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any addition to it. But the penalty of an offence committed by a public functionary, in the exercise of his public functions, has been fixed on the supposition that it will often be only a part, and a small part, of the penalty which he will suffer. It is in the power of the Government to punish him for many acts which the law has not made punishable. It is in the power of the Government to add to any sentence pronounced by the Courts another sentence, which will often be even more terrible. To a man whose subsistence is derived from official emoluments, whose habits are formed to official business, and whose whole ambition is fixed on official promotion, degradation to a lower post is a punishment; dismissal from the public service is a punishment sufficient even for a serious offence. The mere knowledge that his character has suffered in the opinion of those superiors on whom his advancement depends, probably gives him as much pain as a heavy fine.

This is, to a great degree, the case in every country, and assuredly not less in India than in any other country. Indeed, those servants of the Company by whom all the higher offices in the Indian Government are filled, entertain a feeling about their situations very different from that which is found among political men in England. It is natural that they should entertain such a feeling. They are set apart, at an early age, as persons destined to hold offices in India. Their education is conducted at home with that view. They are transferred, when just entering on manhood, to the country which they are to govern. They pass the best years of their lives in acquiring knowledge which is most important to men who are to fill high situations in India, but which, in any other walk of life, would bring little profit and little distinction; in mastering languages which, when they quit this country, are useless to them; in studying a vast and complicated system of revenue which is altogether peculiar to the East; in becoming intimately acquainted with the interests, the resources, and the projects of potentates whose very existence is unknown even to educated men in Europe. To such a man, dismissal from the service of the Indian Government is generally a very great calamity. His life has been thrown away. It has been passed in acquiring information and experience which, in any pursuit to which he may now betake himself, will be of little or no service to him. There are, therefore, few covenanted servants of the Company, who, even if they were men destitute of all honourable feeling, would not look on dismissal from the service as a most severe punishment; but the covenanted servants of the Company are English gentlemen, that is to say, they are persons to whom the ruin of their fortunes is less terrible than the ruin of their characters. There are few of them, we believe, to whom an intimation that their integrity was suspected by the Government would not give more pain than a sentence of six months' imprisonment for an offence not of a disgraceful kind; and to many of them, death itself would appear less dreadful than ignominious expulsion from the body of which they are members.

Thus dismissal from the public service is a punishment exceedingly dreaded by public functionaries, and most dreaded in this country by the highest class of public functionaries. Nor is this all; it is not merely a severe punishment, but it is also a punishment which is far more likely to be inflicted than many punishments which are less severe. Those who are legally competent to inflict it are bound by no rules, except those which their own discretion may impose on them. For what kind and degree of delinquency they shall inflict it, by what evidence that delinquency shall be established, by what tribunals the inquiry shall be conducted, nay, whether there shall be any delinquency, any evidence, any tribunal, is absolutely in their breasts; they may inflict this punishment, and may be justified in inflicting it, for transgressions which are not susceptible of precise definition, and which have not been substantiated by decisive proof; they may be justified in inflicting it, because many petty circumstances, each of which separately would be too trivial for notice, have, when taken together, satisfied them that a functionary is unfit for any public employment; they may be justified in inflicting it because they strongly suspect him of guilt which they cannot bring home to him by evidence to which a zillah judge would pay any atten

tion. Most of what we have said of the punishment of dismissal from office applies, though not in the same degree, to the slighter punishments of censure, suspension, and removal from a higher to a lower post.

We have shown that public functionaries are liable, not only to the punishments provided by this Code, but also to other peculiar punishments of great severity. It seems therefore to follow, that if those who possess the power of inflicting these peculiar punishments can be trusted, some mal-practices of public functionaries may be safely left unnoticed in this Code, and that other mal-practices need not be visited with legal punishment so rigorous as their enormity might seem to merit. The executive Government, in our opinion, deserves to be trusted. At all events, it must be trusted for it is quite certain, that no laws will prevent corruption and oppression on the part of the servants of the Indian Government, if that Government is inclined to screen the offenders. The Government, to say nothing of the vast influence which it can indirectly exert, appoints, promotes, and removes judges at its discretion. It can remit any sentence pronounced by the Courts. It can, therefore, if it be not honestly disposed to correct official abuses, render any penal clauses directed against such abuses almost wholly inoperative; and if it be honestly disposed, as we firmly believe that it is, to correct official abuses, it will use for that purpose its power of rewarding and punishing its servants.

It will be seen, that we propose, under clause 138, to punish with imprisonment for a term not exceeding three years, or with fine, or both, the corruption of public functionaries. The punishment of fine will, we think, be found very efficacious in cases of this description, if the judges exercise the power given them as they ought to do, and compel the delinquent to deliver up the whole of his ill-gotten wealth.

