(1903–1904), ii. 466 et seq. The penal code is based on the Code Napoléon.
“Criminal law has everywhere grown out of custom, and has in all civilized states been largely dealt with by direct legislation. In most civilized states (including Japan) it has been codified by statute, to the general satisfaction of theCodification. people; and the conspicuous success of the Indian penal code shows that English criminal law is susceptible of being so treated” (Bryce, Studies, ii. 34).
The expediency, if not the necessity, of codifying the criminal law of England has long been apparent. The writings of Bentham drew attention to many of its substantial defects, and the efforts of Romilly and Mackintosh led to certain improvements embodied in what are known as Peel’s Acts (1826 to 1832). In 1833, at the instance of Lord Chancellor Brougham, a royal commission was appointed to deal with the criminal law. The nature of the instructions indicate the crudity of the ideas then ruling as to codification. The commissioners were directed to digest into one statute all enactments touching crimes and the punishment thereof, and into another statute the provisions of the common unwritten law touching the same. The commission was renewed in 1836 and 1837, and in 1843 a second commission was appointed. Numerous and voluminous reports were published, including (1848) a bill for consolidating and amending the law as to crimes and punishments, and (1849) a like bill for criminal procedure, indicating that the commissioners had in the meantime learned the distinction between substantive and adjective law. Lord Brougham in 1848 unsuccessfully introduced the first bill, and in the end the only fruit of the reports has been certain amendments of procedure in 1851 and the passing of the seven Criminal Law Consolidation Acts of 1861, which deal with the statute law as to theft, forgery, malicious injuries to property, coinage offences and offences against the person. The reports, however, proved of value in the revision of Macaulay’s draft of the Indian penal code, and led to the formation of the Statute Law Committee, which has relieved the statute book of much dead matter. On his return from India, impressed by the success of the Indian penal code, Sir J. Stephen made a strong effort to obtain codification. In 1878, at the instance of Lord Cairns, he prepared a draft code (based on his well-known Digest of the Criminal Law), which was laid before parliament and then submitted to judicial criticism and revision. As a result of this revision a code bill was introduced in 1880; but a dissolution intervened and no serious effort was then made. The obstacle in the way is not lack of reports or digests on which to frame a code, but the incapacity of parliament to do the work itself, and its unwillingness to trust the work to other hands.
The Indian penal code and criminal procedure code, by their history, their form, and the extent and diversity of the races and peoples to which they apply, are perhaps the most important codes in the whole world. While theIndia. East India Company was merely a trading company holding certain forts and trading ports in India and elsewhere, such criminal justice as was administered under its auspices was in the main based on the English criminal law, said to have been introduced to some extent by the company’s charter of 1661, but reintroduced into the presidency laws by later charters of 1726, 1753 and 1774. (See Nuncomar and Impey, by Sir J. Stephen.) From 1771 until 1860 the criminal law administered was the Mahommedan law. When in 1771 the East Indian Company determined to stand forth as diwan, Warren Hastings required the courts of the mofussil (provinces), as distinct from those of the presidency town of Fort William, to be guided in the administration of criminal justice by Mahommedan law, which under the Moguls had been used in criminal cases to the exclusion of Hindu law. Difficulties arose in administration, from the definition of crime, the nature of punishments, and in matters of procedure, which were removed by regulations and by enactments on English lines, especially in Bombay (1827); and great delays and considerable injustice were caused by the want of unity in judicial organization.
Between 1834 and 1837 Macaulay with three other commissioners, Macleod, Anderson and Millet, prepared a draft penal code for India, for which they drew not only upon English and Indian laws and regulations but also upon Livingstone’s Louisiana code and the Code Napoléon. Little or nothing was taken from the Mahommedan law. A revised draft of the penal code by Sir B. Peacock, Sir J. W. Colville and others was completed in 1856. In framing it the reports of the English criminal law commissioners (published after Macaulay’s draft code) were considered. The draft was presented to the legislative council in 1856, but owing to the mutiny and to objections from missionaries, &c., its passing was delayed till the 6th of October 1860. A draft scheme of criminal procedure was prepared in India in 1847–1848, which, after submission to a commission in England in 1853 (Government of India Act 1853), was moulded into a draft code which passed the India legislative council in 1861 (Act No. XXV.) and came into force in 1862. It has been re-enacted with amendments in 1872 (Act X.), 1882 (Act X.) and 1898 (Act V.).
The result is that in India the criminal law is the law of the conqueror, though for many civil purposes the law of race, religion and caste governs. Under the codes, one set of courts has been established throughout the country, composed of well-paid, well-educated judges, most of the higher judicial appointments being held by Englishmen; all those who hold subordinate judicial posts at the same time are subjected to a combined system of appeal and revision. The arrangement of the Indian penal code is natural as well as logical; its basis is the law of England stripped of technicality and local peculiarities, whilst certain modifications are introduced to meet the exigencies of a country such as British India. It opens with a chapter of general explanations, and interpretations of the terms used throughout the code. It then describes the various punishments to which offenders are liable; follows with a list of the exceptions regarding criminal responsibility under which a person who otherwise would be liable to punishment is exempted from the penal consequences of his act, such as offences committed by children, by accident or misfortune without any criminal intention, offences committed by lunatics, offences committed in the exercise of the right of private defence. It may be worth while to add, as an innovation on English law, that an act which results in harm so slight that no person of ordinary sense and temper would complain of such harm is not considered an offence under the code. Then follows a chapter on abetment, in other words, the instigation of a person to do a wrongful act. The next chapters deal with offences against the public, including the state, the army and navy, public tranquillity, public servants, contempts of the lawful authority of public servants, perjury; offences relating to coin and government stamps, to weights and measures; offences affecting the public health, safety, convenience, decency and morals; offences relating to religion; and offences relating to the human body, from murder down to the infliction of any hurt. The code then passes on to offences against property; offences relating to forgery, including trade marks, criminal breach of contracts for service; offences relating to marriage, defamation, criminal intimidation, insult and annoyance. Under this last head is included an attempt to cause a person to do anything which that person is not legally bound to do, by inducing him to believe that he would otherwise become subject to Divine displeasure. The last chapter deals with attempts to commit offences punishable by the code with transportation or imprisonment, and the punishment is limited to one-half of the longest term provided for the offence had it been carried out.
One peculiarity of the Penal Code which has proved eminently successful lies in the system of illustration of the offence declared in every section by a brief statement of some concrete case. For instance, as illustration of the offence of an attempt to commit an offence the following examples are given:—
I. “A. makes an attempt to steal some jewels by breaking open a box, and finds on opening the box there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
II. “A. makes an attempt to pick the pocket of Z. by thrusting
