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REVIEWS AND NOTICES.

[Short notices do not necessarily exclude fuller review hereafter.]

Manual of Indian Criminal Law with Annotations. Second Edition. By H. A. D. PHILLIPS. Calcutta: Thacker, Spink & Co. 1887. 8vo. xx and 881 pp.

THE compiler of this Manual tells us in his preface that it contains almost every Act which a magistrate in India is likely to require in the ordinary course of his criminal work. He further tells us that he has endeavoured to annotate the text in the only way which can possibly justify the existence of commentaries on Codes. What his ideas on this subject are may be gathered from the following extract from the preface :-'It is the duty and function of a commentator to sift the chaff from the wheat, and to deduce some principle or ratio decidendi from long series of decided cases. If none can be adduced, then presumably the case law is defective, and the commentator should not hesitate to point out in what respects it is defective, unsound, or erroneous. If the rulings are contradictory and irreconcilable, that too should be clearly demonstrated. In a country which has Codes a commentator must prune away, so to speak, the overgrowth of case law, and must preserve the intention of the Legislature from being choked by its rank luxuriance. Further, it is the special duty of the Indian commentators-and this appears to me to be his (sic) most important and useful function-to show that the Indian Codes have no connection with English law, but are a distinct entity; to illustrate and interpret one part by another; to construe their provisions according to the fair import of their terms, taken in their usual sense, in connection with the context, with a view to effect their objects; to promote justice; and, above all, to preserve and enforce adherence to the intention of the Legislature. If a commentator has the necessary strength of mind, knowledge, and ability to do this, his commentary will be a power in itself, and will exercise a salutary and farreaching influence on the courts, the administration of justice, and ultimately, perhaps, on the action of the Legislature.'

We are not informed, and there is nothing to show what are Mr. Phillips's qualifications for the discharge of the high functions with which a commentator is here invested, or on what grounds he personally claims to influence the courts, the administration of justice, and even the action of the Legislature. Apparently he has not completed his education at any University, and he does not belong to either branch of the legal profession. It will, however, be reasonable to judge his pretensions by his performances, and we shall therefore examine how he has carried out the programme laid down in his preface.

It is in his opinion the most important and useful function of a commentator to show that the Indian Codes have no connection with English law, but are a distinct entity. Yet Mr. Phillips's annotations are interlarded with references to English cases and English law-see, for example, pages 24, 26, 36, 57, 76, 89, 95, 102, 112, 113, 125, 131, 132, 134, 136, 139, 144, 157, 159, 169, 177, 182, 205, 213, 222, 337, 404, 419, 445, &c.; and he

further favours his readers with selections of curious points in criminal law culled from the systems of New York, Louisiana, New Jersey, Formosa, France, Belgium, Germany, Greece, and even China. Many of these cases and references have no relevant bearing upon the subject in hand; and the annotator, apparently for the purpose of showing off his knowledge, is guilty of the sin of 'dragging in' irrelevant matter, for which he is so hard upon the Indian pleaders in his preface. At page 227 he finds fault with the judgment of an able Indian judge on the ground that it is 'diametrically opposed to the English law and to the illustrations given in Stephen's Digest and at page 300, while regretting that many Indian judges have a scanty knowledge of the Indian Codes, and only a superficial acquaintance with English criminal law, he tells his readers that 'a thorough knowledge of English criminal law goes far to counteract a deficient acquaintance with the Indian Codes and Indian case law.' All this is rather at variance with the special duty, the most important and useful function of Mr. Phillips's Indian commentator.

He rightly says what he has doubtless read in some legal work—that it is the function of a commentator to deduce some principle or ratio decidendi from long series of decided cases. We do not, however, find any trace of Mr. Phillips's having attempted this proper function, and he is evidently quite incapable of grasping the intricacies of case law, and understanding or evolving the ratio decidendi which underlies a succession of cases. His Manual contains twenty-six Acts of the Legislature, which comprise over 1700 sections. There are in India four High Courts, and the hands of their thirty judges are very full, so that the number of decisions is large. The work of reporting is, however, under the supervision of the Courts and the Government, so that the published case law is kept within reasonable bounds. Nevertheless, if Mr. Phillips were to do for these 1700 sections this work of the commentator with reasonable completeness, the task would have been one of considerable magnitude. But he has not tried such a task. He has made his own selection of cases, taking those especially which in his opinion are unsound or erroneous, and not hesitating to point out in what respect he thinks them so. The following are specimens of his method:page 73, 'The ruling at . . . . is probably unsound; '—page 76, ‘This is one of several instances in which High Court rulings have made the Indian law narrower than the English, though the words of the Code are wider than the words of the English statute law;'-page 91, 'As a matter of law and procedure much of the Calcutta case law is antagonistic to specific provisions of the Procedure Code;'-page 199, 'This ruling is open to question;'page 218, 'The ruling in the case of . . . appears to be opposed to wellestablished rules of evidence ;'-page 226, 'It will be observed that some of the Calcutta High Court rulings have made the Indian law actually narrower than the English law;'-page 329, 'A perusal of Savigny's treatise on possession is sufficient to expose the unsoundness of Mr. Justice . . . 's remarks;'-page 337, This nullifies the somewhat anomalous ruling in &c.' (here the Legislature had rectified an omission detected by the anomalous ruling, which could not have been different upon the unaltered language of the Act);-page 343, 'In some cases magistrates were abused' (sic, i. e. by the High Court) for looking at police papers; in others they were censured for not having taken the trouble to look at them' (here Mr. Phillips fails to understand the distinction between looking at the police papers in order to discover sources of evidence, and using the contents of the papers themselves as evidence);-page 493, 'The ruling of the Bombay High Court is clearly wrong. Mr. Justice.. appears to have been misled