The mere taking of presents by a public functionary, when it cannot be proved that such presents were corruptly taken, we have made penal only in one particular case, to which we shall hereafter call the attention of his Lordship in Council. We have not made the taking of presents by public functionaries generally penal, because, though we think that it is a practice which ought to be carefully watched, and often severely punished, we are not satisfied that it is possible to frame any law on the subject which would not be rendered inoperative either by its extreme severity or by its extreme laxity. Absolutely to prohibit all public functionaries from taking presents would be to prohibit a son from contributing to the support of a father, a father from giving a portion with a daughter, a brother from extricating a brother from pecuniary difficulties. No Government would wish to prevent persons intimately connected by blood, by marriage, or by friendship, from rendering services to each other; and no tribunals would enforce a law which should make the rendering of such services a crime. Where no such close connexion exists, the receiving of large presents by a public functionary is generally a very suspicious proceeding; but a lime, a wreath of flowers, a slice of betel-nut, a drop of atar of roses poured on his handkerchief, are presents which it would, in this country, be held churlish to refuse, and which cannot possibly corrupt the most mercenary of mankind. Other presents of more value than these may, on account of their peculiar nature, be accepted, without affording any ground for suspicion. Luxuries socially consumed according to the usages of hospitality, are presents of this description. It would be unreasonable to treat a man in office as a criminal for drinking many rupees' worth of champagne in a year at the table of an acquaintance, though if he were to suffer one of his subordinates to accept even a single rupee in specie, he might deserve exemplary punishment.

It appears to us, therefore, that the taking of presents, where a corrupt motive cannot be proved, ought not, in general, to be a crime cognizable by the Courts. Whether in any particular case it ought to be punished or not, will depend on innumerable circumstances, which it is impossible accurately to define; on the amount of the present, on the nature of the present, on the relation in which the giver and receiver stand to each other. Suppose that a wealthy English agent, who is interested in a

young civil servant of the Company, were to pay the debts of that civil servant; or suppose that a resident were to furnish money to enable his invalid assistant to proceed to the Cape; in these transactions there might be nothing which the most scrupulous could disapprove but the case would be widely different, if a wealthy native zemindar were to pay the debts of a collector of his district; or if any of the officers at the residency were to receive money from the minister of a foreign power. In such a case, though it might be impossible to prove a corrupt motive, we think that the Government would be inexcusable if it suffered the delinquent to remain in the public service.

We have hitherto put only extreme cases, cases in which it is clear that the taking of presents ought not to be punished, or cases in which it is clear that the taking of presents ought to be severely punished: but between the extremes lie an immense variety of cases; some of which call for severe punishment, some for milder punishment, some for censure, some for gentle admonition, while some ought to be tolerated. We have said, that if a collector were to accept a large present of money from a wealthy native zemindar, he would deserve to be turned out of the service; but if the collector were to accept such a present from an English indigo planter, the case would be different. The indigo planter might be his uncle, his brother, his father-inlaw, his brother-in-law in that case there might be no impropriety in the transaction. Again, if a native in the public service were to accept a present from a zemindar who has connexion with him by blood, marriage, or friendship, there might be no impropriety in the transaction.

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By the Act of Parliament to which the mal-practices of the first British conquerors of India gave occasion, the servants of the Company were forbidden to receive presents from Asiatics, but were left at liberty to receive presents from Europeans. The legislators of that time appear to have proceeded on the supposition that the servants of the Company would all be Englishmen, and that no Englishman would ever have any such connexion with any native as would render the receiving of presents from that native unobjectionable.

Natives are now declared by law to be competent to hold any post in the Company's service. It would evidently be improper to interdict an Asiatic, in the service of the Company, from receiving pecuniary assistance from his Asiatic father, or from receiving a portion with an Asiatic bride. It seems to us, therefore, that the rule laid down by Parliament, though it will still be in many cases an excellent rule of evidence, ought not, under the altered circumstances of India, to continue to be a rule of law.

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Again it ought to be remembered that the European and native races are not at present divided from each other by so strong a line of separation, as at the time when the British Parliament laid down the rule which we are considering. The interval is still wide, but it by no means appears to us, as it appeared to the legislators of the last generation, to be impassable. It is evident, therefore, that the rule formerly laid down by Parliament is constantly becoming less and less applicable to the state of India. On these grounds, we have thought it advisable to leave this matter to the executive Government, which will doubtless promulgate from time to time such rules as it may deem proper, and will enforce submission to those rules by visiting its disobedient servants with censure, with degradation, or with dismissal from the public service, according to the circumstances of every case.

