This article is derived from my M. Phil, thesis, ‘The Anglicization of Indian Law: The “Age of Reform” Revisited,' University of Cambridge, 1991, and from a research project undertaken in 1992 at Northwestern University School of Law. I would like to thank C. A. Bayly, who supervised my thesis, and Javed Majeed, Dilip Menon, Michael J. Perry, and Robert P. Burns for their insightful comments.

¹ Postema, Gerald J., Bentham and the Common Law Tradition 267 (1989).Google Scholar See alsoEisenbach, Eldon J., The Dimension of History in Bentham's Theory of Law, 16 Eighteenth Century Stud. 290 (1983). Bentham termed history, and laws and legal institutions that were once in existence, as ‘fallacies,’ for ‘[i]t is from the follies, not from the wisdom of our ancestors, that we have so much to learn.’Google ScholarBentham, J., The Book of Fallacies, in II Works of Jeremy Bentham 401 (Bowring, J. ed. 1843).Google Scholar

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³ The ‘traditional’ or ‘indigenous’ culture involved innumerable, overlapping local jurisdictions, and many groups enjoyed varying degrees of autonomy in administering law to themselves, but it was a system to the extent that its comprising elements were informed by similar ideas. The tradition was not necessarily interpreted properly, but it was definitely that with which the British claimed to be in conformity. See e.g., Lloyd I. Rudolph & Susanne H. Rudolph, The Modernity of Tradition: Political Development in India (1984).Google Scholar

⁴ Id. at 279.

⁵ This essay will not discuss the constitution of the civil law, which clearly went through great change as the British strived to shape a revenue policy conducive to the policies of the Company and the productive enterprise of its subjects. See Cohn, Bernard S., From Indian Status to British Contract, in An Anthropologist among the Historians and Other Essays (1987),Google Scholar and Guha, Ranajit, A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement (1963).Google Scholar

⁶ See Derrett, J. D. M., Religion, Law and the State in India (1968);Google ScholarWashbrook, D. A., Law, State and Society in Colonial India, 15 Mod. Asian Stud. 641 (1981);CrossRefGoogle ScholarSingha, Radhika, A ‘Despotism of Law’: British Criminal Justice and Public Authority in North India, 1772–1837 (1990) (unpublished Ph.D. dissertation, University of Cambridge);Google ScholarSingha, Radhika, ‘Providential’ Circumstances: The Thuggee Campaign of the 1830s and Legal Innovation, 27 Mod. Asian Stud. 83, 90 (1993);CrossRefGoogle Scholar and Banerjee, T. K., Background to Indian Criminal Law 130 (1963).Google Scholar

⁷ Stokes, Eric T., The First Century of British Colonial Rule in India: Social Revolution or Social Stagnation?, 58 Past and Present 144 (1973).CrossRefGoogle Scholar Similar ideas have been expressed in Bayly, C. A., Indian Society and the Making of the British Empire (1988).Google Scholar

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⁹ Akbar, , the most famous of the Mughal emperors, ruled in the period 1556–1605.Google Scholar For in-depth studies of Mughal judicial machinery and process, see Fisch, Jorg, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law 1769–1817 (1983);Google ScholarSarkar, J. N., Mughal Polity 117–219 (1884);Google Scholar and Saran, P., The Provincial Government of the Mughals: 1526–1658 117–219 (1973).Google Scholar

¹⁰ Coulson, Noel J., The Culture of Islam: Islamic Law, Shariah, in 22 Encyclopaedia Britannica 31, 34 (15th Ed. 1989).Google ScholarSee also Coulson, , A Histoy of Islamic Law 28–33 (1964).Google Scholar

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¹³ Id. See also Coulson, A Histoy of Islamic Law, supra note 10, at 83–85.Google Scholar

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¹⁶ Id. at 346.

¹⁷ Jain, M. P., Outlines of Indian Legal History 124 (4th ed. 1990).Google Scholar

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¹⁹ Jain, , supra note 17, at 56.Google Scholar

²⁰ Seventh Report, supra note 15, at 347.

²¹ Jain, , supra note 17, at 57.Google ScholarSee also Cohn, , supra note 5, at 324–30.Google Scholar

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²³ 6Ft. William–India House Correspondence, at liv (Bhargava, K. D. ed. 1959) (citing letter from Committee of Circuit to Council at Ft. William).Google Scholar

²⁴ Cohn, Bernard, in an interesting article considering the forms of knowledge which the British defined as useful for their own ends, explains that ‘[t]he years 1770–1785 may be looked upon as the formative period during which the British successfully began the program of appropriating Indian languages to serve as a crucial component in their construction of the system of rule.’ The Command of Language and the Language of Command, in Subaltern Studies IV, at 28 (Guha, R. ed. 1985).Google Scholar

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³⁵ Id. at 326.

