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

Macaulay's 'Utilitarian' Indian Penal Code 153
science. 29 Furthermore, when in India Macaulay was happy to speak of
Bentham as 'that eminent writer . . . from whose opinions on a question
of jurisprudence it is rarely safe to dissent'. 30 And soon after being
informed of his position as head of the Law Commission Macaulay breezily
confided to a friend the 'immense reforms in hand . . . such as would make
old Bentham jump [for joy] in his grave'. 31 Essentially, Macaulay brought
to law-making an attitude which could be aptly described as a 'fusion of
utilitarian clarity and rigour with Burkean pragmatism'. 32
///. The Code's Nature, Style and Structure
Although nominally the product of the Law Commission, both Macaulay's
personality and the Indian climate combined to ensure that the Code was
predominantly Macaulay's creation. Work on the Code began in summer 1835,
with the Draft Code and Report being presented to the Governor-General in
October 1837. Macaulay and his team had embarked on their task with high
enthusiasm and hopes of completion within a year. 33 However, of the original
Commission only Macaulay's constitution proved sufficiently robust 34 to stay
the course by resisting capitulation to the severe climate and high sickness
rate; 35 thus making him almost solely responsible for the Code's drafting. 36
The Code was remarkable stylistically, structurally and substantively,
marking a radical and express departure from the approach of any English
29
Leslie Stephen, The English Utilitarians (1900), ii, 85. And see 'Westminster Reviewer's Defence of
Mill', Edinburgh Review (1829). For the collection of Westminster Review and Edinburgh Review articles
centring around Mill's essay, see Utilitarian Logic and Politics, J. Lively and J. Rees, ed. (Oxford, 1978).
As Leslie Stephen notes, 'Macaulay showed his gratitude for Mill's generosity in regard to the Indian
appointment by declining to republish the [offending] articles' - although they were republished after
Macaulay's death.
30
Governor-General's Council's Legislative Minutes, 11 May 1835; Clive, op. cit., 323.
31
Macaulay to T.F. Ellis, 3 June 1835, Letters, iii, 146.
32
Collini et al., op. cit., 198.
33
Macaulay to T.F. Ellis, 'I begin to take a very warm interest in this work. It is indeed one of the
finest employments of the intellect that it is easy to conceive. I ought however to tell you that the
more progress I make as a legislator the more intense my contempt for the mere technical study of
law becomes', 25 August 1835, Letters, iii, 152.
34
Macaulay to T.F. Ellis: 'I shall have been two years on Indian ground in less than a fortnight, and
I have not taken ten grains of solid or a pint of liquid medicine during the whole of that time', 30 May
1836, Letters, iii, 174-75.
35
Of the climate Macaulay wrote: 'We are annually baked for four months, boiled for four more, and
allowed the remaining four to become cool if we can. At the moment the sun is blazing like a furness: the
earth, soaked with oceans of rain, is steaming like a wet blanket. . . insects and undertakers are the only
living creatures which seem to enjoy the climate', Macaulay to Mrs. T. Drummond, 20 September 1837,
Letters, iii, 225. But the climate was 'beyond all comparison better than that of the House of Commons',
Macaulay to T.F. Ellis, 8 February 1835, Letters, iii, 132.
36
For example, letters of 30 November 1836; 8 March 1837; 18 December 1837; Letters, iii, 202,
210, and 237-38. See also Council Minutes, C.D. Dharker, ed. (1946), 253 and Par/. Papers, xxx
(1852-53), 300.