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THE

CALCUTTA MONTHLY JOURNAL.

1838.

THE CODE.

We have this-day inserted the letter ad-gation. The idea, that any man, be his station dressed to Lord Auckland by the Law Com- what it may, can be allowed to commit crimes missioners, which may be viewed in the light with impunity, is indeed, most preposterous. of a preamble to the Penal Code, which bas at The concluding suggestions, that competent Jast, it would appear, been completed. The persons should be diligently employed in makcommissioners deprecate censure for the timeling versions of the new code, in order that spent in the compilation ; and we are dispos- the people of the country may know what ed to take some blame to ourselves for having that law is according to which they are been basty and inconsiderate in our former required to live, are equally wise and just, remarks on this poini. We consider their and we must add quite in keeping with the defence sound ; and we had not sufficiently philanthropic tone of the whole letter. Never weighed the impediments arising from the having flattered Mr. Macaulay, not being different enactments in the different presiden-blind to many great sins of commission and cies, relating to the same offences; and the omission, we the more readily give our praise necessary delay consequent to an analysis of to the production before us, of which he is un. their respective merits, if any; and the ulti-questionably the magna pars, without any dismate decision on what it might appear the paragement to the talents of the gentlemen most valuable to retain or modify. This could associated with him. only be arrived at by repeated references and On the code itself we reserve our opinions; comparisons of the reports received, and it is bat we shall be glad to find we may be enabled, well known how slowly such work proceeds after careful perusal, to find as much to apin all countries, but particularly in India.

prove and as little to condemn as we have done The argument addressed to timid and unre

in the preamble. forming legislators in the 8:11 paragraph, by Since writing the above, we have seen last quoting the working of the Bombay code, evening's Courier, in which a portion of the with reference to the prejndices of the people, code is alluded 10-a portion, not uninterestis quite unanswerable, and we strongly reconfing, it must be confessed, to thé fairer sex. Our mend it to the attention of those with whom a contemporary's comments we also insert, and fact is more conclusive than the most elabo- recommend their import to all. We shall rate chain of ratiocination.

have a word or two to say ourselves on the The 16th and 17th paragraphs are also in our until the Enylishman's volley has passed.

subject presently ; but reserve our "fire" humble opinion a sound and philosophical Hurkaru, Jan. 5. description of the duties a legislator is bound to perform in drawing up definitions of the law, accompanied by illustrations, however disa Our evening contemporary is letting us into agreeable; and in the 24th paragraph, we re. a knowledge of the new Penal Code, by cogoise that humane and enlightened spirit small extracts, and slight anticipations, in of legislation, which in criminal cases, gives mercy we presume to our weak optics, which to the accused the benefit of all doubtful mighi liave been dazzled into blindness had points of law; and in civil cases lays the wo been suddenly smitten on the visual ray foundation of narrowing, within the smallest of our intelligence, by the full blaze of the possible compass, the chances of any differ-new-born sun of legislation; just as Burke ence of opinion.

would say, springing like Mercury into the The 27th para, describes the evils of any horizon, and casting its sbadows before. We class of persons considering themselves or are sorry to disagree with our evening con. being considered by others as above the law; temporary. The new code will not please the and points out clearly that no opportunity can ladies. We must confess, indeed, that we be more fit to remove them, where special gave our contemporary the credit of having treaties or guarantees do not exist, than when played off upon our supposed unsuspecting a new code binding on persons of different credulity a piece not of legislation, but of wit,

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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 ale. Besides, if society is the only party with impunity, provided merely he apprised injured, the law cominission should have the wife of second choice of bis 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 itsell the offence. But the exquisite naiveté of this surpasses our contemporary. We have noi 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 aflecting. Again the following affords as beaufrom the code, will at once be confessed to be iful a specioien 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,

“ We considered whether it would be advisby Colburn, of Conduit-street:

able to provide a punishment for adultery, “ The married man who, by passing him ind in order to enable ourselves to come to a self off as unmarried, induces a modest woright conclusion on this saloject, we collected inan 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 agreeinost crael frauds that can be conceived. ment." Such a man we would punish with exemplary

We cannot doubt it. We hope to have severity.

the whole code before us in the Courier of " But soppose, that a person arrives from the ensuing week, and shall not fail to set it England, and pays attentions to one of his before onr readers iu impartial characters.country women at Calcutta : she refuses to Herald, Jan. 7. Jisten to him on any other terms than those of marriage. He candidly owns that he is already married. She still presses him to go

