Εικόνες σελίδας
Ηλεκτρ. έκδοση

and the age.

the prefatory letter, are “ungrateful and We cannot answer what is incomprehensfcontemptible": for taking no notice of the ble, but what we can understand in the artiimmortal Bentham and but little of Mr. Ca. cle of the Agra Ukhbar we can answer easily meron; but " the code is worthy of ils authors enough. He says, the spirit of Bentham per

vades this code throughout, imparted by Mr. The writer in the Agra Ukhbar is a hiero- Cameron: we join issue with him, as the phant of the mystery of pure reason: he "ad lawyers, say on this point, we deny it Haily. dresses himself on this comprehensive question to Jeremy Bentham would have despised the the purest reason of his readers,” and, in order code; he would have treated it as a ridicu. to convince those who are in error at Calculia,

lous fallacy throughout; because it was. he uses the bland persuasives following: based on false pretences and usurpation. The The Calcutta newspapers and critics are “ig. first thing requisite, Jeremy Benthama would. norant, intrested, warrow, prejudiced, bigoi-have said, in all good lawmaking is, that it ted, bawlers: they are wilful perverters or should be by the free and intelligent consent principles, falsifiers, impudent, uncandid, of the people; that they should make the panders to iguorance, prejudice, and the in law, in short, themselves. He would bave terests of a few." This ought to be very con- made right merry with the virtual represenvincing, for it is the style of the "purest reuson,” | tation which the people of India, and Englishand not a syllable lias been set down by us men here, enjoy in the Commons House of which is not written in the article of the Parliament. He would have played the devil: Agra Ukhbar. The writings we now and then by his exhaustive analytical niethod with that see in this paper, doubiless by the same emigrand fallacy of Macaulay's, the “partial nent hand, are all in the same strain of pure despotism which is the worst of all evils." modesty, and, we should think, the gentleman He would have scouted the hypocrisy wbich: not a little resembles the French Dutchess professes to make men happy by levelling the who told Madame de Stael in all confidence, few who are free to the level of the many who and as a great secrot, that the longer she lived, are not; he would have exposed with an the more certain she became that there was unsparing band the delusion which leads but one person in the world who was always men to suppose, that with a patronage-service in the right, and that was herself.

and its supplementary machinery, any code can We have read the long article in the Agra of the governed.

be worked as it ought to be for the well-being Ukhbar with the reverence due to its preteo. would have disdained all.compromise between

Bentham's was a mind that sions, but after much cogitation and inany the right and such miserable expediency. perasals, we are compelled to confess our He would have called upon the Company io total inability to comprehend what the real disburse more than the salaries of the law drift of it is, so far as concerns the Code itself, commissioners for the sake of justice, and of which the writer had only read the preface. have cut up root and branch the Company's We can understand clearly enough that he means to praise the immortal Jeremy Ben-from the reformations of Sir Thomas Munro

judicial system in a very different fashion tham, also the great architect and master

or Lord William Bentinck. mind (subauditur Mr. Cameron) and to abuse the rest of the law commissioners, the Cal. cutta lawyers, the Calcutta press, and the

But without dwelling on what a MASTER Calcutta public ; but, beyond this, we cannot

MIND secondary or primary, would have done, see our way, and the purest reason of Agra any mind can perceive that the makers of the seems to our, perhapsjaundiced, mental vision,

code liave usurped authority and have made very like pure rigmarole at Calcutta, and to

a code, when they were only employed to have nothing coinprehensible about it, but enquire how a code ought to be made. That that thu writer thinks that Mr. Cameron was tions. Any man can also perceive, if he will

is not piecc-meal criticism but goes to foundajealous of his colleagues, and his colleagues take the requisite trouble to enquire, that of him, and Agra is jealous of Calcutta.

