« PreviousContinue »
law which is literally and strictly, and in the worst sense of the term, an er post facto law. This system of judicial legislation, barely tolerable in civil cases, is theoretically if not practically absolutely frightful, when extended to the administration of penal law; and is accordingly rejected by the Indian Law Commissioners. The plan which they recommend is substantially the same which we suggested three years since, in an article on the codification of the common law, namely, a legislative decision. The commissioners, however, make this decision prospective in its operation; in the particular case, which gives rise to it, the party charged with crime is “to have the advantage of a doubt on a point of law, as well as of a doubt on a matter of fact,” and to be discharged. We rejoice that this obvious principle of justice is in the way of being applied in India; and we hope the example will be followed elsewhere, and particularly in our own country. The limitation of the judicial power to the administration of existing and known laws, and the consequent restraining of it from the exercise of the legislative function, is one of the most important of the legal reforms, which the age demands and must ultimately obtain. The importance of the subject, and the able and satisfactory manner, in which it is treated by the commissioners, will be our apology for the length of the following extract from their report.
“We do not think it desirable that the Indian legislature should, like the Roman emperors, decide doubtful points of law which have actually been mooted in cases pending before the tribunals. In criminal cases, with which we are now more immediately concerned, we think that the accused party ought always to have the advantage of a doubt on a point of law, if that doubt be entertained after mature consideration by the highest judicial authority, as well as of a doubt on a matter of fact. In civil suits which are actually pending, we think it on the whole desirable to leave to the courts the office of deciding doubtful questions of law which have actually arisen in the course of litigation. But every case, in which the construction put by a judge on any part of the code is set aside by any of those tribunals from which at present there is no appeal in India, and every case in which there is a difference of opinion, in a court composed of several judges, as to the construction of any part of the code, ought to be forthwith reported to the legislature. Every judge of every rank whose duty it is to administer the law as contained in the code should be enjoined to report to his official superiors every doubt which he may entertain as to any question of construction which may have arisen in his court. Of these doubts all which are not obviously unreasonable ought to be periodically reported by the highest judicial authorities to the legislature. All the questions thus reported to the government might with advantage be referred for examination to the law commission, if that commission should be a permanent body. In some cases it will be found that the law is already sufficiently clear, and that any misconstruction which may have taken place is to be attributed to weakness, carelessness, wrongheadedness, or corruption on the part of an individual, and is not likely to occur again. In such cases it will be unnecessary to make any change in the code. Sometimes it will be found that a case has arisen respecting which the code is silent. In such a case it will be proper to supply the omission. Sometimes it may be found that the code is inconsistent with itself. If so the inconsistency ought to be removed. Sometimes it will be found that the words of the law are not sufficiently precise. In such a case it will be proper to substitute others. Sometimes it will be found that the language of the law, though it is as precise as the subject admits, is not so clear that a person of ordinary intelligence can see its whole meaning. In these cases it will generally be expedient to add illustrations such as may distinctly shew in what sense the legislature intends the law to be understood, and may render it impossible that the same question, or any similar question, should ever again occasion difference of opinion. In this manner every successive edition of the code will solve all the important questions as to the construction of the code which have arisen since the appearance of the edition immediately preceding. Important questions, particularly questions about which courts of the highest rank have pronounced opposite decisions, ought to be settled without delay; and no point of law ought to continue to be a doubtful point more than three or four years after it has been mooted in a court of justice. An addition of a very few pages to the code will stand in the place of several volumes of reports, and will be of far more value than such reports, inasmuch as the additions to the code will proceed from the legislature, and will be of unquestionable authority, whereas the reports would only give the opinions of the judges which other judges might venture to set aside.” We conclude this brief and imperfect notice of the penal code of India, by expressing our admiration of it as a literary production,--as a work of art, if we may so say,+and by commending it most earnestly to the study of all, in every country, who feel an interest in the progress of the great cause of law reform. L. S. C.
ART. VIII.-CURTIS'S ADMIRALTY DIGEST.
A Digest of Cases adjudicated in the Courts of Admirally of the United States and in the High Court of Admiralty in England; together with some topics from the Works of Sir Leoline Jenkins, Knt., Judge of the Admiralty, in the Reign of Charles II. By George TickNor CURTIs, of the Suffolk Bar. 8vo. Pp. 568. Little & Brown, Boston, 1839.
The publication of admiralty reports in England is of comparatively recent date. Although the decisions of the courts of common law and of equity had been made known to the public, almost from the first introduction of printing in England, yet it was not till the year 1799, that the adjudications of her high court of admiralty—the most important of all her tribunals, so far as related to other nations—were communicated to the world. The enemies of Great Britain— and she then had almost all the world against her—maintained, that she had designedly withheld her decisions, or the reasons of them, because she felt conscious, that they were not founded upon the solid principles of justice; and that, being then mistress of the ocean, she chose to reserve to herself, without incurring the reproach of manifestly inconsistent decisions, the power of bending her administration of the law of nations to suit the fluctuating policy of the moment. However well-founded those suspicions may have appeared at that period of irritation, yet, at the present day, when we can review with more calmness the masterly expositions, by her great admiralty judge, the late lord Stowell, of the most delicate and difficult questions of international law, we cannot fail to be struck with the extraordinary consistency and steadiness of view, with which that eminent jurist carried out, to their utmost practical extent, the great principles of justice, by which Great Britain herself was to be bound, as she claimed to bind other nations. The state of the world was at that time peculiar; and the new cases, which were continually occurring, demanded the utmost caution and discrimination in the application of those general principles of international jurisprudence, which had been deduced and established upon classes of facts, or cases, materially differing in their accompanying circumstances, from those which were then taking place. The French revolution had burst out; France was assailed directly, or indirectly, by the leading powers of the continent; and the measures of her rulers, whether offensive or defensive in regard to other states, partook of that violence which was agitating the whole social order of Europe. Great Britain, for a time, was one of the neutral powers;
but this, as the balance of Europe had been then long adjusted, was an unnatural position in relation to her great rival; and some of her ablest statesmen would have had her, at an early period, take a hostile attitude, that would have allowed her to act, without restraint, as in their opinion any given exigency demanded. The zeal and exasperation of the rulers of France, however, would not permit her British adversary to take the first step towards open hostilities; but, in the midst of her conflicts with the members of the Germanic empire and the Russian autocrat, she issued a formal declaration of war against the kings (not the people) of England and Spain, and the hereditary stadtholder of Holland. The declaration against England took place on the 1st of February, 1793, and was followed by the counter declaration of the latter in the same month. Great Britain was now embarked in the general confeder- . acy against the new republic of France; and, in coöperation with the continental powers, among other measures, issued her well-known “Additional Instructions” to her naval commanders (of the 8th of June, 1793), by which neutral nations were prohibited from carrying to France “corn, flour, or meal; ” on the ground, that by the law of nations all provisions are to be considered as contraband, and liable to confiscation, in the case where the depriving an enemy of these supplies is one of the means intended to be employed in reducing him to reasonable terms of peace; and such, it was alleged, was the situation of France. The British cruisers were accordingly directed to take into their own ports all vessels loaded with those articles, in order that the articles should be sold to the British government, or into ports of countries in amity with Great Britain; the freight, however, being paid, and the vessels released. This measure of the British government, striking so deeply at the rights of American commerce—in a case which we maintained was not justified by the law of nations—and WOL. xxi.-No. XLI. 8