Life and Letters of Lord Macaulay. Volume 1

by George Otto Trevelyan

"I must say that, even if no allowance be made for the untoward occurrences which have retarded our progress, that progress cannot be called slow. People who have never considered the importance and difficulty of the task in which we are employed are surprised to find that a Code cannot be spoken of extempore, or written like an article in a magazine. I am not ashamed to acknowledge that there are several chapters in the Code on which I have been employed for months; of which I have changed the whole plan ten or twelve times; which contain not a single word as it originally stood; and with which I am still very far indeed from being satisfied. I certainly shall not hurry on my share of the work to gratify the childish impatience of the ignorant. Their censure ought to be a matter of perfect indifference to men engaged in a task, on the right performance of which the welfare of millions may, during a long series of years, depend. The cost of the Commission is as nothing when compared with the importance of such a work. The time during which the Commission has sat is as nothing compared with the time during which that work will produce good, or evil, to India.

"Indeed, if we compare the progress of the Indian Code with the progress of Codes under circumstances far more favourable, we shall find little reason to accuse the Law Commission of tardiness. Buonaparte had at his command the services of experienced jurists to any extent to which he chose to call for them; yet his legislation proceeded at a far slower rate than ours. The French Criminal Code was begun, under the Consulate, in March 1801; and yet the Code of Criminal Procedure was not completed till 1808, and the Penal Code not till 1810. The Criminal Code of Louisiana was commenced in February 1821. After it had been in preparation during three years and a half, an accident happened to the papers which compelled Mr. Livingstone to request indulgence for another year. Indeed, when I remember the slow progress of law reforms at home, and when I consider that our Code decides hundreds of questions, every one of which, if stirred in England, would give occasion to voluminous controversy and to many animated debates, I must acknowledge that I am inclined to fear that we have been guilty rather of precipitation than of delay."

This Minute was dated the end of January, 1837; and in the course of the same year the Code appeared, headed by an Introductory Report in the shape of a letter to the Governor-General, and followed by an Appendix containing eighteen notes, each in itself an essay. The most readable of all Digests, its pages are alive with illustrations drawn from history, from literature, and from the habits and occurrences of everyday life. The offence of fabricating evidence is exemplified by a case which may easily be recognised as that of Lady Macbeth and the grooms; ["A, after wounding a person with a knife, goes into the room where Z is sleeping, smears Z's clothes with blood, and lays the knife under Z's pillow; intending not only that suspicion may thereby be turned away front himself, but also that Z may be convicted of voluntarily causing grievous hurt. A is liable to punishment as a fabricator of false evidence.">[ and the offence of voluntary culpable homicide by an imaginary incident of a pit covered with sticks and turf, which irresistibly recalls a reminiscence of Jack the Giant-killer. The chapters on theft and trespass establish the rights of book owners as against book stealers, book borrowers, and book defacers, with an affectionate precision which would have gladdened the heart of Charles Lamb or Sir Walter Scott. ["A, being on friendly terms with Z, goes into Z's library, in Z's absence, and takes a book without Z's express consent. Here, it is probable that A may have conceived that he had Z's implied consent to use Z's books. If this was A's impression, A has not committed theft."

"A takes up a book belonging to Z, and reads it, not having any right over the book, and not having the consent of any person entitled to authorise A so to do. A trespasses.

"A, being exasperated at a passage in a book which is lying on the counter of Z, snatches it up, and tears it to pieces. A has not committed theft, as he has not acted fraudulently, though he may have committed criminal trespass and mischief.">[ In the chapter on manslaughter, the judge is enjoined to treat with lenity an act done in the first anger of a husband or father, provoked by the intolerable outrage of a certain kind of criminal assault. "Such an assault produced the Sicilian Vespers. Such an assault called forth the memorable blow of Wat Tyler." And, on the question whether the severity of a hurt should be considered in apportioning the punishment, we are reminded of "examples which are universally known. Harley was laid up more than twenty days by the wound which he received from Guiscard;" while "the scratch which Damien gave to Louis the Fifteenth was so slight that it was followed by no feverish symptoms." Such a sanguine estimate of the diffusion of knowledge with regard to the details of ancient crimes could proceed from no pen but that of the writer who endowed schoolboys with the erudition of professors, and the talker who, when he poured forth the stores of his memory, began each of his disquisitions with the phrase, "don't you remember?"

