Renovate or Rebuild? Treatises, Digests and Criminal Law Codification
WHAT IS THE place of the treatise in the narratives of nineteenth-century criminal law reform and codification? Codification, at least in its Benthamite conception, rejected the common law and attempts to conceive and present it in modern form. Jeremy Bentham’s critique of William Blackstone’s Commentaries was a springboard for his injunction to reformulate the criminal law entirely anew by legislative means. The ambitious utilitarian code seems antithetical to nineteenth-century treatise projects inspired by Blackstone. Yet the influence of the treatise can be found in all the British jurisdiction codifications of that century, implicitly so in Thomas Macaulay’s India Penal Code (IPC), and more openly in those that followed, including the Canadian Criminal Code.
Bentham coined the term ‘codification’, a sweeping reform based on his critique of the common law and his ambitious science of legislation. All existing criminal laws were to be replaced by comprehensive provisions set out in rational, consistent and accessible form, anchored in the principles of utility, and amenable to efficient administration and minimal judicial discretion. Such a code held out the promise of a universal jurisprudence, applicable, as Bentham put it, to places as diverse as England and Bengal.1 Soon after his death in 1832, imperial authority in India was reconstituted by his utilitarian colleague, James Mill, and Macaulay was appointed legal representative on the Governor-General of India’s new Legislative Council. His code, drafted by 1837, was not only the first in the British Empire, but also came closest of all the nineteenth-century criminal codes to a practical implementation of Bentham’s ideas. Enacted in 1860 in the wake of the Mutiny, it was the basis for codes enacted in British colonies throughout South Asia and an important reference point for Robert Wright’s draft Jamaica Code (1877), a model for those enacted elsewhere in the West Indies and beyond. Criminal law codification was never realised in England and Wales, despite its central place in nineteenth-century law reform debates there. Notwithstanding the Law Commission’s recent effort (1968–2008), Fitzjames Stephen’s Draft English Code, a cautious effort that reflected accommodation with the common law, came closest to success. The bill died with the fall of the government in 1880, but Stephen’s draft became the main external reference for the first wave of British self-governing jurisdiction codes beginning with Canada.
This chapter explores the connections between the modern treatise and codification in England, India and Canada, and, in particular, the shift from Bentham’s injunction to draft criminal law entirely anew to the codifiers’ increasing reliance on a modern synthesis of existing laws inspired by Blackstone, the very exercise rejected by Bentham in his critique of the Commentaries. A broad approach to the treatise is adopted here, suggesting fluid boundaries between it and other modern forms of legal literature such as digests and law commission reports. All share the characteristics of assimilating, abstracting and lending rational order to existing laws, with reference to traditional and modern purposes. There are differences, such as variation in descriptive and prescriptive elements, audience, private and public uses, but such a broad approach helps to illuminate the dynamic relationships between these legal forms, their role in the production of legal knowledge, and connection with social scientific and public policy practices.2
The modern treatise and code were Enlightenment-inspired projects, concerned about the rational systematisation of the law and the enticing possibility of approaching law as a science. Brian Simpson portrays codification as the next logical step beyond the discursive treatise, a more concise statement of law, and one of the most interesting developments of the treatise form.3 Morton Horwitz suggests treatises were a defensive response to the threat codification posed to judicial power, led by legal scholars committed to assumptions about the logic and internal consistency of legal doctrine.4 The generalisations capture some elements found in my examples but the patterns and intersections are more complex. Simpson accurately portrays the later nineteenth-century English scene but neglects Bentham’s earlier rejection of the treatise form as means to modernise the law. Horwitz is more applicable to the US, which is not examined here, although the defensive legitimacy question does arise.
