Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

Macaulay's 'Utilitarian' Indian Penal Code 149
Macaulay his first government post in June 1832 as Secretary of the Board of
Control, supervisor of the East India Company's activities. 12 This, in turn,
led to acquaintance with Indian affairs, with James Mill (Macaulay's sparring
partner in political philosophy in the columns of the Edinburgh Review) and
eventually to involvement in the drafting of the 1833 Charter Act.
Not only was the offer of the position of legal member to Macaulay
surprising, his acceptance might appear similarly unexpected. Six years of
legislative toil in a sometimes ruinous climate and exile from the literary and
political society which had recently so firmly embraced him could hardly have
been a compellingly attractive prospect. However, the Indian appointment
had the irresistible attraction of a huge salary of £10,000 per year. Its
irresistibility lay in Macaulay's own financial insecurity and his father's
impecunious state, while shifting political forces made his parliamentary
post and income by no means assured. With savings from £10,000 per
annum, Macaulay expected to return to England at the age of thirty-nine
with £30,000, 'a larger fortune I never desired'. 13
After three months of travel, Macaulay reached Madras in June 1834,
later moving on to Calcutta, the seat of the Governor-General and Indian
government.
//. The Code's Production and Influences
The 1833 Charter Act made provision for the appointment of a Law
Commission whose function was to advise on and propose schemes for an
eventual comprehensive and homogeneous body of legal codes for the whole
of India. Within a year of Macaulay's arrival a Commission was appointed
with him as its head. 14 Choice of a penal code as the Commission's first
task was in large measure Macaulay's and based on several considerations.
Primarily, the influx of European settlers after the 1833 Act underscored
the need for a uniform penal code with jurisdiction over both Europeans
and Asians. Furthermore, practically speaking, criminal law reform was
politically less contentious with few vested interests at stake and fewer toes
to be trodden on. As Henry Maine (a later successor of Macaulay as legal
member) observed 'nobody cares about criminal law except theorists and
12 Clive, ibid., 220, notes that the position paid £1,500 a year and 'carried with it the privilege of
unlimited franking - one greatly appreciated by this indefatigable letter-writer'.
13 Macaulay to Hannah, 17 August 1833, Trevelyan, op. cit., 289.
14 Besides Macaulay the Commission members were Charles Hay Cameron, John Macleod and G. W.
Anderson. Cameron was an experienced colonial legislator of strong Benthamite leanings; Macleod's
usefulness was in his powers as a 'hypercritic' of what others did; Anderson was a disaster, contributing
not 'even a single hint of the smallest value'. Quoted by Clive, op.cit., 439. Furthermore, in Anderson's
case, Macaulay later noted that the 'greatest service [Anderson] could render to the Commission' would
be to 'keep to his bed all the week round', Macaulay to T.F. Ellis, 8 March 1837 in The Letters of Thomas
Babington Macaulay, T. Pinney, ed. (hereafter Letters), iii (1976), 210.