We have thought it desirable to make one exception. We propose that a judge, who accepts any valuable thing by way of gift, from one whom he knows to be a plaintiff or a defendant in any cause pending in his court, shall be severely punished. This rule is not to extend to the taking of food in the interchange of ordinary civilities. It appears to us, that the objections which we have made to a general law prohibiting the receipt of presents by public functionaries, do not apply to this clause. The rule is clear and definite. The practice against which it is directed is not a practice which ought sometimes to be encouraged and sometimes to be tolerated: it ought

always, and under all circumstances, to be discouraged. It therefore appears to unite all the characteristics which mark out a practice as a fit object for penal legislation. The only other penal provision of this chapter to which we think it necessary to call the attention of his Lordship in Council, is that which is contained in clause 149. We are of opinion that the preceding clauses, and the power which the Government possesses of suspending, degrading, and dismissing public functionaries, will be found sufficient to prevent gross abuses; but there will remain a crowd of petty offences with which it is very difficult to deal—offences which, separately, are too slight to be brought before the criminal tribunals, which will sometimes be committed by good public servants, and which therefore it would be inexpedient to punish by removal from office, yet which will be very often committed if they can be committed with impunity, and which, if often committed, would impair the efficiency of all departments of the administration, and would produce infinite vexation to the body of the people.

By the existing laws of all the presidencies, a summary judicial power is given in certain cases to certain official superiors, for the purpose of restraining their subordinates. We are inclined to believe that this is a wholesome power, and that it has, in the great majority of cases, been honestly employed for the protection of the public. We propose, therefore, to adopt the principle, and to make the system uniform through all the provinces of the empire, and through all the departments of the public service. We propose that a public functionary, who is guilty of neglect of duty, who treats his superiors with disrespect, or who disobeys the lawful orders given by them for his guidance, shall be liable to a fine not exceeding the official pay which he receives in three months. In default of payment, he will be liable (see clause 54) to seven days' imprisonment.

In the Code of Procedure, we think that it will be proper to provide that the power of awarding this penalty shall be given, not to the ordinary tribunals, but to the official superiors of the offender. Thus, if a subordinate officer employed in the collection of revenue should incur this penalty, it will be imposed by the collector, and the appeal will probably be to the Board of Revenue. If an officer employed to execute the process of a Zillah Court should neglect his duty, the fine will be imposed by the Zillah Judge, and the appeal will probably be to the Sudder Court. If the offence should be committed by a tide-waiter, the Collector of Customs for the port will probably impose the penalty, and the appeal will be to the Board of Customs. These instances we give merely as illustrations of what, at present, appears to us desirable. The details of this part of the law of procedure cannot be arranged without much consideration and inquiry.

One important question still remains to be considered. We are of opinion that we have provided sufficient punishment for the public servant who receives a bribe; but it may be doubted whether we have provided sufficient punishment for the person who offers it. The person who, without any demand express or implied on the part of a public servant, volunteers an offer of a bribe, and induces that public servant to accept it, will be punishable under the general rule, contained in clause 88, as an instigator; but the person who complies with a demand, however signified, on the part of a public servant, cannot be considered as guilty of instigating that public servant to receive a bribe. We do not propose that such a person shall be liable to any punishment; and, as this omission may possibly appear censurable to many persons, we are desirous to explain our reasons.

In all states of society, the receiving of a bribe is a bad action, and may properly be made punishable; but whether the giving of a bribe ought or ought not to be punished, is a question which does not admit of a short and general answer. There are countries in which the giver of a bribe ought to be more severely punished than the receiver. There are countries, on the other hand, in which the giving of a bribe may be what it is not desirable to visit with any punishment. In a country situated like England, the giver of a bribe is generally far more deserving of punishment than the receiver. The giver is generally the tempter, the receiver is the tempted. The giver is generally rich,

powerful, well educated; the receiver needy and ignorant. The giver is under no apprehension of suffering any injury if he refuses to give. It is not by fear, but by ambition, that he is generally induced to part with his money: such a person is a proper subject of punishment. But there are countries where the case is widely different; where men give bribes to magistrates from exactly the same feeling which leads them to give their purses to robbers, or to pay ransom to pirates; where men give bribes because no man can, without a bribe, obtain common justice: in such countries we think that the giving of bribes is not a proper subject of punishment. It would be as absurd, in such a state of society, to reproach the giver of a bribe with corrupting the virtue of public servants, as it would be so say that the traveller who delivers his money when a pistol is held to his breast corrupts the virtue of a highwayman.

We would by no means be understood to say that India, under the British Government, is in a state answering to this last description. Still, we fear it is undeniable that correction does prevail to a great extent among the lower class of public functionaries, that the power which those functionaries possess renders them formidable to the body of the people, that in a great majority of cases the receiver of the bribe is really the tempter, and that the giver of the bribe is really acting it self-defence.

Under these circumstances, we are strongly of opinion that it would be unjust and cruel to punish the giving of a bribe, in any case in which it could not be proved that the giver had really, by his instigations, corrupted the virtue of a public servant who, unless temptation had been put in his way, would have acted uprightly.

LONDON.

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