Codification and the rule of colonial difference: Criminal procedure in British India

Law and History Review

Volumn 23, Issue 3, 2005, Pages 631-682

  Kolsky, Elizabeth ^a  

^a VILLANOVA UNIVERSITY   (United States)

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EID: 33845277760     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0738248000000596     Document Type: Review

References (166)

1. "A Speech Delivered in the House of Commons on the 10th of July 1833," in Lord Macaulay, The Miscellaneous Writings and Speeches of Lord Macaulay (London: Longmans, Green & Co., 1889)
2. Minute dated January 2, 1837, in C. D. Dharker, Lord Macaulay's Legislative Minutes (Oxford: Oxford University Press, 1946)
3. Whitley Stokes, The Anglo-Indian Codes: Substantive Law (Oxford: Clarendon Press, 1887), x
4. James Fitzjames Stephen was also an aggressive self-promoter who actively courted the Parliament's invitation. I thank Lindsay Farmer for this insight and for the reference to K. J. M. Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge: Cambridge University Press, 1988)
5. See Edward Said, "Chapter One: Overlapping Territories, Intertwined Histories," Culture and Imperialism (New York: Vintage Books, 1994)
6. For Bentham's musings on how to adapt his codes in Bengal, see the "Essay on the Influence of Time and Place in Matters of Legislation," Works, vol. 1 (1843). It should be noted that Macaulay, though he concurred with Mill on the applicability of codification to India, was strongly critical of Mill in other respects
7. See Jack Lively and John C. Rees, Utilitarian Logic and Politics (Oxford: Oxford University Press, 1978)
8. and Stefan Collini, Donald Winch, and John Burrow, That Noble Science of Politics: A Study in Nineteenth-Century Intellectual History (Cambridge: Cambridge University Press, 1983)
9. See the "Preface to the Second Edition," in C. D. Field, The Law of Evidence in British India (Calcutta: Thacker, Spink, 1873)
10. Quoted in George O. Trevelyan, The Life and Letters of Lord Macaulay (London: Lowe and Brydone, 1959), 387
11. The literature on Bentham and English codification is vast. See C. J. W. Allan, "Bentham and the Abolition of Incompetency from Defect of Religious Principle," Journal of Legal History 12 (August 1985): 172-88
12. Helen Beynon, "Mighty Bentham," Journal of Legal History 2 (May 1981): 62-76
13. Markus Dirk Dubber, "The Historical Analysis of Criminal Codes," Law and History Review 18 (2000): 433-40
14. Lindsay Farmer, "Reconstructing the English Codification Debate: The Criminal Law Commissioners," Law and History Review 18 (2000): 397-426
15. David Lieberman, The Province of Legislation Detennined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989)
16. Michael Lobban, The Common Law and English Jurisprudence, 1760-1850 (Oxford: Clarendon Press, 1991)
17. Bhikhu Parekh, ed., Jeremy Bentham, Ten Critical Essays (London: Frank Cass, 1974)
18. G. J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986)
19. Philip Schofield, "Jeremy Bentham and Nineteenth-Century English Jurisprudence," Journal of Legal History 12 (May 1991): 58-88
20. Philip Schofield and Jonathan Harris, eds., "Legislator of the World": Writings on Codification, Law and Education (Oxford: Clarendon Press, 1998)
21. Philip Schofield, "'Professing Liberal Opinions': The Common Law, Adjudication and Security in Recent Bentham Scholarship," Journal of Legal History 16 (December 1995): 350-67
22. William Twining, Theories of Evidence (London: Weidenfeld and Nicolson, 1985)
23. William Twining, Rethinking Evidence: Exploratory Essays (Cambridge, Mass.: Basil Blackwell, 1990)
24. and Gunther A. Weiss, "The Enchantment of Codification in the Common-Law World," The Yale Journal of International Law 25 (2000): 435-532
25. See the seminal work by Eric Stokes, The English Utilitarians and India (Oxford: Oxford University Press, 1959)
26. From the Edinburgh Review, vol. 55, 552
27. quoted in Maurice Lang, Codification in the British Empire and America (Amsterdam: H. J. Paris, 1924), 32