If it be asked whether or not the Penal Code fulfils the ends for which it was framed, the answer may safely be left to the gratitude of Indian civilians, the younger of whom carry it about in their saddle-bags, and the older in their heads. The value which it possesses in the eyes of a trained English lawyer may be gathered from the testimony of Macaulay's eminent successor, Mr. Fitzjames Stephen, who writes of it thus:

"In order to appreciate the importance of the Penal Code, it must be borne in mind what crime in India is. Here, in England, order is so thoroughly well established that the crime of the country is hardly more than an annoyance. In India, if crime is allowed to let to a head, it is capable of destroying the peace and prosperity of whole tracts of country. The mass of the people in their common moods are gentle, submissive, and disposed to be innocent; but, for that very reason, bold and successful criminals are dangerous in the extreme. In old days, when they joined in gangs or organised bodies, they soon acquired political importance. Now, in many parts of India, crime is quite as uncommon as in the least criminal parts of England; and the old high-handed systematised crime has almost entirely disappeared. This great revolution (for it is nothing less) in the state of society of a whole continent has been brought about by the regular administration of a rational body of criminal law.

"The administration of criminal justice is entrusted to a very small number of English magistrates, organised according to a carefully-devised system of appeal and supervision which represents the experience of a century. This system is not unattended by evils; but it is absolutely necessary to enable a few hundred civilians to govern a continent. Persons in such a position must be provided with the plainest instructions as to the nature of their duties. These instructions, in so far as the administration of criminal justice is concerned, are contained in the Indian Penal Code and the Code of Criminal Procedure. The Code of Criminal Procedure contains 541 sections, and forms a pamphlet of 210 widely printed octavo pages. The Penal Code consists of 510 sections. Pocket editions of these Codes are published, which may be carried about as easily as a pocket Bible; and I doubt whether, even in Scotland, you would find many people who know their Bibles as Indian civilians know their Codes."

After describing the confusion and complication of the criminal law of our Indian Empire before it was taken in hand by the Commission of 1834, Mr. Stephen proceeds to say:

"Lord Macaulay's great work was far too daring and original to be accepted at once. It was a draft when he left India in 1838. His successors made remarks on it for twenty-two years. Those years were filled with wars and rumours of wars. The Afghan disasters and triumphs, the war in Central India, the wars with the Sikhs, Lord Dalhousie's annexations, threw law reform into the background, and produced a state of mind not very favourable to it. Then came the Mutiny, which in its essence was the breakdown of an old system; the renunciation of an attempt to effect an impossible compromise between the Asiatic and the European view of things, legal, military, and administrative. The effect of the Mutiny on the Statute-book was unmistakable. The Code of Civil Procedure was enacted in 1859. The Penal Code was enacted in 1860, and came into operation on the 1st of January 1862. The credit of passing the Penal Code into law, and of giving to every part of it the improvements which practical skill and technical knowledge could bestow, is due to Sir Barnes Peacock, who held Lord Macaulay's place during the most anxious years through which the Indian Empire has passed. The Draft and the Revision are both eminently creditable to their authors; and the result of their successive efforts has been to reproduce in a concise, and even beautiful, form the spirit of the law of England; the most technical, the most clumsy, and the most bewildering of all systems of criminal law; though I think, if its principles are fully understood, it is the most rational. If anyone doubts this assertion, let him compare the Indian Penal Code with such a book as Mr. Greaves's edition of Russell on Crimes. The one subject of homicide, as treated by Mr. Greaves and Russell, is, I should think, twice as long as the whole Penal Code; and it does not contain a tenth part of the matter."