Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45

LINDSAY FARMER

I. Codification in English Legal History
Sir Henry Maine, the eminent Victorian jurist, once remarked, in frustration at being unable to secure his desired reforms of the Indian criminal law, that no one cared about the penal code except theorists and habitual criminals. This has been the recurrent lament of the English criminal lawyer. Repeated initiatives in the field of codification over the last 150 years have enjoyed little popular support or understanding, and as the most recent project stumbles forward into its fourth decade, an air of fatalism surrounds the entire question of the code. There are calls for a new political initiative to revive the project, and there have been more modest appeals for a reexamination of the principles of existing penal legislation, though neither seems likely to provoke much response. 1 Yet, for all of the recent discussion of codes and codification, the question of the significance of codification to the modern law remains something of an enigma. It is believed to have failed, though the modern period has witnessed a vast increase in the scale of penal legislation. It is viewed as alien to the English legal tradition, although the modern history of the law can plausibly be told in terms of the working out of a series of initiatives in the field of codification and law reform. The figure of codification, in short, is a specter that stalks the development of the modern criminal law.	1
It is with a degree of reluctance, however, that anyone writing within the Anglo-American tradition takes up the question of codification for, in spite of its importance, it is discussed within very limited parameters. The debate over the pros and cons of codification is well worn, and there is a certain weariness about most of the writings on the subject. These tend to rehash the familiar arguments and objections: the common law is uncodifiable; a code sacrifices the flexibility of the common law, trapping its reasoning within rigid conceptual confines; a code offers clarity where the common law is vague and uncertain; the law of the legislator is better or worse, or more democratic, or more out of touch, than judge-made law; the code offers accessibility, where common law is accessible only to those trained in the artificial reasoning of the law. The code, in short, offers system, the common law adaptability—whatever the supposed merits of each.	2
These are familiar oppositions, moves in a game about the sources of law, familiar to every student of the law. They rest on a central point. The common law as uncodified law defines itself in terms of a "codiphobia," 2 a morbid fear of those continental or civilian systems that have been codified. The English common law identifies itself in terms of a steadfast resistance to the ideas of codification and legislation and to the historical cataclysms that are thought to have brought these to the continent. 3 There has been no foreign invasion bringing Roman law, and the reception of Roman civil law through the institutions of the Catholic church was resisted. There has been no intemperate political revolution. Political and legal unity was achieved early, rendering some of the aims of later codification projects redundant. The English political character has been, and continues to be, marked by a restraint, not to say conservatism. These are believed to have made a constitution and the codification of political power unnecessary, for a true common law does not require to be written to secure democratic or political freedoms.	3
Such explanations are commonplace and may be presented and represented in more or less sophisticated forms. But these arguments are essentially negative, made from within the common law tradition, reaffirming its identity without bringing us any closer to our subject. As Shapiro has pointed out, these claims operate with such a narrow definition of a code that any codification initiatives are not only predestined to fail on these terms, but also have to be regarded as foreign or radical interlopers in the unfolding of the common law. As a result, the existence of a long native tradition of codification is lost to view. 4 An interest in codification thus appears both eccentric and alien, the product of religious fanaticism or philosophical radicalism, the work of individuals outside the established political and legal institutions. Not only is codification thought scarcely to merit study by those who would understand the nature of English law and legal institutions, but the conceptual tools that would allow us to undertake this study, understanding codification and legislation as part of the modern common law tradition, are simply not available.	4