this code has a political tendency, a bias in To Mr. Macaulay is entitled the praise favor of absolute power, not at all extraordi(Pure reason loquitur) of being an efficient nary, considering its origin, and that the chapdisciple, for much of the explanatory part ter of “offences against the state,” abolishes of the code originated in the difficulties and the free expression of opinion, if the eode' be doubts that arose in his own mind in the progress worked by the machinery that its framers of conversion such as the MASTER-MIND (Came have provided for it, for they intend it to be son) had not anticipated, and may, therefore worked in the mofussil without any code of be eminently useful to those who have still to procedure. Any man can perceive besides, learn first principles." Whatever may the that by the 16th chapter, there is a distinca profondity of the Agra philosophers acquaintion made to the disadvantage of the most tance with the first principles of philosophical enlightened class for the advantage of the legislation, it is evident, that his abstraser corporation which governs, and most bordenmeditations have made him forget the first some and absurd penalties imposed for no. principles of grammar; for never can we reason at all on Englisbmen who shall resort with propriety speak thus-To the philoso. to India. All these things emanate from pher who writes in the Agra Ukhbar, is enti-motives wbich are as much like the principles tled the praise of being an efficient disciple ofl of Bentham, as

the articles of the Agra


Ukhbar has, as usual, imputed to the Calcutta This is not piece-meal criticism, but a sumlawyers all manner of petty and interested mary of general and fundamental objections, motives. A thorough want of acquaintance which we invite our contemporary to examine of the real direction which the interest of and refute if he can. We request him to lawyers would lead them to take in all pub- consider that the ionnortal Bentham would lic Indian discussions is excusable in the have begun his code with a definition of Agra Ukhbar, but the want of knowledge rights and of the things permitted as well as ought to make a professor of pure reason of the things forbidden. In this code there hesitate before he attacks, on the same grounds. is an omission at the outset of all definition of a body, among whom with general liberality, rights of the governed, which we

can very most varying opinions exist. In truth, the easily account for, but not to the credit of interests of this body must tend to make it the legislators. When we hear of offences subservient to the Company and local go against the state and their penalties, should vernment. The lawyers of Calcutta, by we not also hear something of the duties of which the Agra Ukhbar means the advocates the state towards the governed. Is that only of the Supreme Court, are less than chapter to be left unwritten, as the twenty in number. The three appointments laws of India ?- Hurkaru, Feb. 26. on the bench are in the gift of the President of the Board of Control: the two next best at the bar those of advocate general and

The enlightened practice adopted by the standing counset in the sole gift of the legislature, of laying before the public drafts Company. All the appointments of officers of all laws before enactment, is not we preof court, five or six of which are held by the same intended to be a mere form, but followbar, are in the gist of the judges, and strong-ed with the view of obtaining the opinion and ly pronounced political opinions, if they suggestions of the public on their labours. operated at all, would operate as a disquali. In this light the practice becomes an invalufication for such appointments. Besides this, able privilege to the public, but from the use there are appointments in the gift of the local made of it by some of the organs of that body, government, such as magistracies of police it is, we fear, in danger of being considerably and places in the Court of Requests, for which weakened. The organs we allude to are the some of the bar are occasional candidates, Calcutta papers, which whenever an imporand, we presume, they would not think to qua- tant legislative measure becomes the subject lify by professing openly opinions at variance of discussion, view it, not as affecting a large with the course of the government policy. country and an extensive population, but in Not a single officer of the Supreme Court is relation to their own and local interests. now paid by fees on business done, except Thus they opposed the so called Black Act, the interpreters for translations, and every a measure of common justice to the country one of them is paid by salary from govern- at large and baseon and acknowledged prinment, except the Registrar, who is ciple of law, but wbich might, at the same lime, paid by commission on administrations, so bave diverted a small portion of business and ibar it would puzzle the most acute discoverer a smaller portion of fees from Calcutta. Such of the tendencies of self-interest to point to a course naturally lowers the character of a single possibility by which the interests of the Calcatta Press and weakens the privilege these individuals could be in opposition to conferred on them by the legislature, wbich, the code or the ordinary measures of govern- if converted to a proper use would be a usement. In reality their interests are quite as ful and important one.