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³⁷ Cited in Cohn, , supra note 5, at 468.Google Scholar

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³⁹ An in-depth account of their policies is included in Stokes, The English Utilitarians and India, supra note 18, at 8–25.Google Scholar

⁴⁰ Id. at 15.

⁴¹ Id. at 23 (citing II John Malcolm, The Political History of India 142 (1826)).Google Scholar

⁴² Id. at 24 (citing letter from Munro to Canning (June 30, 1821).Google Scholar

⁴³ See Halevy, Elie, The Growth of Philosophic Radicalism (Morris, Mary trans., 1972);Google Scholar Douglas Hay, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (1975); and Daniel Lieberman, The Province of Legislation Determined: Legal Theoiy in Eighteenth Century England (1989). But see Rustigan, Michael A., A Reinterpretation of Criminal Law Reform in Nineteenth Century England, 8 J. Crim. Just. 205 (1980) (challenging the traditional interpretation that the nineteenth century legal reform movement was generated by the enlightened doctrines of Bentham).CrossRefGoogle Scholar

⁴⁴ For more on the development of Utilitarian ideas for India see Stokes, The English Utilitarians and india, supra note 18, and Majeed, J., Mill's, James‘The History of British India’ and Utilitarianism as a Rhetoric of Reform, 24 Mod. Asian Stud. 209 (1990).CrossRefGoogle Scholar

⁴⁵ Lieberman, , supra note 43, at 200Google Scholar (citing 2 Johnson, Samuel, The Rambler 242–3 Bates, W. J. & Strauss, A. B. eds, 1969)).Google Scholar

⁴⁶ Postema, , supra note 1, at 265. The inconsistencies in the penal law's application are illustrated by its treatment of the following crimes. ‘[A]lthough it was a felony to damage the bridges of Brentford or Blackfriars, the same damage to the London or Westminster bridges carried the death penalty. To steal a sheep or horse, or pick a man's pocket of a few pence, were capital crimes, whereas the attempt to take one's father's life was merely a misdemeanour.’ Id. at 264, note 8.Google Scholar

⁴⁷ Bentham, , supra note 2, at 171.Google Scholar

⁴⁸ Blackstone, William, Commentaries on the Laws of England 241 (Chitty, J. ed. 1826).Google Scholar

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⁵⁰ Id. at 277 (citing Bentham, manuscript in University College, London). H. L. A. Hart treats the Benthamite notion of ‘demystification’ in The Demystification of the Law, in Essays on Bentham: Studies in Jurisprudence and Political Theory 21–39 (1982).Google Scholar

⁵¹ 3Blackstone, William, supra note 48, at 267.Google Scholar Blackstone, as Daniel Boorstin points out, ‘was careful to use a theory which would not question the main outlines of the society which he found about him.’ The Mysterious Science of Law 12 (1973). For more on the differences between Blackstone and Bentham, see Posner, Richard A., The Economics of Justice 13–47 (1981);Google ScholarMack, Mary, Jeremy Bentham: An Odyssey of Ideas 66–81, (1963);Google ScholarHarrison, Ross, Bentham 24–46 (1983);Google Scholar and Letwin, Shirley R., The Pursuit of Certainty 127–36 (1965).Google Scholar

⁵² 3 Blackstone, William, Commentaries on the Laws of England, supra note 48, at 267.Google Scholar

⁵³ Letwin, , supra note 51, at 6 (1965).Google Scholar

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⁵⁵ Halevy, , supra note 43, at 55.Google Scholar

⁵⁶ Bentham calls utility ‘that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered [whether community in general or the particular individual]. Bentham, , An Introduction to the Principles of Morals and Legislation 2 (Oxford ed. 1876).Google Scholar

⁵⁷ Id. at 170. In-depth analyses of the application of the Benthamite felicific calculas to law are found in David Lyons, In the interest of the Governed: A Study in Bentham's Philosophy of Utility and Law 19–24 (1973); John Dinwiddy, Bentham 20–37 (1989);Google Scholarand Milne, A. J., Bentham's Principle of Utility and Legal Philosophy, in Bentham and Legal Theory 9–38 (James, M. H. ed. 1973).Google Scholar