To the Editor of the Englishman. 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 slie 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 wise, that he may very likely never fall commanded by law to ilo it." in with his wife again, and that she is ready One would think, Mr. Editor, that the la. to take the risk. The lover accordingly lented commissioners might have furnished agrees to go through the forms of marriage.

a more decent illustration of their law than

the following : “ It cannot be disputed that there is an im

"A, a soldier, fires on a mob, by the order mense difference between these two cases of his superior oficer; in conformity with the Indeed, in the second case, the man can hard commands of the law, A has committed no ol. ly be said to have injured any individual

fence." in such a manner as calls for legal punish

But let me not pause on the illustration ment. For what individual has he injured? itself, but go at once to the law, and if this His second wife? He has acted by her con:

were to be enacted, we might have an addi. sent, and at her solicitation. His first wife? tional instance of a servant cutting off the He has certainly been unfaithful to his first head of another with a large carving koise, wife. But we have no punishment for mere and efl'ectually pleading as a man once did conjugal infidelity. He will not bave in: in the Supreme Court, ihat in “good faithjured bis first wife no more than he would

he have done by keeping a mistress, calling that commands, which he conceived himself bound

was only complying with bis master's mistress by his own name, introducing her by law to obey ! into every society as his wife, and procuring

This contemplated enactment seems rich for her the consideration of a wise from all

his beyond all measure! Are the commissioners acquaintance. The legal rights of the first so uninformed of that principle which rues wife and of her children remain unaltered. alike through the Roman as the British law of She is the wife; the second is the concubine. But suppose that the first wife has herself

" Ignorantia juris non excusat.” 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 tbat 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.".

" mistakes of law"-bis obseryations

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set the propriety of maintaining most strictly But let us turn over the page, and see if with relcrence to public order that principle we shall not find something equally rich and of

beautiful on the other side. " Ignorantia juris non excusat."

“Nothing which is not intended to cause 1st. “Every man (says the chancellor) may

death, and which is not known by the door be contemplated with relation either to the to be likely to cause death, is an offence by public order of society, or to the particular

reason of any harm which it may cause, or be engagements which he contracts with other intended by the doer to cause or be known by men ; from this two-fold idea, results the dis- the doer to be likely to cause to, any person tinction which the Roman jurists seen to have above 12 years of age, who has given a free established between the public state and the

and intelligent consent whether express or private.

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 alove tlrat he contracts, that he en

the part of the person, wHO DOES THE THING." gages, that he binds himself, with respect to Observe here, Mr. Editor, the finished de. every thing which regards the general police, licacy of the phraseology “ DOES THE THING” and the exterior order of society ; it is to law

-Messrs. Morrison and tong 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 Billy. In the second aspect, on the contra- some of their patients, who have given «s. 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 DO THE THING," when they put their names right in the same manner as the public law; it to so extraordinary a performance. only regulates it with reference to the interest So again, Sir, under this provision of the of individuals, and the loss of the rights law, every impudent pretender and quack which might have belonged to them is the who may blister, bleed, and destroy hundreds, only penalty which the law attaches to those nay thousands of his fellow-citizens, so long whn, 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 4thly. As the public order regards the public be allowed in the graceful language of these utility directly, while the order of private accomplished legislators “ TO DO THE THING righi only regards it indirectly, the firsi ought to all eternity: always to be considered as more important and

But I must break off, Mr. Editor, or these inviolable than the last,

commissioners will assuredly“ do the thing." 5thly. As public law only regulates the

with snost exterior actions of men, it is more easily

Your obedient servant, to be conceived and observed than private.

MARCUS. 6thly. From all these differences we may

Englishmen, Jan. 8.] deduce this general consequence, that althougli ignorance of legal obligation is al

To the Editor of the Englishman. ways reprehensible, it is, however, much more Sir,-/ retrace my footsteps to the 2d criminal, when it violates the maxims of public chapter on punishments," and in it you order, than when it merely affects some rule will find the following enactments : of private right. Because the person who “ In every case in which sentence of im. hy inistake contravencs a private law, does prisonment for a term of seven years, or upno injury to any one but himself, while, he wards, has been passed on any offender, who who through ignorance violates a public law, or is not both of Asiatic birth and of Asiatic blood, rather a law of public order, attacks as much as it shall be lawful for the Government of the in him lies the whole state of civil society, and presidency within which the offender has been directly offends against the general utility of the sentenced, at any time within two years after community.