28. As the British Empire extended its territorial reach, many of the Anglo-Indian Codes were also implemented in East and Central Africa, including in Zambia, Malawi, Kenya, Uganda, Tanzania, and Zanzibar. See J. J. R. Collingwood, Criminal Law of East and Central Africa (London: Sweet and Maxwell, 1967)
29. Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993)
30. See Radhika Singha's rich historical monograph, A Despotism of Law: Crime and Justice in Early Colonial India (Delhi: Oxford University Press, 1999)
31. More attention has been given to the role of white settler communities in colonial contexts other than South Asia, which was not broadly speaking a colony of white settlement. On the complex interplay of race, gender, and class hierarchies in Southeast Asia, see Ann Laura Stoler, "Rethinking Colonial Categories: European Communities and the Boundaries of Rule," Comparative Studies in Society and History 31 (1989): 134-61
32. Thomas Metcalf, Ideologies of the Raj (Cambridge: Cambridge University Press, 1994), 38
33. See Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: The University of Michigan Press, 2003), especially the Conclusion, "A Postcolonial Postscript," 133-44
34. Hansard's, 3d ser., vol. 18
35. 3 & 4 Will. 4, c. 85, s. 55
36. Ram Mohun Roy's Communication with the Board of Control on the Judicial System of India dated September 19, 1831, London, in Parliamentary Papers (1831) vol. 5, 734 (hereafter PP)
37. Hansard's, 3d ser., vol. 19, 532. The internal remark refers to a comment made by a colonial civil servant to Macaulay
38. The quotation is from James Fitzjames Stephen's letter to the Earl of Mayo titled, "Legislation Under Lord Mayo," which appears in W. W. Hunter, A Life of the Earl of Mayo (London, 1875), vol. 2, chap. 8, 178
39. A notable exception is Edwin Hirschmann's "White Mutiny": The Ilbert Bill Crisis in India and Genesis of the Indian National Congress (New Delhi: Heritage, 1980), which focuses on the role of the non-official European community during the Ilbert Bill crisis of the 1880s
40. On the politics of race and gender ideologies during this period, see Mrinalini Sinha, Colonial Masculinity: The "Manly" Englishman and the "Effeminate Bengali" in the Late Nineteenth Century (New Delhi: Kali for Women, 1995). Neither of these texts looks at the "pre-history" of the Ilbert Bill or connects the "white mutiny" of the 1880s to long-standing legal battles, as this article does
41. the second is from the Statistics of the British-bom Subjects recorded at the Census of India (Calcutta, 1883)
42. See Macaulay's undated Minute of 1836 in the Legislative Consultations of October 3, 1836, No. 5 (India Office Records [IOR] P/206/84)
43. Bengal Regulation XXVIII of 1793
44. 3 Rob. Ad. Rept. 12, 28, 29
45. See Metcalfe's Minute dated February 19, 1829, quoted by Charles Grant before the House of Commons in Hansard's, 3d ser., vol. 18, 730
46. The quote above is from Legislative Council Member W. Bird's "Minute" of August 26, 1844, National Archives of India (hereafter NAI) Legislative Proceedings, October-December 1844, October 12, 1844, No. 4
47. See Ranajit Guha, A Rule of Property for Bengal (Durham, N.C.: Duke University Press, 1996)
48. and Sara Suleri, The Rhetoric of English India (Chicago: The University of Chicago Press, 1992)
49. See the landmark legal case of Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)
50. See Eric Kades, "History and Interpretation of the Great Case of Johnson v. M'Intosh," Law and History Review 19 (2001): 67-116
51. and Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990)
52. See the Report in Papers Relating to the Settlement of Europeans in India (1854)
53. The American Revolution and the switch from indigo cultivation to sugar and coffee cultivation in the West Indies provided a huge boom to the market for indigo in India. In turn, the indigo planters and merchants of Lower Bengal-many of whom moved from the infamous Caribbean plantations to India-became extremely important players in the future shaping of colonial law and policy in India. See B. B. Chaudhuri, Growth of Commercial Agriculture in Bengal, 1757-1900 (Calcutta: Indian Studies Past and Present, 1964)
