he apprised us that by the new code, a This, in our apprehension, is infinitely married man, whose wife was in England.beneath the dignity of legislation, it is twadmight perpetrate other matrimony in India. dle. Besides, if society is the only party with impunity, provided merely he apprised injured, the law commission should have the wife of second choice of his previous en-recollected that their function was neither to gagements. We confess, we thought this a protect wife nor concubine, but society; and right merry conceit, a "piece of legislation" whilst they tell us that society is the only especially invented for the amusement of party injured, they yet impose no penalty for Christmas jollifications. But the code itself the offence. But the exquisite naivete of this surpasses our contemporary. We have no piece of legislation, is its chief characteristic. time or space to enter on the subject to-day, That exquisite touch" he has certainly been but the following admirable reasoning, and unfaithful to his first wife" is exquisitely we pledge our readers that it is taken affecting. Again the following affords as beaufrom the code, will at once be confessed to be iful a specimen of the naif as was ever emaworthy, not of the novels of Justinian, but of nated by the pen of Parson Adams himself. the most trashy novels ever puffed into notice, by Colburn, of Conduit-street: "We considered whether it would be advisable to provide a punishment for adultery, and in order to enable ourselves to come to a "The married man who, by passing him self off as unmarried, induces a modest wo-right conclusion on this subject, we collected man to become, as she thinks, his wife, but facts and opinions from all the three presiin reality his concubine, and the mother of dencies. The opinions differ widely. But an illegitimate issue, is guilty of one of the as to the fact, there is a remarkable agreeimost cruel frauds that can be conceived. ment." Such a man we would punish with exemplary severity. We cannot doubt it. We hope to have the whole code before us in the Courier of the ensuing week, and shall not fail to set it before our readers in impartial characters.— Herald, Jan. 7. To the Editor of the Englishman. "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 repre- I come now, Mr. Editor, to chapter the sents to him that if they live together without third "GENERAL EXCEPTION," and I find that being married she shall be an outcast from" 'nothing is an offence which is done by a persociety, that nobody in India knows that he son who is, or in good faith believes himself to be has a wife, that he may very likely never fall commanded by law to do it." 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. One would think, Mr. Editor, that the ta|lented commissioners might have furnished a more decent illustration of their law than the following: "It cannot be disputed that there 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 wife 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 Are they unaware that however hard it may with another man. No individual can then seem to apply that principle in civil cases, be said to be injured by this second invalid yet with reference to crimes against public marriage. The only party injured is society, order, the maxim has ever been held most which has undoubtedly a deep interest in the strictly?-One would have thought they might sacredness of the matrimonial contract, and have found instances enough in the body of which may therefore be justified in punish-the Roman law. But let me see what one ing those who go through the forms of that of the ablest men in modern times, the celecontract for the purpose of imposing on the brated French chancellor D'Aguesseau, says public." "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 "Ignorantia juris non excusat." set the propriety of maintaining most strictly with reference to public order that principle of But let us turn over the page, and see if, we shall not find something equally rich and beautiful on the other side. "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. "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 intended by the doer to cause or be known by reason of any harm which it may cause, or be 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 2dly. In the first of these aspects, a man risk of that harm, such consent not having is committed with the law itself: it is with been obtained by wilful misrepresentation on the law alone that he contracts, that he enthe part of the person, wHO DOES THE THING," gages, that he binds himself, with respect to Observe here, Mr. Editor, the finished deevery thing which regards the general police, licacy of the phraseology 66 DOES THE THING" and the exterior order of society; it is to law-Messrs. Morrison and Long of pill-building alone that he is accountable for his infrac- and back-blistering notoriety may be figurations of it. tively said to "do the thing when they send 66 DO THE THING," when they put their names to so extraordinary a performance. 3dly. In the second aspect, on the contra-some of their patients, who have given "an ry, a man has only to regard the person with intelligent consent" to the shades below. So whom he contracts; the law does not punish in plain_truth may the law commissioners be an ignorance which relates only to a matter said not figuratively but most effectually, to 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 in-as he has got an "intelligent consent," and fringed the maxims of private order. 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. So again, Sir, under this provision of the law, every impudent pretender and quack who may blister, bleed, and destroy hundreds, nay thousands of his fellow-citizens, so long "D 4thly. As the public order regards the public utility directly, while the order of private right only regards it indirectly, the first ought always to be considered as more important and inviolable than the last. But I must break off, Mr. Editor, or these commissioners will assuredly "do the thing" with 5thly. As public law only regulates the most exterior actions of men, it is more easily to be conceived and observed than private. Your obedient servant, Englishman, Jan. 8.] 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 maxims of public order, than when it merely affects some rule of private right. Because the person who by mistake contravenes a private law, does no injury to any one but himself, while, 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. "In every case in which sentence of imprisonment for a term of seven years, or uphewards, 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 offender 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." 