« 이전계속 »
same view of that noble maxim. The result is an uncertainty as to rights which reduces litigation to a form of pecuniary speculation, [and] from which springs that most deplorable class of suits in which the parties, agreeing as to facts, have no authoritative means of ascertaining the law. Codification, and codification alone, can remedy the evils which arise from uncertainty of the law : codification alone can enable the public to know their exact rights and obligations : codification alone can enable proprietors and litigants, advocates and judges, to know for certain the law which regulates the dealings of citizens in British India : codification alone will enable the deliberate will of the legislature to prevail over the opinions of individual judges ; and litigants will then be more anxious, before going into Court, to consult the Statute-book of the land than the mental proclivities of the individual judges before whom their disputes may have to go for decision ?'
It is now necessary to make some remarks as to the form and substance of the Codes, and the sources of the introduc
tions and notes contained in this work. Rules fol. The draftsmen of these Codes have (consciously or unconlowed by draftsmen sciously) all worked on the same plan. As to the formal of Indian divisions, they have acted on the rules that every Act should Codes.
be divided into sections and, where necessary, Chapters and Parts2: that lengthy sections should be subdivided into clauses and
paragraphs: that each Act should be preceded by a table of contents made up of the marginal notes 3 to the sections : that it should be furnished with a Short Title, indicating, in a general way, the subject of the law, a preamble expressing only the purpose of the enactment 4, a statement of its local and, where necessary, its personal, application, and the time at which it is to come into force: that the definitions should stand at the beginning of the Act, and that 1 Abstract of Proceedings of the
these notes have been shortened and Council of the Governor-General, 26 some corrected. That they are of no Jan., 1882, p. 63.
effect, see L. R., 3 C.P. 511, 522, per ? As to referring to the headings of Willes J.; and 11 Ch. D. 449. Chapters and Parts as guides to the As to the effect of the title, see meaning of sections, see 5 Bom. H.C., Wilberforce, Statute Law, 274; as to C.C. 71, 72, per Couch C.J.: 6 Bom. preambles, see 2 Mad. H. C. 322 : 3 H. C., A. C. J. 260 : 15 Ben. 234. Mad. H. C. 8, per Holloway J. 3 In the present edition, many of
$ As to the effect of an interpreta.
a word should never be defined to mean something that it does not properly include. As to the arrangement, their chief rules have been: that all matter of the same kind should be thrown together : that the simpler proposition should precede the more complex ? : that procedure should be dealt with according to the chronological order in which ordinary events occur : that special proceedings and supplementary provisions should be separately treated; and that forms and other matters of detail should be placed in schedules. As to the wording: that each sentence should have only one enacting verb: that the same word should be used to express the same thing: that nouns should be used in preference to pronouns?: that technical expressions should not be used unnecessarily: that shall’ should be used only when the law is directory, that 'may should be used only when the law is permissive. Except as regards the place of the definitions, these rules, which unfortunately have not always been followed, agree with the practice of the best parliamentary draftsmen 3
But there is one salient peculiarity of the Anglo-Indian IllustraCodes—the use of illustrations—which, although it has been noticed, infra, pp. 12 and 297, must here be more fully considered. Traces of the idea of adding specific illustrations to general propositions may be found in Bentham * ; and Austin is said to have used them in a draft code of the law of libel which he prepared for Malta. But how
tion clause, see Meut v. Jacobs, L. R., * See his Specimen of a Penal Code, 7 H. L. 493 : Lindsay v. Cunday, i Works, i. 164. Mr. Pollock, Ptp., InQ. B. D. 348.
troduction, iv, calls the invention the 1 See for example the Penal Code, greatest specific advance that has been chap. xvi and xvii.
made in modern times in the art called * Macaulay occasionally carried this by an ingenious writer“the mechanics rule to an excess. See for example of law-making." ... It is an instruthe Penal Code, sec. 499, expl. 4. ment of new constructive power, en.