The Penal Code now much in the power of the local government under discussion exemplifies further the naras those of the civil service, and if, in fact, rowness of views with which the Calcutta these men are more in opposition to the Press regard all attempts at sweeping away policy of the government on such questions the old leaven of abuse and misgovernment, as the black act and the code, the causes and substituting a uniform and philosophical Jie elsewhere, and when sisted will be found system of law. The interests of its members not at all to their discredit. The Agra (with an exception or two perhaps) may not Ukhbar, however, makes a great mistake if he indeed be much affected by the provisions of supposes, that by the civil service, the free a new Penal Code, but prejudice and bigotted settier, or the edacated native, the code in attachment to an old one, can equally narrow its present form is esteemed to be a produc- the views and warp the judgment. They will tion of elightened wisdom. The opinions of not try the labours of the Law Commission men are pretty well agreed that a better code by the standard of enlightened modern princould have been made in Lincoln's Inn at ciples, but hy the old mischievous absurdity, a'tithe of the expense: that it was made with that has retarded the progress of the human out authority; that it was made without due race more and wrought greater injury on it, enquiry and without the aid of the immense than all the ills we are heirs to. They seem body of local knowledge and experience that to forget too that the Law Commission was ought to have aided in the work: that its not appointed solely for making laws for policy towards Englishmen not in the service Calcutta and a few thousand Europeans but is unjust: that its general political tendency for a population of many, millions, differing is to extinguish' the liberty of the press, and in creed, language and customs ; a law justly to give to the executive government an arbi- applicable to which must be based on pringenerally, and not on thoso of Coke upon expense perhaps of as many cents. as the Lyttleton, or the practice of the courts at Indian code has cost rupecs, and in a short Westminster. Such being the views and time, amidst professional avocations and insuch the mode of treating Wiese subjects, of terruptions from ill-health Mr. Macaulay the Calcutta Press; its bawling will not easi. possesses abilities of a high order, but we ly be mistaken. The Penal Code as far as must hesitate to award him a character for it is before us, is legislative measure worthy honesty who undertakes a duty of incalculable of its authors and the age, and will place importance, without previous qualification or India in one respect on a level with the most attempt as qualification for bis task, and who civilized nations of the earth. It has certain. afterwards devotes bis mind principally to ly many blemishes clearly traceable to the other pursuits, the success of which may be desire of the commission to produce a code more gratifying to his vanity, because not as comprehensive and complete as they could, shared with others. His review of Montague's but these we must hope will disappear before life of Bacon is with a few light shades here it becomes law. Until it is before the public and there, very bright production, but its in its entire form, it is only susceptible or elaboration must have cost much toil, that piece-meal criticism, which can only detect ought to have been applied to a different secondary errors. of it as a whole we can object. But the worst part of his conduct is only judge when we have seen it as such, abondoning his task after he has acquired but if the sketch given of it in the address 10 much of the knowledge that might quality Lord Auckland be borne out it will be a bim for the due performance of a duty for splendid triumph of Indian legislation, as the which he has been so long retained at an exorfirst practical fruits of Bentham's philosophy bitant expense to the public, leaving Mr. of that science. Its merits and the defects, Cameron the hard labour of finding both arguthe latter most liberally, are we see given ments and views for a new set of colleagues. to Mr. Macauley ; but the Bentham spirit throughout has, we believe, been imparted to it The same spirit which pervaded the whole solely by Mr. Cameron, who in all matters discussion on the so called Black Act, is seen of jurisprudence holds the bighest character in the comments on and analysis of the prefor talent, enlightened views and luinanity. sent