aggravation of disobedience to a lawful command to disperse; rioting, the offender being armed; rioting, murder being committed by one of the rioters. In addition to the punishment for rioting," according to the circumstances, the offender will be liable to the punishment of any other offence committed by him while "rioting."

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43. Mr. Norton says that this chapter appears to him "uncertain and im"perfect." As an instance, he remarks that rioting cannot be committed "unless persons are aware of the facts making an assembly 'riotous and unlawful,' as detailed in Clause 127, and intentionally join or continue in it. "Now this knowledge and intention are very difficult to prove, and yet to make "a party liable under Clause 130, they would have to be proved, even though "there be a refusal to disperse after proclamation, for it is only those who "commit the offence of rioting (as above defined and qualified) who are punishable by Clause 130 for such refusal. A simple going and continuing with a riotous assembly after such a proclamation, is only punishable by one month's imprison"ment, or fine, or both, by a different Clause (135)." We have first to observe that Mr. Norton has misunderstood the clause last mentioned, which applies not to a "riotous assembly," under Clause 127, but to "any assembly of 12 "or more persons," whose design may not have been overtly shown to be riotous, but which from the apprehension of danger arising from it, has been commanded to disperse. With respect to a "riotous assembly," certainly to bring a person who joins it within the definition of a rioter in Clause 128, it must. be proved that he was aware of facts which gave it the character of "riotous," that is, of facts showing that its object was one of those specified in Clause 127, or that he was aware of circumstances reasonably tending to the apprehension that such was its object. But we do not perceive that there would be any extraordinary

Second Report on the

extraordinary difficulty in proving the necessary facts and circumstances. It would be sufficient, we conceive, to give proof of significant overt acts, or of language used by the leaders, or passing among the members of the assembly, Indian Penal Code. manifesting the object, so as to make it obvious to every observer. Where such acts had taken place, or such language had passed, the proof of them we should rather think would be easy. The intention of the party joining the assembly is to be inferred, of course, from his cognizance of facts characterizing the assembly as "riotous." By the law of England, to constitute a riot, there must be a com"mon purpose of executing some unlawful and violent act," or of executing any act whatever with violence, &c., which common purpose is a matter of inference from the overt acts of the assembly, their language and gestures, as proved by evidence. The proof would be of the same character under both laws.

44. Mr. Cochrane objects to the qualification, "reasonably exciting apprehen"sion," "as allowing the opinion of the judge to be his rule of action;" but this is an objection applicable to every case in which it is necessary to infer the intention from the manner of proceeding, and the concomitant circumstances. We need hardly say that every system of law admits of such inferences more or less, particularly the law of England, as we have just noticed, in this very instance of riot.

45. Mr. J. F. Thomas approves generally of the provisions of this chapter, but thinks that they should not be applied to ryots assembled to resist unusual or heavy imposts, as it is the only way by which they can influence the public authorities. He is of opinion, that unless the ryots are armed and use violence to individuals, they should not be held guilty of rioting. Mr. Thomas refers to Regulation III. of 1831 of the Madras Code, which was intended specially for the suppression of such assemblies, as an enactment unwise, and a great source of oppression. He says, "The tendency of the law in this Presidency, where the "Collector and Magistrate is the judge in his own cause, as to what does or does "not overawe him, is to prevent all expression of public feeling, an evil of great magnitude, and there can be no medium whilst this oppressive law exists, "between unlimited submission on the part of the ryot, and rebellions such as we "have lately seen in Canara."

46. We think it would be altogether inexpedient and improper to except a particular class of subjects from the operation of this law, or to make it applicable to them conditionally, as Mr. Thomas suggests. An assembly of ryots may be as dangerous to the public tranquillity as an assembly of other men, and we believe that, in fact, the Regulation mentioned by Mr. Thomas was enacted in consequence of multitudinous assemblages of ryots in the very district named by him, which attempted to constrain the authorities rather by the mere demonstration of numbers, than by show of arms-by passive rather than active resistance. It is obvious that whatever be the object or purpose of such assemblages, however peaceable the first intention, the very fact of the combination of masses of men is pregnant with danger, as must always be the case where there is a great aggregation of physical force, easy to be set in motion by any exciting influence, without any adequate means of checking or controlling it ready to be applied on

the instant.

47. Mr. Cochrane objects to the punishments in Clauses 130 and 132 as beyond the measure of the offences, while exception is taken to them, by some persons, on the other hand, as too lenient. It appears to us that the punishments are justly meted. They are greatly more lenient than those which may be inflicted under the Law of England; for example, in the case provided for by Clause 130, viz., continuing in a riotous assembly after a command to disperse has been given in the manner prescribed by law, without any other aggravation, the punishment by the Code is imprisonment for a period not exceeding two years, whereas by the Law of England the offender may be transported for life. If the offender is armed, the Code makes him liable to imprisonment for an additional term not Clauses 131 and exceeding two years. The aggregate appears to us adequate, but not more than 132. adequate to the offence.

48. Mr. Cochrane "protests against the enactment contained in Clause 133," which, when murder is committed in a riot by one of the rioters, makes " every "other person who at the time of the committing of the murder is committing 330. "the

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