་། ། ། ་།
PUBLIC RECORD OFFICE
Reference :-
C.O.8
885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDON
10.
an opposite principle. And the same opposition is seen in the popular maxim that it is better nine guilty should escape than one innocent suffer; in the maxim, not merely popular but established by law, that the accused party is to have the benefit of a doubt"; in the maxim that every man is to be assumed to be innocent till he is proved to be guilty in the rule of law that Penal Statutes are to be construed strictly; in the rule that prisoners are to be guarded against criminating themselves; and in the rule that a man is not to be tried twice for the same offence. I believe also the prerogative of mercy has been often exercised without reference to the merits, on the ground of some alleged irregularity in the proceedings at the trial.
I conceive that the extreme to which the pro- tection of accused persons has been carried in modern› times is the result of reaction and revulsion from the arbitrary and oppressive manner in which they were dealt with formerly; and I think that these maxims and rules calling themselves principles, require to be revised and reconsidered in the construction of a Penal Code, and that an examination should be set on foot,
* The Indian Law Commission deliberately and expressly adopted this maxim, extending it in doubts about law as well as (loubts about fact, but without any explanation of their reasons. (See their Report to Lord Auckland of 14th October, 1837). The Livingston Code is more ambiguous. The Court must be
** contmoed" (lok 1, chap. 1, last article) ; but “the guilty are never to escape by formul objections" (Introductory Title).
Principles of penal adequacy.
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not only of the best of the modern Penal Codes- the Code Napoleon, Livingston's United States' Code, Maenulay's Indian Code, and no doubt others of which I know nothing, I presume the New York, and, so far as it has been completed, the North German,--but also of the discussions and disquisitions which preceded and of the commentaries which have followed them; and together with these, that there should be an examination also of the works of jurists, and the Reports, with evidence appended, of English Parliamentary Committees and Royal Commis- sions, bearing on the rules and maxims in question.
It would be important, if practicable, to discover and establish a just measure of the human suffering caused, and of that averted, by the infliction of a given punishment,—the value, that is, of the personal interest and of the public interest opposed the one to the other in the question of inflicting a punishment. Benthang- ("Morals and Legislation,"* vol. ii, chaps. 14 and 15) has insisted much on the principles to be observed in the proportion of punishments to offences; so did Montesquieu and Beccaria before him; and Bentham has attached due importance to the commensuration of punishments one with another: but I cannot find that either he or they have thrown any light upon the manner in which effect can be given to their principles and aspira- * Written to serve as an introduction to a Penal Code."— See Preface.
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