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2’s teeth. A draws Z's teeth. Here, though A's act falls under the definition of the offence of voluntarily causing hurt, A has committed no offence. (b) A converts Z, a person of ripe age and sound mind, to the Mahomedan religion, and, without any wilful misrepresentation, obtains Z's consent to be circumcised. A circumcises Z. A has committed no of fence. (c) A and Z agree to fence with each other for amusement. If this agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without soul play, then if A,while playing fairly, hurts Z, A has committed no offenee.
(d) A, a friend of Z, calls at Z's house, in Z's ab. sence, and writes and seals several letters there with Z's paper and wax, without asking any person's permission. Here, if the acquaintance between A and Z be such that, according to the usages of society, the consent of Z to such use of his property must be implied thence. A has committed no offence.” Most of our readers having read the Arabian Nights' entertainments, will, no doubt, have experienced horror, and dismay, as well as contempt and detestation towards those foolish and wicked tyrants, who, on occasion of a wife's, or daughter's, or son's dangerous illness, menaced the unfortunate mediciner who undertook the cure, with instant death, unless his medicaments proved effectual. Who would have thought that Mr. Macaulay came out to India, in order to remedy this wicked as well as foolish practice of 1,000 years ago; nobody —nobody would have supposed it, nevertheless so it is. “70. Nothing which is not intended 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 idoer to be likely to cause to any person for whose benefit it is done, in good faith, and 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.” Illustrations. A, a surgeon, knowing that a particular operatiou is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death, and tending in good faith Z's benefit, performs that operation on Z. by Z's free and intelligent consent, not having ob. tained that consent by misrepresentation. A has com. mitted no offence. The following further illustrations of this grand improvement in criminal jurisprudence, we furnish as most admirable “illustrations” of Mr. Macaulay's cnlarged and magnificent as well as benevolent views of the nature and character of the business of legislation
Illustrations. (a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence. (b) Z is carried off by a tiger. A fires at the tiger, knowing it to be likely that the sliot may kill Z, but not intending to kill Z, and in good faith intending Z's be: nefit. The tiger drops Z. lt appears that A's ball has given Z a mortal would. Nevertheless, A has coinuitled no offence. (c) A, a surgeon, sees a child suffer an accident, which is likely to prove fatal unless an operotion be im: mediately performed. There is not time to apply to th child's legal guardians. A performs the operation, in pite of the entreaties of the child, intending in good.
faith the child's benefit. A bas committed no offence. (d) A is in a house which is on fire with Z, a child. People below hold out a blanket. A drops the child from the house-top, knowing it to be likely that all may kill the child, but not intending to kill the child, and intending in good faith the child's benefit. Here, even if the child is killed by the fall, A has committed no offence. Much as our readers will admire these illustrations, of that which we had foolishly supposed could require no illustration at all, they will be yet more enamoured of the following exquisite bit of legislation, and corresponding beau morceaux of illustration, which we lay before them, with a solemn assurance, that we extract it from an authentic copy of the code itself. 73. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Illustrations. (a) A gets into a public carriage in which Z is sit. ting, and in seating himself slightly, hurts Z by pressing him against the side of the carriage. Here, though A's act falls within the definition in clause 316, yet if the whole harm caused was so slight that no man of ordinary sense and temper would complain of such harm, A has committed no offence.
Now we beg to pause a moment here, and ask our readers what they think of this. Is this, we ask, the dignity of legislation, or is it the drivelling frivolity of imbecility ? Do we want people to be sent out here, at a cost of £10,000 a year, to tell us this But what will our readers say. to the following :
(b) A, a servant in Z's house, having occasion to write a letter, dips a pen in ink, the property of Z. Here, though the act of A may fall under the definition of theft, A has committed no offence.
We could multiply instances of absurdity, but we shall confine ourselves to the following illustrations of an assault:
(d) A intentionally pushes against Z in the street Here, A has by his own bodily power moved his own person so as to bring it into contact with Z. He has, therefore, intentionally used force to Z; and if he has done so without Z's consent, intending or knowing it to be Itkely that he may thereby injure, frighten, or annoy Z, he has committed an assault.
(f) A intentionally pulls up a woman's veil. Here, A intentionally uses force to her, and if he does so without her consent, intending or knowing it to be likely that he may thereby injure, frighten, or annoy her, he commits an assault.
