Macaulay’s background was ‘Clapham sect’, a privileged, non-conforming Anglican circle of reforming activists that included his father Zachary and the senior James Stephen, prominent abolitionists who contributed to the ending of the British slave trade in 1807. The campaign for full abolition gathered steam in the 1820s as the cause was more broadly popularised by evangelical missionary work overseas.3 The young Macaulay helped edit Zachary’s Anti-Slavery Reporter while qualifying as a barrister and contributing to increasingly influential liberal criticism of the Tory government. He was elected as a Whig MP and became a leading proponent of Parliamentary reform.

The imperial Abolition and India Charter Acts accompanied the Reform Act as key legislative achievements of the new Whig governments in the early 1830s and Macaulay played an important role in all of these initiatives. The 1831 slave insurrection in Jamaica and passage of the 1832 Reform Act opened the way for imperial abolition of slave labour, led by MP Thomas Buxton, supported by Macaulay, Henry Brougham and James Stephen Jr. Macaulay was distracted from contributing directly to the abolition bills because of his appointment as Secretary of the Government’s Board of Control for India; he had been ready to resign after the 1831 Jamaica slave insurrection over what he considered to be soft pedalling on abolition, and then twice again in 1833 over compromises with West Indian planters in the Howick and Stanley bills. He also battled Wellington’s orientalist objections to a clause in his own India bill that sought to prohibit slavery practices there. Macaulay agreed to compromise in the end but remained unhappy with the concessions to West Indian planter interests, the generous compensation for their loss of ‘property’, and the ‘unworkable and oppressive’ transitional scheme of compulsory apprenticeships for freed slaves.4

Macaulay became closely acquainted with James Mill during this time and, as they collaborated on the reorganisation of India’s colonial government, embraced utilitarian ideas that were to inform his India law reforms. Appointment to India’s Legislative Council promised greater freedom of legislative action than at Westminster and he readily assumed the idealised utilitarian role of ‘enlightened despotic legislator’. Yet his sweeping India law reforms were to prove ineffective in curbing old as well as the emerging new form of colonial labour exploitation. Traditional slavery practices in India continued for decades as enforced abolition was deemed impolitic, especially after the crisis of the Mutiny. And it was during Macaulay’s time in India that indentured plantation labour recruitment expanded rapidly.

Adam Smith-influenced economic assumptions contributed to reformers’ failure to anticipate the labour transition to a new form of servitude. It was thought the productive gains of free labour would compensate for the costs of abolition, that the market would regulate free and efficient colonial labour, and no paternalistic intervention would be needed beyond supervision of the transitional apprenticeships. Criminalisation and the coercive rights of masters would disappear as part of the discredited old order.⁵ Reformers remained complacent even as it became clear that former slaves preferred independent subsistence farming to plantation labour and planter agents turned to new sources of cheap, reliable and compliant labour as the apprenticeships ended. Mid-century moral activism in the metropole turned to slavery outside British jurisdictions and interest in the former slave colonies waned, accompanied by growing cynicism about their prospects.⁶

The reform shortcomings on colonial servitude might also be attributed to liberal hypocrisy in the exercise of power. Robert Sullivan’s recent biography identifies an inherent authoritarianism in Macaulay that exemplifies the duplicity, privileged paternalism and contradictory political ethos of nineteenth-century British liberals.⁷ In a similar vein Catherine Hall’s examination of Macaulay’s portrayal of the metropole and colonial periphery in his History of England, and the inclusions and exclusions in his ideal cosmopolitan and assimilating British identity, notes that Macaulay found India’s cultures too alien for its inhabitants to be considered British subjects and dismissed the colony as a purely commercial venture.⁸ Yet there are dangers in conflating Macaulay the law reformer of the 1830s with Macaulay the historian of the 1840s and 1850s and in attributing sweeping consequences to his ideas and agency. The IPC was held out as an appropriate model for England itself, a universal jurisprudence premised it on equal status and rights. The shortcomings of Macaulay’s Indian law reforms seem better understood as utilitarian delusions than humanitarian hypocrisies.

Utilitarianism overshadowed Macaulay’s humanitarianism as the primary influence on his India law reforms. Bentham and James Mill differed over empire but shared an interest in experimenting with reform in colonial settings and, for both, criminal law reform and its role in the modern polity was a bigger preoccupation than labour regulation.9 Never part of the tight circle of Bentham and Mill disciples, Macaulay had published criticism of radical utilitarian legislative activism in the Edinburgh and Westminster Reviews, but his views changed soon after Bentham’s death in 1832 as he began work with Mill on the India file. Introducing the India bill at Westminster the next year, Macaulay declared, ‘[a code] is almost the only blessing, perhaps the only blessing, which absolute governments are better fitted to confer on a nation than popular governments’.¹⁰ India became a utilitarian laboratory where Macaulay went the furthest of his generation of reformers to give practical shape to Bentham’s legal theories.

