« PreviousContinue »
I signed a petition requesting to know whether the Act No. XI. of 1836, commonly called the JBlack Act, intended to introduce the law of England in Mofussil Courts, and in cases purely between English suitors or not, we were informed by Government that we were to have the same law as before—this was an answer in substance though delivered in rather an oracular form, for, as between English suitors and for English suitors there was previous to 1836 no law in any Courts but the law of England, it followed there could be no other law thereafter. Encouraged by this frankness I think it would be as well if we put his Lordship in Council in mind that Messrs. Macaulay, Macleod, Anderson and Millett, who may have made a law for us, according to which we are required to live, are of opinion that his Lordship in Council will not grudge to let us know what that law is, or in other words will not grudge to tell us whether we Englishmen in or out of Calcutta are persons to whom it is intended the Code as it is should apply, and if not in Calcutta, then whether it is intended that it shall apply to us in the Mofussil without any considerable (qu: any 2) change of procedure.
Calcutta, January 31, 1838.
Note 4. Ultimatum on the penultimate pragraph of the preface. This Code we find, if I may use the phraseology of another profession which is appropriate, is not paraded for inspection, merely, but comes before the public to be reviewed in marching order. It is ready for immediate action. To be sure it has no Code of procedure to move by, but it does not want one, this Code of law can proceed without a Code of procedure. In Wurtbourg in Germany, before its good Old Bishopric was secularized, and down therefore to late times, there was a man who walked a certain street from midnight till one A. M. without legs, and carrying his body under his right arm. This method of proceeding created the most dreadful alarm and the watch was never set in that street for fear of him. So we are afraid that our fellow subjects of “Asiatic birth and blood” who shall behold this Code proceeding in the Mofussil without a Code of procedure will view its progress with similar assright although the Commissioners are pleased to affirm that a much worse Code proceeded at Bombay without any dissatisfaction at all. But to leave this digression, I wish to know where the Commissioners sind it set down in their commission that they are to make a Code? Where is their warrant for it ! What authority have they to shew for precribing a law to me according to which I am to live : What title have Misters Macaulay, Macleod, Anderson and Millett to she w for calling themselves my superiors or the superiors of any honest man? for, saith Blackstone, “law is a rule of conduct prescribed by asuperior to an inferior.” Let them shew their authority if they can, let their friends shew for them if they can any warrant to make a Code of law. If none can
to say that a more astounding piece of impurdence and arrogance than this same penultimate paragraph of the preface to the Code was never advisedly penned. The 53d and 54th sections of the 3d and 4th W. 4th C. 85 contain the commission of the “India Law Commissioners” see, if they have done any one thing therein set down for them to do. This is what they are enjoined to do.
“The said Commissioners shall fully inquire into the jurisdiction, powers, and rules of the existing courts of justice and police establishments in the said territories, and all existing forms of judicial procedure, and into the nature and operation of the laws, whether civil or criminal, written or customary, prevailing and in force in any part of the said territories, and where to any inhabitants of the said territories, whether European or others, are now subject; and the said commissioners shall from time to time make reports, in which they shall fully set forth the result of other inquiries, and shall from time to time suggest such alterations as may in their opinion be beneficially made in the said courts of justice and police establishments. Forms of judicial procedure and laws, due regard being had to the distinction of castes, difference of religion, and the manners and opinions prevailing among different races, and in different parts of the said territories.
LIV. And be it enacted, that the said Commissioners shall follow such instructions with regard to the researches and inquiries to be made and the places, to be visited by them, and all their transactions with reference to the objects of their commission, as they shall from time to time receive from the said Governor General of India in Council; and they are hereby required to make to the said Governor General in Council such special reports upon any matters as by such in
said Governor General in Council shall take into consideration the reports from time to time to be made by the said Indian Law Commissioners, and shall transmit the same, together with the opinions or resolutions of the said Governor General in Council thereon to the said Court of Directors; and which said reports, together with the said opinions or resolutions, shall be laid before both Houses of Parliament in the same manner as is now by law provided concerning the rules and regulations made by the several Governments in India.”
