direction of it* A Penal Code9 and Codes of Criminal and Civil Procedure were projected for enactment before the end of the
decade*^ The amalgamation of the Supreme and Sadr Adalat Courts9
which James MiU., Macaulay and Sir Edward Ryan9 the Chief Justice of Bengal9 favoured, might confidently have been expected to
follow*^ However, the tide of the Utilitarian impulse ebbed before any of these major reforms could be achieved, though one "durable
7
monument" remained* Macaulay completed a draft Penal Code - a creation of the universal science of jurisprudence, of the
"disinterested philosophic intelligence" — to which a "second age
8
of Indian reform" was the legatee*
^The Utilitarians, pp* l40-233« 3Ibid., p. 1 6 9* 4 Ibid. 5Ibid. Ibid. 7 p. 179. p. 213. pp* 168,169 and n*l, 253•
pp* 224-5* However, the "so-called *Black Act1" (Act XI Ibid*
of 1 8 3 6) was passed* It subjected Europeans outside Calcutta to
the jurisdiction of the Companyfs Courts in civil causes, and
removed their right of appeal to the Supreme Court (ibid*, p* 214)* g
Ibid*, p* 252* Stokes (pp* 2 5 8-6 3) An<* Rankin (op* cit*, pp* 204*
1 0) agree in drawing a distinction between the theoretical or
philosophical basis of the "Macaulay Code", and the inspiration for the other Anglo-Indian Codes* The latter were, in essence, simplifi cations and adaptations to Indian conditions of the laws of England*
Before the parliamentary committees which, in 1852-3»
enquired into the operation of the 1833 Act, a tale of frustrated 9
hopes was unfolded* It was not just that the Benthamite spirit had found no embodiment in legislation* The lesser task of
enacting codifications of existing practices had not even been accomplished* Though Codes of Criminal and Civil Procedure had
10 w
been drafted, neither of them had passed into law* Before he had been three months at the India Board, Wood had become concerned about the "very unsatisfactory •'** progress of reform in the law" * 11 On 8 March 1853, he wrote to Dalhousie: "It is now 20 years since the Law Commission was appointed, and we have, I believe, no result from it as yet in practice"*
Vood was briefed on the question of lav reform by papers 12
from the Company and his private secretary* In February, he
received from the former a "Note on the proposed Acts of the Indian Law Commissioners with the reasons of the Court for not sanctioning
13
them"* Baring prepared a summary, covering the institution, 14
history, proposals and results of the Commission* The source of
^Pari*Pap* (H*C*),1852-3, First Commons1 Report (xxvii) and First Lords• Report (xxxi)*
10V* Stokes, op* cit*, II, pp* 1,383; &• Stokes, op* cit*, pp* 259 and n*l, 2 6l*
11Vood to Dalhousie, 8 March 18539 N*P» 12
It was characteristic of Wood’s approach to administrative reforms for him to require an initial paper from the Company and a report from Baring (see ch* 6 and subsidiary paper 3t P ^ 9 n*^, below)* ^ S i g n e d "Jud£ icial] Dept* Feb* 1853” 9 W*P*, 14*
Baring's information is revealed by references in the margin of his paper to the evidence submitted to the parliamentary
committees* Baring concluded that the Commission's failure could be attributed to the inherent difficulty of expressing legal terms
in plain language, "coupled with a very evident disinclination on the part of the Government both in India and at home to meddle with so large a subject as Law Reform ~ and perhaps also to the want of persons in connection with the Government at home who
are competent to express an opinion in questions of so complicated and technical a character*" Baring elaborated upon this
conclusion in a note which he entered upon a copy of the 1 8 3 3
Act, against the clause authorising the appointment of the 15
Commission* The "double governmentV he wrote, "prevented the chance of this commission working* Neither the Ct* of Directors nor the Bd* of Control •*• £had] the necessary acquaintance with
the subject to decide upon the adoption or rejection of complicated legal reforms transmitted to them****"
Though he was at first inclined to regard law reform as a problem to be solved in India,^ by the end of March 1833$ Wood had accepted that much improvement might be achieved by a
15
Copy of the Act, op* cit*, in V*P*, 50 see notation opposite s*5 3*
16
Wood to Dalhousie, 8 March 1853* W*P*
more vigorous and informed approach at hope* A member of the Commission, C*H* Cameron, had, in the previous November,
petitioned the Commons* committee to request that the "propositions and discussions of the Lav Commission may be submitted to the
17
consideration of competent jurists"* Here was the means of breaking the deadlock which Baring had attributed to the form of the double government and the inadequacy of the legal knowledge of the Board and the Court* On 15 March, Sir Edward Ryan referred
10
with approbation to the proposal before the Lords9 committee*
The next day, the Secretary of the Company knew that Vood intended 19
to set up a law commission in England* A week later, Vood wrote to Dalhousie:
**• we propose to make a Commission here to consider
and digest all the proposals which were made by them (l*e* the Indian Law Commissioners]* Their reports
when completed will be sent out to India to be considered and legislated on by your legislative council, but we think that we may do a good deal of the rough preparatory work here, * put the proposals in the shape of draft enactments*2^
17
Parl*Pap*(H*C*). 1852-3* xxvii, App* 7* PP« 421-2* For Cameron9s elaboration of his proposal, see his evidence before the Lords9
committee on 14 April 1853 (ibid*, xxxi, paras* 2 8 7 5-8 5)*
18
"•••these questions as to what the Law Commission has done, what is the value of their recommendations, and what other improvements may be made in the administration of justice, might be satisfactorily considered by a Commission in this country; a Commission constituted of retired Judges and civil servants••*•" (Ibid*, paras* 2454-8
Ryan would then "submit the results of their enquiries for legislation in India" (ibid*, para*2456)*
*^J*C* Melvill to Vood, 16 March 1853* Hickleton Papers* 20
Besides accepting the desirability of setting up a commission in England, Wood recognised, in March, that one aspect of law reform was unquestionably the proper function of the home government* As the Supreme Courts had been established by Imperial enactment, so any modification to them for the
purpose of dovetailing their jurisdiction into that of the Sadr Adalat Courts must be the subject of parliamentary legislation*
In his evidence before the Lords1 committee, Ryan revived the proposal for amalgamating the Courts which he had first advanced
21
in 1829* At this time, Wood was, through Sir Charles Trevelyan, in contact with Macaulay, who had also favoured the amalgamation in the 1 thirties, about various points which had been raised
22
before the parliamentary committees* On 24 March, Wood told Dalhousie that he was "thinking of improving the Sudder Adawlut by combining it with the Supreme Court, putting in an English Chief Justice and Judges, and perhaps a native Judge if you
could find a good man; and having a court for the administration of English law in the Presidency towns not of so exalted a
character* The improved Sudder Adawlut to be a Supreme Court of Appeal*" A few days later, Ryan sent Wood a paper elaborating a scheme for the establishment of the new amalgamated courts as
21
,
Op* cit*, para* 2431* 22
Trevelyan to Wood, 31 March 1 8 5 3, Trevelyan Letter Books, Bodleian Library*
23