54. Ranajit Das Gupta, "Plantation Labour in Colonial India," The Journal of Peasant Studies 19 (1992): 173-98
55. Blair B. Kling, The Blue Mutiny: The Indigo Disturbances in Bengal, 1859-1862 (Philadelphia: University of Pennsylvania Press, 1966)
56. and Prabhat Kumar Shukla, Indigo and the Raj (Delhi: Pragati Publications, 1993)
57. See Metcalfe's "Memorandum of European Settlement," of February 19, 1829 and Bentinck's "Minute on European Settlement," of May 30, 1829, in Papers Relating to the Settlement of Europeans in India (1854)
58. See Ram Mohun Roy's communication to the Board of Control of August 1831, "On the Revenue System of India," dated August 19, 1831, in the Appendix to the Report from the Select Committee on the Affairs of the East India Company, vol. 2, 716-22
59. Hansard's, 3d ser., vol. 19, 527
60. For an argument about the class biases inherent in this position, see Harald Fischer-Tine, "Britain's Other Civilizing Mission: Class Prejudice, European 'Loaferism' and the Workhouse System in Colonial India," in Low and Licentious Europeans: White Subalterns in British India, 1784-1914 (forthcoming)
61. See Kala Anand against Pierre Aller and others, Reports of Cases Determined in the Court of Nizamut Adawlut, vol. 4, 15-29
62. Akbur Ali against Mohun Chunder Battoorjeah and Pocha Booeah, Reports of Cases Determined in the Court of Nizamut Adawlut, vol. 3, 41-46
63. See Rana P. Behal and Prabhu P. Mohapatra, "Tea and Money versus Human Life': The Rise and Fall of the Indenture System in the Assam Tea Plantations, 1840-1908," The Journal of Peasant Studies 19 (1992): 142-72
64. See John Crawfurd, Letters from British Settlers in the Interior of India descriptive of their own condition, and that of the Native inhabitants under the Government of the East India Company (London: James Ridgway, 1831)
65. See excerpts from the report in the Court of Director's Judicial Despatch to Bengal, August 6, 1828, in Papers Relating to the Settlement of Europeans in India (1854)
66. See Dampier's Letter No. 1366, dated May 23, 1844, in NAI Legislative Proceedings, October-December 1844, October 12, 1844, No. 1
67. From Lord Macaulay, Speeches and Poems with the Report and Notes on the Indian Penal Code (Boston: Houghton Mifflin, 1867)
68. See Macaulay's speech of July 10, 1833, in Hansard's, 3d ser., vol. 19, 503-35
69. See Letter No. 44 from the Court of Directors to the Government of India in NAI, Home (Public), Letters from Court of Directors (1834), No. 98
70. The quotation above is from the Legislative Proceedings of March 9, 1883, by Council Member Hunter
71. See his speech of July 10, 1833, in Hansard's, 3d ser., vol. 19, 503-35
72. For more on the relationship between liberalism and empire and an elaboration of the concept of colonial tutelage, see Uday Singh Mehta, Liberalism and Empire (New Delhi: Oxford University Press, 1999)
73. Hansard's, 3d ser., vol. 19
74. See Hussain, The Jurisprudence of Emergency, chap. 2, 35-68, for a lengthy discussion of the historical relationship between the ideology of Oriental despotism and the nature of colonial legal reform
75. Quoted in Schofield, "'Professing Liberal Opinions,'" 365
76. See Maine's "Minute on Codification in India," dated July 17,1879, at the NAI, Home (Legislative) August 1879, 217-20
77. Minute dated January 2, 1837, in Dharker, Lord Macaulay's Legislative Minutes
78. See the Note by H. L. Johnson, Deputy Commissioner, Silhat, and other official memos in Extra Supplement to the Gazette of India, July-December 1883
79. After 1882, the Legislative Department turned its attention to consolidating and amending existing laws, rather than passing new codes
80. See the Legislative Consultations of February 1, 1836, No. 20 (IOR P/206/81)
81. See Macaulay's undated Minute in the Legislative Consultations of October 3, 1836, No. 5 (IOR P/206/84)
82. and the many newspaper editorials and letters to the editor from February-October 1836 in The Englishman and Military Chronicle and the Bengal Hurkaru
83. See the letter to the editor from "A Lawyer," The Englishman and Military Chronicle, February 6, 1836