Thus have they done all that they ought not to have done, and left undone all that they ought to have done. Let it not be said that if so it is the fault of his Lordship in Council, they were but servants, and what is a servant in eastern idiom but a dog. Mr. Macaulay would disdain the defence, so, probably, would the rest. His Lordship in Council is not a Plutarch's man to guide minds of this calibre. Here we see the genius of Macaulay himself, who thought an act of indemnity a tribute to his merit, or, to use a vulgar but expressive phrase, and suitable when speaking of such a man's conceit, “a feather in his cap,” and who never hesitated a moment to prescribe law to millions without authority or right. Shall we be told the Commissioners have enquired. When, how, where : What! have they fully enquired into the jurisdiction of all Courts, the rules and practice of all police establishments, the nature and operation of all laws in force throughout India, and have they made reports and suggested alterations due regard
be shewn (as none can) then will I make bold
had to the difference of religion and the manners
structions may from time to time be required ; and the
and opinions prevailing among different races ! They have issued circular queries I believe to zillah judges, and enjoined and preatically enforced secrecy, the sure sign of fear and the not-to be-mistaken badge of latent fraud; and this is all they have done of which the public has the slightest knowledge or the least belief. To be sure, I forgot, that they went one morning in procession to the Petty Court to learn the practice of the law, and I have heard (though that is a pocryphal) that they went another morning in the Soonamookey with the flood-tide to Serampore and Chandernagore, to learn with their own eyes the laws and customs of Indian France and Denmark, and returned in the afternoon with the ebb. What, again I ask, could induce Messrs. Macleod, Anderson and Millett to suppose, (we know what induced Macaulay very well, whose conceit was not far short of downright insanity,) that they were qualified to make a Code or called upon so to do, instead of making enquiries to lay the foundation of a Code 2 Had they ever read their commission, had they ever read their own souls 2 Did they think what it was to make laws for eighty millions of men and some fifty thousand freemen “ without their intelligent consent 7”. Let them ponder on the golden maxim E carlo descendit 'yvo0- CEautov. Let them get the lines of Burns by heart in which he very wisely asks for all men that,
God may the grastie gie us To see oursells as others see us. The other day when a man told me, and gravely stuck to it, that Misters Macaulay, Macleod, Anderson and Millett had the right and the power to make laws for me and my countrymen by which I could be hanged, transported, banished for life, imprisoned simply or rigoriously, and fined sans stint and all without trial by jury, I felt, God forgive me, greatly disposed to knock him down ; but a moment's reflection altered that mood, and I began to perceive that it was really too good a joke to be angry at. Misters Macleod, Anderson, and Millett,
must have made the Code because Mr. Macaulay bid them, and he must have made it from the same motive that one of Dryden’s fustian heroes does some prodigiously silly action in a play.
“Ill do't to shew my greatness.”
It is the keen perception of the man's empty and swollen vanity, of the absurdity of his pretensions, of his restless self-importance which would not let him remain in his place, and egged him on to undertake what was not set down for him to do, and for which he was thoroughly unfit, that makes us all relish with such uncommon zest this Code of his and his coadjutors' united wisdom. The Code is really a good joke to us. It is a standing joke, the object of all gibs and jeers, of the general scorn. It is
a thing at which we laugh till we cry, a public laughing stock, an universal jest book.
The Code makes its entrance, and Macaulay his exit amidst shouts of laughter and Catholic and consonant shrieks of derision,
Calcutta, 1st Feb. 1838. [Hurkaru, Feb. 3.
To the Editor of the Bengal Hurkaru. SiR,-When we are employed in ascertaining the merits and demerits of any performance, it is essentially necessary to divest ourselves of every prejudice arising either from blind partiality or private rancour to the persons whose performance we criticise.
The remarks on the penal code that have daily filled the columns of the public papers, however they may have attracted notice by their untoward virulence, are the undoubted ess usions of a pen dipped in the poison of malice and ill-will ; and if those remarks be impartially examined by an indifferent person, they will be pronounced as made in a spirit of disappointment and basiled interest. The good that is intended to be produced in what they call a calm investigation is effaced and observed by the superabundant flow of galling animadversions that characterize their observations.