codo, the same wilful perversion of the To him sell the heavy task to conquer the self subject and on the same hope of raising a sufficiency of Mr. Macauley and the onen. prejudice against principles, which it was of ligbtened but candid and sensible hesitation the atmost importance the public should esif not opposition of Mr. Macleod, and the timate fairly.' From the published extracts obdurate ignorance and doggednoss of the the code appears to attach punishment in Bombay member, Mr. Anderson. To Mr. the combined ratio of the actual mischief Macauley, however, we believe is entitled the arising from breach of the law and the depraise of being an eficient disciple, for much gree of mischief intended. No moralist has of the explanatory part of the code originated ever questior.ed, that a system of Penal Law in the difficulties and doubts that arose in his that truly followed out that principle would own mivd in the progess or conversion such be perfect, yet no one by whom the power as the master-mind might not have anticipat- was possessed, has ever get modelled a single ed, and may therefore be eminently useful legislative act on that basis. The crimes of to those who have still to learn first princi- the insane are indeed treated with some reples. It is melancholy then to see the ser-gard to it; and there are some other cases in vices of the grand architect, whose work may which the spirit of vindictive legislation bas have in some degree marred, scarcely mended been modified by an aparently obscure perby his assistants, passed over with such a ception of the princiile in question. The meagre acknowledgement, as that in which writers in the Calcutta papers have selected the ill-health that drove Mr. Cameron to the the case of bigamy as one well adapted to the Cape is alluded to. But worse than this, be- purpose of working on ignorant prejudice, cause ungrateful and contemptible is the total ibat may not stop to compare their comment absence of any allusion to the immortal name with the text. Bigamy as a crime is the crea. of Bentham in the whole course of the ad. tion of the positive law of a small portion dress. If the worship of such men as Dumont, of the world. It was not the law of the Jews Mill and Bowring be no test of the claim of nor of Chritians as such, if we admit the that great man to be classed with Bacon and authority of Luther, Melanthon, Zuinglius, Newton as the founder of true pbilosophy in Milton and many able modern ecclesiastics, a particular department, what is to be said of nor is it amongst the immenso mass of manhim who denies the master that Romilly fol- kind out of the pale of Christianity. It is lowed with the zeal of a martyr, that Bickers. then a daty of the framers of a new code of teth with all his legal acumen is proud to criminal law for men of all the various acknowledge as his guide and instructor, and descriptions of religion and manners that are to whom Brougham amidst his most bitter found within the British dominions in India, and uncandid sncers, attributed the glory of to inquire into the essence of the crime of being tho first man who orected legislation bigamy; to consider in what cases bigamy into a science. There is somo honesty, but would be stained with the moral guilt of wil. little enough, in the notice of Livingstone, ful injury, whether the law was actual with who single handed drafted for Louisiana the regard to it or not. That essence obviously generally involved in the THING. If there be maintain at the present day, the opposite no fraudulent breach of contract in the mat- doctrine, that a man ought to be punished for ter, there is no subject matter for penal lo-acting in obedience as he honestly though gislation. The offence resolves itself into one erroneously believed, to the injunctions of the contra bonos mores, and it is the business of law, and the critic, therefore, put the case of a that section of the community, that regard it party who of his own accord violates public as such, to mark their disapprobation in the order under ignorance that such violation has usual mode-refusing the parties concerned been positively prohibited. No doubt a man their countenance, and the qualification of who spontaneously does mischief with missocial intercourse. One writer falsifies the chievous intent, has but small claims to conspirit of the text by playing on the term so- sideration from the mere circumstance of ciely, as if the word used were the term ignorance of the penalty attached by law to " community.” The social feelings and re- his