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PENAL CODE FOR INDIA 1838 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXX - Writings on India 
The Collected Works of John Stuart Mill, XXX - Writings on India, ed. John M. Robson, Martin Moir, and Zawahir Moir (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1990).
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PENAL CODE FOR INDIA
London and Westminster Review, VII & XXIX (Aug. 1838), 393-405. Headed: “Art. VII.—A Penal Code; prepared by the Indian Law Commissioners, and published by Command of the Governor-General of India in Council. Calcutta, [Bengal Military Orphan Press,] 1837.” (In PP, 1837-38, XLI, 463-588. It was not enacted until 1860.) Running titles: “Penal Code for India.” Signed “S.” Not republished. Identified in Mill’s bibliography as “A review of the proposed Penal Code for India in the same number of the same review [as “Milnes’s Poems”]” (MacMinn, 51).
Penal Code for India
it has been for some time, we suspect, the opinion of all who have paid much attention to the vexata quaestio of codification, that, from a question of Theory, it has now passed into one of Practice. The possibility of making a code (for the possibility only, and not the advantage, was contested) has long since been as well proved as words can prove it, and can only be made more evident by actually trying to do that which, until done, the world will never believe can be done, at least well enough to be worth doing. And such, in truth, has been the history of most great improvements in human affairs. That civilization should exist without slavery, or a great state without monarchical government, were not generally believed possible, until seen realized. The multitude, justly distrustful of their own capacity to decide upon the evidence of general reasoning, turn a deaf ear to all demonstrations of the practicability of any great thing hitherto undone. And among such things the reduction of the whole laws of any country into a set of written enactments proceeding from the direct authority of the legislature, must as yet be considered. Of the points usually insisted upon by the later opponents of codification, the one perhaps in which they have been the most successful is in showing that the Code Napoleon1 (though a prodigious improvement upon the old French law) is no code, in the genuine sense of the word: for as it does not define the technical terms it makes use of, but leaves their meaning and extent to be determined by the decisions of the courts of justice, a real knowledge of the law can only be obtained, as in England, by a study of precedents and cases; and it has even been found worth while to reprint large editions of the old law books,2 for the light which they throw upon the principles on which the judges proceed in their interpretation of the so-called code. To frame a body of statute law which should need no such adventitious aid; which should contain in itself all the law that is necessary, all that the judge requires to enable him to execute the will of the legislator when he knows the facts of the particular case; this would be to construct a code. But this, so far as we know, has never been the object aimed at in any of the modern European attempts at codification, anterior to the one now before us.
It is because the present is an attempt to attain that object, and (so far as we can yet venture to judge) an eminently successful one, that we are anxious to invite to it the attention and the criticism of jurists, and of persons practically conversant with the interpretation of language. We believe that this proposed Penal Code has solved the problem; that it has actually done, so far as the penal branch of law is concerned, that which was denied to be possible, namely, to frame adequate definitions of offences, expressed in general language: definitions sufficiently accurate, to leave no doubt that complete accuracy is attainable. Doubtless, as there are imperfections in all works, and especially in all such works, examination will not fail to detect, or experience disclose, cases needful to be provided for, which the framers of these definitions have overlooked; but the emendations necessary to include such cases, can be made without disarranging the plan or disturbing the symmetry of the code; and that is enough.
The Indian Law Commissioners are a body of five persons, appointed under the authority of the last Charter Act to frame a code of law for the inhabitants of India.3 The propriety of such a measure at the particular juncture, appears to have been suggested by the liberty then first granted to Englishmen, for settling in India without license from the East India Company. The great influx of Europeans which was expected to ensue, impressed upon the framers of the Charter Act a sense of the necessity of so revising the laws and tribunals of India, as on the one hand to leave Englishmen no just ground of complaint against the institutions of the country in which they might come to live, and on the other to afford effectual protection to the natives against their encroachments. The anomaly of exempting Europeans from the laws and tribunals of the country, and giving them separate ones of their own, was utterly indefensible in principle; it had been found productive of the most serious oppression and denial of justice to the natives, in cases affecting Europeans, even under the more limited access to the country which the latter had hitherto enjoyed; and now, when the government was no longer to have either the privilege of prohibiting the immigration of persons objectionable in point of character, or that of supplying the defect of legal control by an arbitrary power of banishment, it became an imperative duty to withdrawn all legal immunities from Europeans; to subject them to the only tribunals accessible to the people, and (so far as possible) to the only laws which those tribunals were, or could be made, competent to administer.
