the ground of inadvertence; enactments, the language of which shews that, when they were framed, their whole effect was fully understood, and which appear to us to be directly opposed to the first principles of penal law." And on this subject they conclude with the following sentence:

"We have said enough to shew that it is owing, not at all to the law, but solely to the discretion and humanity of the Judges, that great cruelty and injustice is not daily perpetrated in the criminal Courts of the Bombay presidency."

Such being the state of the penal law in the Mofussil, the Commissioners came next to consider the case of the presidency towns, Calcutta, Madras, and Bombay. They comprize a very large native population; in number, out of all proportion to the Europeans; perhaps, at times, in the proportion of seven hundred, or more, to one. Within these towns the Supreme Courts have an exclusive local jurisdiction; and native criminal law and the criminal regulations of Government, which every where else prevail, have no operation. The criminal law is the English criminal law, or, more correctly speaking, law of merely English origin; and it was made for British people; thus, Nundcoomar, as being under the jurisdiction of the Supreme Court, was hanged for forgery. In many less striking instances, English penal law must greatly shock, and be ill adapted to, the native population. The Commissioners characterize it, as a very artificial and complicated system: as "a foreign system;" a "system formed without the smallest reference to India": and it had just been pronounced by a commission, composed of able and learned English lawyers, to be so defective, that it could be reformed only by being entirely taken to pieces, and reconstructed. In these circumstances the India Law Commissioners find a strong additional reason for preparing a new Code, or one comprehensive and entire system, which should apply to the natives in the presidency towns, as well as in the Mofussil: and they sum up their reasons as follows:

"Under these circumstances we have not thought it desira⚫ble to take, as the groundwork of the Code, any of the systems ' of law now in force in any part of India. We have, indeed, to the best of our ability, compared the Code with all those systems, and we have taken suggestions from all; but we have 'not adopted a single provision, merely because it formed a part

Instead of "that" read "if" to preserve the euphemism, more in consistence with the fact and truth; for we utterly disbelieve, that such Judges as the E. I. Company's, with such Amlahs as they generally have, can rectify or mitigate materially the vicious operation of such a Code.

of any of those systems. We have also compared our work with the most celebrated systems of Western jurisprudence, as far as the very scanty means of information, which were ' accessible to us in this country, enabled us to do so. We have ' derived much valuable assistance from the French Code, and 'from the decisions of the French Courts of Justice on questions touching the construction of that Code. We have derived assistance still more valuable from the Code of Louisiana, prepared by the late Mr. Livingston. We are the more desirous to acknowledge our obligations to that eminent jurist, because we have found ourselves under the necessity of combatting his opinions on some important questions."

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It is in some points of view fortunate, that this proposal to introduce an entirely new body of laws-new in form at least was not without a precedent.

On the introduction of the so-called "Bombay Code," the previously existing systems were abrogated: and that, without exciting a murmur on the part of the native population. The Commissioners advert to this fact, as a proof of the groundlessness of any apprehension of danger from the repeal of ancient systems. "Throughout," they say, "a large territory, inhabited to a great extent by a newly conquered population, all the ancient systems of penal law were at once superseded by a Code; and this, without the smallest sign of discontent among the people." "The course, which we recommend to the Government, and which some persons may perhaps consider as too daring, has already been tried at Bombay, and has not produced any of those effects which timid minds are disposed to anticipate, even from the most reasonable and useful innovations."

The reasons, which we have thus quoted, to our mind, are unanswerable and abundantly sufficient; and the India Law Commission would have failed in its duty to the Crown and Parliament, if it had not acted upon them. And now let us see in what spirit they presented the Code to Government. It will appear that it was the furthest from justice to treat them, as if they were actuated by pride and arrogance, and made a new Code from an overbearing assumption of the superiority of their ideas of law, to all established systems. The real modesty and ingeniousness of the following remarks to the Governor-General in Council must be apparent to all unprejudiced men :

"It is hardly necessary for us," say the Commission, "to entreat your Lordship in Council to examine with candour the work which we now submit to you. To the ignorant and inexperienced, the task, in which we have been engaged,

may appear easy and simple. But the members of the Indian 'Government are doubtless well aware, that it is among the "most difficult tasks in which the human mind can be employed; that persons, placed in circumstances far more favourable than ours, have attempted it with very doubtful success; that the best codes extant, if malignantly criticised, will be found to furnish matter for censure in every page; that the most copious and precise of human languages furnish but a very imperfect machinery to the legislator; that, in a work so extensive and complicated as that on which we have been employed, there will inevitably be, in spite of the most 'anxious care, some omissions, and some inconsistencies; and that we have done as much as could reasonably be expected 'from us, if we have furnished the Government with that, ' which may, by suggestions from experience and judicious persons, be improved into a good Code."

