CH. XXXIII. system of criminal law embodied in the Indian Penal Code. The Penal Code, as I have already observed, is almost entirely a new version of the law of England. The Code of Criminal Procedure consists of enactments which were devised in slow detail, as occasion required, in order to meet the actual wants of a vast society, which, when English superseded native rule, was almost in a state of anarchy. In course of time it became a most elaborate, minute, and yet comprehensive system, adapted by the most anxious care and solicitude to the purposes which it was intended to fulfil. It has now been arranged and methodized, or codified, three successive times. On each occasion its scope was extended, and the last Code, the Code of 1882, is important chiefly because it extends the system to the whole of India, including the Presidency towns, thus superseding entirely the English system which had formerly prevailed there. English institutions have, no doubt, served in a general way as a model for those of India. In each there are police, the Indian being modelled on the English pattern. In each there are committing magistrates, and in each there are superior criminal courts; in each, also, there is, in certain cases, trial by jury, though in India this is a rare exception, and the trial proceeds on a different principle; but the grading of the different classes of magistrates, the extent of their judicial powers, and, above all, the minute and elaborate system by which the different courts are subordinated to each other, both in the way of discipline and in the way of appeal, and by which all are superintended in every detail of their procedure by the High Courts, is characteristically and exclusively Indian. Even the foregoing imperfect account of the system will show how true it is that the Indian civilians are, for the discharge of all their duties, judicial or otherwise, in the position of an elaborately disciplined and organized half-military body.

If it is asked how the system works in practice, I can only say that it enables a handful of unsympathetic foreigners (I am far from thinking that if they were more sympathetic they would be more efficient) to rule justly and firmly about 200,000,000 persons, of many races, languages, and creeds, and, in many parts of the country, bold, sturdy, and warlike.

PREPARATION OF CODE OF CRIMINAL PROCEDURE.

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In one of his many curious conversations with native scholars CH. XXXIII. Mr. Monier Williams was addressed by one of them as follows: The sahibs do not understand us or like us, but "they try to be just, and they do not fear the face of man." I believe this to be strictly true. The Penal Code, the Code of Criminal Procedure, and the institutions which they regulate, are somewhat grim presents for one people to make to another, and are little calculated to excite affection; but they are eminently well calculated to protect peaceable men and to beat down wrongdoers, to extort respect, and to enforce obedience.

Of the extremely careful adaptation of every word and line of the Code of Criminal Procedure to the purposes for which it was designed, I am able to give from my own personal knowledge somewhat important testimony. I had charge of the Code of 1872, and carried it through the Legislative Council. My own personal share in the work consisted mainly in making the first draft, and especially in devising the arrangement of the Code, presiding at the committees to which it was referred, and studying the information respecting it which was supplied by others. The Code was considered and passed according to the routine followed. in the Indian Legislative Council on all occasions. In the first place, the Code, having been drawn and introduced into the Legislative Council, was published in the Gazette and circulated throughout India, every local government being required to have it thoroughly examined by experienced officers, and to return it to the Government of India with such observations and suggestions as they considered proper. The result of this was to produce a great amount of official criticism, embodying the experience of officers in all parts of the country, and bearing upon every, or nearly every, provision of any importance which the Code contained.

When all these suggestions were received, the Code was referred to a Committee of the Legislative Council, consisting, I think, of fourteen or fifteen members, comprising 1 men of the largest experience and highest position from every part

1 Sir George Campbell, then Lieutenant-Governor of Bengal, Sir R. Temple and Sir J. Strachey, were three.

CH. XXXIII. of India. The committee met five days in the week, and sat usually for five hours a day. We discussed successively both the substance and the style of every section, and different members assigned for the purpose brought before the committee every criticism which had been made on every section, and all the cases which had been decided by the High Courts on the corresponding sections of the Code of 1861. These discussions were all by way of conversation round a table, in a private room. When the report was presented the Code was passed into law after some little unimportant speaking at a public meeting of the Council. This was possible because in India there are neither political parties nor popular constituencies to be considered, and hardly any reputation is to be got by making speeches. Moreover, every one is a man under authority having others under him.

The point which made an ineffaceable impression on my mind was the wonderfully minute and exact acquaintance with every detail of the system displayed by the civilian members of the committee. They knew to a nicety the history, the origin, and the object of every provision in the Code which we were recasting. Such a section, they would say, represented such a regulation or such an act. It was passed in the time of such a Governor-General in order to provide for such and such a state of things, and we must be careful to preserve its effect. To be present at, and take a part in, these discussions was an education not only in the history of British India, but in the history of laws and institutions in general. I do not believe that one act of parliament in fifty is considered with anything approaching to the care or discussed with anything approaching to the mastery of the subject with which Indian acts are considered and discussed.

CHAPTER XXXIV.

THE CODIFICATION OF THE CRIMINAL LAW.

I HAVE now described in full detail every part of the CH. XXXIV. criminal law as it is, comparing or contrasting its provisions with the corresponding provisions of three other systems; namely, those of France, Germany, and British India. Apart from such permanent historical interest as may attach to these matters, their principal practical importance lies in the degree in which they conduce to, and prepare the way for, the permanent improvement of the law itself. The only great improvement which appears to me at once desirable and practicable is its codification, which, when fully understood, means only its reduction to an explicit systematic shape, and the removal of the technicalities and other defects by which it is disfigured.

In the study which I have bestowed upon this subject, I have frequently been led to consider the question, What is a technicality? How does it come to pass, on the one hand, that technicalities should be regarded with so much contempt, and on the other, that they should exercise such a despotic influence?

The answer is that technicalities, generally speaking, are unintended applications of rules intended to give effect to principles imperfectly understood, and that they are rigidly adhered to for fear departure from them should relax legal rules in general. The principle that when a man kills another by great personal violence criminally inflicted the crime is as great as if death were expressly intended is sound. Express it in the rule that it is murder to cause death in committing

CH. XXXIV. a felony, and you get the unintended and monstrous result that it is murder to kill a man by accident in shooting at a fowl with intent to steal it. Define theft as a fraudulent taking, and though the definition, speaking generally, is a good one, all the unintended consequences about possession, which I have described at length, follow. That an indictment should state explicitly and distinctly the offence with which a prisoner is charged is an obviously true principle. Translate it into the rules about "certainty to a certain "intent in general," and it becomes the source of grotesque absurdities. In all these cases the technicalities, when once established, are adhered to, partly because they are looked upon as the outworks of the principles which they distort; partly from a perception of the truth that an inflexible adherence to established rules, even at the expense of particular hardships, is essential to the impartial administration of justice; and partly because to a certain kind of mind arbitrary and mischievous rules are pleasant in themselves. There are persons, though they are now few and not influential, to whom it is a positive pleasure to disappoint natural expectations by the application of subtle rules which hardly any one else understands. So long as the doctrines of any department of knowledge are supposed to be absolutely true, technicalities are devised and maintained by those who believe in the doctrines, and are treated as a reductio ad absurdum by those who deny their truth. Wider experience shows that a technicality or absurd inference from an alleged truth shows not that the proposition from which it follows is wholly untrue, but only that it is imperfectly expressed, and in this way technicalities are highly interesting. They mark the progress of knowledge in all its departments; and the possibility of dispensing with them, without parting with the valuable matters which they were intended to protect, is a good test of the clearness with which the principles are grasped, in an imperfect acquaintance with which they originated.

However this may be, the time has now unquestionably come at which it is possible to express the criminal law of this country without resorting to any technicalities whatever,