The Macaulay and Stephen codes are very different, the former aspiring to break decisively from the common law, the latter seeking accommodation with it. Yet despite drafting the most Benthamite code enacted, there are hints of the treatise in Macaulay’s reliance on its synthetic approach in his Examples and its discursive style in his Notes. The treatise is openly embraced by Stephen, who displaced Bentham as the primary influence on the late nineteenth-century codes. His General View of the Criminal Law (1863) and Digest of the Criminal Law (1877), important steps towards his 1878 draft code (basis for the failed 1880 bill at Westminster), built upon Robert Peel’s criminal law consolidations and the work of Henry Brougham’s criminal law commissioners, developing a synthesis of existing laws that was only loosely utilitarian-inspired. Rather than a defensive response to codification, the treatise was deployed to enhance the legitimacy and prospects of codification. Bentham’s radical legislative agenda was moderated in the face of mounting opposition by the bar and bench guardians of the common law, and as legal scholars built upon Blackstone’s legacy, while the positivists among them sought to make Bentham’s legacy more palatable. Stephen’s caution was not enough for domestic success, but his strategy proved successful in other British jurisdictions, followed first in Canada by way of the Dominion consolidations, George Burbidge’s A Digest of the Criminal Law of Canada (Crimes and Punishment) Founded by Permission on Sir James Fitzjames Stephen’s Digest of the Criminal Law (1890), and passage of the 1892 code.
This portrayal of the Indian and Canadian codes as manifestations of different stages of nineteenth-century English criminal law reform debates is not intended to suggest they were essentially products of the metropole, or to diminish the place of local influences on their development. But both codes were informed and shaped by this law reform context and pervasive legal connections within an imperial network. My analysis follows KJM Smith’s narrative of this period in which Bentham’s critique and the interventions of Macaulay and Stephen figure prominently and codification, despite failing domestically, prompts more conceptually sophisticated law.5 Lindsay Farmer’s chapter presents an alternative narrative that focuses on the practical nineteenth-century criminal law literature in Britain rather than the reform debates in which codification looms large. The narratives are not necessarily at odds. Indeed, they represent different ends of a legal literature spectrum, one theoretically oriented and imperial in reach, the other practical and local in application. The influence of professional power, a legal culture that neglects the criminal law as a branch of public law, to see it as an adjunct of private law primarily about the protections of private interests or hardly rated as law at all, in such contrast with Bentham’s outlook, is a common theme.
I. BENTHAM, MACAULAY AND THE INDIA PENAL CODE
The inspiration for Macaulay’s India Penal Code was Bentham’s science of legislation and universal jurisprudence developed from his critique of Blackstone’s Commentaries. India became a colonial laboratory for these ideas, James Mill’s reorganisation of colonial government there providing the opportunity for Macaulay to become an enlightened utilitarian despotic legislator. It was hoped that the colonial example would inspire codification in the metropole, where rationalising reform beyond Peel’s consolidations stalled. The bar and bench defenders of the common law portrayed codification as alien to English legal tradition. But the dismissal of the codification as foreign, or the work of philosophical radical interlopers unversed in the common law, neglects its prominence in nineteenth-century English criminal law reform debates and diminishes the importance of Bentham’s influence on the early phase of the debates.6 It is also myopic, ignoring codes enacted in other British common law jurisdictions.
Bentham developed the term ‘codification’ to describe his ambitious legislative agenda and radical break from the common law.7 Bentham’s critique of his former teacher began with his 1776 Fragment on Government and continued throughout his long life.8 He acknowledged Blackstone’s achievement in technical arrangement and lending rational order to English law.9 But he concluded that the Commentaries were ultimately ‘an elegant palliative to the inherently chronic confusion of the common law’.10 The common law, Blackstone’s preoccupation, was beyond the reach of rational reform, its arcane nature and needless complexities the invariable result of random cases and self-serving judges. Blackstone’s defence of judicial power, based on the incredible claim that judges exercised little discretion around common-law rules, and his neglect and suspicion of legislation, were nonsense.11 Blackstone’s modern ordering of the common law was futile and the common law should be eliminated.