Such, therefore, was the more especial and peculiar motive which led to the creation of this Commission of codification. To this inducement, however, we believe may be added, without any undue compliment to the parties concerned, a sense of the importance of the object in itself, and of the value of any experiment which might tend to accelerate its successful accomplishment. We are the more inclined to ascribe this honourable motive to the authors of the measure, inasmuch as Mr. Charles Hay Cameron, the only gentleman who was sent from England specifically as a member of the Commission (and whose remarkable qualifications for such a post, are well known to all who have any knowledge of him and of the subject) was recommended to the choice of the Court of Directors and of the ministry, by the complete reform which he, as a Commissioner of Inquiry, had advised, and her Majesty’s Government effected, in the courts of justice and judicial procedure of Ceylon.4 Alone of all known countries, that British colony now actually enjoys a judicial system constructed on the best conceptions of philosophic jurists—a system in which, without any servile deference for the authority of Bentham, the principal improvements made in the theory of the subject by that great man have been, with due consideration of local circumstances, adopted and carried into practice.5 The system is understood to have worked admirably during the few years it has been in operation; and the introduction of it does honour to the Colonial Office. The operations of the Indian Law Commission are adding a second instance in support of a prediction once made, that the foreign dependencies of the empire will enjoy the benefits of many reforms, long before the much more compact masses of private interest which oppose themselves to such changes at home, will permit the mother country to share in them.
It was judiciously considered fitting that, of the five Commissioners who were appointed to give laws to India, three should be Company’s servants, of tried abilities and the requisite local knowledge; while the remaining two should be persons sent from England, and conversant with the general principles of law-making. Of these two Mr. Cameron was one; the other was Mr. Macaulay, who, having been appointed a member of the Legislative Council of India, assumed, in addition to his rather scanty functions as such, that of President of the Law Commission. Mr. Cameron’s health having prevented him from taking part in the later proceedings of the Commission, the letter to the Governor-General in Council, which accompanies the project of a penal code, is signed only by the other four members;6 and a greater share of the labour of completion than was at first anticipated has devolved upon the accomplished President of the Commission, whose style, pruned of whatever would be unsuitable to the character of the work in hand, is distinctly visible in every part of the volume before us, in which it was possible that style should be discernible.
It is not in its particular application to the circumstances of India, but as a specimen of codification in general, that this proposed body of penal law has claims on the attention of the English reader. We shall therefore omit all consideration of the appropriateness of the punishments, whether as to quality or quantity, and shall confine our notice to the definitions of offences, and the nomenclature and expression of the code at large.
The first four chapters are of a general kind, comprising all those explanations and directions which may be given once for all;7 and which, in an unsystematic mass of enactments like the English statute book, are either said over again in every statute (sometimes even in every clause of every statute) or left unsaid altogether. Such, for instance, are these—“The pronoun he is used of any person, whether male or female.” “The word man denotes a male human being of any age; the word woman denotes a female human being of any age.” “The words to do a thing denote omissions as well as acts.” “The word act denotes as well a series of acts as a single act; the word omission denotes as well a series of omissions as a single omission.”8 These simple instances, with many of a more complicated character, compose the first chapter, entitled “General Explanations.” The remainder of the generalities are comprised in the three succeeding chapters—“Of Punishments;” “General Exceptions;” and “Of Abetment.” In these chapters some, though not many terms, which require definition, are left undefined, the definition in those instances properly belonging not to the penal, but to the civil code, which has not yet been commenced; and in general it may be remarked, that since all offences are such by virtue of their being violations of rights, the attempt to define offences until rights have been defined (which is the business of the civil code), must be attended with peculiar difficulties; but this code has demonstrated the possibility of surmounting these difficulties in a far greater degree than could have been anticipated. Under the chapter of “General Exceptions” we fear that offences by culpable negligence would in many cases escape punishment; but culpable negligence, when productive of actual mischief, is itself, in the more serious cases, made a distinct offence by the subsequent chapters of the code; and in minor cases it may be presumed to be the opinion of the Commissioners that liability to a civil action for damages is the appropriate remedy.