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." " At one time, Mr. Editor, I conceived that I the more willingly, Mr. Editor, produce there must have been some error of the press the opinion of this great lawyer and eminent in the above, but the following section places civilian, because not only are his sentiments the meaning beyond question: To the Editor of the Englishman. 66 Sir, I retrace my footsteps to the 2d chapter on punishments," and in it you will find the following enactments: in unison with the Roman, but are in strict "In every case in which sentence of riaccordance with the English law. Am Igorous imprisonment for a term of one year wrong, Sir, in saying that the law commis- and upwards, or of imprisonment of any deSioners have but a limited acquaintance with[scription, for a term of two years or upwards, : of Asiatic birth and of Asiatic blood, it shall be taining a notion that this code cannot be lawful for the Government of the presidency carried into a law, for you find in the 20 page within which the offender was sentenced, at of the prefatory address of the commissionany time before one-third of the imprisonment ers to Lord Auckland, the following words: has been suffered, to commute the remaining" we trust that your Lordship in Council will imprisonment, without the consent of the not infer, that we have neglected to inquire offender, for banishment from the territories of as we are commanded to do by act of Parliathe East India Company, which banishment may ment into the present state of the law." In be either for life or for any term." addition to this you will find in the very first I am at a loss to know, Sir, what could be the paragraph of their address to his lordship, reason of the terrible severity of punishment" that they were directed by the orders of Golike these in the first page of the appendix vernment of the 15th of June 1835, to lay the at last, I find the following solution:-"it Penal Code before his lordship.” 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 punish-Englishman, Jan. 11.] ment is unmixed evil. It is by the terror which it inspires that it produces good." I submit these passages to the public to correct an erroneous impression, which may go abroad, that the commissioners have "not inquired" under the 53 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 belief that it never can be carried into execution. MARCUS. 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. 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 dis regard and indifference. He 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 infirmities, distortions and deformities, have been duly anatomised and exposed, by our daily contemporaries; be it ours to administer to the 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 poor quivering wretched thing, its coup de they are destructive of the public safety and hap-grace. piness and as the inducements to commit them the several productions of his pencil, wisely We have all heard of the artist who, under are stronger. THEREFORE there ought to be a 66 fixed proportion between crimes and punish- as well as modestly wrote, as the case might ments" and vindicating the same principle, be, a horse," " an ox,” “a goat," &c. ia he closes his celebrated essay with the follow-order to illustrate" his subject. The new ing theorem:-"that a punishment may not code with equal wisdom illustrates its laws be an act of violence, of one, or of many, in manner following: against a private member of society, it should be public, immediate and necessary; the least possible in the case given; proportioned to the crime, and determined by the laws." and which is not known by the doer to be likely to cause "69. Nothing which is not intended to cause death, 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 intelligent consent, whether express or implied, to saf I leave it, Mr. Editor, to the assiduity of others to select the numerous instances throughout the code, in which for small fer that harm, or to take the risk of that harm, such offences under the sections in the chapter on consent not having been obtained by wilful misrepre punishment, a man may be banished for life.*sentation on the part of the person who does the Before I close this letter, let me guard the thing." public and yourself, Mr. Editor, from enter Let it be remembered, Sir, that this chapter on punishment 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 Z's teeth. A draws Z's teeth. Here, though A's act falls under the definition of the offence of voluntarily caus ing 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. faith the child's benefit. A bas committed no offence. Much as our readers will admire these illastrations, 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 corres (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 foul play, then if A,while playing fairly, hurts Z, A has committed no offence. (d) A, a friend of Z, calls at Z's house, in Z's ab-ponding beau morceaux of illustration, which sence, and writes and seals several letters there with Z's we lay before them, with a solemn assurance, paper and wax, without asking any person's permission that we extract it from an authentic copy of Here, if the acquaintance between A and Z be such that, the code itself. 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." Illustrations. 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 ting, and in seating himself slightly, hurts Z by pressing (a) A gets into a public carriage in which Z is sit wife's, or daughter's, or son's dangerous ill-him against the side of the carriage. Here, though A's ness, menaced the unfortunate mediciner who act falls within the definition in clause 316, yet if the undertook the cure, with instant death, unless whole harm caused was so slight that no man of ordinary his medicaments proved effectual. Who would sense and temper would complain of such harm, A has have thought that Mr. Macaulay came out to committed no offence. 