Bentham’s science of legislation, set out in Introduction to the Principles of Morals and Legislation and elsewhere, called for legislative reformulation of all laws, informed by the rational principles of utility thought to have universal application. Unlike the treatise, there would be no looking back, reference to obscure archaic purposes, or attempt to marry traditional with modern policy objectives. His pannomion, composed of penal, constitutional and civil codes, aimed for nothing less than the comprehensive regulation of social relationships and sovereign power.12 The criminal code occupied much of Bentham’s attention, in contrast to the relatively minor place of criminal law in the Commentaries, its neglect in the later treatise literature, and indeed its portrayal as hardly counting as law at all in historical narratives celebrating the genius of the common law.13 Criminal law entails vital matters of public policy, liberty and individual happiness. It regulates key relations between the state and citizens. It is the most commonplace reflection of the exercise of state power in repressive forms, reflecting its monopoly over the legitimate use of violence. Punishment entails the deliberate infliction of harm. Such matters demanded clearer articulation, modern rational justification and could not be entrusted to the courts.
Bentham’s taxonomy of criminal harms, prohibitions and penalties took the rationalising spirit of the Enlightenment much further than Blackstone. He sought to map out and categorise the entirety of the criminal law, all offences, forms of liability and defences set out leaving no terra incognita, in provisions expressed so clearly that an average person would understand it, an average judge unable to claim not to. Yet Bentham never completed a working criminal code.14 And while his criminal institutional proposals were well known, the transformations in the administration of English criminal law in the 1820s and 30 s were influenced by complex factors, more a matter of reform consensus between leading Tories and Whigs than Bentham’s advocacy.15 As for reforms to the substantive criminal law, consolidation (collection and update of all statutes), digests (organised presentation of the law) and yet more comprehensive rationalisations falling short of Bentham’s call were debated. Peel’s consolidations of 1827–31, which repealed or modernised hundreds of statutes and scaled back the death penalty from over 200 to a dozen offences, was a modest rather than transformative advance. It was nonetheless an important one, relatively neglected by scholars compared to the new police, professionalisation of the criminal trial and the rise of the penitentiary.
The fall of Wellington’s government opened the door to the possibility of wider criminal law reform under Henry Brougham. He was unable to match Peel’s political and legislative skills and Lord Chief Justice Ellenborough’s defence of judicial powers had set the stage for more aggressive intervention against legislative change.16 Brougham’s criminal law commissioners, appointed in 1833 with a mandate to produce a digest of criminal statutes, another of common law and to consider combining both, were divided over the scope of contemplated reform and indulged in esoteric doctrinal and definitional debates.17 A series of reports resulted in a combined digest in 1845, followed by more modest reports on indictable offences, but the 1853 bill based on the latter collapsed in the face of judicial criticism in a select committee.18 Few remnants of the commissioners’ work are found in Charles Greaves’s 1861 consolidation, an update of Peel. Codification was not abandoned but subsequent efforts were condemned to follow a similar pattern and the project proved more promising in colonial contexts.
India became a utilitarian laboratory where Macaulay explored the possibilities of Bentham’s scientific legislation and universal jurisprudence. Smith aptly describes the IPC as an important episode in the development of criminal jurisprudence and nineteenth-century intellectual history.19 While it was the most Benthamite code enacted, giving form and practical content to Bentham’s ideas, and making them work in the context of a specific time and place, proved difficult. Macaulay confronted the challenges with a Baconian pragmatism, relying in part on a synthesis that resembles the modern treatise.20
Most early commentary dismissed the IPC as the work of a philosophical radical non-lawyer (Macaulay trained as a barrister and knew Peel’s consolidations well). The more sympathetic assessments tended to downplay Bentham’s influence, Stephen describing it as ‘the criminal law of England freed from all technicalities and superfluities . . .’21 although he acknowledged elsewhere, ‘[t]o compare the Indian penal code with English criminal law was like comparing Cosmos with Chaos’.22 Much more recently Eric Stokes fully illuminated Bentham’s considerable influence.23 Yet there were unresolved issues in his codifying ideas (tensions between inductive and deductive logics, between the abstract and the situational) and his precise impact remains difficult to determine. Macaulay’s biography of Bacon, written while drafting the code, was probably inspired by Peel’s quotation from Bacon to undercut opposition to his consolidation bills. Bacon’s ideas have more affinity with the case by case incremental development of general principles characteristic of the common law than the principled abstraction of Plato or Cartesian identification of first principles and derived implications characteristic of the Roman-civilian legal tradition. Bacon’s pragmatism also informed Macaulay’s approach.