One way of reapproaching this subject is to begin from the observation that many of the arguments are distributed around the historical question of modernization and legal modernity. Advocates of codification in England bemoan the partial or incomplete modernization of the common law and the institutions of law and government, just as the conventional accounts of European codification posit an indissoluble link between the reform and codification of the penal law and the formation of the modern nation-state. Such accounts of modernization—whether told as a narrative of humanitarian reform or of a transformation in the nature of repression—link the control of political power to a reconstitution of the relationship between state and individual and a novel restraint in the form of legal expression. The figure of the code is central, standing in both a historical and theoretical sense at the juncture of law and modernity. Historically, the modern is inaugurated with the enactment of the classical codes in Tuscany (1786), Austria (1787), France (1791 and 1810), and Bavaria (1813), which limited the use of torture and the death penalty and introduced fixed punishments according to law. This is the moment of Enlightenment, instituting a project that is said to have defined the modern legal experience. These codes mark the transition to the modern legal and political order: the abstract juridical subject is moved to the center of the law, and the relationship between the juridical individual and the constitutional state is coded as a finite and self-contained rendering of possibilities. 5 Founded on the vision of a complete consonance between the internal order of the code and the external political order of the nation-state, the sovereignty of reason was proclaimed.	5
Notwithstanding the obvious attraction of such explanations, they are not entirely free of difficulties. On this account, England is the victim of its own political and economic precocity: the liberties of the English were secured by the Glorious Revolution of 1688, but there they have remained, trapped within the enchanted glass of the ancient constitution. The apparent failure of the codification project in England would suggest that the English law is, in some sense, premodern and anachronistic, lacking certain ideas and institutions and possessed of a lingering and inexplicable attachment to the arcane rituals of common law adjudication. The a priori identification of legal modernity with a particular form of rationality makes English law appear deficient—famously leading, in the case of Max Weber, to bewilderment at the peculiarities of the English, where economic modernization was achieved in spite of the apparent failure of legal modernization. 6 This argument, then, is the counterpart to the "codiphobia" of the English: the historical resistance to theory within the common law is mirrored by the failure of legal theory to develop an analysis that is sensitive to the particularities of the common law. The end result is that, once again, the question of what codification is or means has been lost to the observer, to be replaced by broad generalizations about the common law tradition.	6
There is a further aspect of this "English problem" that we should note, since it is more easily overlooked. In so far as the conventional account concerns a recodifying of political order, it is making the claim that the criminal law is a species of public law in the specifically modern sense that it codifies the relation between state and citizen as a political relation, a form of sovereignty. 7 The Anglo-American criminal law, however, is largely treated (and taught) as an adjunct of private law; that is, it is concerned primarily with the definition and protection of private rights and interests. It only considers the limitation of state power as this might be understood to be naturally limited by the existence of a preexisting sphere of private autonomy. The interests of the state appear as equivalent to those of individuals, and the state's role as an actor in the criminal process is derivative of the rights of individuals. Accordingly, the question of the rights and interests of individuals precedes any discussion of the state. Historically this has meant that the question of sovereignty, or, in cruder terms, the politics of the criminal law, has been excluded from consideration. Whether this is due to the failure of the common law to develop a strong distinction between public and private law or may simply be attributed to the failure of the codification project, it remains the case that within the common law tradition there have been few attempts to address the history of the criminal law in its relation to changing forms of government.	7
It is clear, then, that if we are to examine the history of codification of the English criminal law, it is necessary to move beyond the conventional theoretical understandings, for these can obscure as much as they reveal about the subject. Indeed, one of the principal failings of these approaches is precisely the lack of a properly historical perspective that would allow a reconstruction of the understanding of codification at particular historical moments. The aim of this article, therefore, is to make a contribution to such a history of codification by looking at the meaning of codification in relation to a particular historical episode in the law—the work of the Criminal Law Commissioners from 1833 to 1845. By clarifying the particular use and understanding of codification in this context, we may understand how the commissioners themselves understood their task. This is a form of historical jurisprudence that seeks to step outside the great codification debate and to elucidate the meaning of the terminology. Only thus may we reconstruct both our historical and our contemporary understanding of codification.	8