⁵⁸ Bentham's view of how to construct a code of laws is set forth in Bentham, , A General View of a Complete Code of Laws, in III Works of Jeremy Bentham, supra note 1, at 156–210. The discussion in this essay parallels that in An Introduction to the Principles of Morals and Legislation, supra note 56.Google Scholar

⁵⁹ Of course, one may object to this or any other version of Utilitarian logic in two ways. First, although maximizing happiness seems to be a worthwhile goal, it entails some practical difficulties: knowing what will achieve overall happiness, to whom happiness will result, and the degree to which the individual will be made happy or unhappy. Second, there is always the question of the moral rightness of following the greatest happiness principle in some instances, for example, when a morally wrong act such as lying may create happiness.

⁶⁰ Extensive treatment of Bentham's jurisprudence is found in Postema, supra note 1, and Schofield, Philip, Jeremy Bentham and Nineteenth Century English Jurisprudence, 12 J. Legal Stud. 58 (1991).Google Scholar

⁶¹ Bentham's code itself was defended on Utilitarian grounds. Specifically, he explained the need for the code in ten proofs. These are reproduced in Bentham, Codification Proposal, in IV Works of Jeremy Bentham, supra note 1, at 536–64.Google Scholar

⁶² Bentham, , An Introduction to the Principles of Morals and Legislation, supra note 56, at 205.Google Scholar

⁶³ Id. at 205–8.Google ScholarThese ideas are dealt with more completely in Fry, Margaret, Bentham and English Penal Reform, in Jeremy Bentham and the Law 20–57 (Keeton, G. W. & Schwarzenberger, G. eds, 1948).Google Scholar

⁶⁴ Bentham, , An introduction to the Principles of Morals and Legislation, supra note 56, at 309.Google Scholar

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⁶⁶ Id.

⁶⁷ Dinwiddy, , supra note 57, at 59 (citing Bentham, I Works of Jeremy Bentham, supra note 1, at 161).Google Scholar

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⁷³ Thomas, William, James Mill's Science of Politics, in The Philosophic Radicals: Nine Studies in Theory and Practice 1817–1841, at 108 (1979).Google Scholar More on Mill's intellectual debt to Bentham is included in Letwin, S. H., supra note 1, at 191–202.Google Scholar

⁷⁴ Bearce, , supra note 68, at 70–1.Google Scholar

⁷⁵ Mill, James, supra note 70, at 310.Google Scholar

⁷⁶ Id. at 311.

⁷⁷ Majeed, , supra note 18, at 211–12.Google Scholar

⁷⁸ Id.

⁷⁹ See Bentham, , Essay on the Influence of Time and Place in Matters of Legislation, supra note 2, at 198–9.Google Scholar

⁸⁰ Philips, C. H. and Wainright, Mary D., Indian Society and the Beginnings of Modernisation c. 1830–1850 1 (1976).Google Scholar

⁸¹ See Stokes, , supra note 18; C. A. Bayly, Imperial Meridian: The British Empire and the World 1780–1830 235–47 (1989);Google Scholar and Woodward, Llewellyn, The Age of Reform 1815–1870 (2nd ed., 1962).Google Scholar

⁸² Rosselli, John, Lord William Bentinck. The Making of a Liberal Imperialist, 1774–1839, at 150–1 (1974).Google Scholar

⁸³ 2Philips, C. H., The Correspondence of Lord William Cavendish Bentinck 1287 (1977)(citing statement of Bentinck on Reform in India (June 1, 1834)).Google Scholar

⁸⁴ Id.

⁸⁵ Philips, C. H., The Correspondence of Lord William Cavendish Bentinck 562 (1977) (citing letter from Malcolm to Bentinck (12 2, 1830)).Google Scholar

⁸⁶ Id. at 585 (citing letter from Ryan to Bentinck (Jan. 13, 1831)).