Every great performance, (which the penal code no doubt is) we are well aware, has not reached its summit of perfection at once, but arrives at it by slow advances and imperceptible gradations, and the best praise lies in the first idea and primitive scheme which is continually improving by the cares and wants of posterity, as the varying circumstances of life require. The imperfections and inconsistencies in the penal code, which some, in a fit of philanthropy, have been so busy to point out, though real, are minute and inconsiderable, if any allowance is to be made to the distracted attention of the law commissioners who have been drawn from their arduous task by the important and momentous concerns of government. Any body of men, however brilliant their respective capacities, who sit down to form a set of laws that may entirely shut up every avenue to influence and corruption, cannot be so guarded but some inconsistency or defect must intermingle with their labours. It is true that the penal code was given publicity to, that the people might freely make their comments, that any deviation from justice and sound policy might be rectified ; but the severe and exacerbating remarks are more calculated to expose the authors to derision and public scorn than effect an improvement in the code. If the law commissioners were found wanting in judgment and capacity, was it not enough merely to direct the public notice to it? but we have criticism carried beyond the bounds of justice and consistency. Some have been so uncharitable as to assirm that the curses of the people will follow the author of the penal code, and would not this affirmation lead one to suppose that the law commissioners were no others than a set of vile wretches, employedby
government to make, by unjust and oppressive
| laws, a nation miserable and unhappy.
The general character of this nation, so widely differs from those of the country, that to plan out a system of laws for it that may be altogether faultless and void of inconsistency, is beyond the power of any man or set of men; but there is lots of room for improvement, and the experience of contingent circumstances will supply what inadvertency or want of local knowledge omitted. Though the English laws comprehend so many thousands of volumes, yet the judicial functionaries are often at a loss to decide where the authority of precedence is either not to be found or is but ambiguously and imperfectly stated. The Penal Code, (with a good many exceptions, 'tis true) is, in my humble opinion, the best adapted for the use of this country; and it will be found, on practical application, that innumerable inconsistencies, doubts and inconveniences will be removed from the present system of executive justice, and that its enactments are best calculated to dispense that justice with perspecuity and precision, which is now subject to the influence of in
...terest and corruption.
I am yours,
February 6, 1838. A. C.
or Upon the principle of “audi alteram artem” we have inserted A. C.’s defence of “Lucky Tom,” but we do not think he takes much by his motion. Why not take on A. Z. note and discuss it?—ED.—Hurkaru, Feb. 15.
Note 5. On the 16th chapter, entitled * ILLEGAL ENTRANCE INTo AND RESIDENCE witHiiN The Teraitories of the East INDIA Company.” Territories? Territories of the East India Company ? Where are they ! Do they lie on the sea coast of Bohemia or north of the dominions of Prester John, or beyond the boundaries of this our orb and extra flammantia mania mundi, remote from all men and hidden in illimitable space 2 Again I ask in more common and colloquial language, where the deuce are they : I know that I am living in Her Majesty's Indian territories, and that the code cannot take them away from her. What says the 3d and 4th. W. 4th. c. 85? Let us see—
Whereas by an Act passed in the fifty-third year of the reign of His Majesty King George the Third, inti. tuled An Act for continuing in the East India Company, for a further term, the possession of the British territo ries in India, together with certain exclusive privileges, for establishing further Regulations for the government of the said territories, and the better administration of • justice within the same ; and for regulating the trade to and from the places within the limits of the said Company's charter, the possession and Government of the British territories in India were continued in the United Company of Merchants of England trading to the East Indies for a term therein mentioned: Änd. whereas the said Company are entitled to or claim the Lordships and Islands of St. Helena and Bombay under