The remaining chapters (chaps. v to xxvi) are those which treat of the separate classes of offences; and the best mode of exhibiting the peculiarities and the general execution of the code will be to extract at length the first section of one of the most important of its chapters—the section “Of Offences affecting Life.”
294. Whoever does any act, or omits what he is legally bound to do, with the intention of thereby causing, or with the knowledge that he is likely thereby to cause, the death of any person, and does by such act or omission cause the death of any person, is said to commit the offence of “Voluntary culpable homicide.”
(a). A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in, and is killed. A has committed the offence of voluntary culpable homicide.
(b). A, with the intention or knowledge aforesaid, relates agitating tidings to Z, who is in a critical stage of a dangerous illness. Z dies in consequence. A has committed the offence of voluntary culpable homicide.
(c). A, with the intention or knowledge aforesaid, gives Z his choice whether Z will kill himself, or suffer lingering torture. Z kills himself in consequence. A has committed the offence of voluntary culpable homicide.
(d). A, with the intention or knowledge aforesaid, falsely deposes before a court of justice that he saw Z commit a capital crime. Z is convicted and executed in consequence. A has committed the offence of voluntary culpable homicide.
(e). A is hired to guide Z through a jungle. In the midst of the jungle, A, no circumstance having occurred to release him from his legal obligation to guide Z through the jungle, with such intention or knowledge as aforesaid, leaves Z. Z dies in consequence. A has committed the offence of voluntary culpable homicide.
(f). A being legally bound to furnish food to Z, who is the mother of a sucking child, omits to furnish her with food, intending or knowing it to be likely that Z’s death may be the consequence of the omission. Z survives, but the child is starved to death in consequence of the failure of milk, which is caused by A’s omission. Here, even if A did not know of the existence of the child, he has committed the offence of voluntary culpable homicide.
(g). A keeps Z in wrongful confinement, and is, therefore, legally bound (see clause 338) to furnish Z with what he knows to be necessary to prevent Z from being in danger of death. A knowing that Z is likely to die if medical advice be not procured, illegally omits to procure such advice. Z dies in consequence. A has committed the offence of voluntary culpable homicide.
(h). A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing himself to be likely to cause, Z’s death, induces B to fire at the bush. B fires and kills Z. Here, B may be guilty of no offence, or if his firing was, under the circumstances, a rash act, he may be guilty of the offence defined in clause 304. But A has committed the offence of voluntary culpable homicide.*
295. Voluntary culpable homicide is “murder,” unless it be of one of the three mitigated descriptions hereinafter enumerated; that is to say,
Secondly, Voluntary culpable homicide by consent;
Thirdly, Voluntary culpable homicide in defence.
296. If a person, by doing anything which he intends or knows to be likely to cause death, commits voluntary culpable homicide on a person whose death he neither intends nor knows himself to be likely to cause, the voluntary culpable homicide committed by the offender is of the same description of which it would have been if he had caused the death which he intended or knew himself to be likely to cause.
297. Voluntary culpable homicide is “manslaughter,” when it is committed on grave and sudden provocation, by causing the death of the person who gave that provocation.
Explanation.—Provocation is designated as “grave” when it is such as would be likely to move a person of ordinary temper to violent passion, and is not given by anything done in obedience to the law, or by anything authorised by the law of civil or criminal procedure, or by anything done by a public servant* in the exercise of the lawful powers of such public servant, or by anything done by any person in the exercise of the right of private defence,† against the offender.
(a). A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is not manslaughter, but murder.
(b). A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and voluntarily kills Z. This is not manslaughter, but murder.
(c). A appears as a witness before Z, a magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is not manslaughter, but murder.
(d). A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, strikes A. A is moved to sudden and violent passion by the blow, and kills Z. This is not manslaughter, but murder.
(e). Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage in order to cause Z’s death, puts a knife into B’s hand. B kills Z with the knife. Here, B may have committed only manslaughter, but A has committed murder.
