Then follow extracts from the Law of Manu, of the proverbial and gnomic character. We quote-

The only firm friend, who follows men even after death, is justice; all others are extinct with the body.'

Of that Prince who takes a revenue without restraining rogues, the dominions are thrown into disorder, and himself shall be precluded from a celestial abode.'

'With great care and three methods let the king restrain the unjust, by imprisonment, by confinement in fetters, and by corporal punishment.'

Upon these broad foundations the legislator proceeds to construct his penal system; prefacing his rules, after the manner of the Indian Code, with general explanations and definitions, and adding to all the important sections a copious list of illustrations, which often throw a curious light on the polity of the State and the customs of the people. Hindu monarchy has always been absolute in theory, and has avoided fettering itself by any laws except the vague precepts of sages and saints. Now that some positive enactments are becoming necessary, if a prince is to keep abreast with the changing times, few systems could have suited him better than the Indian Penal Code, which is woven broad and loose like an immense net, to catch all imaginable offences within the meshes of its elastic definitions, and to vest great latitude of discretion in the judges. You can stake out this net as widely and tightly as you like by your illustrations, which exemplify hard cases. Take an illustration of Abetment.

(1) A wished to starve B. C, B's cook, omitted to cook B's breakfast. C has abetted the starving of B.

(2) A wished to have a glass of brandy. B gave him a rupee to purchase brandy. B has abetted A to have a glass of brandy.'

Moreover, if there be any definitions in the original Indian Penal Code that may seem a little far-fetched or finely drawn, it is to these that the subtle Indian mind is instinctively attracted. The original Code so defines Using Force' as to include a very wide range of muscular movements and the causing of motion. This definition is adopted in its entirety by the Indore jurist; and although it is rather an edged tool to put into the hands of unlearned native magistrates, one perceives at once the power which is thereby preserved by a government at whose pleasure all judicial appointments are held. Troublesome domestic annoyances can also be chastised, as may be seen from the subjoined illustration of Criminal Force.

'Z is bathing. A pours into the bath water that he knows to be boiling. Here 4, by his own bodily power, causes such motion in

the boiling water as brings that water into contact with Z or with other water so situated that such contact must affect Z's sense of feeling. A has therefore used force to Z; and if he has done this. without Z's consent. . . . to cause injury, fear, or annoyance to Z, A has used criminal force.'

Our Penal Code has introduced into India a somewhat abstruse and complicated method of defining the various grades of homicide by distinctions, exceptions, and qualifications. The method has been adopted at Indore, although this is a subject upon which clear guidance and plain rules are of the highest importance for the guidance of native judges. But here again the drift of the Indore illustrations is to give tremendous latitude to the courts; while others tend to encourage rather untenable distinctions.

'A, a person specially appointed to warn people from fording a river, as it was not then fordable, neglects, he being asleep, to warn B, a traveller. B attempts to cross, is carried away by the

stream, and is killed. A has committed culpable homicide.'

And the full offence of murder is explained by the parable of a peon (4) stationed at the crossing of roads to warn people against taking one road, which is infested by a man-eating tiger. The peon omits to warn B, knowing that he may be killed, though not intending to cause his death.

'B is devoured by the tiger. A is guilty of murder 1.'

We find, indeed, in this Code so picturesque a variety of illustrations as to suggest the notion that the legislator, desirous of rendering his work popular among his countrymen, may have imported into it, by way of examples, a number of well-known stories or local incidents. There is an illustration beginning— A is a general of great fame, and is seventy-eight years old; B, a married woman, deserts her husband,'-which certainly reads as if it were founded on some romantic facts. It is appended, by the way, to an explanation authorising a Sessions Court to pardon any thief whenever the Court and a jury majority think that 'greater public good will be secured' by pardon than by punishment. Here we have a judicious provision for cases where popular or religious sentiment may be against executing the law.

Want of space prevents notice of some other characteristic features. The influence of the old dispensation is seen in a special clause for punishing any one who 'unlawfully cohabits, drinks, eats, or smokes against the law, custom, usage, or rules of one's caste, tribe, class, or religion;' thus adding the pains of this life to the

1

[This seems to go beyond the I. P. C. See Dr. Whitley Stokes's notes on ss. 290, 300. Something like 'knowing that he must in all probability be killed' would be required to make the offence murder even with the aid of s. 32.-ED.]

penalties incurred by such offenders in a future existence. And the offence of adultery includes intercourse with the widow as well as with the wife of another person. The compiler of this Code has shown great industry and considerable aptitude in grasping and availing himself of general principles and of a good method so far as they seem to him practically serviceable to the constitution of his government and suitable to accepted custom. Nevertheless there is some room for apprehension that the Indian Penal Code, which, like the steam locomotive, runs well enough in the hands of its inventors, may be too easily converted, under the semblance of imitating the highest model of civilised codification, into a powerful and levelling engine of organised absolutism.

A. C. LYALL.

[Perhaps it ought to be explained that the Indore Penal Code has been in force for some years it has only recently been brought to our notice.]

REVIEWS AND NOTICES.

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

The Law of France relating to Industrial Property, Patents, Trade Marks, &c. By THOMAS BARCLAY. London: Sweet & Maxwell, Lim. 1889. Small 8vo. xvi and 244 pp.