⁸⁷ 3Pinney, T., The Letters of Thomas Babington Macaulay 146 (1976) (citing letter from Macaulay to T. F. Ellis (June 3, 1835)).Google Scholar

⁸⁸ Dharker, C. D., Lord Macaulay's Legislative Minutes 212 (1946) (citing Macaulay, Minute on Reform of the Mofussil Courts (June 25, 1835)).Google Scholar

⁸⁹ Judicial Despatches to Bengal 1804–1839 (unpublished manuscript, India Office Library & Records, London) (citing despatch from Court of Directors to Governor-General in Council (07 25, 1827)).Google Scholar

⁹⁰ Judicial and Legislative Despatches to India 1835–1879 (unpublished manuscript, India Office Library & Records, London) (citing Judicial Despatch (05 4, 1842)).Google Scholar

⁹¹ Minutes of Evidence before the Select Committee on the Affairs of the East India Company, in 10 British Parliamentary Papers (Session 1831–32) 78–9 (1970) (citing statement of W. B. Bayley (Apr. 16, 1832)).Google Scholar

⁹² ₁Philips, C. H., supra note 85, at 164Google Scholar (citing letter from Court of Directors to Bengal Government on Retrenchment (Feb. 18, 1829)). See generally Bayly, C. A., Imperial Meridian, supra note 80,Google Scholar and Stokes, Eric T., The First Century of British Colonial Rule in India: Social Revolution or Social Stagnation, 58 Past and Present 136, 145–50 (1973).CrossRefGoogle Scholar

⁹³ 10British Parliamentary Papers, supra note 91, at 195 (citing despatch from Court of Directors to Bengal Government (July 23, 1828)).Google Scholar

⁹⁴ A letter from William Astell, Chairman of the Court of Directors, to Bentinck describes India House's aspiration for ‘a reduction of the territorial expenses.’ I Cyril H. Philips, supra note 85, at 142–4 (citing letter from Astell to Bentinck (Jan. 20, 1829)).Google Scholar

⁹⁵ Jain, , supra note 17, at 195–209.Google Scholar

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⁹⁹ 1 Philips, C. H., supra note 85, at 63 (citing letter from Morison to Bentinck (Aug. 13, 1828)).Google Scholar

¹⁰⁰ A typical view was expressed by William L. Melville on 12 Apr. 1832: ‘The administration of criminal law under the system devised by Lord Cornwallis has always appeared to me, as well as to other much more competent judges with whom I have communicated, to be the most successful part of our administration.’ 10 British Parliamentary Papers, supra note 91, at 60.Google Scholar

¹⁰¹ Judicial Despatches to Bengal 1804–1839, supra note 89 (citing Judicial Letter (Jan. 26, 1831)).Google Scholar

¹⁰² 73 Edinburgh Rev. 457 (1841).Google Scholar

¹⁰³ 10 British Parliamentary Papers, supra note 91, at 60–8 (citing statement of W. L. Melville (April 12, 1832)).Google Scholar

¹⁰⁴ Id. at 68–78 (citing statement of Robert N. C. Hamilton (Apr. 13, 1832)).Google Scholar

¹⁰⁵ 1 Philips, C. H., supra note 85, at 543 (citing statement of Calcutta Finance Committee on judicial administration (Oct. 25, 1830)).Google Scholar

¹⁰⁶ Miller, John, On the Administration of Justice in the British Colonies in the East Indies 27 (1828).Google Scholar

¹⁰⁷ Miller, John reported in 1828 that ‘the Mahomedan law is administered by requiring the Mahomedan law officers to read the trials, and give their futwas or decisions on the cases.’ Id. at 137. As before, ‘t[he] futwah of the law officers declares whether or not the fact is proved, and states what the Mahomedan law may be.’ 10 British Parliamentary Papers, supra note 91, at 58 (statement of James O. Oldham (Apr. 9, 1832)).Google Scholar

¹⁰⁸ The criminal law was described in 1853 as ‘so modified by the practice of our courts, through a long course of years, and by the enactment of the local governments, that it has lost that [Mahomedan] character in a great measure,’ becoming ‘one very much of our own making.’ Statement of Hill, David, in First Report from the Select Committee on Indian Territories, in 13 British Parliamentary Papers (Session 1852–53) 94–5 (1970).Google Scholar

¹⁰⁹ Campbell, George, Modern India: A Sketch of the System of Civil Government 464 (1852).Google Scholar

¹¹⁰ Baillie, N. B. E., a court employee in the 1850s, said for example, ‘any law which should now be made ought to be founded in some measure upon the Mohamedan law.’ 13 British Parliamentary Papers, supra note 108, at 330.Google ScholarSee also id. at 365 (citing testimony of H. W. Deane (May 2, 1853)).