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By those especially, who recollect the circumstances to which we have adverted, this passage will be read with great satisfaction and interest. If philosophy might justly aspire to be the handmaid of legislation (and surely Parliament was entitled to ask her assistance) it was impossible for her to present her offering, with more deference to authority and a juster estimate of the importance of practical wisdom. And this was correctly understood and appreciated by the Government. The Code was printed and circulated among all classes of official persons, who were invited to give, and many of them did give, opinions and suggestions. In 1845, seven years having elapsed, the Government took up the Code again, and referred it back to the India Law Commission, with all the letters, essays, reports, minutes, and papers, which during that long period had been sent in. They included the opinions and criticisms of two Chief Justices, and four Puisne Judges of the Queen's Courts, of the Advocate General at Madras, and the acting Company's Counsel at Calcutta, and of several of the East India Company's Judges and Magistrates. We shall endeavour to give our readers a fair idea of the nature of these communications, to shew how full a discussion the Code has undergone, and the nature and amount of labour bestowed on its improvement by Mr. Cameron and Mr. Eliott: but we will first give some account of the Code itself.

What the Commissioners have designated, as the "Penal Code," is the Code only of crimes and punishments, and embraces only one of the four parts, into which Mr. Livingston's system of Penal Law is divided. But in the year 1848, a

second part, containing a " Scheme of Pleading and Procedure with forms of Indictment" was added by Messrs. Charles Hay Cameron and Daniel Eliott. A Code of Evidence, and perhaps a Book of Definitions, remain to be supplied, and, though not essential, will be needed for completeness.

The Penal Code is divided into twenty-six chapters,* the titles and order of which we give below. At the end of the Code is a body of notes, exceeding in bulk the Code itself, explanatory of the legislative motives. In these notes we trace the discursive and philosophical genius of Mr. Macaulay, displayed with a fearlessness, which belongs to such talent as his, and which brought up controversies, which a man of law-craft, or more forensic experience, would have avoided. But the Code is exactly on that account the better entitled to confidence; it contains no ambushes; and the Commissioners are chargeable with no suppressed designs, no intentional reticences. These notes, in which everything is thus laid bare, are for the public the most attractive portion of the volumes before us: but we must reserve them for future consideration; as what remains beside will more than fill the space or time, which we can at present devote to the subject; and we shall proceed with our description of the Code itself.

Each chapter of the Code is divided into paragraphs, which are numbered, and contain the substantive rule; to many of the paragraphs are added explanations; and besides these, to many of them "illustrations," the latter being of the nature, for the most part, of law cases, hypothetical in the Code, but

really derived from the experience and records of Courts of Justice. Of the several component parts, the illustrations, if not wholly new, are peculiar and characteristic; and our first extract from the Code shall be made to exemplify them. "OF DEFAMATION":

"Whoever by words, either spoken, or intended to be read, or by sign, or by visible representations, attempts to cause any imputation concern ing any person to be believed in any quarter, knowing that the belief thereof would harm the reputation of that person in that quarter, is said, except in the cases excepted in the nine clauses next following, to defame that person."

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Then comes a series of explanations:-
:-

Explanations. An imputation is not defamatory, unless it be such as, if believed in that quarter in which it is intended to be believed, would harm the reputation of the person, concerning whom it is intended to be believed.

"Hence an imputation, when directed against one person, is not neces sarily defamatory, when directed against another person; and an imputation, which is defamatory when intended to be believed in one quarter, is not necessarily defamatory when intended to be believed in another quarter.

"Also it may be defamation to repeat, or circulate an imputation, which it was not defamation originally to make; and it is not necessarily defamation to repeat or circulate an imputation, which it was defamation originally to make.

A deceased person may be defamed. A collection of persons cannot, as such, be defamed. But an individual may be defamed, by means of an imputation thrown on a collection of persons, of whom he is one, or by means of an imputation made in the form of an alternative.

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If the imputation be such that, if it were believed in the quarter in which it was intended to be believed, the reputation of the person concerning whom it is intended to be believed, would not be harmed, then, though that person may suffer in his interest, he has not been defamed.

·

Harm the reputation." "No imputation is said to harm a person's repu tation, unless that imputation, directly or indirectly, lowers the moral or intellectual character of that person, or lowers the character of that per son, in respect of his caste, or of his calling, or lowers the commercial credit of that person, if he is engaged in trade, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."

And after these, comes a series of illustrations, thus:

(a) "A says Z is an honest man; he never stole B's watch; intending to cause it to be believed that Z did steal B's watch. This is defamation, unless it fall within one of the exceptions."

This is defamation, unless it fall

(b) "A is asked, who stole B's watch? A points to Z, intending to cause it to be believed that Z stole B's watch. within one of the exceptions."

(c) "A draws a picture of Z running it to be believed that Z stole B's watch. within one of the exceptions.

away with B's watch, intending This is defamation, unless it fall

(d) "A says of Z, that Z drinks wine. Here the question, whether A has defamed Z, may turn on the question, whether Z is a Mussulman, or a Christian, and so on.