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assist in the administration of the law, although we do not all take the same high view of the importance of illustrations which was expressed by the framers of the Penal Code. The advantages contemplated by those Commissioners from the use of illustrations were set forth and dilated on by them in their letter to the GovernorGeneral in Council, dated the 14th of October, 1837, with which they submitted their draft of the Penal Code. The observations contained in that letter appear to be so pertinent to this matter that we think it desirable to quote a portion of that part of it which relates to this subject.
"One peculiarity in the manner in which this code is framed will immediately strike your Lordship in Council. We mean the copious use of illustrations. These illustrations will, we trust, greatly facilitate the understanding of the law, and will at the same time often serve as a defence of the law. In our definitions we have repeatedly found ourselves under the necessity of sacrificing neatness and perspicuity to precision, and of using harsh expressions because we could find no other expressions which would convey our whole meaning, and no more than our whole meaning. Such definitions standing by themselves might repel and perplex the reader, and would perhaps be fully comprehended only by a few students after long application. Yet such definitions are found, and must be found, in every system of law which aims at accuracy. A legislator may, if he thinks fit, avoid such definitions, and by avoiding them he will give a smoother and more attractive appearance to his workmanship; but in that case he flinches from a duty which he ought to perform, and which somebody must perform. If this necessary but most disagreeable work be not performed by the lawgiver once for all, it must be constantly performed in a rude and imperfect manner by every judge in the Empire. . We have, therefore, thought it right not to shrink from the task of framing these unpleasing but indispensable parts of a code. And we hope that when each of these definitions is followed by a collection of cases falling under it, and of cases which, though at first sight they appear to fall under it, do not really fall under it, the definition and the reasons which led to the adoption of it will be readily understood. 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.
"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."
We also wish it to be fully understood that the correctness of the decision contained in any illustration is not to be questioned in the administration of the law. The illustrations are not merely examples of the law in operation, but are the law itself showing by examples what it is. The statements that "the definitions and enacting clauses contain the whole law," and that "the illustrations make nothing law which would not be law without them," are correct if understood as merely importing that in the view of the legislature the illustrations determine nothing otherwise than what without them would have been determined by a right application of the rules to which they are annexed. As, however, much law has been made by judicial decisions, which determine questions respecting the application of written rules of law, so law may without impropriety be said to be made by the illustrations in the numerous cases in which they determine points about which, without their guidance. there would be room for difference of opinion even among learned and able judges. It is chiefly in this way that the illustrations, while they make the definitions and rules more easy to be understood, also serve to render them more precise. The operation of judicial decisions in making law precise is a natural process, and that process is adopted and improved in the use of illustrations. The laws of England, as they exist, are to be found partly in rules and principles, some of which are contained in statutes and some in books not stamped with any legislative or even judicial authority, and partly in the reports of decisions by judicial tribunals. Law
framed in the way in which we have endeavoured to frame it, also consists of rules and principles combined with decided cases, but with this difference, that the decisions are not made by judges in trying causes, but by the legislature itself in enacting the law, and though they are an important part of the law, settling points which without them would have been left to be determined by the judges yet they are strictly confined to the function of guiding the judges in their future decisions, and of explaining in what manner the definitions and rules to which they are annexed are to be interpreted and applied.
Another matter of great importance is closely connected with this subject, viz., how best to prevent the law from being overlaid with an accumulating mass of comments and decisions: an evil which no mode of framing the law itself can completely exclude. On this subject also we think it useful to quote and adopt a portion of the observations contained in the letter of the authors of the Penal Code, already referred to.
"The publication of this collection of cases decided by legislative authority will, we hope, greatly limit the power which the courts of justice possess.of putting their own sense on the laws. But we are sensible that neither this collection nor any other can be sufficiently extensive to settle every question which may be raised as to the construction of the code. Such questions will certainly arise, and, unless proper precautions be taken, the decisions on such questions will accumulate till they form a body of law of far greater bulk than that which has been adopted by the legislature. Nor is this the worst. While the judicial system of British India continues to be what it now is, these decisions will render the law not only bulky but uncertain and contradictory. But whether the present judicial organisation be retained or not, it is most desirable that measures should be taken to prevent the written law from being overlaid by an immense weight of comments and decisions. We conceive that it is proper for us, at the time at which we lay before your Lordship in Council the first part of the Indian Code, to offer such suggestions as have occurred to us on this important subject. 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 litiga
tion. 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 show 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 a few 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 judge, which other judges might venture to set aside.
"It appears to us also highly desirable that, if the code shall be adopted, all those penal laws which the Indian Legislature may from time to time find it necessary to pass should be framed in such a manner as to fit into the code. Their language ought to be that of the code. No word ought to be used in any other sense than that in which it is used in the code. The very part of the code in which the new law is to be inserted ought to be indicated. If the new law rescinds or modifies any provision of the code that provision ought to be indicated. In fact the new law ought, from the day on which it is passed, to be part of the code, and to affect all the other provisions of the code, and to be affected by them as if it were actually a clause of the original code. In the next edition of the code the new law ought to appear in its proper place."
Although the illustrations, we believe, will obviate many questions of construction, and will do much to fix the sense of the law, yet undoubtedly many cases will occur in which there will be difference of opinion among judges as to what the law is. Room will still be ■ left for doubts as to the meaning of rules, and also as to the right application of illustrations; and cases will no doubt arise where the enacted law is silent; in all such cases the judges will be compelled to use their law-supplying power. It will consequently inevitably follow, if no measures are taken to prevent it, that the enacted law will ere long be incumbered with a mass of comments and decisions; and although the number of chief courts has been reduced since the letter we have quoted was written, yet such is still the judicial system of India that probably many of those decisions will be opposed to others of equal authority.
We agree with the framers of the penal code in thinking that, for the prevention of this great evil, the enacted law ought, at intervals of only a few years, to be revised and so amended as to