¹¹¹ 3 Nag, K. and Burman, D., The English Works of Raja Rammohun Roy 30 (1947) (restating comments made in 02, 1831 to the Select Committee of the House of Commons).Google Scholar

¹¹² 10 British Parliamentary Papers, supra note 91, at 215 (letter from Court of Directors to Madras Government (Oct. 12, 1831)).Google Scholar

¹¹³ Judicial Despatches to Bengal 1804–1839, supra note 89 (despatch from Court of Directors to Governor-General in Council (Apr. 28, 1824)).Google Scholar

¹¹⁴ 13 British Parliamentary Papers, supra note 108.

¹¹⁵ A letter from the Bengal Judicial Department, 22 June 1838, in Judicial Despatches to Bengal 1837–1838 (unpublished manuscript, India Office Library & Records, London), describes the Company's experiments with juries, and The First Report from the Select Committee on Indian Territories, in 13 British Parliamentary Papers Session 1852–53, supra note 108, discusses the feasibility and concludes that it was impractical.Google Scholar

¹¹⁶ Numerous judicial despatches written after 1840 describe the presence and involvement of maulvis at criminal trials. See e.g., Bengal Judicial Department Letter (June 22, 1838), which describes the dismissal of ‘Maulvee Tummeez,’ who held the position of ‘Muhomedan Law Officer of Rungpore;’ and Bengal Judicial Department Letter (Jan. 23, 1845), which provides a chart explaining the law officer's role in acquittals and convictions. Judicial Despatches to Bengal 1837–58, supra note 89.Google Scholar

¹¹⁷ Srivastava, , supra note 27, at 56 (1971).Google Scholar

¹¹⁸ It was reported in 1853 that in cases where the Hindu and Muslim law were applicable, they were ‘expounded by persons called law officers.’ 13 British Parliamentary Papers, supra note 108 (statement of N. B. E. Baillie (Apr. 25, 1853)).Google Scholar

¹¹⁹ Wilson, H. H., A Glossay of Judicial and Revenue Terms 349 (2nd ed. 1968).Google Scholar

¹²⁰ See e.g., Bayley's, W. B.description of the judiciary in 10 British Parliamentary Papers, supra note 91, at 78. Bayley characterizes proposals for creating ‘Sudder Courts, one for the Lower Provinces on the same establishment as before, and the other for Western Provinces.’ Id. at 81.Google Scholar

¹²¹ Draft Penal Code, in 41 Parliamentary Papers (1837–1838) (citing statement of the Indian Law Commission to Lord Auckland (Oct. 14, 1837)).Google Scholar

¹²² Nag, K. & Burman, D., supra note 111, at 14.Google Scholar

¹²³ Srivastava, , supra note 27, at 109 (citing statement of Judge Davidson of Seran (Oct. 10, 1836)).Google Scholar

¹²⁴ Id. at 110 (citing statement of C. Fraser to Registrar of the Nizamat Adalat Court (Jan. 28, 1838)).Google Scholar

¹²⁵ See Examination of Melville, W. L., in 10 British Parliamentary Papers, supra note 91, at 62.Google Scholar

¹²⁶ See Examination of Hamilton, R. N. C., id.Google Scholar

¹²⁷ Id.

¹²⁸ Letter of Warren Hastings on the Civil Service of the East India Company, in Cohn, supra note 24, at 287.Google Scholar

¹²⁹ Srivastava, , supra note 27, at 107–29, nicely summarizes the debate over Persian.Google Scholar

¹³⁰ The order is discussed in a despatch from the Court of Directors to Judicial Department (Jan. 4, 1839), in India and Bengal Despatches 1837–1839 (unpublished manuscript, India Office Library & Records, London).Google Scholar

¹³¹ Bengal Judicial Department to Court of Directors (Feb. 8, 1822), in Judicial Letters Received From Bengal 1803–1855 (unpublished manuscript, India Office Library & Records, London).Google Scholar

¹³² Id.

¹³³ Id.

¹³⁴ 10 British Parliamentary Papers, supra note 91, at 23 (citing statement of Holt Mackenzie (March 16, 1832)).Google Scholar

¹³⁵ Id. at 91 (citing statement of W. B. Bayley).

¹³⁶ Id.

¹³⁷ Id.