act. It is true that the class of lawyers lations of a particular class may be injuriously who blindly take up the maxims of the Roman affocted in a thousand ways, in which the law, the “imitatarum servile pecus” have been community at large felt no sort of sympathy generally aware of the distinction between an with that particular section and from which unlawful act done with a lawful intention, and no individual member of it has to apprehend one committed with an intention expressly any present larm. The conversion of a criminal but done in ignorance of the law. Christian to Moohumurism, and his adoption D'Aguessean who knew what was law, but of native dress and manners, would be whom no one ever quotes as an expounder of “ dreadful” in the eyes of one part of the the principles of legislation carries the absurdi. community, shocking and scandaleus in the ty of the whole doctrine to a climax in the sight of another, pitiable in a third, and ligh-7th clause quoted from him when he lays it Jy so be landed in the opinion of those of ihe down as a necessary consequence of its admisparty he had joined. It would have savoured sion, that ignorance of public orders ought of the folly of existing codes if those who always to be punished! If ignorance be a were legislating for India were to persist in crime who so guilty as those who force the making it criminal for one man to do what world to its perpetual commission by withholdanother in precisely the same circumstances ing the required koowledge from the mass ? On as to mischievous effect may do consistently this point it will be observed, that it is not any with law and usage. But however we repro-act that is here proposed as a fit subject of bate the views and reasoning of the critic, we penal legislation, but certain state of the do not approve of the law altogether. As mind in respect to the extent of its acquir. connected with bigamy, it appears to us ments. It is such absurdity as this from which that even in the case of collusion betwixt common sense revolts but wbioh lawyers chethe husband and second wife, there may be rish as the bigot in religion does his own third parties concerned, whose civil rights fancied revelations of the Divine will that is may be exposed to danger from the frau: on put forth in opposition to the clear and sound society. Ti there be children by the lawful principles of which Paley and Priestley had wife, the regular celebration of an unlawful a glimpse, and which were first systematized marriage ceremony may throw obstacles in by Bentham. Of a piece with the foregoing the way of their obtaining their rights as the specimen of misrepresentation and false realegitimate offspring of their father, that they soning,but more impudent still, is the statement would not experience, but for the prima wherein the writer classes “impudent pretendfacie evidence offered by the public record ers and quacks with honest men, and liaving of the spurious marriage. It often happens so classed them finds no difficulty in “giving that a relation leaves a rich inleritance to a them a salvo of impunity for destroying bonperson for life, with reversion to his legitimate dreds, nay thousands of their fellow-citizens issue. By the act of bigamy the legitimale under the provision of the code, that exempts childern would be pat in peril of loosing a from punishment, the performers of acts done portion at least, if not the wbole of their just with consent of the eventually injured party, inheritance. The fraud, therefore, being in in cases where no injurious consequences were such a case fraught with danger to other par intended or apprehended by either party. We sies ought, on that account to be brought would expect to find in the code itself as an within the Penal Code. Again the first, and exception to this case of impunity that in Jawful wife is positively injured by having which the act done is in violation of an express to share with another the rights which law law known to the doer of the thing. But for the and reason recognize as hers, and on which present we cannot enter into further or more an avowed concubinage would not infringe to detailed exposition of the views, the false reaibe same extent as the having another wise : soning, the piece meal-criticism of the Calcutta such as the right to maintenance in a cer- editors and their correspondents; they all sa. tain status of society according to her own vour of the same uncandid spirit throughout. original circumstances and her husband's In minor matters, passion, prejudicc or indivi