The following discovery is ascertained by the reversed legislatorial telescope of the Law Commission, amid the dark obscure of nonsense, to which that most erudite body have been three years directing their observations :
341. Whoever makes any gesture, or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation, is bout to assault that person, is said “to make show of assault."
Explanation. Mere worls do not amouut to a shew of assault. But the words which a person uses may give to his gestures or preparations such a meaning as may nake those gestures or preparations amount to shew of assault.
Illustrations. (a) A shakes his first at Z, intending or knowing it to be likely that may thereby cause Z to believe that A about to ass ult Z. A has made shew of assault. (b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to assault Z. A has made shew of assault. (c) A takes up a stick, saying to Z, “I will give you a beating.” Here, though the words used by A. could in no case amount to shew of assault, and though the mere gesture unaccompanied by any other circumstances, might not amount to shew of assault, it is nevertheless possible that the gesture explained by the words may be shew of assault. We give a few more illustrations: Illustrations. (a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation. (b) A cheats by pretending to be B, a person who is deceased. A cheats by personation. (c) John Smith cheats by calling himself Thomas Brown. John Smith cheats by personation. | (d) A cheats by taking the title of Rajab, having no right to that title. He cheats by personation: (e) John Smith cheats by falsely calling himself, Lieutenant Colonel John Smith. Ile cheats by personation. (f) Doctor Smith cheats by dropping the addition of Doctor. He cheats by personation. We would ask our readers which is the worse to cheat by ring dropping, or “doctor " dropping ! But trisling and rediculous as is this plan of “illustration,” the Law Cominissioners are not even masters of the contemptible craft they practise. Doctor Smith does not in the case above put, cheat by “persona tion,” he cheats by concealing his own identity. In a word we consider this “Code” as the most pitiable effort at legislation that was ever ushered into the world. The A. Z. illustrations, it is true, are happy inventions ; admirably adapted to the body of laws, which, in fact, is itself, “a superfluous and unnecessary zeal."— Herald, Jan. 14. “Lucky Tom Macaulay !” so exclaimed the London press, when the job upon which he was sent to India was first announced ; and we echo, lucky Tom Macaulay ! now that it has been perpetrated. Lucky Tom yesterday embarked under the usual honours, the fort thundering, and the band vigorously playing “ money in both pockets,” but though he is gone, unlike the quadrupeds of “Little Bo-peep Who lost his sheep - And did, not know where to find them. Leave them alone And they'll come home And bring their tails helmind them,” he has lest his tail in the shape of a code as a legacy to India, as the equivalent of four lacs of rupees, and who will deny the bargain was a good one ; and that he was, and is, and ever will be, “lucky Tom Macaulay.” The code itself we shall discuss, however, with the strictest impartiality, neither sparing its faults, nor denying its uncrits; however, dearly purchasca. Our criticism will not be the less valuable,
and admits much that is excellent in theory
because it separates the grain from the chall,
sequence, A has committed the ossence of voluntary culpable homicide.”
"Now, heaven forbid that we shuld o make the bed of sickness, or the outraged or lacerated feelings of an invalid a subject for mirth; suffering should always be sacred, even from ridiculous protection of such a law as this, which it is impossible for any, court of justice that ever did, does, or will exist to carry into execution. How is it possible, till men carry a window in their breasts, to tell what is the real intention of a party in communicating “ agitating tidings,” or what amounts to the same thing as far as human adjudication goes, of finding plausible reasons for making such communications 2 - Besides. it is impossible to tell whether such communication will be injurious or not, or indeed whether the supposed “tidings" will or will not prove agitating. To illustrate the matter, after the olden fashion, suppose A lies dangerously ill, B receives news that A's sister has just died ; now whether this shall be so agitating as to cause or hasten A's death, depends upon circumstances of which it is impossible for any court of law or equity to take cognizance of, namely, the precise degree of affection entertained by A towards his late sister; the strength of A's mind; the religious feeling and belief of A ; his precise notions respecting a future