That Macaulay fell short of Bentham’s ideals is unsurprising for modern legal theorists.24 Unlike Bentham, Macaulay devised working provisions. The IPC remains the groundbreaking British code, the most Benthamite in nature and ambition, and many of its qualities remain as progressive law reform aims in the twenty-first century.25 At the same time it must be recognised that Macaulay’s reform did not occur in a vacuum. A product of a particular time and place, cultural and intellectual context, Macaulay’s premises were informed by the limits of his experience, outlook and an intellectual milieu of European Enlightenment rationalism and British liberalism.
Nor was the IPC a disinterested initiative, utilitarian and liberal conceits aside. It was a British imperial policy innovation that responded to concerns about effective colonial governance and challenges to British sovereignty. While it is reductionist to dismiss the IPC as essentially an exercise in power, it was also more than a law reform. It was a quasi-constitutional projection of British authority, designed to make the law more effective and legitimate in a culturally diverse frontier setting thereby better regulating relations between the colonisers and the colonised. The adoption of the IPC by authoritarian legislative decree, the denial of indigenous diversity, and common obligations of citizenship as defined by an external power while substantive colonial difference persisted, reflect the limits of assimilative liberal ideals and contradictions between sovereignty and liberal rationalities.26 Colonial crises also prompted ambitious law reforms and legal practices that better conformed to British constitutional claims and would engender, it was hoped, greater compliance to British rule.27 It is more than coincidence that the Mutiny led to the IPC’s belated enactment, just as crises led to the Jamaica draft and prefaced the codes of the 1890s.28
Macaulay’s involvement in such an ambitious reconstitutive project, assuming the role and very image of the utilitarian enlightened despotic legislator, was surprising. He was not part of the tight circle of Bentham and Mill disciples and published criticism of utilitarianism, warning of the threat it posed to British liberties. But shortly after Bentham’s death he collaborated closely with James Mill on the reorganisation of India’s colonial government. Between contributions to the Reform Act, 1832 and the 1834 legislation to prohibit slavery throughout the British Empire, Macaulay became the main Commons advocate for Mill’s Charter Act bill, declaring in parliamentary debate, ‘[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’.29 After arriving in India as legal representative on the Governor-General of India’s new Legislative Council, he wrote, ‘I have immense reforms in hand . . . such as would make old Bentham jump in his grave . . .’30 His Press Act (1835) ended press licensing and prior restraint, the Black Act (1836) ended special privileges of European residents in the civil courts, and his education reforms widened accessibility and modernised curriculum, but the IPC, which he largely authored, was by far his biggest project.31 As he started, he wrote to Mill expressing the hope it would inspire codification at home as Brougham’s commissioners grappled with the continuing chaotic state of English law.32
Macaulay rejected mere consolidation, arguing for a comprehensive code to replace the existing patchwork of Muslim and Hindu laws overlaid with received English criminal laws and East Indian Company regulations, and a singular standard of justice for all.33 His 4 June 1835 Minute to Council presented his law commission’s codifying principles (paraphrased here):
• It should be more than a mere digest of existing laws, cover all contingencies, and nothing that is not in the code ought to be law.
• Crime should be suppressed with the least infliction of suffering, and allow for th e ascertaining of the truth at minimal cost of time and money.
• Its language should be clear, unequivocal and concise. Every criminal act should be separately defined, the language followed in indictment, and conduct found to fall within it.
• Uniformity is the chief end; special definitions, procedures or other exceptions to account for different races or sects not included without clear and strong reasons.34
These codifying principles of comprehensiveness, accessibility and consistency are a practical rendition of Bentham’s legislative aspirations, and indeed, Macaulay’s presentation of law in the resulting draft is a radical break from existing English laws. The substantive doctrines are less so. The provisions are accompanied by Examples illustrating their application to hypothetical cases. Explanatory Notes, which disappeared from the enacted version of the IPC, criticise existing English laws and discuss the conceptual features of key provisions. Macaulay’s debt to Bentham is more discernable in conception (drafting principles) and presentation rather than in doctrinal details. The latter derive from existing laws, modernised but not reinvented, falling short of Bentham’s call to legislate anew.
