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THE

CALCUTTA MONTHLY JOURNAL.

1838.

THE CODE.

We have this-day inserted the letter addressed to Lord Auckland by the Law Commissioners, which may be viewed in the light of a preamble to the Penal Code, which has at last, it would appear, been completed. The commissioners deprecate censure for the time spent in the compilation ; and we are disposed to take some blame to ourselves for having been hasty and inconsiderate in our former remarks on this point. We consider their defence sound ; and we had not sufficiently weighed the impediments arising from the different enactments in the different presidencies, relating to the same offences; and the necessary delay consequent to an analysis of their respective inerits, if any ; and the ultimate decision on what it might appear the most valuable to retain or modify. This could only be arrived at by repeated references and comparisons of the reports received, and it is well known how slowly such work proceeds in all countries, but particularly in India.

The argument addressed to timid and unreforming legislators in the 8 h paragraph, by quoting the working of the Bombay code, with reference to the prejudices of the people, is quite unanswerable, and we strongly recommend it to the attention of those with whom a fact is more conclusive than the most elaborate chain of ratiocination.

The 16th and 17th paragraphs are also in our humble opinion a sound and philosophical description of the duties a legislator is bound to perform in drawing up definitions of the law, accompanied by illustrations,however disagreeable; and in the 24th paragraph, we recognise that humane and enlightened spirit of legislation, which in criminal cases, gives to the accused the benefit of all doubtful points of law; and in civil cases lays the foundation of narrowing, within the smallest possible compass, the chances of any difference of opinion.

The 27th para. describes the evils of any class of persons considering themselves or being considered by others as above the law; and points out clearly that no opportunity can be more fit to remove them, where special treaties or guarantees do not exist, than when a new code binding on persons of different races and religions, is on the point of promul:

gation. The idea, that any man, be his station what it may, can be allowed to commit crimes with impunity, is indeed, most preposterous.

The concluding suggestions, that competent persons should be diligently employed in making versions of the new code, in order that the people of the country may know what that law is according to which they are required to live, are equally wise and just, and we must add quite in keeping with the philanthropic tone of the whole letter. Never having flattered Mr. , Macaulay, not being blind to many great sins of commission and omission, we the more readily give our praise to the production before us, of which he is unquestionably the magna pars, without any disparagement to the talents of the gentlemen associated with him.

On the code itself we reserve our opinions; but we shall be glad to find we may be enabled, after careful perusal, to find as much to approve and as little to condemn as we have done in the preamble.

Since writing the above, we have seen last evening's Courier, in which a portion of the code is alluded to—a portion, not uninteresting, it must be confessed, to the fairer sex. Our contemporary's comments we also insert, and rècommend their import to all. We shall have a word or two to say ourselves on the subject presently ; but reserve our “fire” until the Englishman's volley has passed.— Hurkaru, Jan. 5.

Our evening contemporary is letting us into a knowledge of the new Penal Code, by small extracts, and slight anticipations, in mercy we presume to our weak optics, which might have been dazzled into blindness had we been suddenly smitten on the visual ray of our intelligence, by the full blaze of the new-born sun of legislation ; just as Burke would say, springing like Mercury into the horizon, and casting its shadows before. We are sorry to disagree with our evening contemporarv. The new code will not please the ladies. We must confess, indeed, that we gave our contemporary the credit of having played off upon our supposed, unsuspecting credulity a piece not of legislation, but of wit, in his Wednesday cwening's journal, in which he apprised us that by the new code, a married man, whose wife was in England. might perpetrate other matrimony in India. with impunity, provided merely he apprised the wife of second choice of his previous engagements. We confess, we thought this a right merry conceit, a “piece of legislation” especially invented for the amusement of Christmas jollisications. But the code itself surpasses our contemporary. We have noi time or space to enter on the subject to-day, but the following admirable reasoning, and we pledge our readers that it is taken from the code, will at once be confessed to be worthy, not of the novels of Justinian, but of the most trashy novels ever pussed into notice, by Colburn, of Conduit-street:

“The married man who, by passing him

self off as unmarried, induces a modest woman to become, as she thinks, his wife, but in reality his concubine, and the mother of an illegitimate issue, is guilty of one of the imost cruel frauds that can be conceived. Such a man we would punish with exemplary severity.