It is not the case that the work of the commissioners has been entirely neglected by historians, but the selective treatment of their efforts has certainly distorted the assessment of its overall significance. From the contemporary point of view the reports of the commissioners are usually treated as being of purely historical interest, providing a snapshot of early nineteenth-century criminal law, with some minor curiosity value as a precursor to the contemporary codification project in England. 8 It is not surprising, given current preoccupations, that the most recent studies have focused on the commissioners' definition of individual responsibility. Norrie, for example, has argued that the principal significance of the commissioners was their introduction of liberal and individualistic concepts of responsibility (based on the awareness of the offender) into the criminal law. This, he claims, was a means of narrowing legal definitions in order to exclude the consideration of social issues from the courtroom—and, by linking this to the idea of "Enlightenment," he clearly also intends to bring the English law within the conventional narratives of codification. 9 This individualism is certainly present but is, I suggest, a consequence rather than a premise of the commissioners' approach. I argue below that this interpretation, treating the redefinition of responsibility as the cornerstone of their approach, is based on a misunderstanding of the commissioners' project in particular and of the development of the modern criminal law in general.	9
More important, this is characteristic of the type of analysis that has preferred picking out particular themes of contemporary interest to looking at the commissioners' work as a whole, with the result that its importance has been seriously underestimated. In this article I argue that their success should not be measured according to the narrow criteria of whether or not the code was enacted, but in terms of the way in which they redrew the map of the criminal law. 10 Their systematic approach to the criminal law is a significant departure from earlier attempts to codify, digest, or consolidate the law. This is in part due to the particular way in which they sought to replace the common law with legislation. However, it can also be seen in the novel way in which the commissioners sought to systematize the law, specifically the relationship between civil and penal law, in such a way as to transform the understanding of criminal law in its relation to government. This aspect of the commissioners' work becomes particularly apparent when the reports are read in the light of Jeremy Bentham's theory of legislation. 11 This is not to suggest the direct influence of Bentham on the commissioners, but to argue that a reading of Bentham's theory of legislation allows us to understand aspects of the reports that are otherwise rather puzzling. 12 Bentham's work, I propose, makes explicit many of the broader political assumptions that guided the commissioners and allows us to understand the precise nature of their codification project. Reading their work in the light of the significant recent advances in our understanding of Jeremy Bentham's science of legislation allows us to reassess their historical significance. What is proposed, then, is not a political history, in the narrow sense of tracing the progress of legislating the criminal code, but a history that argues for the reinstatement of the political significance of codification to the modern criminal law.	10
II. The Criminal Law Commissioners of 1833-45.
In 1833 Henry Brougham, Lord Chancellor in the reforming Whig ministry of the 1830s, appointed a Royal Commission on the Criminal Law. The reform of the criminal law was conceived as an element of the reform of government, tackling corrupt practices and modernizing political and legal institutions. The terms of the commission were correspondingly broad, giving the specific mandate	11
of digesting into one statute all the Statutes and Enactments touching crimes, and the trial and punishment thereof, and also of digesting into one other Statute all the provisions of the common or unwritten Law touching the same, and for inquiring and reporting how far it may be expedient to combine both those Statutes into one body of the Criminal Law, repealing all other statutory provisions.... 13
Initially composed of five members, 14 the commission labored long and hard, producing eight substantial reports between 1833 and 1845. 15 These not only addressed the specific commission of digesting the common and statute law, but also covered certain supplementary and related issues of criminal law reform. Thus, the Second Report was devoted to the questions of whether prisoners charged with felonies should be allowed the use of counsel in their defense 16 and a review of the use of the death penalty, and the Third Report concerned the mode of trial of juvenile offenders. The finished digest of the law covered not only indictable crimes but also criminal procedure and sentencing. All this was accompanied by an extensive and rich commentary on the contemporary criminal law that reveals not only a keen historical awareness but also an extraordinary comparative range.