the passing of such sentence, to commute the 7thly. Then by, a necessary consequence remaining imprisonment, without the consent of this principle, ignorance of public order, of the offender, for transportation for a term ought always to be punished, although the qua- not exceeding the anexpired term of imlity of the persons, the nature of the laws, prisonment; to which MAY BE ADDED BANISHand the variety of circumstances may very MENT FOR LIFE, or for any term from the termoch increase or diminish the degree of ritories of the East India Company." 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 : in unison with the Roman, but are in strict Tu every case in which sentence of ria accordance with the English law. Am Igorous imprisonment for a term of one year wrong, Sir, in saying that the law commiss and upwards, or .of imprisonment of any deSioners have but a limited acquaintance with scription, for a term of two years or upwards, the subject they are attempting to handle ? luas been passed on any pereon who is not both

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of Asiatic birth and of Asiatic blood, it shall betaining 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 presunt 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 Go. like 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, I submit these passages to the public to WHEREVER we have MADE ANY OFFENCE PUNISH correct an erroneous impression, which may ABLE BY TRANSPORTATION, WE HAVE PROVIDED go abroad, that the commissioners bave “not THAT THB TRANSPORTATION SHALL BE FOR LIFE. inquired" under the 531 and 54111 sections of The consideration which has chiefly deter-the charter act. This code, it appears to me, mined us to retain that mode of punishment may becoine the law of the land, and I thereis our persuasion that it is regarded by the fore, warn the public against the belief that natives of India, particularly by those who it never can be carried into execution. live at a distance from the sea, with peculiar

MARCUS. fear. The pain which is caused by punish-Englishman, Jan. 11.] ment is unmixed evil. It is by the terror wbich it inspires that it produces good.”

Mr. Macaulay, it seems, yesterday took his Noble Marquis of Beccaria, men have but departure from Calcutta, having enjoyed the slightly attended to thy immortal work, held previous satisfaction of publishing his code. sacred by all lovers of their fellow-men, and of him we therefore take our leave; and we hallowed by the very dew of humanity, if a suppose that an instance is not to be found in principle such as tbis could find a place in the annals of India, of a British functionary any code in modern days!

of equal or similar station, quitting these Do distinctions of crime require no attention shores under so general a feeling of utter disfrom a legislator? The minds of men would regard and indifference. He is gone, and has recoil from such a principle. We must not kindly spared us the slightest regret at parting confound the boundaries of crinies to create from him. But he was left us his code, a a rule of terror. Uniform severity cannot miserable legislative abortion, wbich, before justify a law, for punishments should be be reaches England, will be put upon the founded alike on necessity as on justice. shelf, and like himself, be forgotten. The

Io chapter 6th, "on the proportion between daily journals, have employed themselves crimes and punishments” in the above work, during the week in exposing the absurdities you will find tbe following passage:

of this disgrace to bis own, and insult to " It is not only the common interest of others' understandings. Very probably he mankind that crimes should not be committed, may be callous to the discipline that has been but that crimes of every kind should be less inflicted upon his bantling, whose infirmities, frequent in proportion to the evil they pro

distortions and deformities, have been duly duce to society. Therefore the means made anatomised and exposed, by our daily conuse of by the legislature to prevent crimes, temporaries; be it ours to administer to the 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

We have all heard of the artist who, under are stronger. THEREFORE there ought to be a

the several productions of his pencil, wisely fixed proportion between crimes and punish-160, a horse."

as well as modestly wrote, as the case might

“ an ox, ments ;” and vindicating the saine principle, be, a horse;"

"a goat," &c. in 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 and which is not known by the doer to be likely to cause

“ 69. Nothing which is not intended to cause death, be pablic, immediate and necessary ; the least death, is an offence by reason of any harm which it possible in the case given ; proportioned to the may cause, or be intended by the doer to cause, or le crime, and determined by the laws."

known by the doer to be likely to cause any person I leave it, Mr. Editor, to the assiduity of above twelve years of age who has given a free and others to select the numerous instances intelligent consent, whether express or implied, to sufthroughout the code, in which for small fer that harm, or to take the risk of Iliai harm, such offences under the eections in the chapter on consent not having been obtained by wilful misreprepanishment, 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

Illustrations.

(a) A, a dentist, offers Z, a person of ripe age and • Let it be remembered, Sir, that this chapter on puuisbient sound mind, a price for Z's teeth, and without aoy wilfol

Z's feeth, A draws Z's teeth. Here, though A's act falls faith the child's benefit. A bas committed no offence. under the definition of the offence of voluntarily caus- (d) A is in a house which is on fire with 2, a child. ing hurt, A has committed no offence.