state; his estimate of the value of this present like—and all this must tie known, not as they may be judged of by A's ordinary manner and behaviour, but as they are known (we speak with reverence,) to God himself. How then is it possible for a mortal jurisdiction to take cognizance of such an offence as is described in the illustration which we have cited above As we have put an A B case after the olden practice, instead of an AZ case new style, we will furnish an illustration from the work of an author very well read in human nature, and from whom we have, by a singular coincidence of opinions, been led to make frequent quotations, when commenting on the productions of Mr. Macaulay. Let A represent Allworthy, and B represent Blisil, and the case of Allworthy and Blifi!, is an A B case exactly in point, or, as the lawyers have it, that runs on all fours with our case above supposed. Allworthy is on his sick bed, has just been pronounced in great danger, has assembled his family around him, has delivered his last and dying injunctions, and exhausted by the effort falls back upon his pillow, and seeks to compose himself to slumber. At this critical juncture arrives lawyer Dowling, on urgent Thusiness, the man whose business was so various and extensive, that he required to cut himself into four quarters, to discharge it. Allworthy faintly desires Blifil, as he had transferred over to him all his worldly affairs, to communicate with lawyer Dowling- Blisil obeys, and learns from Dowling, among other things, that Allworthy's sister had just died at Salisbury. This, as the brother and sister had always lived together on kind terms, may be considered as “agitating tidings;” and this does Blifil determine to communicate to Allworthy at this critical juncture, notwith
doctor in attendance. Well, Mr. Macaulay, will say, and Blisil deserves to be hanged ; and so he did without any manner of question; but let us sce how very easily he removes himself out of the jurisdiction of all human adjudication, and makes it a question entirely between himself and his own conscience.
“It was now debated whether Mr. Allworthy should be informed of the death of his sister. This the doctor violently opposed ; in which, I believe, the whole college will agree with him : but Mr. Blofil said, he had received such positive and repeated orders from his uncle, never to keep any secret from him, for sear of the disquietude which it might give him, that he durst not think of disobedience, whatever might be the consequence. He said, for his part, considering the religious and philosophic temper of his uncle, he could not agree with he doctor in his apprehensions. He was therefore resolved to communicate it to him : for if his uncle recovered, (as he heartily prayed he might) he knew he would never forgive an endeavour to keep a secret of this kind from him.”
Now, setting aside the arguments in favour of this determination, of the pious Thwarkum, and philosophic Square, how were it possible, supposing All worthy had died, (which however according to the story was not the case) to say that 13, that is Blisil, did not act from the motives he alleges 2 To legislate criminally about “agitating tidings” in a sit of sickness is puerile beyond all example. There are states of sickness, of hypocondrium for instance, when to communicate “agitating tidings” would be to administer the most salutary medicine. So much must depend upon that which no one can judge of with certainty, that it is futile and absurd to talk of the probable effect of tidings of any kind upon an invalid. . A mother lying ill and given over by her physician, may, if she be of an enthusiastically religious turn, hear not only without agitation, but with , calmness and even joy, that her only child is dead ; a father who thinks himself dying may learn with satisfaction that his son has fallen bravely and honourably sighting his country's battles. Indeed, as we feel ourself bound to express a serious opinion upon such trifling, with the sharpedged sword of criminal legislation. We cannot help thinking that there is a degree of irreverent attempt exhibited in such enactments, to take the work of retributive punishment out of the hands, as it were, of Providence himself, which no wise legislator will ever presume to attempt. We all assent to the position that a wretch who allows his benefactor to starve, is far more deserving of punishment than a needy vagrant who pilfers from wealth some small portion of its superfluity; but no wise legislator attempts to punish ingratitude ; it lies beyond his function : he cannot reduce it to any definite principles. He abhors, he detests it ; but he attempts not to punish it—he knows that it must be left entirely a matter between the ungrateful man and his own conscience.—Hurkaru, Jan, 25.