by the provisions of some English statutes, and he gratuitously supposes that the Indian Legislature must have been familiar with the various statutes and cases raked up by him; '-page 527, 'Indian judges in applying the English law concerning interest have considerably narrowed it. One or two rulings exhibit a very imperfect acquaintance with the English decided cases on the subject. The ruling in I. L. R. 10 Calc. 1030 is diametrically opposed to the case of R. v. Justices of Huntingdon, 4 Q. B. D. 522;'-page 654, The direction in section 30 has been whittled away to such an extent that the words of the Legislature might as well have been "The Court shall not," &c. ;'-page 719, The High Court apparently overstepped their powers in interfering in a recent case' (not given) from Cuttack ;' -p. 517, 'This ruling appears to be a mere apex juris, and is utterly opposed to the clear intention of the section;'-page 70, 'The judgment of reads like a schoolman's quibble;'-p. 304, 'The Court of Cassation do not let off the accused altogether, as High Courts in India frequently do;'-page 368, This ruling is absurd; '-page 90, 'This last ruling is quite indefensible.' These rulings are reasonable and no doubt sound law, but they are simply farcical in the light of the other rulings.' 'Recent rulings of the High Court exhibit a tendency to veer round and to avoid the absurdities caused by making and adding to the statute law instead of merely interpreting it.' 'This is the result of the case law, which has added something to the Penal Code which was not in it before.' 'All these rulings are antagonistic to specific provisions of the Procedure Code.'-The possession by Mr. Phillips of every qualification in which he shows himself wanting for the task which he has undertaken, would yet fail to atone for the bad taste of this style of criticism. One result of his selecting for his annotations those cases which he considers open to criticism is that important points have been neglected, anl the reader looks in vain for information which a very pretentious preface might induce him to expect

that he would find.

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A favourite assumption throughout the book is as to the ignorance of Indian judges-for example, page 70, The judges who gave the above ruling were evidently not aware, &c.' (here he overlooks an alteration of the law by the Legislature);-page 469, 'But the Calcutta High Court really appear to have been unaware of their previous practice, as disclosed in the Bengal Law Reports and the Weekly Reporter. Had they been aware of the previous case law, their ruling would probably have been different;'-page 79, ' Had Mr. Justice.... known the previous case law, he would probably have held a different opinion;'-page 174, 'Had the judge been acquainted with the decisions of learned English judges in simili materiâ (sic), his exposition of the law could not have been so unsound.' But he tells us at page 226 that the importation of English decided cases has had the result of defeating the intention of the framers of the Penal Code.' As might be expected, when Mr. Phillips imputes ignorance to Her Majesty's judges in India, he overlooks some essential point, or totally fails to understand what he presumes to criticise.

The strength of mind' with which he has armed himself for the purpose of influencing the courts, the administration of justice, and the action of the Legislature, carries Mr. Phillips in his career of criticism even beyond the decisions of Indian judges. He points out that the Penal Code contains a good many instances of pleonasm (p. 14), though he is elsewhere pleased to express his approbation of this piece of legislation, telling us (p. 223) that the remark as to its being too wide and comprehensive 'is generally made by those who have but a very slight knowledge of the English law and none