(f). Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him but out of sight. A kills Z. Here, A has committed manslaughter.
298. Voluntary culpable homicide is “voluntary culpable homicide by consent,” when the person whose death is caused, being above twelve years of age, suffers death, or takes the risk of death, by his own choice:
First, That the offender does not induce the person whose death is caused to make that choice, by directly or indirectly putting that person in fear of any injury;*
Secondly, That the person whose death has been caused is not, from youth, mental imbecility, derangement, intoxication, or passion, unable to understand the nature and consequences of his choice;
Thirdly, That the offender does not know that the person whose death is caused was induced to make the choice by any deception, or concealment;
Fourthly, That the offender does not conceal from the person whose death is caused anything which the offender knew to be likely to cause that person to change his mind.
Explanation.—Voluntary culpable homicide committed by inducing a person voluntarily to put himself to death is voluntary culpable homicide by consent, except when it is murder.
(a). Z, a Hindoo widow, consents to be burned with the corpse of her husband. A kindles the pile. Here A has committed voluntary culpable homicide by consent.
(b). A, by instigation, voluntarily causes Z, a child under twelve years of age, to commit suicide. Here, on account of Z’s youth, the offence cannot be voluntary culpable homicide by consent. A has therefore committed murder.
(c). A, by deceiving Z into a belief that Z’s family have perished at sea, voluntarily causes Z to commit suicide. Here, on account of the deception practised by A, the offence cannot be voluntary culpable homicide by consent. A has therefore committed murder.
299. Voluntary culpable homicide is “voluntary culpable homicide in defence,” when it is committed by causing death under such circumstances that such causing of death would be no offence if the right of private defence extended to the voluntary causing of death in cases of assault not falling under any of the descriptions enumerated in clause 76, or in cases of theft, mischief, or criminal trespass, not falling under any of the descriptions enumerated in clause 79.
(a). Z attempts to horsewhip A, not in such a manner as to cause grievous hurt† to A. A draws out a pistol. Z persists in the assault. A, believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has committed voluntary culpable homicide in defence.
(b). Z commits simple theft on A’s horse, and rides away with it. Here A has a right of private defence which lasts till either Z can effect his retreat with the property, or till A can recover his horse, but which does not extend to the infliction of death, inasmuch as A is in no danger of death or hurt. A pursues Z, and, not being able to overtake him, shoots him dead. A has committed voluntary culpable homicide in defence.
(c). Z commits an assault, not of a dangerous description, on A. A, knowing that he can defend himself from the assault without killing Z, kills Z. Here, as A’s act would be an offence even if the right of private defence in cases of assault of the descriptions not enumerated in clause 76 extended to the voluntary infliction of death, A has committed voluntary culpable homicide, which is not voluntary culpable homicide in defence, but which, according to the circumstances, will be manslaughter or murder.
300. Whoever commits murder shall be punished with death, or transportation for life, or rigorous imprisonment for life, and shall also be liable to fine.*
301. Whoever commits manslaughter shall be punished with imprisonment of either description,† for a term which may extend to fourteen years, or fine, or both.
302. Whoever commits voluntary culpable homicide by consent shall be punished with imprisonment of either description, for a term which may extend to fourteen years and must not be less than two years, and shall also be liable to fine.
303. Whoever commits voluntary culpable homicide in defence shall be punished with imprisonment of either description for a term which may extend to fourteen years, or fine, or both.
304. Whoever causes the death of any person by any act or any illegal omission, which act or omission was so rash or negligent as to indicate a want of due regard for human life, shall be punished with imprisonment of either description for a term which may extend to two years, or fine, or both.
305. If the act or illegal omission whereby death is caused in the manner described in the last preceding clause, be, apart from the circumstance of its having caused death, an offence other than the offence defined in clause 327, or an attempt to commit an offence, the offender shall be liable to the punishment of the offence so committed or attempted, in addition to the punishment provided by the last preceding clause.
Explanation.—In cases in which the doing of a certain thing and the attempting to do that thing are distinct offences, if the offence defined in the last preceding clause be committed in the attempting to do that thing, the additional punishment to which the offender is liable is the punishment not of attempting to do that thing, but of doing that thing.
