Criminal Law Reform: England

While the criminal law commissioners were at work on a code for England, Macaulay, who had gone to India in 1834 to be the law member of the governor-general's council, was drafting a penal code that was intended to apply to the entire population—native and expatriate—of British India. Instructions were issued to four commissioners in June 1835, but because of the illnesses and absences of the others, Macaulay was virtually the sole author of the draft that he submitted in October 1837 to the governor-general, Lord Auckland. The governor-general maintained the Eden family's interests in the criminal law that he had demonstrated when promoting the Coinage Offences Bill in England in 1832. Macaulay's code was a most able piece of drafting, "the first specimen," as Stephen said, "of an entirely new and original method of legislative expression" (1883, p. 299). The work of a master of English prose, the code was concise, lucid, and free of legal jargon. It paid careful attention to the degree of fault required for each offense, and was accompanied by a well-argued introduction and set of notes. Influenced by the thinking of Bentham and John Austin (1790–1859), as well as by the First Report (1834) of the English commissioners (in which they had outlined their program for codification), the substance, but not the language, of Macaulay's code was to a large extent an improved version of the English law of the 1830s. He also, however, drew on Edward Livingston's code for Louisiana and on the French Code Pénal, for he was not under the restraints that forced the English commissioners to restate as closely as possible the existing law, and to justify any departure from it.

Despite, or because of, its virtues, Macaulay's draft had a very hostile reception from the contemporary Indian judiciary (composed of English lawyers doing a tour of duty abroad). It was not enacted until 1860, in the aftermath of the Indian Mutiny of 1857, with amendments that were by no means all improvements, and came into force in 1862. The code worked well, and is still law in India, Pakistan, Sri Lanka, and northern Nigeria (and, until recently, the Sudan) having been adopted while these latter territories were under the jurisdiction or influence of the British Colonial office. It also strongly influenced the second attempt—Stephen's—to provide England with a code of criminal law.