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at all of the continental Penal Codes.' He criticises the best work that has been published on the Code of Criminal Procedure (and which has passed through repeated editions), and assures us that the contrary of what is there stated is sound law and still nothing if not critical, he favours us with his opinion upon English cases (p. 210), some of which he considers very harsh. The field of decided cases being too limited for his comprehensive survey, he suggests what should be done with Brahminí bulls and with the men of low caste, who collect the hides of animals. He points out (p. 386) how magistrates may render themselves liable to punishment under the Penal Code by weakly yielding to the arguments of pleaders, to whom he seems to have a strong antipathy. He gives us his views (p. 156) upon the importunities to which widows are subject in Bengal and in Burmah (the record of his services does not show that the field of his experience extended to this latter province); treats us to anecdotes of what has occurred in districts where he has been employed; and favours the Government of India with his earnest conviction as to who should be appointed to high judicial office in that country. Where more detailed information would occupy too much space, he refers his readers to his book on Comparative Criminal Jurisprudence—a work which we labour under the disadvantage of not having seen or indeed heard of. Equally conversant with the practice of the courts in England and in India, he informs his readers (p. 687) that 'the judges in England do not permit counsel to put forward hypothetical defences unsupported by the evidence' (he had evidently been reading the trial of Joey Rushbrook in The Poacher by that amusing naval novelist, Captain Marryat); and that 'the tendency of Civil Courts in India nowadays is to reject all evidence of custom or general right' (p. 666). He does not tell us what has been his experience of Civil Courts in India, and the record of his services is equally silent. He is therefore, of course, more excusable for his ignorance on this point than the judges who might be expected to know something of the law which they were appointed to administer. If, however, we might make a suggestion, there is some risk in making categorical assertions not based on actual personal knowledge. For example, his observations about Jury Districts, in which cases are 'chucked at' the Sessions Judge (p. 366), are as incorrect as inelegant, and must be offensive to native gentlemen who serve on juries, unless they have the sense to overlook them as coming from a gentleman who never presided at a trial by jury in his life. Again, he states in his preface that Indian judges are not bound by previous decisions in the same way that their English brethren are; and he supports this statement by saying that he knows one or two English lawyers who have been much struck by this fact. An assertion more incorrect or misleading it would not be easy to make. In every case in which a Division Bench of a High Court sees reason to differ from a previous decision of another similar Bench, a reference is made to a Full Bench consisting generally of five judges, in order to ensure uniformity of decision in the same Court.

Mr. Phillips is profuse with advice to magistrates of a doubtful and dangerous kind. At page 314 he warns them against being misled by two decisions of the High Court which he characterises as doubtful. At page 193, in opposition to the decision of another High Court, he advises a conviction in a case in which the person concerned refuses to make a complaint, although the law forbids a charge to be proceeded with in such a case without the complaint of this person. Then false complaints are very common in India, and the Legislature and the Superior Courts have made many efforts. to check them. In a country where perjury is too common, and false witnesses may be hired on easy terms, there is however always the danger that

a man who brings a true complaint may have the tables turned on him, and, to the delight of the really guilty party, be punished for a complaint as false which is really true. In order to prevent a result so detrimental to the best interests of justice, the High Courts have strongly impressed upon magistrates the advisability of giving a complainant every reasonable opportunity of proving his complaint before he is himself put in the dock upon a charge of having made a false complaint, the very conversion of a complainant into an accused being too often sufficient to close the mouths of timid Indian witnesses, who imagine that the magistrate has in his own mind decided the case and that they may get into trouble by coming forward to give testimony in support of the original complaint. Above all, the High Courts have set their faces against complainants being converted into accused upon the inquiry and report of the Police, pointing out that by so doing magistrates really delegate their judicial functions to police officers, a course the danger of which has been demonstrated by repeated experience in India. Mr. Phillips, however, in his superior wisdom thinks differently, and in his usual tone he says (page 91):-'It is absurd and illegal for a magistrate to summon witnesses when he is satisfied that a charge is false; and he can be so satisfied on the perusal of the record of investigation by a police-officer.' There may be magistrates who will take Mr. Phillips's wisdom at his valuation, putting it above that of thirty High Court judges and the distinguished lawyers who have given us the Indian Codes, but we apprehend that magistrates in general will follow the safer course of being guided by the decisions of the Court to which they are subordinate.

Mr. Phillips is fond of using native terms, which must be unintelligible to many of his readers. This practice has been prohibited in official correspondence, and is discountenanced by the best Indian writers. Then he quotes cases, not by the names of the parties, but by a mere reference to the number and page of the Reports in which they are to be found. This, besides being inconvenient in other ways, precludes the compilation of an Index of Cases, which is an indispensable portion of a good law-book. The Index of Contents annexed to his work is a mere apology for an index. Our opinion of the value of the annotations has already been expressed, and whatever value the compilation might have possessed as a handy collection of the text of the Acts most frequently in the hands of magistrates, is marred by the want of a proper index. Mr. Phillips tells us in his Preface that the manuscript of this edition was ready some years previously, but that 'the edition never appeared owing to circumstances over which I had no control.' We cannot help thinking that it would have been better if the edition had in truth never appeared.

Mr. Phillips is a young member of the Bengal Civil Service, and apparently not without some ability; but he seeks to instruct while he has yet to learn, and this book is a strong instance of the danger of putting young men into posts of authority and responsibility before they are fitted for them. by completed education and some little experience of the world. We doubt if the spectacle of a young and headstrong civil servant, who will not tolerate the arguments of pleaders before him or be guided by the Superior Courts above him, and who openly incites other officials to similar behaviour, is calculated to lessen the popular cry in India against Boy-Magistrates.' If argument were wanting, this book supplies a very strong argument, in favour of raising the age at which young civil servants are sent out to India, and are under the existing system almost immediately placed in responsible positions. C. D. F.

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