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'preponderating good. But no preponderating good, indeed no good whatever, would be obtained by hanging a man for such an act." Again, "a gang of dacoits, finding a house 'strongly secured, seize a smith, and, by torture and threats ⚫ of death, induce him to take his tools, and to force the door for ' them. Here it appears to us that to punish the smith as a house-breaker would be to inflict gratuitous pain. We cannot trust to the deterring effect of such punishment." They then say, "If all cases, in which acts, falling under the defini⚫tion of offences, are done from the desire of self-preservation ⚫ were as clear as the above, we should, without hesitation,

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propose to exempt this class of acts from punishment. But in both these cases, the person in danger is supposed to have been brought into danger without the smallest fault on his

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own part, by mere accident, or by the depravity of others." On the other hand, they remark, that "nothing is more usual

than for pirates, gang robbers, and rioters, to excuse their crimes, by declaring that they were in dread of their associates, and could not act otherwise. Nor is it by any means improbable that this may often be true. Nay it is not improbable, that crews of pirates and gangs of robbers may have committed crimes, which every one among them was unwilling to commit, under the influence of mutual fear." "But we think it clear," they say, "that this circumstance ⚫ ought not to exempt them from the full severity of the law:" and the reasons, they give for this opinion, are that, " though

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we cannot count on the fear, which a man may entertain ' of being brought to the gallows at some distant time, as 'sufficient to overcome the fear of instant death, yet the fear

of remote punishment may often overcome the motives, which induce a man to league himself with lawless companions, in 'whose society no person, who shrinks from any atrocity that they may command, is sure of his life."

In fine they say, "we should think it, in the highest degree, pernicious to enact, that no act, done under the fear even of instant death, should be an offence. It would à fortiori be • absurd to enact that no act, under the fear of any other evil, • should be an offence. There are, as we have said, cases in which it would be useless cruelty to punish acts done under the fear of death, or even of evils less than death. But it appears to us impossible precisely to define those cases. have therefore left them to the Government, which, in the exercise of its clemency, will doubtless be guided in a great measure by the advice of the Court."

We

From the chapter, now under consideration, we will give one other instance of the exercise of an independent judgment, on

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the part of the authors of the Report, ending with the recommendation of an amendment. It relates to the provisions of the English Criminal Law in favour of a married woman, who commits an offence in the presence of her husband. The Code contains no similar provision in favour of the wife.

The report states

"It is laid down in the Digest of the English Criminal Law, that,' a mar⚫ried woman, charged with the commission of any criminal act, shall, in case ⚫ her husband shall be present at the time of the commission of such act, be

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presumed to have acted under his coercion, and shall be entitled to an acquittal, unless it appear that she did not so act. Provided that no 'such presumption shall be made in case of any charge of treason or homicide. By Mr. Livingston's Code, a married woman, committing an offence by command or persuasion of her husband, shall suffer no greater punishment than simple imprisonment for one-half of the term to which she would have been sentenced, if she had committed the offence without ⚫ such command, or persuasion."

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On this the Report remarks:

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"There is no provision in favour of the wife under such circumstances in 'the Code under review. The point is not adverted to in the Notes; we

have therefore no explanation of the reasons, upon which the framers of 'the Code determined not to allow the plea of coercion by the husband to ⚫ avail in favour of the wife, either to the extent of excusing her, or in the

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way of extenuation. It seems to us, considering how much the women

⚫ of India are under the power of their husbands, that such a plea may

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more properly be allowed in this country than in England."

After all, this is but a qualified approbation of the law of England. On the other hand, it is to be regretted that the authors of the Code did not give their reasons for not following it. We should surmise that they doubted to a great extent the fact of the superior force of the husband, and thought it, at all events, not sufficiently universal, to form a just ground of a general excuse, or presumption. We are ourselves inclined to think so too; certainly the presumption is a mere fictio juris, when, as must often happen, the cause of the wife's crime is any thing else than the superior force of the husband, though he be present; and all, as appears to us, that the wife could justly claim, according to the principle of the English law, would be, to be permitted this defence, whenever she could establish it by evidence; and this we think would be as applicable to India as to England.

The next chapter, reported upon, is that "of Abetment," or aiding and abetting the commission of the crime: a very considerable portion of this chapter is employed on the criticisms of Mr. Advocate General Norton. We will first give a specimen of this chapter of the Code, and then proceed to the report upon it.

"OF ABETMENT."

"85. Abetment is of two kinds, previous Abetment, and subsequent Abetment.

"86. A person is said previously to abet the doing of a thing, who First-Instigates any person to do that thing; or,

Secondly-Engages in any conspiracy for the doing of that thing; or, Thirdly-Aids by any act, or by any illegal omission, the doing of that thing; or,

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Fourthly-Conceals, by any act, or by any illegal omission, the existence of a design to do that thing, intending or knowing it to be likely that he may be likely, by such concealment, to facilitate the doing of that thing. Explanation.-A person may previously abet the doing of a thing in any one of the four ways hereinbefore mentioned, though the thing abetted be not done.

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"87.

A person is said previously to abet an offence, who previously abets the doing of a thing which is an offence, not being under any misconception, such that if a person, being under that misconception, did that thing, the doing that thing would not be an offence.

"Illustration -A aids B to take a horse out of Z's possession. Here, if B took the horse fraudulently, B is guilty of theft. But if A aided B, believing that B had a right to take the horse, A is not said to have abetted the theft committed by B, though he has abetted the taking of the horse.

