Life and Letters of Lord Macaulay, vol 1, George Otto Trevelyan [whitelam books TXT] 📗

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.”

“The point which always has surprised me most in connection with the Penal Code is, that it proves that Lord Macaulay must have had a knowledge of English criminal law which, considering how little he had practised it, may fairly be called extraordinary.

[Macaulay’s practice at the bar had been less than little, according to an account which he gave of it at a public dinner: “My own forensic experience, gentlemen, has been extremely small; for my only recollection of an achievement that way is that at quarter sessions I once convicted a boy of stealing a parcel of cocks and hens.”] He must have possessed the gift of going at once to the very root of the matter, and of sifting the corn from the chaff to a most unusual degree; for his Draft gives the substance of the criminal law of England, down to its minute working details, in a compass which, by comparison with the original, may be regarded as almost absurdly small. The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made. It is to the French ‘Code Penal,’ and, I may add, to the North German Code of 1871, what a finished picture is to a sketch. It is far simpler, and much better expressed, than Livingstone’s Code for Louisiana; and its practical success has been complete. The clearest proof of this is that hardly any questions have arisen upon it which have had to be determined by the courts; and that few and slight amendments have had to be made in it by the Legislature.”

Without troubling himself unduly about the matter, Macaulay was conscious that the world’s estimate of his public services would be injuriously affected by the popular notion, which he has described as “so flattering to mediocrity,” that a great writer cannot be a great administrator; and it is possible that this consciousness had something to do with the heartiness and fervour which he threw into his defence of the author of “Cato” against the charge of having been an inefficient Secretary of State.

There was much in common between his own lot and that of the other famous essayist who had been likewise a Whig statesman; and this similarity in their fortunes may account in part for the indulgence, and almost tenderness, with which he reviewed the career and character of Addison. Addison himself, at his villa in Chelsea, and still more amidst the gilded slavery of Holland House, might have envied the literary seclusion, ample for so rapid a reader, which the usages of Indian life permitted Macaulay to enjoy. “I have a very pretty garden,” he writes, “not unlike our little grass-plot at Clapham, but larger. It consists of a fine sheet of turf, with a gravel walk round it, and flower-beds scattered over it. It looks beautiful just now after the rains, and I hear that it keeps its verdure during a great part of the year. A flight of steps leads down from my library into the garden, and it is so well shaded that you may walk there till ten o’clock in the morning.”

Here, book in hand, and in dressing-gown and slippers, he would spend those two hours after sun-rise which Anglo-Indian gentlemen devote to riding, and Anglo-Indian ladies to sleeping off the arrears of the sultry night. Regularly, every morning, his studies were broken in upon by the arrival of his baby niece, who came to feed the crows with the toast which accompanied his early cup of tea; a ceremony during which he had much ado to protect the child from the advances of a multitude of birds, each almost as big as herself, which hopped and fluttered round her as she stood on the steps of the verandah. When the sun drove him indoors, (which happened sooner than he had promised himself, before he had learned by experience what the hot season was,) he went to his bath and toilette, and then to breakfast; “at which we support nature under the exhausting effects of the climate by means of plenty of eggs, mango-fish, snipe-pies, and frequently a hot beefsteak. My cook is renowned through Calcutta for his skill. He brought me attestations of a long succession of gourmands, and among them one from Lord Dalhousie, who pronounced him decidedly the first artist in Bengal. [Lord Dalhousie, the father of the Governor-General, was Commander-In-Chief in India during the years 1830 and 1831.] This great man, and his two assistants, I am to have for thirty rupees a month. While I am on the subject of the cuisine, I may as well say all that I have to say about it at once. The tropical fruits are wretched. The best of them is inferior to our apricot or gooseberry. When I was a child, I had a notion of its being the most exquisite of treats to eat