amount in value, and also certain rights and privileges not affected by the determination of the term granted by the said recited act: And whereas the said Company have consented that all their rights and interests to or in the said territories, and all their territorial and commercial, real and personal assets and property whatsoever shall subject to the debts and liabilities now affecting the same, be placed at the disposal of parliament in consideration of certain provisions hereinaster mentioned, and have also consented that their right to trade for their own profit in common with other His Majesty's subjects be suspended during such time as the Government of the said territories shall be confided to them ; And, whereas it is expedient that the said territories now under the Government of the said Company be continued under such Government, but in trust for the Crown of the United Kingdom of Great Britain and Ireland, and discharged of all claims of the said Company to any profit therefrom to their own use, except the dividend herein-after secured to them, and that the property of the said Company be continued in their possession and at their disposal, in trust for the Crown for the service of the said Government, and other purposes in this act mentioned : Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, , and Commons in this present Parliament assembled, and by the authority of the same, that from and after the twenty-second day of April, one tbousand, eight hundred and thirtyfour, the territorial acquisition and revenues mentioned or referred to in the said act of the fifty-fourth year to His late Majesty King George the third together with the port and island of Bombay, and all other territories now in the possession and under the Government of the said Company, except the island of St. Helena, shall remain and continue under such Government until the thirtieth day of April, one thouand, eight hundred and fifty-four ; and that all the lands and hereditaments, revenues, rents, and profits of the said Company, and all the stores, merchansize, chattels, monies, debts, and real and personal estate whatsoever, except the said island of St. Helena, and the stores and property thereon herein-after mentioned subject to the debts and liabilities now affecting the same respectively, and the benefit of all contracts, covenants and engagements, and all rights to fines, penalties and forfeitures, and other emoluments whatsoever, which the said Company shall be seized or possessed of, or entitled unto, on the said twenty-second day of April, one thousand, eight hundred, and thirtyfour, shall remain and be vested in, and be held, received, and exercised respectively, according to the nature and quality, estate and interest of and in the same respectively, by the said Company, in trust for His Majesty, his heirs and successors, for the service of the Government of India, discharged of all claims of the said Company to any profit or advantage therefrom to their own use, except the dividend on their capital stock, secured to them as herein-after is mentioned, subject to such powers and authorities for the superimendence, direction, and control over the acts, operations and concerns of the said Company, as have been already made or provided by any act or acts of Parliament in that behalf, or are made or provided by this act.
If this misnomer by which Her Majesty's Indian territories are converted into the East India Company’s territories were a blunder, it would be better than it is, but, in fact, this miscalling is done on purpose, done after notice that it was wrong, done, we presume, for the purpose of making the natives believe, that they owe allegiance to the East India Company independently of the Crown,
giants from the Crown, and other property to a large
Messrs, Macaulay, Macleod, Anderson, and
Millett are mighty severe on the mendacity the law of England permit to suitors in pleading. Why, what is this miscalling Is it not suppressio veri suggestio falsi 2 Is it not downright mendacity with no excuse 2 Is it not a falsehood uttered in a code of law by lawgivers, “ with free and in intelligent consen', and with the intention to cause it to be believed, and with the knowledge that it is likely to be believed by those to whom it is addressed ?” If there is no use in the lie, why not speak the truth !
It passes a jest; in former times a man would have been hanged for it. 'Tis advised writing and publishing in derogation of the supremacy and pregorative of the Crown and in denial of the authority of Parliament. At this hour (I speak advisedly and seriously) it is undoubtedly an indictable libel, and a misdemeanor. The Advocate-General might sile an information against any body, might indict Macaulay, Macleod, Anderson, and Millett for a libel; for words falsely affirming that Her Majesty's Indian territories were the territories of the East India Company, for words advisedly written and published tending to impair the dignity of the Crown and authority of Parliament, and if any mauvais plaisant were to do it, a pretty figure they would cut. Though no lover of libel law I do think they deserve to be trounced. I would not imprison then rigorously, no, nor simply, nor even banish them for life from Her Majesty’s Indian territories, whose right to them they have disputed; I would simply fine them under clause 50 of the code, and being fond of certainty, I would limit the unlimited fine to all they have respectively received by way of salary as “Indian law commissioners.” That would be a reasonable discretion meo judicio, a sudder aumeen might think it too little.
Note 6. On clauses 287,288, 289 and 290 of the chapter XVI. of the code.
