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

150 Legal History in the Making
habitual criminals'. 15 Finally, it was just this broad theoretical appeal found
in the strong afterwash of the Enlightenment 16 which engaged Macaulay as
criminal law: 17
. . . attracted the attention of philosophers [and] excites so general an interest
among reflecting and reading men ... a succession of men eminent as speculative
and as practical statesmen has been engaged in earnest discussion on the principles
of penal jurisprudence. There is perhaps no province of legislation which has been
so thoroughly explored in all directions.
Composing a penal code was, then, appealing to Macaulay on intellectual
grounds, with its universality and philosophical dimension greater than other
areas of more earthbound and leaden law reform; and also attractive because
of its higher profile in the world beyond lawyers and officialdom, with its
promise of being most likely to keep him and his career not too far from the
public eye during his exile.
Beyond the effects of his own political and wider philosophical attitudes,
two main external channels of influence operated on Macaulay in the Code's
production, both markedly utilitarian. First was the formal advice received
from James Mill, both before and after leaving England; and second, the less
tangible but seductive power of Benthamite thinking, then widely pervasive
among sections of the East India Company. 18
James Mill, as Chief Examiner of the East India Company, was responsible
for communicating the will of the Company's Court of Directors in London
to the Governor-General and Company officials in Calcutta. As author of
the monumental History of British India (1817), Mill was an acknowledged
authority on the subcontinent and, latterly, highly influential in modelling
and interpreting the company's policies. 19 Mill, himself one of Bentham's
15
Maine to Grant Duff, 22 December 1868 in Grant Duff Papers; private collection of S. Grant
Duff, Skibereen, Eire.
16
For a concise review of these European intellectual currents see O.F. Robinson, T.D. Fergus and
W.M. Gordon, An Introduction to European Legal History (1985), ch.xv, particularly 408-13; and
S. Collini, D. Winch and J. Burrow, That Noble Science of Politics (Cambridge, 1983), ch.l for an
exploration of the influential Scottish rationalist tradition, the 'Edinburgh Reviewers' and James Mill.
On the particular climate of eighteenth century criminal jurisprudence and statutory reforms, see D.
Lieberman, The Province of Legislation Determined (Cambridge, 1989), ch.10.
17
Stokes, op. cit., 221-22. Bentham also favoured a penal code as a starting point to a general
codification programme. See Works, iii and iv, 526-27. It appears that originally the first project of
the Law Commission was going to be the far more mundane production of a code of civil procedure.
But as a consequence of administrative delays in referring this topic to the Commission, the Penal Code
was taken first, Stokes, op. cit., 220-21.
18
For example, William Empsom was from 1824 Professor of 'general polity and laws' at the East
India Company's administrative college at Haileybury. Empsom was a keen propagandist of Benthamite
principles of law reform.
19
On the eve of his departure to India in 1827 the reformist Lord Bentinck told Mill 'I am going to
British India but I shall not be Governor-General . . . you . . . will be'. Quoted by Stokes, op. cit.,
51.