¹³⁸ Judicial Despatches to Bengal 1804–1839, supra note 89 (citing despatch from Court of Directors to Governor-General in Council (July 23, 1824)). See also id. (citing despatch from Court of Directors to Governor-General (Apr. 11, 1826)).Google Scholar

¹³⁹ Judicial Despatches to Bengal 1804–1839, supra note 89 (citing despatch from Court of Directors to Governor-General (Feb. 1, 1832)).Google Scholar

¹⁴⁰ Judicial Letters from Bengal 1803–1855 (unpublished manuscript, India Office Library & Records, London) (citing letter from Bengal Judicial Department to Court of Directors (02 22, 1827)).Google Scholar

¹⁴¹ Id.

¹⁴² Id.

¹⁴³ The Committee, which was appointed in February, 1831, considered the state of the judiciary in the context of debate over renewal of the Company's Charter. Several witnesses provided testimony regarding the use of panchayats, including Rammohun Roy, who considered it to be ‘the only tribunal which can estimate properly the whole bearings of a case, with the validity of the documentary evidence and the character of the witnesses, who could have little chance of imposing false testimony upon such a tribunal.’ Nag and Burman, supra note 111, at 21.Google Scholar

¹⁴⁴ Srivastava, , supra note 27, at 8 (citing minute of J. Sullivan, (July 28, 1840)).Google Scholar

¹⁴⁵ Rudolph, & Rudolph, , supra note 3, at 265.Google Scholar

¹⁴⁶ See Bentham, Essay on the Influence of Time and Place in Matters of Legislation, supra note 2, at 187.Google Scholar

¹⁴⁷ Id. at 171. Of course, Bentham acknowledged that he was ‘a lawgiver having been bred upon English notions.’ Id. at 172.Google Scholar

¹⁴⁸ Id. at 177. Bentham notes that ‘[l]egislators who have learnt to soar above the mists of prejudice, know as well how to make laws for one country as for another: all they need is to be fully possessed of the facts; to be informed of the local situation, the climate, the bodily constitution, the manners, the legal customs, the religion, of those with whom they have to deal.’ Id. at 180.Google Scholar

¹⁴⁹ Id. at 179.

¹⁵⁰ Id. at 182.

¹⁵¹ Id. at 184.

¹⁵² Id. Compare this with what Bentham said in An Introduction to the Principles of Morals and Legislation, supra note 56, at 198–9: ‘When the people are satisfied with the law, they voluntarily lend their assistance in the execution; when they are dissatisfied, they will naturally withhold that assistance. This contributes greatly to the uncertainty of the punishment.’

¹⁵³ Essay on the Influence of Time and Place in Matters of Legislation, supra note 2, at 181.Google Scholar

¹⁵⁴ Some of the most illuminating works on Macaulay's efforts are John Clive, Macaulay: The Shaping of the Historian (1987);Google Scholar and Stokes, , supra note 18, at 219–33.Google Scholar

¹⁵⁵ Dharker, , supra note 88, at 261 (citing despatch from Indian Law Commission to Governor-General (May 2, 1837)).Google Scholar

¹⁵⁶ Clive, , supra note 154, at 427. Macaulay believed ‘that India stands more in need of a code than any other country in the world.’ Stokes, supra note 18, 219.Google Scholar

¹⁵⁷ See Woodward, , supra note 81, and Courtney Ilbert, The Government of India 81–90 (1922).Google Scholar

¹⁵⁸ Dharker, , supra note 88, at 15.Google Scholar

¹⁵⁹ Clive, , Supra note 154, at 427 (citing Indian Legislative Despatch (Mar. 1, 1837)).Google Scholar

¹⁶⁰ Stokes, , supra note 18, at 195 (citing James Mill, Public Despatch to India (Dec. 10, 1834)).Google Scholar

¹⁶¹ Id.

¹⁶² Id. at 219.

¹⁶³ Id.

¹⁶⁴ Id. at 219–20 (citing speech of Macaulay (July 10, 1833)).

¹⁶⁵ Id.

¹⁶⁶ Macaulay regarded the Code as complete. ‘Not only ought everything within the Code to be law: but nothing that is not in the Code ought to be law.’ Id. at 222.

¹⁶⁷ Id. at 230.

¹⁶⁸ The Code, of course, was in fact espousing what was already established by Bengal Regulation IX (1793), sec. 75.Google Scholar

¹⁶⁹ Draft Penal Code, supra note 121, at 3.Google Scholar

¹⁷⁰ Id. at Ch. XVIII (‘Of Offences affecting the Human Body’), sec. 298.