THE term 'industrial property' is French in its origin, but through the Industrial Property Convention, and the discussions connected with it, has made a step towards becoming recognised in the United Kingdom. It is intended to embrace, not only patents and trade marks, but various other subjects in regard to which laws exist for the protection of manufacturers or producers, as well as honest traders.

The author, in the introduction, gives an interesting summary of the salient differences between the law of France and our own, in regard to patents, trade marks, and especially to designs. In regard to designs, such registration as French law provides for, is a mere matter of official custody, giving no protection to the designer, or information to the public. In regard to trade marks, all that registration does in France is to raise a presumption of priority in favour of the person registering it, and to give the real owner a remedy by criminal as well as civil proceedings. By no length of time can registration confer an indefeasible right. In regard to patents, French law, like our own, makes the validity of the grant conditional on the invention being new and patentable; but there is not even such preliminary investigation as our own law provides for. The patentee applies for his patent entirely at his own risk, with no sort of official warning or guidance. There is a forfeiture in case of the invention not being worked in France; and also in case of the patentee having introduced into France articles manufactured abroad, and similar to those protected by his patent. This last article of forfeiture is, we are told, repealed as regards subjects of States belonging to the Industrial Property Union.' The article (V) of the Convention which, in effect, stipulates for this repeal, is given at page 139. But we do not find cited any Act of the Legislature expressly carrying out the repeal.

The introduction further contains an interesting account of the origin of, and the discussions which led up to the Industrial Property Convention, which was concluded on the 20th of March, 1883, between the governments of Belgium, Brazil, Spain, France, Guatemala, Italy, Holland, Portugal, Servia, and Switzerland, and has since been acceded to by Great Britain, Sweden and Norway, the United States, and Tunis. The text of the Convention is set out in full (p. 136); and to the various articles of this, as well as of the Legislative Acts, are added notes referring to the preliminary discussions and to the decisions of the Courts upon the effect of the laws.

The salient topic of discussion has been the question of protection to manufacturers, in a place whose goods have obtained a special reputation, against the introduction into the market of goods manufactured elsewhere, and represented as coming from the place in question. This discussion is still pending.

In the meantime it is interesting to see how the law stands in France itself. There is a law of July 28, 1824, as follows:- Any person who shall affix, or by adding, shortening, or any other alteration, shall cause to appear on manufactured goods the name of any manufacturer but their real manufacturer, or the name of any manufactory but that at which the goods were manufactured, or the name of any place but that of manufacture, will be liable to the penalties prescribed by Act 423 of the Penal Code, and to damages where a right to them exists.' The article of the Civil Code which has been construed as embracing the right to damages in such cases, and in all cases of fraudulent competition' (a comprehensive term used in France to comprise the whole of the class of cases of which the wrongful use of a trade mark is an example) is the following:-Art. 1382: Any act whatsoever of a man causing damage to others renders him by whose fault it has occurred liable to repair it.'

Upon these laws, the Court of Cassation, on July 12, 1845, laid down the following important principle:-The name of a locality renowned for its manufacture constitutes a collective ownership by the manufacturers of the district, and they have a right to bring an action for the usurpation of the name, and to claim damages for the loss which the infringement has caused them.'

This important ruling does not appear to have been ever modified or questioned by any subsequent decision. But upon another, and also very important aspect of the question, the rulings of the Court are somewhat confusing. By a decision of 9th April, 1864, the Court declared that the 19th Article of the Trade Marks Act of 23rd June, 1857 (which was commonly supposed to be only the application of a more stringent provision, that of seizure, to the subject-matter of the Act of 1824) was applicable only in cases of fraudulent usurpation, and that consequently there was no offence where a manufacturer had caused or permitted his name or mark to be placed on goods manufactured abroad. But in 1884 the same Court decided that the last mentioned ruling had been misunderstood, and found that the Act of 1824 prohibits absolutely and punishes the placing on industrial products of the name of any place other than that of manufacture, or the causing of its appearance by means of any alteration, and that the principles laid down by this law have been maintained and confirmed by Art. 19 of the Act of June 23, 1857, by the terms of which all foreign products bearing either the mark or the name of a manufacturer residing in France, or the name or place of a French manufactory, are prohibited from entry, excluded from transit or warehousing, and may be seized wherever found, either at the instance of the Custom authorities or of the Public prosecutor, or of any person whose interest is affected.'

This last decision does not seem to have been very happily worded, and has consequently given rise to numerous questions before the ordinary tribunals. The general tendency of these rulings is to construe the decision of the Court of Cassation as intending to lay down some such propositions as the following:-(1) That fraudulent intent is a necessary ingredient to a breach of the law; (2) That such fraudulent intent may be presumed from the fact that the name of a French manufacturer or place, not being the actual manufacturer or place of manufacture, is put upon the goods; (3) That the presumption may be rebutted by its being shown either that the placing of the name does not, to dealers in or buyers of the goods in question, represent the fact of manufacture by the person or at the place in

These laws will be found more at length in Mr. Barclay's article in the LAW QUARTERLY for April, 1887 (vol. iii. p. 221).