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. or that it is intended to cause, or that it is known to be (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 the child's legal guardians. A performs the operation, in pite of the entreaties of the child, intending in googl 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: "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. is likely to cause the death of Z, who suffers under a painA, a surgeon, knowing that a particular operation ful 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 committed no offence. The following further illustrations of this grand improvement in criminal jurisprudence, we furnish as most admirable "illustrations' of Mr. Macaulay's enlarged and magnificent as well as benevolent views of the nature and character of the business of legislation : Illustrations. (a) Zis 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 judg ing for himself. A has committed no offence. (b) Z is carried off by a tiger. A fires at the tiger, 341. Whoever makes any gesture, or any prepara. knowing it to be likely that the slot may kill Z, but not tion, intending or knowing it to be likely that such ges. intending to kill Z, and in good faith intending Z's beure or preparation will cause any person present to apnefit. The tiger drops Z. It appears that A's ball has prehend that he who makes that gesture or preparation, is given Z a mortal would. Nevertheless, A has committed about to assault that person, is said "to make show of no offence. assault." write a letter, dips a pen in ink, the property of Z. (b) A, a servant in Z's house, having occasion to 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: Here, A has by his own bodily power moved his own (d) A intentionally pushes against Z in the street 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. Another: (f) A intentionally pulls up a woman's veil. Here, out her consent, intending or knowing it to bedikely A intentionally uses force to her, and if he does so withthat he may thereby injure, frighten, or annoy her, he commits an assault. the reversed legislatorial telescope of the Law The following discovery is ascertained by Commission, amid the dark obscure of nonsense, to which that most erudite body have been three years directing their observations: Explanation. Mere words 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. C .. (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. and admits much that is excellent in theory and desirable in practice; there is, however, one point in lucky Tom's" career, which has never, we believe, been noticed. It was originally intended that his introduction to a seat in the Council Chamber should be considered as the breaking up of the system of (c) A takes up a stick, saying to Z, "I will give exclusiveness in the constitution of the Suyou a beating." Here, though the words used by A, preme Council. Formerly a civilian was only could in no case amount to shew of assault, and though de facto eligible; the Commander-in-Chief the mere gesture unaccompanied by any other circum- being a cypher in all cases not of a military or stances, might not amount to shew of assault, it is never-political character, and frequently in the theless possible that the gesture explained by the words latter also. The innovation, therefore, was may be shew of assault. great and viewed with alarm in Leadenhallstreet; and an intrigue followed which led to" Tom's" becoming a voteless member on all matters not legislative. Of course, his functions were pared of more than half their utility, and his personal dignity somewhat lowered; and it was surmised at home that he would have resigned. Not so, "lucky Tom." He reasoned much more wisely and to the purpose. Although his duties were 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 Sinith cheats by falsely calling himself cut down, his salary was not; and he laughLieutenant Colonel John Smith, He cheats by per-ed at the idea of his throwing up a good thing," a la mode" of Sir Charles Matcalfe, (f) Doctor Smith cheats by dropping the addition of because the 24 gentlemen of Leadenhall Doctor. He cheats by personation. sonation. .. street, had put an affront on him. Tom" was right. 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 assault Z. A has made shew of assault. 46 We would ask our readers which is the worse to cheat by ring dropping, or "doctor" dropping? But trifling and rediculous as is this plan of illustration,' the Law Commissioners 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 identity. The mode which was adopted for the pub In a word we consider this "Code" as the most pitiable effort at legislation thatwas ever ushered into the world. The A. Z. illustra-lication of the new P. nal Code, that is to say, tions, it is true, are happy inventions; admi- bit by bit, chapter by chapter, taken indiscri rably adapted to the body of laws, which, in minately from the body of the code itself, we fact, is itself, a superfluous and unnecessary have already pronounced unfavourable to a zeal."-Herald, Jan. 14. due estimate of the work as a whole; and when we received a copy of the entire production, it was our intention to sit down gravely and sedulously, to take a full and comprehensive survey of its general merits as a work, 66 66 "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 complete and entire in itself. But we found, it has been perpetrated. Lucky Tom yester- to use a vulgar expression, it would not do. day embarked under the usual honours, the The compilation is such a thing of shreds and fort thundering, and the band vigorously patches, and the patch work is here and playing money in both pockets," but there arranged in such ludicrous shapes, though he is gone, unlike the quadrupeds of and cast into such very ridiculous positions, that it is impossible for the gravity of criticism to pursue the even and dignified tenor of its course. We should like to test the virtues of the celebrated cave of Trophonus, by submitting the muscles of one, freshly arrived out of that laughter-quelling abode, to the operation of the following "illustration." 66 Little Bo-peep own And they'll come home And bring their tails behind them," he has left 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 ing its faults, nor denying its merits; however, dearly purchased. Our criticism will not be the less valuable, Populus me sibilat; at mihi plaudo seem Ipse domi, simul ac nummos contemplor in arc.” The press, the public, all classes, and castes to possess a most wonderful spirit of unanimity in their "farewells" to the great edifier. He went, and there was none to say God bless him.-Hurkaru, Jan. 15. " " A, with the intention and knowledge aforesaid (i. e. with the intention of thereby causing death, or with the knowledge that spar-death is likely to be thereby caused) relates agitating tidings to Z, who is in a critical stage of a dangerous illness. Z dies in consequence, A has committed the offence of |