The contradictions of nineteenth-century British liberalism were more easily overlooked in an overseas setting where the executive powers of colonial government gave Macaulay latitude to act as ‘enlightened despotic legislator’ and experiment with radical reforms that could not be contemplated for home. Eric Stokes suggests Macaulay’s ambivalence about utilitarian political and moral theories did not extend to Bentham’s legal theories, while John Clive argues that utilitarian absolutism was embraced as a means to a disinterested end of independence.¹¹ But the contradictions seem best understood in the context of unresolved British colonial political and administrative challenges. Repressive responses to colonial crises (Jamaica, 1831 and 1865; the Canadas, 1837–8; Ireland, 1848–9; and India, 1857–8) revealed tensions between the exigencies of imperial sovereignty and formal claims and rhetoric about enlightened British government, constitutionalism and legality. In Nasser Hussain’s examination of the place of constitutional and legal claims in legitimating British rule in India, the author opens with a telling quote from James Fitzjames Stephen:

The IPC, belatedly enacted when the 1857 ‘Mutiny’ made it a legislative priority, can be seen in this context as a modernising turn in colonial governance. Entailing more than efficient administration of criminal justice, it reflected concerns about the integrity of constitutional and legal bases of British power and sought to make British rule more legitimate and effective. Common legal status and attention to making the criminal law widely known, pervasive, routinely and consistently administered, aimed to foster compliance, deference and public order, and minimised the need to resort to exceptional military responses. Recent scholarship on global networks explores connections between utilitarian reform in the metropole and colonial rule, and Elizabeth Kolsky has identified the importance of English criminal law reform debates to Macaulay’s vision of colonial governance, but adds, ‘[d]espite these connections, there is a dearth of scholarship on the history of codification and empire and even fewer “intertwined” histories that place codification in European metropoles and colonial locales in a unitary field of analysis.’13

Bentham claimed ‘scientific’ legislation held out the promise of a ‘universal’ jurisprudence, applicable, as he put it, to places as diverse as England and Bengal.¹⁴ This would be achieved by ‘codification’, his radical break from the common law.¹⁵ All laws should be replaced by legislated provisions set out in rational, consistent and accessible form, amenable to efficient administration and minimal judicial discretion, organised into penal, constitutional and civil codes, a pannomion aiming for nothing less than the comprehensive regulation of social relationships and sovereign power. Criminal law preoccupied Bentham as the area of English law in most need of reform, where the state’s repressive powers are routinely exercised, liberty is deprived and the harm is deliberately inflicted by way of punishment. However, rationalising reform of English criminal law stalled with Robert Peel’s Criminal Law Consolidations, despite the efforts of Brougham’s Criminal Law Commissioners and Fitzjames Stephen’s later Draft English Code (1878–80).¹⁶ The English bar and bench as guardians of the common law portrayed codification as alien to English legal tradition, promoted by philosophical radical interlopers unversed in English law, appropriate possibly for colonial backwaters but not the birthplace of the common law. Macaulay’s 1860 Law Times obituary reflects the depth of their hostility:

Crises helped to make codification a legislative priority elsewhere in the empire. The IPC was not only the first criminal code in the British Empire but also a fuller implementation of Bentham’s ideas than later British jurisdiction codes derived from Robert Wright’s 1877 Jamaica Code or Fitzjames Stephen’s modest Draft English Code (1878–80).¹⁸

The India Penal Code

Macaulay arrived in India in 1835 as legal representative on the Governor-General of India’s new Legislative Council, writing privately, ‘I have immense reforms in hand… such as would make old Bentham jump in his grave’.¹⁹ His Press Act (1835) ended press licensing and censorship by prior restraint, the Black Act (1836) ended special privileges of European residents in the civil courts, and his education reforms widened accessibility and English language training. The IPC was his most ambitious project. He expressed his hope to James Mill that it would anchor reconstituted British administration and inspire reform at home, and he boasted to his father that it would limit capital punishment to two offences (Peel had reduced them from over 200 to a dozen) and effectively abolish slavery in India.20 His India Law Commission, formed in May 1835, mandated by Council to draft a complete code with a singular standard of justice (replacing the existing patchwork of Muslim and Hindu laws, East Indian Company regulations and received English criminal laws applicable to European residents), quickly agreed to Bentham-inspired drafting principles:

• A code should be more than a digest of existing laws, cover all contingencies, and nothing outside the code ought to be law.
  
• Crime should be suppressed with the least infliction of suffering and ascertain truth at minimal cost of time and money.
  
• The code’s language should be clear, unequivocal and concise, with every criminal act separately defined, all relevant culpable conduct falling within it.
  
• Uniformity is the chief end; no special definitions, procedures or other exceptions to account for different races or sects without clear and strong reasons.²¹

A complete draft, largely authored by Macaulay, was presented to Governor General Auckland in May 1837 and formally submitted to Council in October 1837.²²

Fitzjames Stephen described the draft as, ‘the first specimen of an entirely new and original method of legislative expression’ and declared, ‘[t]o compare the Indian penal code with English criminal law was like comparing Cosmos with Chaos.’²³ Wary of the legal establishment’s suspicion of utilitarian legislative radicalism, Stephen also downplayed Bentham’s influence.²⁴ The IPC became the most utilitarian code ever enacted although Bentham’s precise impact remains difficult to determine. In the absence of a working code from the master, Macaulay confronted the challenges with a Baconian pragmatism, synthesising existing English criminal laws rather than following Bentham’s injunction to legislate entirely anew.²⁵ The result is that the IPC is a radical break from English law in form, a more modest advance in content.

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