“But suppose, that a person arrives from England, and pays attentions to one of his country women at Calcutta : she refuses to listen to him on any other terms than those of marriage. He candidly owns that he is already married. She still presses him to go through the ceremony with her. She represents to him that if they live together without being married she shall be an outcast from society, that nobody in India, knows that he has a wife, that he may very likely never fall in with his wife again, and that she is ready to take the risk. The lover accordingly agrees to go through the forms of marriage.

“It cannot be disputed that thcre is an im

mense difference between these two cases. Indeed, in the second case, the man can hard ly be said to have injured any individual in such a manner as calls for legal punishment. For what individual has he injured: His second wife? He has acted by her consent, and at her solicitation. His first wife : He has certainly been unfaithful to his first wife. But we have no punishment for mere conjugal infidelity. He will not have injured his first wife no more than he would have done by keeping a mistress, calling that mistress by his own name, introducing her into every society as his wife, and procuring for her the consideration of a wise from all his acquaintance. The legal rights of the first wife and of her children remain unaltered. She is the wife; the second is the concubine. But suppose that the first wife has herself left her husband, and is living in adultery with another man. No individual can then be said to be injured by this second invalid marriage. The only party injured is society, which has undoubtedly a deep interest in the sacredness of the matrimonial contract, and which may therefore be justified in punishing those who go through the forms of that contract for the purpose of imposing on the oublic.”

This, in our apprehension, is infinitely beneath the dignity of legislation, it is twadsile. Besides, if society is the only party injured, the law commission should have recollected that their function was neither to protect wife nor concubine, but society; and whilst they tell us that society is the only party injured, they yet impose no penalty for the offence. But the exquisite naiveté of this piece of legislation, is its chief characteristic. That exquisite touch “he has certainly been unfaithful to his first wife " is exquisitely assecting. Again the following affords as beauiful a specimen of the naif as was ever emanated by the pen of Parson Adams himself.

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the following : “A, a soldier, fires on a mob, by the order of his superior officer; in conformity with the commands of the law, A has committed no of— fence.” But let me not pause on the illustration itself, but go at once to the law, and if this were to be enacted, we might have an additional instance of a servant cutting off the head of another with a large carving knife, and effectually pleading as a man once did in the Supreme Court, that in “good faith” he was only complying with his master's commands, which he conceived himself bound by law to obey ! This contemplated enactment seems rich beyond all measure Are the commissioners so uninformed of that principle which runs alike through the Roman as the British law of

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set the propriety of maintaining most strictly with rescrence to public order that principle

“Ignorantia juris non excusat.”