287. Whoever, being a subject of the King and not a native of the territories of the East India Company, on his arrival by sea in any place within the said terri. tories, omits to make known, in writing, his name, place of destination, and object of pursuit in India, to the chief officer of customs, or other officer authorised for that purpose at the place at which such subject of the King has arrived, shall be punished with fine which may extend to one thousand rupees.
288. Whoever, being a subject of the King and not a native of the territories of the East India Company, enters the said territories by land not being legally au. thorised so to do, shall be punished with simple imprisonment for a term which may extend to three months, or fine which may extend to two thousand rupees, or both.
289. Whoever, being a subject of the King and not a native of the territories of the East India Company, and not having such a licence as is by law necessary to authorise such a subject of the King to reside in a certain part of the said territories, enters or resides in that part of the said territories shall be punished with simple imprisonment for a term which may extend to three months, or fine which may extend to two thousand rupees, or both,
This law-making is founded on the 81st and 84th sections of the 3d and 4th W. 4th, chap. 85. The 81st section of that act declares it lawful for any subject of the King to come to India by sea, or to proceed to and reside in any part of India under the Government of the Company on the 1st of January, 1800, without licence provided such subjects not being natives, shall make their names known in writing to the officer of customs, &c. No penalty is named in this action ; but by the 84th section of the act the Government are to make laws to prevent illicit entrance or residence.
By this new code it is enacted, that every subject of the King who comes by sea to Calcutta, even without the intention of residing, shall be fined Company's rupees one thousand, or more than £100, if he omit to make known in writing, his name, place of destination and object of pursuit in India to the collector of customs. It is on his arrival mark, that every common sailor, soldier, officer and passenger is liable to be fined a hundred pounds if he omit this ceremony. Next, he is liable, if he omit it, for how long 2 No time is assigned, therefore, a fine of £100 attaches if he omit to do it the very first thing. Vigilantibus mon dormientibus subservient leges. What the law orders a man to do he is bound to do before his own private business. An Englishman must report himself instantly on arrival or he commits a crime, a Frenchman or an American need not report himself at all.
So we find that at the aera of the creation of a philosophical and philanthropical code, it is an offence for an Englishman to come to India by land, but no offence if he come to India by sea! This must be intended indirectly for the encouragement of navigation. Readers will observe that by clause 287, an Englishman may come hither by sea unlicensed, without commiting an offence; but if he stay twenty-four hours without reporting himself, in writing (although perhaps he cannot write), he commits an offence; his must be intended indirectly for the encouragement of education: they will further observe that by clause 288, such Englishman cannot come to India by land at all without special licence, for if he do, and simply enters the country, he may be imprisoned for three months and fined Rs.2,000 or more, than £200. Readers will further observe, that by clause 289 if an Englishman simply enters any portion of India not under the Company's Government in 1800, no matter whether he knew what he was doing or not, he may be imprisoned three months and fined Rs. 2,000 or above £200. Thus if an Englishman going to Benares, to which place he may go without license, were to go to Goruckpore to see a friend he would be liable to three months' imprisonment, and 2,000 rupees fine under clause 289. Lastly, under clause 290 which I here reprint :
extend to one year, to which banishment or imprison. ment fine may be added.
Whoever being a subject of Her Majesty, goes a second time to Goruckpore without license, having been convicted of going thither a first time, may be banished for life, and fined without limit, say twice the value of all he is worth in the world. this for Englishmen in the territories of the East India Company, scant hospitality.
Now, does an Englishman coming to India by sea and not reporting himself to the collector of customs do any injury to society at large or to any human being 2 Common sense says, no: the act of Parliament says, none: the new philanthropic, just, equal, and liberal code says a hundred pounds worth of damage is done to society if he comes by sea without reporting himself, and that if he comes by land without a license in his pocket, two hundred pounds worth of mischief is done at once. Nice discrimination and humane apportionment of punishment to offence are here !
But set us proceed onwards, and out of their own acts convict these codificators of ignorance, absurdity, and self-contradiction, almost beyond belief. Behold Act No. IV. of 1837.
I. It is hereby enacted, that after the 1st day of May next, it shall be lawful for any subject of His Majesty to acquire and hold in perpetuity or for any term of years property in land or in any emoluments issuing out of land in any part of the territories of the East India Company.