A uses force to Z, a woman, intending to ravish her. He does not ravish her, but commits the offence defined in clause 304. Here the term of imprisonment to which A has made himself liable is to be regulated not by the term of imprisonment assigned to the offence of attempting to ravish, but by the term of imprisonment assigned to actual rape, that is to say, A is liable to rigorous imprisonment for a term of not more than sixteen nor less than two years.
306. If any child under twelve years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever previously abets by aid* the commission of such suicide shall be punished with death or transportation for life, or rigorous imprisonment for life, and shall also be liable to fine.
307. If any person commits suicide, whoever previously abets by aid the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to fourteen years, and must not be less than two years, and shall also be liable to fine.
308. Whoever does any act, or omits what he is legally bound to do, with such intention or knowledge and under such circumstances that if he by that act or omission caused death, he would be guilty of murder, and carries that act or omission to such a length as at the time of carrying it to that length he contemplates as sufficient to cause death, shall be punished with transportation for life, or with rigorous imprisonment for a term which may extend to life, and must not be less than seven years, and shall also be liable to fine.
(a). A, intending to murder Z by means of a spring gun, purchases such a gun. A has not yet committed the offence defined in this clause. A sets the gun loaded in Z’s path, and leaves it there. A has committed the offence defined in this clause.
(b). A, intending to murder Z by poison, purchases poison, and mixes the same with food which remains in A’s keeping. A has not yet committed the offence defined in this clause. A places the food on Z’s table, or delivers it to Z’s servants to place it on Z’s table. A has committed the offence defined in this clause.
309. Whoever does any act, or omits what he is legally bound to do, with such intention or knowledge and under such circumstances that if he, by that act or omission, caused death, he would be guilty of voluntary culpable homicide, and carries that act or omission to such a length as at the time of carrying it to that length he contemplates as sufficient to cause death, shall be punished with imprisonment of either description, for a term which may extend to three years, or fine, or both.
(a). A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of manslaughter. A has committed the offence defined in this clause.
(b). A lights a pile prepared for a Suttee, under such circumstances that if he thereby caused death he would be guilty of voluntary culpable homicide by consent. A has committed the offence defined in this clause.
(c). A pursues a thief, and fires at him, under such circumstances that if he killed the thief he would commit voluntary culpable homicide in defence. A has committed the offence defined in this clause.
310. Whoever belongs or has at any time belonged to any gang of persons associated for the purpose of gaining a livelihood by inveigling and murdering travellers in order to take the property of such travellers, is designated as a “Thug.”
311. Whoever is a Thug shall be punished with transportation for life, or imprisonment of either description for life, and shall also be liable to fine.9
What first strikes the eye in this long extract, is the happy invention of appending authoritative examples by way of Illustration, to all those enactments of the code which require them: an idea by which the advantages of general language, and those which English statutes vainly seek to attain by an enumeration of particulars, are happily blended; and which, besides the greater certainty and distinctness given to the legislator’s meaning, solves the difficult problem of making the body of the laws a popular book, at once intelligible and interesting to the general reader. Simple as this contrivance is, it escaped the sagacity of Bentham, so fertile in ingenious combinations of detail. As the Commissioners say, in their introductory letter to the Government—
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 show what its effects will be on the events of common life. . . . The illustrations will lead the mind of the student through the same steps by which the minds of those who framed the law proceeded, and may sometimes show him that a phrase which may have struck him as uncouth, or a distinction which he may have thought idle, was deliberately adopted for the purpose of including or excluding a large class of important cases. . . . 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.10
With what degree of perfection the definitions contained in the section which we have cited, or in any other part of the code, fulfil the intentions of the framers, we now leave it to competent judges to decide. We are sure that all such persons will find, even in the little we have quoted, enough to satisfy them that their labour will not be uselessly employed in perfecting a work which is already so considerable an advance on all which has preceded in its kind. The Indian Government has caused the code to be printed and widely circulated throughout India, and has publicly invited criticisms and suggestions from all parties competent to give them. But in this country also, there is a Commission for the reform of the criminal law;11 which certainly has not yet effected anything upon a par with the expectations held out at the time of its appointment. A direction from the Home Secretary12 to these Commissioners, to report upon the present code, would give India the benefit of their criticisms, would put into their hands a most valuable aid for the performance of their own work, and would be no inconsiderable test of their fitness to perform it. Moreover, both Mr. Macaulay, and the ablest of the Indian members of the Commission, Mr. Macleod (who, we have the best authority for stating, took a most active part and rendered signal service in the concoction of the code,) are now in England. A government which should make any new appointments, either to the Criminal Law Commission, or to any other body constituted for Law Reform, without ascertaining whether these gentlemen, or either of them, were willing to serve on it, would do little honour to its own discernment. Their services, if attainable (of which we ourselves know nothing), would be secured without delay, by any government really in earnest about the Reform of the Law.
