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Published online by Cambridge University Press: 28 October 2011
Lindsay Farmer's argument that, in seeking to replace the common law with legislation, and in striving for a novel systematization of the relationship between civil and penal law, the criminal law commissioners of 1833-45 transformed the understanding of criminal law in relation to government is a powerful one. It is to some degree an inferential argument, positing that a reading of Bentham's theory of legislation allows us to understand the commissioners' work better, since Bentham “makes explicit many of the broader political assumptions that guided the commissioners and allows us to understand the precise nature of their codification project.” It is worth asking therefore how far the commissioners were informed by Benthamic ideas and what they understood their task to be.
1. Farmer, Lindsay, “Reconstructing the English Codification Debate,” Law and History Review 18 (2000): 403.Google Scholar
2. In 1832, Ker communicated on the subject with Austin, then preparing a series of papers on it for intended publication in the Jurist. See Brougham MSS, University College, London, MS 11562 (24 December 1832).
3. Ker told Brougham that though Austin had been persuaded to sign the First Report, “We could not however persuade him, that it was better to obtain codification by saying nothing about it directly. He was for taking all by storm.” Brougham MS 18176 (undated).
4. Parliamentary Papers 1835 (406) XXXV 361.
5. He was thus seeking an “efficient revision simplification and abridgement of the barbarous chaos of our existing laws.” Brougham MSS 13753 (1833), 11562 (24 December 1832).
6. Brougham MS 13749 (31 December 1832).
7. Law Magazine 13 (1835): 51.
8. Brougham MS 10190 (25 November 1835).
9. Brougham MSS 18164 (5 September 1833), 11566 (24 August 1834).
10. Fourth Report, Parliamentary Papers 1839 (168) XIX, v–vi. This report was much more favorably received by the Law Magazine 22 (1839): 1–60.
11. Brougham MS 11644 ( 1847).
12. Brougham MS 11576 (February 1837). He also told the select committee on the preparation of public bills in 1836 that the Fines and Recoveries Bill (prepared by Brodie) “effects a most extensive and important change in the law, making a sort of code of all that part of the law relating to fines and recoveries which is retained, and it may be considered as one of the most successful efforts of modern legislation.” Legal Observer 13 (1836): 167.
13. Graham Papers, bundle 57, reel 9, 11 May 1843. Similarly, Ker told Brougham, “It is only a question of degree as compared with Peel's acts. If Peel's acts defined much that was either undefined or imperfectly defined before and repealed wheelbarrow load of statutes, ours only does the same thing to a greater extent, removes more discrepancies & repeals cartloads instead of barrow loads of statutes.” Brougham MS 11664 (30 August 1849).
14. Brougham MS 11664 (30 August 1849). In 1863 he was still cautioning Brougham, “I think more than once you have used Code and Digest in the same sense.” Brougham MS 18374.
15. Brougham MS 11608 (9 September 1843). Brougham himself stated in 1852 that his bills only digested and did not change the law, since “[t]he work would be absolutely endless if any questions were to arise on the alteration of the existing law.” Law Review 17 (1852): 143.
16. Seventh Report, Parliamentary Papers 1843 (448) XIX, 10.
17. Ker thus said that James Humphreys, who drafted a code of real property law, “entirely erred, by proposing a new text, on the plan of the French Code.” Brougham MS 11608 (9 September 1843). In 1821, he had also written a critical review of Bentham's Papers Relative to Codification, accusing Bentham of attempting to introduce “the wildness of theory” into English law, criticizing proposed new formularies of deeds and agreements, and commenting, “how can it be conceived that any human ingenuity can give a definite and inflexible meaning to a whole body of technical expressions, which shall apply to every possible case and combination of circumstances.” “English Conveyancing,” Edinburgh Review 35 (1821): 195–97. In the letter quoted above, Ker made it clear he stood by the views on codification expressed in that article.
18. Seventh Report, 10. The doctrinal limitations of their approach can be seen in the difficulty the commissioners had in defining malice (discussed in Smith, K. J. M., Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800–1957 [Oxford: Clarendon Press, 1998], 136)CrossRefGoogle Scholar, which led Ker a decade later to condemn “the stupid attempt of Starkie to define words which were all known Malice Wilful &c &c.” Brougham MS 26050 (3 August 1856).
19. Discussing a digest of the law of real property, Ker commented, “It is not pretended that a Digest would be without faults or would supply a text for every case which might arise, but the new law which it was necessary to make would be grounded on a clear expression of this general law or by analogy to cases precisely and clearly stated in the Digest.” Brougham MS 11757 (12 September 1843). A letter from 1849 shows that Ker did not see judges as automatons: “I think we are all wrong, in law making,” he said, “We should enact principles, and leave it to the courts to work out, like other principles, which they do work out.” Brougham MS 11667 (15 September 1849).
20. Brougham MS 11610 (11 September 1843). He was thereby articulating the view expressed in the Seventh Report, 10, “that what was before to be collected by the aid of precedent and analogy, is now to be judged of by reference to the written rule.”
21. Brougham MS 10331 (undated).
22. “The primary object “of law” is the definition of public duties and private rights; the second, which is auxiliary to the first, is the prevention or remedying violations of the duties and rights so defined.” Parliamentary Papers 1835 (406) XXXV, 361, 25.
23. Seventh Report, 11.
24. Fourth Report, vii.
25. Ker, who described the report in 1837 as “a dead letter,” told Brougham that it was mortifying that after “we made an elaborate report no one person has even noticed it.” Brougham MSS 11575 (22 November 1837), 11576 (February 1837).
26. For example, the following measures received praise in the periodical press as codes: Sugden's Irish code of Chancery Procedure (Law Review 2 [1845]: 181–89), Brougham's Bankruptcy Consolidation Act of 1849 (Law Review 10 [1849]: 171–72), the judges' rules of procedure introduced in the wake of the Common Law Procedure Act (Law Times 21 [1853]: 156), and the Winding-Up Consolidation Bill of 1859 (Law Times 32 [1859]: 270).
27. See the views of Smith, J. W. in Legal Observer 32 (1846): 364.Google Scholar One reason for this may have been, as Ker pointed out in 1843, that “9/10th of the Criminal Law is already Statute Law.” Brougham MS 11610 (11 September 1843).
28. Hansard, 3d ser., 124 (1853), 8.
29. Parliamentary Papers 1854 (389) LIII.
30. See, for instance, Simpson, A. W. B., “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature,” in his Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press, 1987), 273–320Google Scholar; Lobban, Michael, “The English Legal Treatise and English Law in the Eighteenth Century,” luris Scripta Historica 13 (1997): 69–88Google Scholar; Brooks, Christopher W. and Lobban, Michael, “Apprenticeship or Academy? The Idea of a Law University, 1830–1860,” in Learning the Law: Teaching and the Transmission of Law in England, 1150–1900, ed. Bush, Jonathan A. and Wijffels, Alain (London: Hambledon Press, 1999), 353–82.Google Scholar
31. See, for instance, Wiener, Martin, Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990).Google Scholar
32. Their Second Report is especially significant in this context. As Ker said in 1847, “I know of no improvement in Criminal Law principles before the Acts founded on our report taking away the punishment of death except in cases of violence to the person. That was the basis of the acts Lord John Russell brought in & there was the Prisoners' Counsel bill, also founded on our Report. The Mitigation of punishments which preceded these laws were founded in no principle. They were tubs thrown out to the whale to keep the advocates for reform quiet. Or they were carried in spite of the Government.” Brougham MS 11645 (1847). On their contribution to developing a new doctrinal regime necessitated by the repeal of capital statutes, see Smith, Lawyers, Legislators and Theorists.