"88. Whoever previously abets any offence, by instigating any person to commit that offence, shall, if that offence is committed by that person in consequence of that instigation, be punished with the punishment provided for that offence,

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Explanation.-Such instigation, as is hereinbefore described, being an offence, the successful instigating to such instigation is also an offence, punishable in the same manner.

"Illustration.-A instigates B, to instigate C to commit a theft: C commits the theft in consequence of the instigation: A and B are liable to the punishment of theft."

Mr. T. F. Thomas considers the chapter of Abetment as a great and highly valuable improvement: but improvement upon what? We presume upon the Mofussil existing system. On the other hand, Mr. Norton says, "this chapter appears to me to confound and perplex the English Criminal Law of principal and accessories, which here, I conceive, to be very clear and rational." After quoting these opinions, the Report briefly shews what is the English law thus praised, and the law of the Code thus condemned by Mr. Norton: and the result appears to us to be, that, though the Code deviates from the old common law on this subject, so too the English Criminal Law Commissioners propose to deviate from it: and their authority, to our mind, outweighs that of Mr. Norton.

We could continue these discussions with much satisfaction to ourselves, as respects the elucidation and vindication of the Code, but we have other calls upon our time. We have gone far enough to prove the want of a Code, and the merit of that, which has been prepared; but our views are at present only partially developed. There still remain to be considered more than half the first Report, the whole of the second, and the supplementary scheme of Pleading and Procedure by Mr. Charles Hay Cameron and Mr. Daniel

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Eliott-a work second in importance and merit only to the Code itself: and to these several papers, we hope to return on an early occasion. In the meantime, we trust, the subject of this article will attract the attention it deserves from British Statesmen in England; and especially we would appeal to such of them as still survive (shall we name, as chief among them, Lord Brougham ?), who took a part in the arrangements of the last Charter Act, and may, in a certain sense, be regarded as sponsors for the India Law Commission. We have no hesitation in saying that its Code and its other labours justify its institution. But it may be useful to state that, for all great and original purposes, the Commission is at an end. It exists indeed, but only (as we deem) in seeming and in name. has always been regarded with jealousy by the Court of Directors and the privileged service: and they have at last so managed that its power and independant vitality are gone. When Mr. Macaulay left, his principles survived in his able colleague, Mr. Charles Hay Cameron. Mr. Amos ably seconded the latter gentleman; and Mr. Eliott, by the share of the scheme of Pleading, and Procedure, which is reported to belong to him, proved himself to be the worthy associate and successor to those distinguished men. But they have all left India and, we have reason to doubt, whether in the matter of the Code at least, and all the great measures of law reform proposed by them, the present Commissioner is altogether a representative of their principles: and it proves, to our mind, the nullity of the Commission, that its Secretary is the Secretary to the Governor of Bengal.*

Such a state of things, we trust, will not be allowed to remain: the public interests require an immediate change. In the Governor-General alone, can be placed any reliance for reform but without a competent India Law Commission, which ought to be the head to plan, advise, and urge progress, that high functionary can do but little; and, unless well advised, there may be much mischief in that little.

We speak from recollection of the announcements in the Gazette; but on referring to the Directory, we find the following:

"INDIAN LAW COMMISSION. The Honorable E. J. Drinkwater Bethune....

And the Legislative Council consists of

Sir John Littler

Sir Fred. Currie.

The Hon'ble J. Lowis.

The Hon'ble J. E. D. Bethune.

.........

President.
Member.
Secretary."

President in Council.

ART. VII.—1. Account of the Rise and Progress of Ocean Steam Navigation, connected with the present system of contracting for the conveyance of the public Mails by private Steam Vessels; comparing the contract price, the particulars of expenditure or cost, and the receipts from traffic; with suggestions for the extension of Steam to the Cape, Mauritius, and Australian Colonies; by A. Henderson. London. 1847.

2. British possessions in Europe, Africa, Asia, and Australasia, connected with England by the India Australia Mail Steam Packet Company; prepared, at the request of the Committee, by the author of the History of the British Colonies (Montgomery Martin). London. 1847.

3. Steam to Australia, its general advantages considered; the different proposed routes for connecting London and Sydney compared; and the expediency of forming a settlement at Cape York, in Torres Strait, pointed out, in a letter to the Right Honorable Earl Grey, Secretary of State for the Colonies; by Adam Bogue. Sydney. 1848.

4. Steam to Australia. The Rival Routes; by XXX. London. 1850.

5. Colonization; a lecture delivered at the Windsor and Eton Literary, Scientific, and Mechanics' Institution; by the Rev. W. G. Cookesley, A. M., of Eton College, on Wednesday, December the 19th, 1849. Windsor. 1850.

THE question of steam communication with Australia seems suddenly to have come to life again. In the journals brought from England by the few last mails, there are abundant signs of renewed vitality. Letters and leading articles on the subject are appearing in the morning journals; pamphlets are again beginning to fly about the social air, like butterflies on the return of summer; whilst further indications of a re-awakened interest in a question, which, considering its vital importance alike to the colonies and the mother country, ought never to have been suffered to sleep, have been afforded by a sickly attempt at a public meeting, ending, as such meetings commonly do, in the passing of resolutions, which, as far as all practical results are concerned, might just as well have been resolved at home. Better evidences still are reported. It is said, that, in expectation of obtaining the contract to convey the mails to Australia, the Peninsular and Oriental Steam Company are building new vessels; and, although we are not yet informed that the question has been decided in favor of the Singapore route, very little doubt

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