The IPC is a comprehensive presentation of criminal law, a taxonomy that precludes the common law, and very different in form from existing British legislation. Macaulay fully embraced Bentham’s extension of logic of classification in the natural sciences to law, aiming for a systematic and exhaustive statement of criminal harms and attendant prohibitions, liability standards and penalties (maximums) expressed precisely and consistently.35 Following Bentham’s principles of ‘nomography’, Macaulay devised concise, direct legal expression, characterised by simplicity, clarity, economy and lack of technicality, within a rationally organised and self-contained legislative whole.36
The substantive doctrines reflect wider influences. Precise attribution is difficult but the Notes suggest they derived mostly from what Macaulay was familiar with, English laws reworked, simplified and modernised according to more general liberal sensibilities. Most are progressive for the time, indeed a number of the original provisions remain more advanced than current criminal laws in most common-law jurisdictions. Principles of liability are not defined in a general part but there is consistent attention to fault requirements and terms, emphasis on subjective standards, with occasional use of lesser standards of rashness (the Macaulayan term for recklessness) and negligence for endangering offences or where public duties were specified. Offences are accompanied, where relevant, by specified exemptions (the Macaulayan term for defences). The arcane English laws of murder and theft are thoroughly reconstituted. Political offences reflect a libertarian orientation, manifested in Macaulay’s narrow definition of treason, abolition of seditious libel, and criminal liability for abuse of state and official powers. Innovations appear in offences concerning the exploitation of vulnerable groups, endangering and intangible harms. Punishments follow a utilitarian logic of deterrence, certainty and proportionality. Capital punishment is limited to two offences (Peel’s dramatic reduction was to a dozen offences) and corporal punishment is abolished.37
Macaulay’s illustrative Examples, authoritative precedents set by legislators rather than judges, were designed to exhibit a provision’s entire meaning and range of application and minimise judicial discretion. Bentham contemplated the device and Edward Livingston’s draft Louisiana penal code included illustrations,38 but the technique was rejected by the English Commissioners (Fourth Report, 1839) and in Wright’s Jamaica draft.39 Clive notes that drafting the IPC honed Macaulay’s expressive skills as a writer and historian, drawing parallels between the challenges faced by legislators and historians of capturing both the particular and the general. Examples were generated out of subjecting draft definitions to hypothetical exceptions; if doubts or uncertainties were raised, they were accommodated in revisions to sharpen expression, logical distinctions, comprehensibility and perspicuity.40 Macaulay’s method here is analogous to the approach to synthesis in the modern treatise, although the objective is prescriptive rather than descriptive, and his approach results in more economical expression of the law than the more unwieldy typical treatise style formulations.
Macaulay’s Notes reveal more connections with the treatise. Indeed, they can be viewed as a succinct critical treatise on English criminal law in the 1830s, warranting recognition as one of the most interesting examples of the form. Incisive critique of existing English laws dominates the text and Macaulay takes obvious delight in pointing out common-law absurdities. But the basic doctrinal ideas build from a background he knew best, Peel’s English consolidations, peppered with occasional explicit reference to the 1810 French Code penal and the draft Louisiana code.41 The combination of critique and concise explanation reflects Macaulay’s historical sensibilities and skills at theoretical and technical synthesis, but Stokes observes that the separate appearance of the rationales for the laws was a departure from Bentham’s legislative method.42 It is an important departure. The Notes reveal the significant place of existing laws as Macaulay’s starting point and primary reference, prefiguring the more open reliance on the treatise form in subsequent codification efforts.
John Stuart Mill echoed Macaulay’s hope that his code would inspire stalled English efforts, observing criticism originated in grievances about ending special privileges.43 But the IPC encountered what Smith calls ‘the great dead weight power of governmental and administrative inertia . . .’44 The 1857–58 crisis restored the code as a legislative priority, as Stephen noted, ‘[t]hen came the Mutiny which in its essence was the breakdown of the old system . . . The effect of the Mutiny on the Statute Book was unmistakeable . . .’45