3 See Mr. Arthur Symonds' re- abling the legislator to combine the marks in a bluebook entitled Papers good points of statute-law and caserelative to the drawing of Acts of law, such as they have hitherto been, Parliament, London, 1838, and Sir while avoiding almost all their respecHenry, now Lord Thring's Practical tive drawbacks.' Legislation, London, 1878.
ever this may be, the first to use them in practical legislation was Macaulay; and their nature and object cannot be better stated than in his own words, taken from the letter to Lord Auckland prefixed to the draft Indian Penal
Code:The use of One peculiarity in the manner in which this Code is framed will illustrations.
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 law-giver once for all, it must be constantly performed in a rude and imperfect manner by every judge in the empire, and will probably be performed by no two judges in the same way. 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 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. In the study of geometry it is constantly found that a theorem which, read by itself, conveyed no distinct meaning to the mind, becomes perfectly clear as soon as the reader casts his eye over the statement of the individual case taken for the purpose of demonstration. Our illustrations, we trust, will in a similar manner facilitate the study of the law.
There are two things which a legislator should always have in view while he is framing laws: the one is, that they should be as far as possible precise ; the other, that they should be easily understood. To unite precision and simplicity in definitions intended to include large classes of things, and to exclude others very similar to many of those which are included, will often be utterly impossible. Under such circumstances it is not easy to say what is the best course.
That a law, and especially a penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely worded law is no law, and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions, and resigns the power of making law to the Courts of Justice.
'On the whole, we are inclined to think that the best course is that which we have adopted. We have, in framing our definitions, thought principally of making them precise, and have not shrunk from rugged or intricate phraseology when such phraseology appeared to us to be necessary to precision. If it appeared to us that our language was likely to perplex an ordinary reader, we added as many illustrations as we thought necessary for the purpose of explaining it. The definitions and enacting clauses contain the whole law. The illustrations make nothing law which would They make not be law without them. They only exhibit the law in full pothing
law which action, and show what its effects will be on the events of common would not
be law life.
without "Thus the code will be at once a statute book and a collection of them. decided cases. The decided cases in the code will differ from the How they
differ from decided cases in the English lawbooks in two most important case-law. 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.
* The power of construing the law in cases in which there is any
real reason to doubt what the law is amounts to the power of making the law. On this ground the Roman jurists maintained that the office of interpreting the law in doubtful matters necessarily belonged to the legislature. The contrary opinion was censured by them with great force of reason, though in language perhaps too bitter and sarcastic for the gravity of a code. “Eorum vanam subtilitatem tam risimus quam corrigendam esse censuimus. Si enim in praesenti leges condere soli imperatori concessum est, et leges interpretari solo dignum imperio esse oportet, quis legum aenigmata solvere et omnibus aperire idoneug esse videbitur nisi is cui legislatorem esse concessum est ? Explosis itaque his ridiculosis ambiguitatibus tam conditor quam interpres legum solus
imperator juste existimabitur?' Illustra- * The decisions on particular cases which we have annexed to the pared with provisions of the code resemble the imperial rescripts in this, that the impe- they proceed from the same authority from which the provisions rial rescrpits.
themselves proceed. They differ from the imperial rescripts in this most important circumstance, that they are not made ex post facto, that they cannot therefore be made to serve any particular turn, that the persons condemned or absolved by them are purely imaginary persons, and that therefore, whatever may be thought of the wisdom of any judgment which we have passed, there can be
doubt of its impartiality.' Substance So much as to the form of the Codes. As to their subof the Indian stance, it will be enough to say that their basis is the law of Codes.
England, stript of its local peculiarities, and modified with regard to the condition, institutions and climate of India, and the character, religions and usages of the population. Instances of these modifications will be found in the rules as to frivolous complaints; the right of self-defence; bribery; destroying or defiling places of worship and sacred objects; marriage; torture; kidnapping; rape; criminal intimidation ; breach of contract for service ; in the exception from sec. 292 of the Penal Code of obscene representations on temples and cars; in the rules as to mortgages, air, privacy, rights of way, specific performance; in the savings of local usage ?,
1 Cod. Just., lib. I. tit. xiv. 12.
See the Penal Code, sec. 5: the
Succession Act, secs. 331, 332: the