84. See the letter to the editor, February 14, 1836, in The Englishman and Military Chronicle
85. See the petition in the Legislative Consultations of March 28, 1836, Nos. 8-9 (IOR P/206/81)
86. See the Minutes of Legislative Council Members H. Shakespear and Macaulay in the Legislative Consultations of March 28, 1836 (IOR P/206/81)
87. See the Legislative Consultations of October 3, 1836, No. 5 (IOR P/206/84)
88. Quoted by former Law Member Arthur Hobhouse in his piece, "Native Indian Judges: Mr. Ilbert's Bill," printed in Opinions in Favor of the Ilbert Bill (Calcutta: Doorga Das Chatterjee, 1885), 12
89. Thomas Babington Macaulay, "Minute of 2 February 1835 on Indian Education," Macaulay, Prose and Poetry, ed. G. M. Young (Cambridge: Harvard University Press, 1957)
90. See the Legislative Consultations of March 28, 1836 (IOR P/206/81)
91. See the responses of the Madras and Bombay Governments in the Legislative Consultations of March 28, 1836, Nos. 3-7
92. and Macaulay's Minute of May 9, 1836, in the Legislative Consultations of the same date, No. 10 (IOR P/206/81-82)
93. See his undated Minute in the Legislative Consultations of March 28, 1836, No. 13 (IOR P/206/81)
94. See the letter from the Government of India (Legislative Department) to the Court of Directors, No. 6, dated May 30, 1836, in Letters from India and Bengal to the Court of Directors (IOR E/4/154)
95. See the memorial from Turton and Smith, dated May 2, 1836, in which they charged that the Government of India had exceeded its authority and threatened to take the matter to the House of Commons. Legislative Consultations of May 9, 1836, No. 6 (IOR P/206/82)
96. Quoted during the Legislative Proceedings of March 9, 1883, by Council Member Hunter
97. The memorial is printed in the newspaper Hurkaru, July 28, 1836
98. Act III of 1839 and Act VI of 1843, also known as "Black Acts," extended the jurisdiction of the lower civil courts over British subjects
99. Buller's remark of March 7, 1857, appears in the Legislative Council Proceedings, vol. 3 (1857)
100. See the Legislative Council Proceedings (1883 and 1884), located at the NAI and the IOR
101. See Leon Radzinowicz, A History of English Criminal Law and Its Administration since 1750 (London: Stevens, 1948-86)
102. Another reason why the criminal law was first codified was that the Islamic law was perceived by colonial administrators to be inhumane and brutal. For a critical review of this argument about the inhumanity of the Islamic criminal law, see Jorg Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769-1817 (Wiesbaden: Franz Steiner Verlag, 1983)
103. and Singha, A Despotism of Law
104. See Maine's Minute dated September 11, 1868, NAI Legislative (A), May 1872, no. 579
105. Hastings's "Plan for the Administration of Justice" (1772)
106. See Gerald Larson, ed., Religion and Personal Law in Secular India: A Call to Judgment (Bloomington: Indiana University Press, 2001)
107. The two classic colonial works on Hindu and Muslim law are Nathaniel Halhed, A Code of Gentoo Laws, or, Ordinations of the Pundits (1776)
108. and Charles Hamilton, The Hedaya, or Guide: A Commentary on the Mussalman Laws (1791)
109. and Shukla, Indigo and the Raj
110. See the Legislative Proceedings of October 10, 1836, Nos. 20-21 (IOR P/206/84)
111. See the judicial despatch from the Court of Directors, No. 6, dated September 30, 1835, in the Legislative Proceedings of October 10, 1836, Nos. 20-21 (IOR P/206/84)
112. See the letter from the Court of Directors, No. 9 of 1841, dated August 18, 1841 (NAI) and NAI Legislative Department, November 29, 1841, Nos. 14-18
113. See the letter from the Court of Directors, No. 9 of 1841, dated August 18, 1841 (NAI)
114. See Earl of Ellenborough, Tyranny in India! Englishmen Robbed of the Blessings of Trial by Jury and English Criminal Law. Christianity Insulted! (London: James Ridway, 1850)
115. See the published Law Commissioners' Report, 1843: Jurisdiction over European British Subjects and Draft Act (available at the NAI Library)
116. See Maddock's Minute of September 4, 1844, in NAI Legislative Proceedings, October-December 1844, October 12, 1844, No. 5