II. And it is hereby enacted, that all rules which prescribe the manner in which such property as is aforesaid may now be acquired and held by natives of the said territories, shall extend to all persons who shall under the authority of this act, acquire or hold such property.
Thus an Englishman may hold land in Goruckpore without a licence by this act, but if he enter the zillah to see his land, he may be fined and imprisoned under clause 289, and if he blunder into another zillah, not the Compay’s in 1800, after being once trounced, he could be banished for life, and fined his whole estate, and double.
Now this Act No. IV. of 1837 is dated the 17th of April of that year, and the preface of Messrs. Macaulay, Macleod, Anderson and Millett is dated the 14th October, 1837, so that the code if passed into law, with the 16th chapter in it, will be a virtual of Act No. 1 V. of 1837, and of the 83d section of the charter act on which it is founded.
LXXXIII. Provided always, and be it enacted, that it shall be lawful for the said Governor-General in Council, with the previous consent and approbation of the said Court of Directors for that purpose obtained, to declare any place or places whatever within the said territories open to all His Majesty's natural-born subjects, and it shall be thenceforth lawful for any of His Majesty's natural-born o: to proceed to, or reside in, or pass through any place or places declared open without any license whatever.
Now Mr. Macaulay and his coadjutants countermarch the march of mind, and reduce us from free ingress, egress and regress, to
its adequate and sufficing cause, and I con. clude Act No. IV. of 1837 was passed as usual by Macaulay, and the Government in contempt of the charter, and without the previous sanction of the Court of Directors necessary by the 83d section, and they have been smartly chidden for it. That is the only way by which can make sense of the evidence of Mr. Peacock, which I am about to quote, given in his answer No. 783 before the Steam
Committee. Without this solution it would remain a riddle, but I believe I am the true (Elipus. Desunct Mr. James Mill, Proto Bureau cratarch of the East India House, a
King of Kings and ruler of Governors, and
much more illiberal than the Directors themselves, having better reasons for it, “conceived that it was not the Englishman that needed protection in India.” Mr. Macaulay was of opinion in 1833 that “it was not to be endured that the Englishman in India should breathe and move about in a little atmosphere of liberty of his own. Mr. Thomas Love Peacock, Proto Bureau-cratarch in the place of defunct Mill, is of opinion in 1837, that the free resort of Englishmen will have a bad effect on the morals and domestic happiness of the people of India. The Directors (moral men) can't abide steam. Thus Macaulay who in 1836, by the Black Act might reasonably enough have thought he had done enough for India home policy, is taught, in 1837, that he had not done near enough, and yet had done a great deal too much, and so he solemnly recants Act No. IV of 1837, by the 16th Chapter of his perennial code. Peacock's evidence is too good to be omitted, so I put it here, for it hath a concatenation with my subject, and the Code chapter XVI.
Mr. Young.] But do you not think that the intercourse, both personal and commercial, is likely to be extended into the two countries in proportion as you diminish the difficulties of communication ? Certainly.
And must it not be a general benefit to India that the intercourse between the mother country and those distant possessions should be faciliated —I am not sure that it would be any benefit to the people of lndia to send Europeans amongst them.
That would apply to an extension of European intercourse in India?–Yes, the general question was whether the access of Europeans to India would not be an advantage to India; I do not think it would.
Chairman.] But do not you think that a consequence of this regular and speedy and convenient communication will be the resort of a great number of Europeans to India?–Yes, I do certainly ; and I think the motive of passing through countries that are interesting from their antiquities, would be a motive iot people to go in that line.
But you think a greater number of Europeans will go to India in consequence?–Yes, I think so.
Do you think that will have a good or a bad effect : —In what way ? On the morals and domestic happiness of the people of India? I should say, a bad one.
May I ask why?—Why, I think whenever they have come into contact with Europeans not under the control of the "ast India Company, they have been oppressed and ill-treated.
You have reference, I suppose, to indigo planters? —Not without exception; but that is my general
prohibitions and licenses. Every effect has impression,