The text of one critic is, that a per- dual feeling may be allowed without much son ought not to be subject to the pe- condemnation to influence an editor, but such nalty, for wilfully breaking the law on matter as this should have be met fairly, account of an act which he in good faith and with a determination to be influenced believed bimself to be commanded to do by by no contracted views or bias. llere was



informed or even an honest editor, to dissi- ; an act of uncommon folly in a Governmont pate many of the mists of popular ignorance ordinarily well-informed and enligbtened. regarding principles of vital importance to ali: for there is no one whose life and pro- Mr. Watson, an indiyo and silk factor in the

The Black Act originated in an accident. perty are not hazarded while he lives under districts of Rajsliye and Moorshedabad, hav, the administration of laws founded on false principles, and already condemned by a body ing many advances to make to pykars and of intelligent lawyers as radically vicious;

other natives engaged in the produce of raw and who is not equally interested in the silk, wished to be able to sue these people soundness of the principles on which that for breaches of contract in the courts of the code, which is to replace the old is founded. moonsiffs that were near his factories. In In England there is unfortunately such a

order to compass this end, he waited upon mass of popular, ignorant, and bigotted as merchant and agent, and the legislator im

Mr. Macaulay, accompanied by a leading well as interested opposition to be overcome mediately said that there was no good reason before any administration can carry a measure of enlightened legislation, that the labours of why this desired end should not be obtained, the Parliamentary Law Commission have

it seemed very reasonable, and so in truth it hitherto proved fruitless. Neither are the was; but we shall see by the soquel, that after high or low vulgar prepared, or they are not

all it was not really obtained. willing to understand the reasonings, on At that date it was quite settled, that by the which the proposed reforms are founded. In provisions of the 107111 section of the clarter this country, the community to which an edi. of 1813, (53d Geo. 3d c. 155) any Englisbman tor addresses himself is composed of more could sue a native, and any native could sue penetrable stuff, less steeped in prejudice, less an Englishman in the mofussil zillah courts, drawn aside by interest in attaching itself to but the latter only could appeal to the King's abuses as they are, than that whose regards Supreme Courts. No one then contended, and an editor at home must consult, if he values no one has ever since contended, (and this our (as few there are who do not) above all things philosophical contemporary will do well to bear the circulation of his paper. But in this in mind,)that this was a good state of law. There country, may on such comprehensive were two systems of couris and two modes questions as this, address ourselves to the of jadicature then as now in force, and no purest reason of our readers, unless, as in the one has ever contended that was good, but by case of the Calcutta Press, we prefer ponder- the Black Act there was no attempt to amend ing to ignorance, prejudice, and the interesus this last evil. Before the Black Act, if the of a few, to which is opposed that of the native were cast in a zillah court, be could country at large. If Cameron's code be not appeal to the Supreme Court any more adopted for India, (with of course a few than the Englishman to the Sudder Dewanny amendments) it will infallibly lead to the re. Adawlut, neither had any choice in the matform of that mischievous mass of inconsistenter. No one ever contended this was good. cy, uncertainty and absurdity, that though In this state of things, Mr. Macaulay boing constantly deprecated in its details by every asked to legislate for a special defect, because organ of the public voice, is held up by trad. the charter of 1813 had not provided that Enging lawyers, and admitted upon their dictam lishmen should be sued in mooosiffs' courts, by the people at large, to be the perfection of for the very sufficient reason that such courts reason the admiration of the world !- Agrawere not ihen in existence, passed Act No. Ukhbar, February 10.-Hurkau, Feb. 26.

XI. of 1836, commonly called the Black Act,

The substance of this act is, that no person

whatever shall, hy reason of birth or descent, The observations of the Agra Ukhbar on the be exempt in any civil suit whatsoever from code, though the writer went very unneces- the jurisdiction of the courts specified in sarily out of his way to scatter blame, not to the act. The courts of moonsiffs are not say abuse, on those who differ from him, do, specified, and the act only provides for civil after all, afford indications of talent; and we suits, therefore Englishmen remain, as before, believe that our cotemporary some day or exempt from all criminal jurisdiction of moon. other, when improved by experience and ri. siffs' courts, and exempt from all criminal pened in candour, will do the public good jurisdiction of the mofussil courts of magis. service. In the hope of meeting with what is trates, except the very limited and special rare enough in public or private, a person jurisdiction to be exercised within the terms capable of being convinced, we write for his of the 105th section of the charter of 1813, by especial benefit, as well for that of the public which the Company's judges can exercise at large, an article on his text of the Black none as magistrates but only as justices of the Act. The public recollections of it in the

peace. farthest require to be refreshed a little.

The Black Act therefore, if it were an act The Agra Ukhbar is pleased to say, that it of common justice to the public of India at was an act of but common justice to the pub- large, as the Agra Ukhbar has been pleased lic of India at large. We trust that we shall to term it, so calling if we apprehend humbly shew without any chance of successful reply, in the most deep ignorance of its real nature that it was an act of peculiar injustice to Eng. and operation, was an act very unequally and

« ΠροηγούμενηΣυνέχεια »