In the extract from the code, published by
standing the vehement remonstrances of the
us yesterday, and continued to day, the reader canno" fail to observe, that the Commissioners appear to entertain opinions on the question of murder, greatly at variance with all existing law ; and as we think, greatly at variance with what should be law, the well being, peace, and good order of society considered. The Commissioners have modified the old law, affecting death caused by the irritation, and sudden violence elicited from the offender by provocation. According to the English law, very little latitude is allowed to heat of blood, as a justification of murder —and, according to us, it appears, that on this point the less scope given for the working of the passions the better. No system of law, at present existing, extends any indulgence to homicide, the effect of anger, excited by words alone. And, generally speaking, no indulgence is extended to offences of this description, unless the provocation was such, as might in reason be expected to transport the party provoked beyond all reasonable control. The cases of provocation, admitted by the law as at present existing, within this “pale” are of the most violent and irritating nature. By the law as laid down by the Commissioners, much greater latitude is given to persons to follow the blind impulse of rage, and its consequences upon society would, we fear, be productive of the worst essect. The object of the law of England and France, is to prevent, as far as possible, parties insulted from taking the law into their own hands; and humanity and re ligion, to say nothing of expediency, alike inculcate the necessity of protecting life under such circumstances. What can be more impolitic, than to permit by law, the loss of the life of a valuable member of society, because in a fit of weakness or of passion he irritates another man, so as to induce him to attempt his life. The law of most countries considers the discovery of adultery fragrante delicto in his wife, by a husband is an adequate cause of provocation, and the slaying of the paramour by the husband is manslaughter, and not murder. To this the Commissioners object, that there are plenty of other causes, equally likely to cngender intense irritation, which ought to have an immunity from capital punishment, and the Commissioners then proceed to place a father in the case of his daughter being seduced and a brother in the event of the same offence being committed on a sister, as equally entitled to indulgent consideration. Also do the Commissioners consider indecent liberties take with femles in the presence of their father, brother, husband or lover ! as a suslicient provocation, entitled fully to as much protection, as the detection of the wife by husband, &c. And again, the loss of caste to a Rajpoot, the thrusting of the head into the covered palankeen of a woman of rank. All this is provocation of the highest class, and goes far, say the Commissioners, to extenuate the offence of murder 1 !! The above examples, are one and all we think worthy of the thee notes of admiration, with which we have pointed them. The offence of taking life
under this law will be multiplied to the n” as the algebraists say ; and any little vivacity of manner towards females in the presence of a father, brother, husband or lover, (why not of a mother ?) will cause the offending party to brake the stab. Truly this is “Cutter's law " with a vengeance.
The objection to all this is, that it knocks up all due proportion between offence and punishment, and puts the security for life on the most dangerous footing. In addition to the recklessness with which life is jeopardized, there is an absolute want of moving inducement to frame this law, which has apparently escaped the notice of the Commissioners. The native customs render the taking of improper liberties with females in the presence of their relation, a matter out of the question, and it certainly would be very hard that a murderer should escape punishment for killing Jack Bunce, or Jack any body else, who, when in his cups, or in a frolic, should thrust his head into a woman's palankeen in the presence of her male relations, or because, the aforesaid Jack Bunce, in course of his perambulations, should take it into his head to break into a straw hut, and put his arm round the waist of its female tenant, with a view to a salute, in the presence of the gentleman of the mansion. That a desperate rushan such as Wat Tyler, a great radical of his day, should have knocked out the brains of the officer levying a capitation tax, is assuredly a curious reason for the immunity to homicide contemplated by the Commissioners. In the first place the fact itself is rather questionable; and it is uncertain whether indignation against the officer, arising from political feeling, in the mind of a man so violent as Wat Tyler, did not produce the blow of the hammer, and not any virtuous indignation at the liberty taken with the girl; and, secondly, if in the framing of a law, for the well-being: of the community, the tastes and ruflianism of such fellows as Wat Tyler are to be consulted, instead of the incidents likely to result from the feelings and opinions, and mode of action of the quiet, orderly, and well disposed portion of society being taken into consideration, why it appears to us, that the Commissioners had better betake themselves to the Allipore jail, and select their instances of the standard opinions, feelings and prejudices of mankind. from the evidence of the amiable inmates of this asylum of rogues. They would then only be legislating for the exceptions, instead of for the general rule ; and that is what it appears to us, they have been doing throughout the code.—Courier, Jan. 25.
To the Editor of the Englishman.
I said, Mr. Editor, that nonsense came beautiful on my view. Take the following specimens:
“It would, we think, be mere useless cruelty to hang a man for voluntarily causing the death of others by jumping from a sinking
ship into an overloaded boat,
This is capital ; but would any man readily believe that the Law Commissioners actually proceed to reason on the propriety of not hanging a man, who, when the ship is sinking, tries to save his life by jumping into a crowded boat ' ' ' But let me give the passage which immediately follows the one above. “The suffering caused by the punishment is considered by itself an evil, and ought to be inflicted only for the sake of some preponderating good. But no preponderating good, indeed, no good whatever, would be obtained by hanging a man for such an act. We cannot expect that the next man who feels the ship in which he is left descending into the waves, and sees a crowded boat putting off from it, will submit to instant and certain death from fear of a remote and contingent death.”