The notes to the code, containing the reasons for such of its provisions as seemed to require explanation or defence, are nearly as voluminous as the text.13 They are very able and valuable essays, and, we think, rarely fail successfully to vindicate everything in the code, the propriety of which might otherwise have appeared doubtful. In one case, we think the defence eminently unsuccessful; and probably other such cases might be found. By the proposed code, nothing which is true is a libel; or rather (for the Commissioners do not adopt that most ill-chosen word from English law) is defamation: no action can be maintained or penalty inflicted for attacks on reputation, unless the court, having entered into the evidence of truth or falsehood, pronounces the imputation to be false.14 And the Commissioners defend this provision at some length in their notes;15 but in a manner which fails to convince us. Nothing can be more proper than that the truth of a charge should be its justification, in all cases in which either a court of justice or the public are competent judges of the subject. But in matters which relate to private life, how can either the one or the other be made cognizant of the circumstances on which the morality or immorality of the act principally depend? Take the case of a family quarrel, for example;—who is to blame, and in what degree, are questions depending upon the previous character and relations of the parties—upon states of feeling produced perhaps by long trains of circumstances, not one of which can be given in evidence, or if it were, could be duly estimated by any one not intimately acquainted with the parties. Let any candid person ask himself, how far advanced he would be, in any such case that he is well acquainted with, towards forming a just estimation of the conduct of the parties, if he knew only such naked facts as would have admitted of being proved in a court of justice? And this in fact is the principal reason for leaving any immoralities whatever exempt from legal punishment. If any sort of act is really blamable, and if the circumstances which make it such can be so clearly discriminated and made apparent to third parties, as to be susceptible of judicial investigation and proof, it would be difficult to find any sufficient reason for not making that kind of act an offence under the penal code. But to do justice to this subject would require a much longer discussion than can properly find a place here.
That many other defects must necessarily be found in this code, its framers would, we are convinced, be the last persons to deny; and the first to hail any, even hostile, criticism, which might furnish valuable suggestions for its amendment. Unfortunately, few of the attacks of which it has yet been the subject, either from the Calcutta or the London press, bear, so far as they have come to our knowledge, marks of any but the worst motives and spirit.16 They mostly appear to proceed directly or indirectly from that party of English in India, to protect the natives against whose rapacity and tyranny, is one of the most difficult but most bounden duties of the Indian Government; and who are now venting, against what they consider as mainly the work of Mr. Macaulay, the spleen excited by the part he took in framing what they call the “Black Act;”17 itself but one, and not a very considerable, step towards executing the declared intention of Parliament for placing Europeans and natives under one equal law.18 It gave us much regret that so upright and able a supporter of the popular cause as Mr. Ward,19 should have made himself, on this subject, the organ in Parliament of a handful of foreigners attempting to make themselves a privileged oligarchy in a country of a hundred millions of inhabitants, and who, if the existence and regulations of the East India Company were not a perpetual barrier against them, would be in danger, under a conniving or passive ministry, of establishing a domination as much more tyrannical than that of the English party in Canada in the worst of former days, as the Hindoos are a more ignorant and more passive people than the French Canadians.
[1 ]Code Napoléon, formulated in 1803-04, appears in Bulletin 154 bis., No. 2653 bis (3 Sept., 1807), Bulletin des lois de l’empire français, 4th ser., Numéros bis.
