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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 continental Europe. But it is practicable to go much further, and, by means of decided or supposed cases, to expound the rules and principles of the law thus codified, in their practical application. Whenever the common law of England shall be reduced to a code, the legislator will find the richest and most abundant materials for his exposition, in cases which have actually occurred and been solemnly decided. But in forming a new system, the legislator will be under the necessity of supposing the cases, which he makes use of by way of illustration. For the reasons, to which we have already alluded, the Indian Law Commissioners felt themselves compelled to prepare a new system of penal law. They consequently had no decided cases before them, from which to draw their illustrations; and, accordingly, the cases which they insert are supposed. Their reasons for this are given in the following extract from their preliminary report:
“We have, in framing our definitions, thought principally of making them precise, and have not shrunk from rugged or intricate phraseology, when such phraseology appeared to us to be necessary to precision. If it appeared to us that our language was likely to perplex an ordinary reader, we added as many illustrations as we thought necessary for the purpose of explaining it. The definitions and enacting clauses contain the whole law. The illustrations make nothing law which would not be law without them. They only exhibit the law in full action, and shew what its effects will be on the events of common life.
Thus the code will be at once a statute book and a collection of decided cases. The decided cases in the code will differ from the decided cases in the English law-books in two most important points. In the first place, our illustrations are never intended to supply any omission in the written law, nor do they ever, in our opinion, put a strain on the written law. They are merely instances of the practical application of the written law to the affairs of mankind. Secondly, they are cases decided not by the judges but by the legislature, by those who make the law, and who must know more certainly than any judge can know what the law is which they mean to make.”
The provisions of this code, so far as its form is concerned, are arranged together in two parts; the first of which contains the law, with its explanations and exceptions, and the other, cases of the practical application of the law, under the name of illustrations. These two parts are distinguished from each other by being printed, the first in a larger, and the other in a smaller type. This description will become more intelligible by a specimen, which we shall take from the nineteenth chapter, “Of offences against property;” which we select, for no other reason, than because it exhibits in one view all the kinds of provisions above mentioned.
“399. Whoever causes the destruction of any property, or any such change in any property, or in the situation of any property, as destroys or diminishes the value of such property, intending thereby to cause wrongful loss to any party, is said, except in the case hereinafter excepted, to commit “mischief.”
Explanation. A person may commit mischief on his own property.
Exception. Nothing is mischief which a person does openly, and with the intention in good faith of thereby saving any person from death or hurt, or of thereby preventing a greater loss of property than that which he occasions.
(a) A voluntarily burns a valuable security belonging to Z, intending to cause wrongful loss to Z. A has committed mischief.
(b) A introduces water into an ice house belonging to Z, and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief.
(d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt, and of thus causing wrongful loss to Z. A has committed mischief.
(e) A, having insured a ship, voluntarily causes the same to be cast away, with the intention of causing wrongful loss to the underwriters. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause wrongful loss to Z, who has lent money on bottomry on the ship. A has committed mischief.
(g) A, having joint property with Zin a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief.
(h) A, in a storm, throws overboard property of Z, in spite of Z's prohibition, but intending in good faith to save the lives of the crew, or to save property of greater value than that which is thrown overboard. Here, A has not committed mischief.
(i) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this openly, and with the intention in good faith of saving human life, or of saving property of more value than the value of the property sacrificed. A has not committed mischief.”
The commissioners do not undertake to make a code, which shall look forward and decide beforehand all cases that may arise; nor do they suppose, that the cases which they insert, or any other, can be sufficiently extensive to settle every question which may be raised as to the construction of the code. But, admitting that no prospective legislation can go beyond the enunciation of a principle, and its exposition by a few obvious illustrations;–the important question arises, what shall be done, when a case occurs, which every one admits to be deserving of punishment, but in reference to which the code is silent? Under the common law system of England and of this country, the judge supplies the unknown law by analogy to that which is known; and, thus, in point of fact, not only makes a law for the particular case, but, contrary to the constitution of the United States and of probably every state in the union, a