Did mortal man, Mr. Editor, ever read such rubbish and helpless drivelling ! But look a few lines on “a gang of decoits sinding a house strongly secured, seize a smith, and by torture and threats of death induce him to take his tools and force the door for them. Here, it appears to us, that to punish the smith as a housebreaker would be to inflict gratuitous pain s” Dear ine, Mr. Editor, how beautiful it is to contemplate the benefit that science will delive from the discoveries of these men : The longitude missed on By good Doctor Whiston, And not better hit on By sweet master Ditton,
will assuredly fall to the lot of these gifted Law Commissioners if they go on with discoveries such as these. But Sir, it is impossible to open this code anywhere without stumbling on enactments either arbitrary or absurd, and very often containing a good deal of both. Let me open the book at random. Where do I find myself In the chapter of “mischief” the following meets my eye : - “404. Whoever commits mischief, intending thereby to enhance the value of any article, or directly or indirectly to affect the event of any competition so as to cause gain to any person, shall be punished with imprisonment or either description for a term which may extend to two years or fine, or both.” ILLUSTRATION.
“A and Z are competitors for an agricultural prize. A knowing that a cow belonging to Z, is the finest that is likely to be exhibited, poisons it, in order to secure the prize to himself. A has committed the offence defined in this clanse.” . No doubt, Mr. Editor, that an act like the above is a very serious offence, but it is somewhat singular that when these learned Thebans were thinking of a cow or a calf, alliteration did not call their attention to the majesty of a cauliflower or a cabbage. Undoubtedly, Mr. Editor, if a cow-cabbage were destroyed, inasmuch as in size it equals the cow, so the punishment in extent should likewise be equal :
But to make the punishment for killing a cow or cutting off the head of a cauliflower, two years' imprisonment, and to superadd to that a power in the Government of banishing the party under the 44th section, is something more than Iudicrous.
But let us go on, and in the very next clause we find :
“405, Whoever commits mischief with the deliberate intention of thereby insulting or annoying the person to whom he intends to cause wrongful loss, shall be punished with imprisonment of either description which may extend to two years or fine, or both.”
Were enactments, Sir, ever penned so ludicrous, so arbitrary, and so absurd But what comes next.
“406. Whoever commits or attempts to commit mischief by killing, wounding or poisoning any animal or animals to the value of ten rupees or upwards, shall be punished with imprisonment of either description, for a term which may extend to two years or fine, or both."
So if a man cuts off a squirrel's tail, or kicks a cur down stairs, he may be imprisoned for two years, and under the 44 section be banished at the will of the executive 1 Yet the Law Commissioners are hardy enough to affirm in their notes to the chapter on punishments that their code will be considered to err on the side of humanity ' ' But I throw down my pen, for I am quite sick of commenting on such helpless exhibitions of injustice and imbecility.
Englishman, January 26.] MARCUs.
We publish this evening a portion of a fresh chapter in the code, upon which on some other occasion, we will offer a few observations. At present a portion of the code, which possesses some public interest to our European fellowsubjects, has just fallen under our observation, and as we think the commissioners have taken a very unnecessary, and uncalled-for step, and likely to be productive of not only the greatest hardship, but illegality also towards Europeans, we do not apologise for bringing it to the public notice, in the hope, that this chapter along with its sisters, will be subjected without mercy, to the pruning and lopping operations we anticipate for the code generally, at the hands of the council. The chapter in question is headed, “Of illegal entrance into and residence in the territories of the East India Company.” Now by the charter, the licence to Europeans to come into, and reside in, a certain portion of the territories of the Company, was given generally, and the necessity of a licence from the Court of Directors wholly done away with. To us it appears, that the commissioners have not only re-established it, but re-established this repugnant prohibition with a degree of severity, altogether repugnant both with law and humanity. Previously to the charter, deportation was the worst that could happen to a British subject residing without a licence. He was liable to be turned out, and his property ruined. that was all. The commissioners have to all this added fine, and banishment for life, or for any term, or with simple imprisonment for a term which may extend to one year to which banishment or imprisonment and fine may be added !! We have ornamented the above singular provision with italics, and notes of admiration. Our readers moreover must recollect, that wherever in the code, fine is imposed