People below hold out a blanket. A drops the child (b) A converts 2, a person of ripe age and sound from the house.top, knowing it to be likely that all may mind, to the Mahomedan religion, and, without any kill the child, but not intending to kill the child, and wilsul misrepresentation, obtains Z's consent to be cir- intending in goorl faith the child's benefit. Here, even cumcised. A circumcises 2. A has committed no of if the child is killed by the fall, A has committed no fence.

offence. (c) A and Z agree to fence with each other for Much as our readers will admire these illusamusement. If this agreement implies the consent of strations, of that which we bail foolishly supeach to suffer any harm which, in the course of such posed could require no illustration at all, fencing,may be caused without soul play, then if A,while they will be yet more enamoured of the followplaying fairly, hurts 2, A has committed no offence.

ing exquisite bit of legislation, and corres(d) A, a friend of Z, calls at Z's house, in Z's ab. ponding beau morceaux of illustration, whicla sence, and writes and seals several letters there withi 2's we lay before them, with a solemn assurance, paper and wax, without asking any person's permission. that we extract it from an autlentic 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 bas or that it is intended to cause, or that it is known to be

73. Nothing is an offence by reason that it causes, com initted no offence.”

likely to cause any harm, if that harm is so slight that Most of our readers having read the Arabian Nights' entertainments, will, no doubt, have of such harm.

no person of ordinary sense and temper would complain experienced horror, and dismay, as well as

Illustrations. contempt and detestation towards those foolish (a) A gets into a public carriage in which 2 is sit. and wicked tyrants, who, on occasion of a ting, and in seating himself slightlý, hurts 2 by pressing wife's, or daughter's, or son's dangerous ill. bin 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 manof 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 po offence. India, in order to remedy this wicked as well Now we beg to pause a moment here, and as foolish practice of 1,000 years ago; nobody ask our readers what they think of this. Is -nobody would have supposed it, uevertheless this, we ask, the dignity of legislation, or is it so it is.

the drivelling frivolity of imbecility? Do we 70. Nothing which is not intended to cause death, want people to be sent ont here, at a cost of is an offence by reason of any harm which it may cause, £10,000 a year, to tell as this? But what will or be intended by the doer to cause, or be known by the our readers say. to the following: 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 write a letter, dips a pen in ink, the properly of 2.

(6) A, a servant in 2's house, having occasion to intelligent consent, whether express or implier, to suffer Here, though the act of A may fall under the definition that harm, or to take the risk of that harm, such consent of theft, A has committed no offence. not haviog been obtained by wilful misrepresentation on the part of the persoa who does the thing."

We could multiply instances of absurdity, Illustrations.

but we shall confine ourselves to the following likely to cause the death of Z, who suffers under a pain. Here, A has by his own bodily power moved his own A, a surgeon, knowing that a particular operatiou is illustrations of an assault:

(1) A intentionally pushes against Z in the street ful complaint, but not intending to cause Z's death, and tending in good faith Z's benefit, performs that operation person so as to bring it into contact with 2. le has, on Z. by Z's free and intelligent consent, not having ob therefore, intentionally used force to 2 ; and if he has done tained that consent by misrepresentation. A has com.

so without Z's consent, intending or knowing it to be mitted no offence.

likely that he may thereby injure, frighten, or annoy 2, The following further illustrations of this

he has committed an assault.

Another: grand improvement in criminal jurisprudence, we furnish as most admirable "illustrations

(f) A intentionally pulls up a woman's veil. Here, of Mr. Macaulay's cnlarged and magnificent out her consent, intending or knowing it to be dikely

A intentionally uses force to her, and if he does so with: as well as benevolent views of the nature and that he may thereby injure, frighten, or anuoy her, he character of the business of legislation : commits an assault. Illustrations.

The following discovery is ascertained by (a) Z is thrown from his horse, and is insensible. the reversed legislatorial telescope of the Law A, a surgeon, finds that ? requires to be trepanned. A, Commission, amid the dark obscure of nonnot iateading 2's death, but in good faith, for Z's benefit, sense, to which that most erudite body have performs the trepan before Z recovers his power of judg. been three years directing their observations: ing for himself. A has committed no offence. (6) 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 2, but noi ion, intending or knowing it to be likely that such ges. jatending to kill Z, and in good faith intending 2's be sure or preparation will cause any person present to ap. nefit. The tiger drops 2. 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 vont to assault that person, is said " to make show of Do offence.

assauli," (c) A, a surgeon, sees a child suffer an accident, Explanation. Mere worls do not amouut to a shew of which is likely to prove fatal unless an operotion be in assault. But the words which a person uses may give mediately performed. There is not time to apply to the to his gestures or preparations such a meaning as may child's legal guardians. A performs the operation, ir nake those gestures or preparations amount to shew of

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