1st. “Every man (says the chancellor) may be contemplated with relation either to the public order of society, or to the particular engagements which he contracts with other men ; from this two-fold idea, results the distinction which the Roman jurists seem to have established between the public state and the private. 2dly. In the first of these aspects, a man is committed with the law itself: it is with the law alone that he contracts, that he engages, that he binds himself, with respect to every thing which regards the general police, and the exterior order of society ; it is to law alone that he is accountable for his infractions of it. 3dly. In the second aspect, on the contrary, a man has only to regard the person with whom he contracts ; the law does not punish an ignorance which relates only to a matter of private right; although it establishes this right in the same manner as the public law; it only regulates it with reference to the interest of individuals, and the loss of the rights which might have belonged to them is the only penalty which the law attaches to those who, by , their imprudence, have merely infringed the maxims of private order. 4thly. ... As the public order regards the public wtility directly, while the order of private right only regards it indirectly, the first ought always to be considered as more important and #nriotable than the last. 5thly. As public law only regulates the most exterior actions of men, it is more easily to be conceived and observed than private. 6thly. From all these differences we may deduce this general consequence, that although ignorance of legal obligation is always reprehensible, it is, however, much more criminal, when it violates the marims of public order, than when it merely affects some rule of private right. Because the person who by Inistake contravenes a private law, does no injury to any one but himself, while, he who through ignorance violates a public law, or rather a law of public order, attacks as much as in him lies the whole state of civil society, and directly offends against the general utility of the community. 7thly. Then by a necessary consequence of this principle, ignorance of public order, ought always to be punished, although the quality of the persons, the nature of the laws, and the variety of circumstances may very much increase or diminish the degree of punishment.” I the more willingly, Mr. Editor, produce the opinion of this great lawyer and eminent civilian, because not only are his sentiments in unison with the Roman, but are in strict accordance with the English law. Am...I wrong, Sir, in saying that the law commisSioners have but a limited acquaintance with the subject they are attempting to laudle?..

But let us turn over the page, and see if we shall not find something equally rich and beautiful on the other side.

“Nothing which is not intended to cause death, and which is not known by the doer to be likely to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to, any person above 12 years of age, who has given a free and intelligent consent whether express or implied, to suffer that harm, or to take the risk of that harm, such consent not having been obtained by wilful misrepresentation on the part of the person, who does the thing.”

Observe here, Mr. Editor, the finished delicacy of the phraseology “Does the thing” –Messrs. Morrison and Long of pill-building and back-blistering notoriety may be figuratively said to “do the thing ” when they send some of their patients, who have given “an intelligent consent” to the shades below. So in plain truth may the law commissioners be said not figuratively but most effectually, to “Do the thing,” when they put their names to so extraordinary a performance.

So again, Sir, under this provision of the law, every impudent pretender and quack who may blister, bleed, and destroy hundreds, may thousands of his fellow-citizens, so long as he has got an “intelligent consent,” and is only honest, no matter how ignorant, may he allowed in the graceful language of these accomplished legislators “To do the Thing ” to all eternity.

But I must break off, Mr. Editor, or these commissioners will assuredly “do the thing ” with

Your obedient servant,
MARcus.

Englishman, Jan. 8.]

To the Editor of the Englishman.

Sir, – I retrace my footsteps to the 2d “ chapter on punishments,” and in it you will find the following enactments: “In every case in which sentence of imprisonment for a term of seven years, or upwards, has been passed on any offender, who is not both of Asiatic birth and of Asiatic blood, it shall be lawful for the Government of the presidency within which the ossender has been sentenced, at any time within two years after the passing of such sentence, to commute the remaining imprisonment, without the consent of the offender, for transportation for a term not exceeding the unexpired term of imprisonment; to which MAY Be Added BANishMENT for life, or for any term from the territories of the East India Company.” At one time, Mr. Editor, I conceived that there must have been some error of the press in the above, but the following section places the meaning beyond question : “In every case in which sentence of rigorous imprisonment for a term of one year and upwards, or of imprisonment of any description, for a term of two years, or upwards, has been passed on any pereon who is not both

of Asiatic birth and of Asiatic blood, it shall be lawful for the Government of the presidency within which the offender was sentenced, at any time before one-third of the imprisonment has been suffered, to commute the remaining imprisonment, without the consent of the offender, for banishment from the territories of the East India Company, which banishment may be either for life or for any term.” I am at a loss to know, Sir, what could be the reason of the terrible severity of punishment like these : in the first page of the appendix at last, I find the following solution:—“it will be seen, that throughout The code, WHEREVER WE HAVE MADE ANY OFFENCE PUNISHABLE BY TRANspoRTAtion, we HAVE PROVIDED THAT THE TRANSPORTATION SHALL BE FOR LIFE. The consideration which has chiefly determined us to retain that mode of punishment is our persuasion that it is regarded by the natives of India, particularly by those who live at a distance from the sea, with peculiar fear. The pain which is caused by punishment is unmixed evil. It is by the terror which it inspires that it produces good.”