¹⁷¹ Id. at Illus. (a)

¹⁷² For a contrary view, see Clive, , supra note 154, at 451, for whom ‘the setting is, in a sense, immaterial; for the acts described would be crimes in whatever setting they were committed.’Google Scholar

¹⁷³ Bentham, , An Introduction to the Principles of Morals and Legislation, supra note 56, at 198–9.Google Scholar

¹⁷⁴ Draft Penal Code, supra note 121, at Ch. XIX (‘Of Offences Against Property’), sec. 375, illus. (b).

¹⁷⁵ Id. at Ch. XVIII, sec. 354 (concerns the crime of kidnapping children, a practice prevalent at the time).

¹⁷⁶ Id. at Ch. XXIV.

¹⁷⁷ Id. at Note Q.

¹⁷⁸ Id.

¹⁷⁹ Id. at Note M.

¹⁸⁰ Id.

¹⁸¹ Id. at Ch. III.

¹⁸² Id. at Note B.

¹⁸³ Id.

¹⁸⁴ Id. at Note M.

¹⁸⁵ Id. at Ch. XV (‘Of Offences relating to Religion and Caste’), sec. 254.

¹⁸⁶ Id. at Note M.

¹⁸⁷ Id. at Note R.

¹⁸⁸ A Penal Code; prepared by the Indian Law Commissioners, and published by Command of the Governor-General of India in Council, 31 London & Westminster Rev. 394 (1838).Google Scholar

¹⁸⁹ For more about John Stuart Mill's work for the East India Company, see Moir, Martin, Introduction to Writings on India, in Mill, John Stuart, 30 Collected Works of John Stuart Mill, at vi (Robson, John ed. 1990);Google ScholarHarris, Abram L., Mill, John Stuart: Servant of the East India Company, 30 Canadian J. Econ. and Pol. Sci. 231;Google ScholarPradhan, S. V., Mill on India: A Reappraisal, 56 Dalhousie Rev. 5 (1976);Google Scholar and Zastoupil, Lynn, J. S. Mill and India, 32 Victorian Stud. 31 (1988).Google Scholar

¹⁹⁰ Sullivan, Eileen P., John Stuart Mill's Defense of the British Empire, 44 J. Hist. of Ideas 599, 605 (1983). The ideas about J. S. Mill which follow were inspired by Lynn Zastoupil, supra note 189.CrossRefGoogle Scholar

¹⁹¹ Stokes, , supra note 18, at 23 (citing II John Malcolm, The Political History of India 142 (1823)).Google Scholar

¹⁹² Ian Copland, The British Raj and the Indian Princes 21–5 (1982).Google Scholar

¹⁹³ Ballhatchet, Kenneth, Social Policy and Social Change in Western India, 1817–30, at 166 (1961).Google Scholar

¹⁹⁴ Mill, John Stuart, despatch (July 20, 1830) (unpublished manuscript, India Office Library & Records, London), cited in Zastoupil, supra note 189.Google Scholar

¹⁹⁵ Id.

¹⁹⁶ Id.

¹⁹⁷ Id.

¹⁹⁸ Mill, John Stuart, Smith on Law Reform, in Essays on Equality, Law, & Education, in 21 Collected Works of John Stuart Mill, supra note 189, at 83.Google Scholar

¹⁹⁹ Id.

²⁰⁰ Id. at 84.

²⁰¹ Mill, John Stuart, Penal Code for India, in 30 Works of John Suart Mill, supra note 189, at 19.Google Scholar

²⁰² Id. at 20.

²⁰³ Id.

²⁰⁴ Id.

²⁰⁵ Id.

²⁰⁶ Zastoupil, , supra note 189, at 43.Google Scholar

²⁰⁷ Id.

²⁰⁸ Id.

²⁰⁹ Mill, John Stuart, despatch (Feb. 4, 1846) (unpublished manuscript, India Office Library & Records, London), cited in Zastoupil, supra note 189.Google Scholar

²¹⁰ Mill, John Stuart, Memorandum of Improvement in Indian Administration, in 30 Works of John Stuart Mill, supra note 189, at 112.Google Scholar

²¹¹ Mill, John Stuart, despatch (July 29, 1846) (unpublished manuscript, India Office Library & Records, London), cited in Zastoupil, supra note 189.Google Scholar

²¹² Id.

²¹³ Id.

²¹⁴ Moore, R. J., John Stuart Mill at the East India House, 20 Hist. Stud. 497, 516 (1983) (citing On Liberty).CrossRefGoogle Scholar

²¹⁵ Id. (citing Representative Government).