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

Macaulay 's ' Utilitarian' Indian Penal Code 155
to 'greatly limit the power which the courts of justice possess of putting
their own sense on the laws', rendering them 'not only bulky, but uncertain
and contradictory'. 46
Reinforcing these twin aims and benefits of clarity was the Code's innovatory
incorporation of illustrative examples. 47 Macaulay claimed: 48
... the illustrations will lead the mind of the student through the same steps by which
the minds of those who framed the law proceeded . . . they also exhibit law in full
action, and show what its effects will be on the events of common life.
He was the first British legislator to employ this technique, 49 a practice
maintained in subsequent Indian codes. 50 Beyond illustrations, Macaulay
assisted the Code's readers with a series of extensively argued explanatory
'Notes' on each provision. Contrary to Benthamite legislative notions, these
'Notes' were not part of the Code and were jettisoned after the Code's eventual
46
Report, 424.
47
Little, if any, credit for this technique can be attributed to Bentham. See consideration of the point
by Stokes, op. cit., 330, n. Y.
48
Report, 423. Anxious to underline the issue, Macaulay continues: the illustrations 'are not cases
decided by judges, but by the legislature, by those who make the law, and who must know more certainly
than any judge can know what the law is which they mean to make'. See the First Report on the Code, 23 July
1846, by C.H. Cameron and D. Elliott, 190-203 for judicial criticism of the restrictive effect on discretion
of illustrations. As to the educative potential of the illustrations see J.S. Mill: 'besides great certainty and
distinctness given to the legislators meaning [use of illustrations] solves the difficult problem of making
the body of the laws a popular book, at once intelligible and interesting to the general reader. Simple
as this contrivance is, it escaped the sagacity of Bentham, so fertile in ingenious combinations of detail',
Westminster Review (1838), 393,402. The article is signed'S'; attribution to J.S. Mill by the Wellesley Index
to Victorian Periodicals, 1824-1900, W.E. Houghton, ed. (Toronto and London, 1966-79), 591.
49
As Professor S.H. Kadish rightly points out, ('Codification of the Criminal Law: Wechsler's
Predecessors', Columbia Law Rev., Ixxviii (1978), 1,098 at 1,113) the American codifier Edward
Livingston in his draft Louisiana Penal Code (1826) was the first to employ illustrations. Contra, W.
Stokes, Anglo-Indian Codes (1881), 1, xxiv; E. Stokes, op. cit., 231; and Clive, op. cit., 444. Livingston's
integrated and comprehensive system of penal law consisted of a 'Code of Crimes and Punishments; a Code
of Procedure; a Code of Evidence; a Code of Reform and Prison Discipline; and a Book of Definitions',
'Introduction', vi, Complete Works of Edward Livingston on Criminal Jurisprudence (New York, 1873)
(hereafter Works). This, he hoped, would eliminate the arbitrariness and complexity of existing penal
legislation which was a 'piece of fretwork exhibiting the passions of its several authors, their fears, their
caprices, or ... carelessness and inattention', all of which was further aggravated by the 'crude and
varying opinions of judges . . . usurping] the authority of law', 'Report on the Plan of a Penal Code',
Works, 11-12. The English Criminal Law Commissioners in their First Report, 1834, (focused on the
law of theft) acknowledged Livingston's 'very able Digest' of theft.
50
But rejected by the English Criminal Law Commissioners in their Fourth Report, 1839. Erudite and
wide ranging, the Fourth Report considered the principles of penal legislation from Beccaria to Feuerbach,
Bacon to the French Code Penal. The use of illustrations was thought by the Commissioners to be redundant
if the legal statement was sufficiently clear; if it were not, then the remedy lay in clarificatory redrafting.
Moreover, 'none but plain and obvious examples are conducive even to the purposes of instruction; for
predicaments to which the application of the proposed rule was doubtful, would serve to perplex rather
than enlighten the mind', (Report, 16). R.S. Wright's relatively radical draft Jamaican Criminal Code, as
originally drawn, made no use of illustrations. However, the final version did after a strong disagreement
of principle between Wright and Fitzjames Stephen, employed as an advisor by the Colonial Office. See
M.L. Friedland, 'R.S. Wright's Model Criminal Code', Oxford Jour. Legal Studies, i (1981), 307, 317.