Noble Marquis of Beccaria, men have but slightly attended to thy immortal work, held sacred by all lovers of their fellow-men, and hallowed by the very dew of humanity, if a principle such as this could find a place in any code in modern days :

Do distinctions of crime require no attention from a legislator? The minds of men would recoil from such a principle. We must not confound the boundaries of crimes to create a rule of terror. Uniform severity cannot justify a law, for punishments should be founded alike on necessity as on justice.

In chapter 6th, “on the proportion between crimes and punishments” in the above work, you will find the following passage:

“It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent in proportion to the evil they produce to society. Therefore the means made use of by the legislature to prevent crimes, should be the more powerful, in proportion as

they are destructive of the public safety and hap. 9

piness and as the inducements to commit them are stronger. Therefore there ought to be a Jired proportion between crimes and punishaments;" and vindicating the same principle, he closes his celebrated essay with the follow. ing theorem:-" that a punishment may not be an act of violence, of one, or of many, against a private member of society, it shouid be public, immediate and necessary; the least possible in the case given ; proportioned to the crime, and determined by the laws.” I leave it, Mr. Editor, to the assiduity of others to select the numerous instances throughout the code, in which for small offences under the sections in the chapter on punishment, a man may be banished for life.” Before I close this letter, let me guard the public and yourself, Mr. Editor, from enter

* Lot it be remembered, Sir, that this chapter on puuishment everrides the whole code.

taining a notion that this code cannot be carried into a law, for you find in the 2d page of the prefatory address of the commissioners to Lord Auckland, the following words: “we trust that your Lordship in Council will not infer, that we have neglected to inquire as we are commanded to do by act of Parliament into the present state of the law.” In addition to this you will find in the very first paragraph of their address to his lordship, “that they were directed by the orders of Government of the 15th of June 1835, to lay the Penal Code before his lordship.”

I submit these passages to the public to correct an erroneous impression, which may go abroad, that the commissioners have “not inquired” under the 53d and 54th sections of the charter act. This code, it appears to me, may become the law of the land, and I therefore, warn the public against the belies that it never can be carried into execution.

MARcus.

Englishman, Jan. 11.]

Mr. Macaulay, it seems, yesterday took his departure from Calcutta, having enjoyed the previous satisfaction of publishing his code. Of him we therefore take our leave; and we suppose that an instance is not to be found in the annals of India, of a British functionary of equal or similar station, quitting these shores under so general a feeling of utter disregard and indifference. IHe is gone, and has kindly spared us the slightest regret at parting from him. But he has left us his code, a miserable legislative abortion, which, before he reaches England, will be put upon the shelf, and like himself, be forgotten. The daily journals, have employed themselves during the week in exposing the absurdities of this disgrace to his own, and insult to others' understandings. Very probably he may be callous to the discipline that has been inflicted upon his bantling, whose infirmitics, distortions and deformities, have been duly anatomised and exposed, by our daily contemporaries; be it ours to administer to the poor quivering wretched thing, its coup de

J'ace.
We have all heard of the artist who, under

the several productions of his pencil, wisely as well as modestly wrote, as the case might be, “a horse,” “an ox,” “a goat,” &c. in order to illustrate” his subject. The new code with equal wisdom illustrates its laws in manner following:

“69. Nothing which is not intended to cause death, and which is not known by the deer to be likely to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause any person above twelve years of age who has given a free and intelligeut consent, whether express or implied, to so. fer that harm, or to take the risk of that harm, such consent not having been obtained by wilful misrepresentation on the part of the person who does the thing.”

Illustrations.

(a) A, a dentist, offers Z, a person of ripe age and

sound mind, a price for Z's teeth, and without any wilful misrepresentation, obtains, Z's consent to the drawing of

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