[2 ]Jean Domat (1625-96), Les lois civiles (1689-94) and Le droit public (1697), reprinted in Oeuvres, 9 vols. (Paris: Kleffer and Tenré, 1821-25); and Robert Joseph Pothier (1699-1772), Traité des obligations (1761) and Contrat de vente (1762), reprinted in Oeuvres, 13 vols. (Paris: Beaucé, 1817-20), and in three other eds. before 1825.
[3 ]By Clause 53 of 3 & 4 William IV, c. 85 (28 Aug., 1833); the five Commissioners initially appointed were George William Anderson (1791-1857), Charles Hay Cameron (1795-1880), Thomas Babington Macaulay (1800-59), John Macleod (1792-1881), and Frederick Millett (d. 1856), who was Secretary.
[4 ]“Report of Charles H. Cameron, Esq., One of His Majesty’s Commissioners of Inquiry, upon the Judicial Establishments and Procedure in Ceylon” (31 Jan., 1832), PP, 1832, XXXII, 119-52.
[5 ]Of the relevant works by Jeremy Bentham (1748-1832), the one best known to Mill was the one he had edited, The Rationale of Judicial Evidence, 5 vols. (London: Hunt and Clarke, 1827). The fascicles of Bentham’s Works, ed. John Bowring, had just begun to appear.
[6 ]The letter is printed in PP, 1837-38, XLI, 465-72. The Governor-General of India 1836-42 was George Eden (1784-1849), Earl of Auckland.
[7 ]“General Explanations” (pp. 473-6), “Of Punishments” (pp. 476-8), “General Exceptions” (pp. 479-82), and “Of Abetment” (pp. 483-6).
[8 ]Ibid., pp. 473-5.
[* ]The cases of justifiable homicide are not defined in this chapter, having been provided for in the chapter of General Exceptions [Clauses 74-6, p. 481].
[* ]Who are to be considered public servants has been stated in the chapter General Explanations [Clause 14, p. 474].
[† ]The right of private defence has been defined, and the necessary provisions made for it, in the chapter General Exceptions [Clauses 74-84, pp. 481-2].
[* ]Injury, defined in the chapter General Explanations [Clause 29, p. 477].
[† ]Grievous hurt, defined in a subsequent section of the Code. The right of private defence extends to the voluntary causing of death in cases in which there is danger of “grievous hurt” [Clause 315, p. 509].
[* ]See Clause 50 [p. 477], “Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited.” The reasons for not fixing (in general) a maximum of fine are excellently stated in one of the Commission’s notes [Note A, pp. 536-7].
[† ]The two descriptions of imprisonment, simple and rigorous, are defined in the chapter Of Punishments [Clause 40; see also Note A, p. 535].
[* ]Previously abets by aid: for the definition, see the chapter Of Abetment [Clauses 86-8, p. 483].
[9 ]Pp. 506-9.
[10 ]Pp. 469-70.
[11 ]For the Commission, see “First Report from His Majesty’s Commissioners on Criminal Law” (24 June, 1834), PP, 1834, XXVI, 117-77. It issued a “Second Report” in 1836 (ibid., 1836, XXV, 183ff.), and continued with reports almost annually.
[12 ]Then Lord John Russell (1792-1878).
[13 ]Pp. 534-88.
[14 ]Clause 470, p. 531.
[15 ]Note R, pp. 581-6.
[16 ]See, e.g., “Mr. T.B. Macaulay,” Calcutta Englishman, 13 Jan., 1838, reprinted in The Times, 6 Apr., 1838, p. 3; a leading article on the Penal Code, The Times, 2 Apr., 1838, p. 4; and a letter to the editor, signed “Buz Hum,” The Times, 4 Apr., 1838, p. 5.
[17 ]“Act No. XI of 1836 of the Governor and Council of India” (9 May, 1836), PP, 1840, XXXVII, 31. See pp. 11-15 above.
[18 ]I.e., by 3 & 4 William IV, c. 85, Sect. 53.
[19 ]Henry George Ward (1797-1860) had on 26 January, 1838, presented to Parliament a petition against the Black Act (PD, 3rd ser., Vol. 40, col. 543), and spoke against it on 22 March, 1838 (ibid., Vol. 41, cols. 1134-45).