The other punishments, which in all cases of felony within clergy may, at the discretion of the judge, be superadded or not to those which we have seen, are those of imprisonment and transportation.

For the second offence of a clergyable felony, capital felony is the punishment.'

Clerks in orders are alone exempted: 2 peers are not: women are expressly subjected to it. It is certainly a distinction highly honorable to the clergy that they may go on pilfering, while other people are hanged for it,

Why a man having been punished for one act of delinquency, should be punished more than ordinarily for a second act of the same species of delinquency, or even for any other offence of the same species of delinquency, there is at least an obvious if not a conclusive reason. But why when a man has been punished by a certain mode of punishment, and then commits an offence as different as any offence can be from the former, the punishment for this second offence is, because it happens to be the same with that for the first, to be changed into a punishment altogether different, and beyond comparison more penal, is what it will not, I believe, be easy to say. Is it because the first mode of punishment having been tried upon a man, the next above it, in point of severity, is that of capital felony? That is not the case for præmunire is greatly more penal than clergyable felony. I mention this as being impossible to justify, not as being difficult to account for, since nothing better could consistently be expected from the discernment of those early times.

There is one thing which a clergyable felon does not forfeit, and which every other delinquent would forfeit for the

1 4 Hen. VIIth, c. 13.

2 By 4 Hen. VIIth, c. 13, repealed in effect quoad hoc, by 28 Hen. VIIth, c. 1, and 32 Hen. VIIIth, c. 3: and revived in effect quoad hoc by 1 Ed. VIth, c. 12, p. 10.

most venial peccadillo-and that is reputation. I mean that special share of negative reputation which consists in a man's not being looked upon as having been guilty of such an offence. This share of reputation, the law, in the single instance of clergyable felony, protects in a delinquent, in so far forth as it is in the power of law, by brute violence, to counteract the force of the most rational and salutary propensities. If a man has stolen twelve-pence, and been convicted of it, call him a thief and welcome. But if he had stolen but eleven-pence-halfpenny, and been convicted of it, and punished as a felon, call him a thief and the law will punish you. This has been solemnly adjudged.

I say convicted and punished as a felon: for if he has not been convicted of it, in virtue of the general rule in case of verbal defamation, you may call him so if you can prove it; but when the law, by a solemn and exemplary act, has put the matter out of doubt, then you must not mention it. Would any one suspect the reason? It is because the statute which allows the benefit of clergy operates as a pardon. It has the virtue to make that not to have been done which has been done: and it was accordingly observed, that a man could no more call another thief who had been punished for it in this way (thief say they in the present time), than say he hath a shameful disease, when he had had it, and has been cured of it.'

It is there also said, with somewhat more color of reason, though in despite of the last mentioned rule, "that there is no necessity or use of slanderous words to be allowed to ignorants," and that though the arresting of a pardoned felon, by one who knows not of the pardon, may be justifiable, because this is in "advancement of justice; yet so it is not to call him thief, because that is neither necessary, nor advanceth nor tends to justice." He who said this knew

1 Hobart, 81.

not, or did not choose to know, how mighty is the force and how salutary the influence of the moral sanction: how much it contributes to support, and in what a number of important instances it serves to control the caprices and supply the defects of the political. It was perhaps sir Edward Coke: a man who from principle was a determined enemy, though from ill humor, upon occasion, an inconsistent and unsteady friend, to political liberty: who in his favorite case, de libellis famosis, has destroyed, as far as was in his power to destroy, the safeguard of all other liberties, that of the press: proscribing all criticism of public acts; silencing all history; and vying in the extent of his anathemas with the extravagance of the most jealous of the Roman emperors.

ART. VII.-PROJECT OF A PENAL CODE FOR INDIA.

A Penal Code prepared by the Indian Law Commissioners, and published by command of the Governor General of India in Council. Calcutta: printed at the Bengal Military Orphan Press, by G. H. Huttman, 1837.

THIS code is the first fruits of the India Law Commission, instituted, we believe, in 1835. It is worthy of attention, in two points of view; as a work of legislation or lawmaking, strictly so called; and as a work of codification, or the redaction of law, whether new or already existing, in an orderly and systematic form. In the first point of view, it is, of course, more interesting to the people whom it is to govern than to any others; and, in the second, it demands the attention of those, in all countries, who are engaged in the work of law reform. It is in the last point of view only that we propose to examine it.

The Indian penal code is not a redaction of existing law.

It proposes the introduction of a new system. The commissioners, in their preliminary report, describe the various existing systems of penal law in India, and show the impracticability of taking any one of them as the basis of their work. "We have, to the best of our ability," they observe, "taken suggestions from all; but we have not adopted a single provision, merely because it formed a part of any of those systems." The code, therefore, is a work of legislation, rather than of codification. In the execution of their work, the commissioners examined such of the European criminal codes, as they could obtain access to; and they acknowledge their obligations to that of France, and to the decisions of the French courts on questions touching its construction and application. They also pay a just tribute to the project of Mr. Livingston, from which, they remark, they "have derived assistance still more valuable." We have no means of knowing how far this code is adapted to the circumstances, condition, and wants of the people of India; and, consequently, it would be presumptuous, at least, on our part, to subject it to a critical judgment, as a work of legislation. Leaving its provisions, therefore, to the criticisms of the professed criminalist, and of those more immediately subject to its practical operation,-we shall confine ourselves to an examination of it, as a work of codification merely.

The penal code of India consists of 488 sections divided into twenty-six chapters, the first four of which contain general provisions, concerning crimes and punishments, and the remainder, the definitions of particular crimes and their appropriate punishment. It does not treat of criminal procedure or evidence. In the general arrangement and distribution of the several subjects, we do not think this code is so scientific and methodical, as some of the more recent codes and projects of continental Europe. In its plan, it bears some resemblance to the work of Mr. Livingston. But it

acknowledges and brings prominently into view a distinction, which we do not meet with, except in a very limited degree, in any code of ancient or modern times; and the ignorance of which has hitherto, we apprehend, been the greatest obstacle in the way of codification in England and in the United States. We allude to the distinction between the law, properly so called, with its definitions, limitations, and exceptions, on the one hand; and, on the other, its practical application in the administration of justice; both which are commonly confounded together under the name of law. The books of reports, to which we resort for the common law, contain for the most part only the historical evidence of its application, the law itself being admitted or taken for granted. Thus, to constitute the crime of robbery, it is necessary that there should be a taking of property from the person or from the personal custody of the party robbed. This is a principle of the law, admitted or taken for granted in all the cases, in which the question has been whether the facts proved constituted a taking; and this principle is quite distinct from its practical application in a particular case. The cases add nothing to the principle; they are merely instances of its application; and, as such, they serve to explain it. In the system of the English common law, these decided cases have become so numerous, that, viewing them as law, one may well answer in the negative to the question of the practicability of codification. But keeping the above distinction in view, and looking upon the great majority of them as historical evidences of the practical application of admitted or undisputed principles, we shall have no difficulty in coming to a different conclusion. The principles of the common law may easily be extracted or deduced from the great mass of the decided cases; and may be reduced to writing and arranged in a systematic order. And this reduction constitutes a code. This is what has been done, within the last few years, by very many of the states of