117. For more about colonial conceptions of the Indian climate and its adverse effects on European constitutions, see Mark Harrison, Climates and Constitutions: Health, Race, Environment and British Imperialism in India, 1600-1850 (New Delhi: Oxford University Press, 1999). In his Notes on the Indian Penal Code (1837), Thomas Macaulay had argued on political grounds, rather than anatomical grounds, that "Englishmen of lawless habits and blasted character" should be transported from India rather than imprisoned because he believed that: "our national character should stand high in the estimation of the inhabitants of India. . . . that character would be lowered by the frequent exhibition of Englishmen of the worst description, placed in the most degrading situations, stigmatised by courts of justice." This argument that Europeans in India could not tolerate imprisonment persisted into the twentieth century
118. See Law Member Drinkwater Bethune's Minutes in the Legislative Consultations of May 10, 1850, Nos. 25, 27, 30, 33-35 (IOR P/207/60)
119. See Judge J. R. Colvin's Minute of February 28, 1850, in the Legislative Consultations of May 10, 1850, No. 67 (IOR P/207/60)
120. See Dalhousie's Minute of April 19, 1850 in the Legislative Consultations of May 10, 1850, No. 73 (IOR P/207/60)
121. See Legislative Despatch No. 15 of November 27, 1850 (IOR E/4/804)
122. See Legislative Council Proceedings, vol. 3 (1857)
123. See Thomas Metcalf, The Aftermath of the Revolt: India 1857-1870 (Princeton: Princeton University Press, 1964)
124. Eric Stokes, The Peasant and the Raj: Studies in Agrarian Society and the Peasant Rebellion in Colonial India (Cambridge: Cambridge University Press, 1978)
125. and Eric Stokes, The Peasant Armed: The Indian Revolt of 1857 (Oxford: Clarendon Press, 1986)
126. See Metcalf, Ideologies of the Raj, especially "The Crisis of Liberalism."
127. James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan, 1883), 345
128. The Queen's Proclamation is printed in the Calcutta Gazette, Extraordinary, Monday, November 1, 1858
129. See the debates of July, August, and September 1859, in Legislative Council Proceedings, vol. 5 (1859)
130. See the published Memorial from the British Indian Association dated December 31, 1860 (Calcutta, 1860), at the IOR
131. See the report of the Calcutta British Indian Association of September 21, 1859, in Reports of Meetings of the British Indian Association Calcutta, June 1859-May 1862 (IOR)
132. See the letter from A. Money, Commissioner of Bhaugulpore in Henry Maine's "Minute on Vagrancy" of June 11, 1868, in NAI Home, Legislative (A), October 1868, Nos. 12-15
133. See Maine's Minute in NAI Home, Legislative (A), August 1864, Nos. 31-33
134. See Chapter Three of my unpublished dissertation, "The Body Evidencing the Crime': Gender, Law and Medicine in Colonial India" (Columbia University, 2002) for a lengthy discussion of European vagrancy in the post-Mutiny period
135. See the Minutes of the Madras and Calcutta High Court Judges, and the Punjab Chief Court Judges in NAI, Home, Judicial (A), February 4, 1871, Nos. 40-41 and NAI, Home, Judicial (A), February 25, 1871, No. 4
136. See the third Indian Law Commission's Seventh Report of Her Majesty's Commissioners Appointed to Prepare a Body of Substantive Law for India (1870) available at the IOR
137. See the December 9, 1870 proceedings in Legislative Council Proceedings, vol. 16 (1870)
138. NAI Legislative (A), June 1872, Nos. 141-346
139. See the letter from S. C. Bayley, Officiating Secretary to the Government of Bengal in the Judicial Department, No. 5457, dated November 4, 1871, in NAI Home, Judicial (A), December 30, 1871, Nos. 35-37
140. See letter No. 6629 from R. Thompson, Esq., Officiating Secretary to the Government of Bengal, Judicial Department, to W. Stokes, Esq., Secretary to the Government of India, Legislative Department, dated December 23, 1871, NAI Home, Judicial (A), February 1873, Nos. 131-32
141. See the Assam Commissioner's letter and Officiating Secretary to the Government of Bengal Bayley's letter in NAI Legislative (A), June 1872, Nos. 141-346
142. Also see Behal and Mohapatra, "'Tea and Money versus Human Life.'"
143. See the Legislative Council Proceedings of January 30, 1872, in Legislative Council Proceedings, vol. 18
144. and the preliminary Report of the Select Committee published in the Supplement to the Gazette of India, January-June 1872 (February 3, 1872)
145. See Pedder's letter No. 235, dated January 15, 1872, in NAI Legislative (A), June 1872, Nos. 141-346
146. See the Madras Advocate General's letter of January 11, 1872, in NAI Home, Judicial (A), April 1872, No. 79
147. The introduction of the concept of "separate but equal" systems in late nineteenth-century India eerily resembles the U.S. Supreme Court decision in Plessy v. Ferguson (1896)
148. Unfortunately, there are no historical records detailing this compromise. The minutes of the Select Committee, potentially interesting and rich sources, were never recorded
149. See Commander-in-Chief Barrow Ellis's speech in Supplement to the Gazette of India, May 4, 1872
150. See the Governor-General's speech in Supplement to the Gazette of India, May 4, 1872
151. See Stephen's speech of April 16, 1872, in the Legislative Council Proceedings, vol. 18
152. See the Memorial from the British Indian Association of Calcutta regarding the new Code of Criminal Procedure (Act X of 1872), dated July II, 1872, in NAI Home, Judicial (A), August 1872, Nos. 61-64
153. See their memorial of November 1, 1872, in NAI Home, Judicial (A), January 1873, Nos. 255-59
154. Hirschmann, "White Mutiny."
155. See the "Statement of Objects and Reasons," dated January 30, 1883, in Extra Supplement to the Gazette of India, July-December 1883 and IOR L/P&J/5/40
156. See the "Proceedings of a Public Meeting held in the Town Hall, Calcutta, on the 28th February 1883, in connection with the Criminal Procedure Code Amendment Bill," in PP, vol. 60 (1884), c. 3952
157. See the debates of March 9, 1883, in Legislative Council Proceedings (1883)
158. See the extract from the Joint Memorial of the British Indian Association, the Indian Association, the Mahomedan Literary Society, the National Mahommedan Association, the East Bengal Association and the Vakils' Association, High Court, Calcutta, IOR L/P&J/5/40
159. See also the memorial of the Kayastha Literary and National Association, dated November 10, 1883, in PP, c. 3952 (1884) as well as the many memorials printed in the Extra Supplement to the Gazette of India, July-December 1883 and IOR L/P&J/5/40
160. See the "Memorial of the European British-bom subjects of Her Majesty the Queen Empress and employees of the East Indian Railway Company," IOR L/P&J/5/40
161. See the "Humble Memorial of the Bengal Chamber of Commerce," dated April 19, 1883, in Extra Supplement to the Gazette of India, July-December 1883
162. See the "Humble Memorial of the Anglo-Indian and European British subjects residing at Mirzapur in Upper India," in Extra Supplement to the Gazette of India, July-December 1883
163. See letter No. 1232 J-D. from F. B. Peacock, Secretary to the Government of Bengal, to the Government of India (Legislative Department), dated June 22, 1883, in Extra Supplement to the Gazette of India, July-December 1883
164. See the speech of G. H. P. Evans, a non-official Member of Council and a Calcutta barrister, of March 9, 1883, in Legislative Council Proceedings (1883)
165. See Miller's speech on March 9, 1883, in Legislative Council Proceedings (1883)
166. See his speech of January 25, 1884, in Legislative Council Proceedings (1884)