By the time that their work had been completed, however, the ambition for such a comprehensive legal reform was dissipating. Successive attempts to pass legislation prepared by the commissioners, either in the form of a single comprehensive digest or as a number of separate bills produced by a reconstituted commission between 1845 and 1849, were unsuccessful. 17 The influence of Brougham, the principal patron of codification, was waning, and opposition to codification on the grounds that it offered a threat to the traditions of the common law continued to grow. The issue of statute law reform was again raised in the 1850s, principally under the auspices of Lord Campbell, but these initiatives foundered in their turn on the opposition of the judiciary. 18 Though the eventual consolidation of the statutory law of crimes in the Criminal Law Consolidating Acts of 1861 was presented by their draftsman as "the very best Acts that ever were passed on the subjects to which they relate," 19 in truth they were only a piecemeal and pragmatic consolidation and represented a substantial retreat from the ambitions of the commissioners.	12
We see here the crystallization of opposition to codification of the criminal law, as well as the hardening of the distinction between those types of consolidation that were to be considered permissible and those that were regarded as a threat to the common law. From this perspective it is easy to view the entire episode as an example of the familiar English antipathy to the idea of codification and the difficulties of undertaking such a large-scale legislative reform. 20 However, we are less concerned here with the lessons that might be drawn from the collapse of the political initiative than with understanding how the commissioners went about their task and the impact that this has had on later efforts to systematize the criminal law and understand its function in relation to the modernization of governmental institutions.	13
Codifying, Digesting, and Consolidating the Law
The issue of law reform had moved to the forefront of the political agenda in the early nineteenth century. The law was central to both the idea and the operation of government and politics in eighteenth-century England, but there was a growing awareness of the unsatisfactory condition of much of the existing legal order. 21 The success of Blackstone's Commentaries had raised questions about the system and structure of the common law and criticisms of the poor drafting of existing statutes and the disorder of the statute book. It was, in addition, widely recognized that common law and chancery procedure were ill suited to the rapidly changing social conditions of the period. 22 The criminal law was understood to be a special case. It was the area of law that stood in greatest need of reform. In addition, given the centrality of the criminal law to the government of England throughout the eighteenth century, 23 it was central to the reform of government itself. The topic of penal reform was thus at the forefront of political debate from the 1760s onward. 24	14
This early movement for reform was largely concerned with the repeal of the so-called "Bloody Code"—the proliferation of capital statutes—arguing that a criminal law based around the death penalty was both inhumane and inefficient. Blackstone's Commentaries, for instance, lamented the indiscriminate use of capital punishment and drew attention to the way that the ill-considered and piecemeal development of penal legislation destroyed respect for the law. 25 Although focusing primarily on the brutality of the law and the scope of judicial discretion, this movement was also concerned with the related issues of the control and prevention of the spread of crime through policing and the reform of the prison. The pressure for reform bore fruit in the 1820s when the first major reforms were introduced under the guidance of Sir Robert Peel. Broad changes were made to criminal procedure in order to facilitate the prosecution of offenders, 26 and between 1827 and 1830 there was a reorganization and reduction of the number of capital statutes. 27 This was followed by further restrictions on the use of capital punishment in statutes of 1832 and 1833. 28 Reforms were directed largely against those statutes that imposed capital penalties and only considered the substance of the law to the extent that existing statutes were inconsistent with each other. The Select Committee on the Consolidation and Amendment of the Criminal Law (1824) was typical in that it was concerned only with proposals for the consolidation and amendment of the laws on forgery and other offenses against commerce. 29	15
The appointment and scope of the 1833 Royal Commission thus marked a decisive shift in the approach to law reform since this was the first body with the remit to consider the criminal law as a whole, including procedure and punishment, and to produce a digest that would replace the existing common and statute law. It is important not to read too much into the fact that the commissioners saw themselves as being engaged in the production of a digest rather than a "code." 30 These terms had no particular fixed meanings in this period, and so it is necessary to examine the precise sense in which the commissioners used them.	16
Initially the commissioners were concerned to establish the distinction between consolidating and digesting the law, arguing in the First Report that a proper digest would require not only the production of a single compendium of common and statute law, but also the power to propose amendments to the law. 31 The production of a digest involved the identification of general principles and the reorganization of the law around these principles. 32 In contrast, the consolidation of statute law was a purely mechanical process since statutes were not organized around any general principles. 33 At the same time, the commissioners were at pains to point out that, in their view, this differed from the production of a code:	17
From the statement of authority under which we now act, it will be obvious that it does not extend to the construction of a new Criminal Code, but is limited to the reduction and consolidation of the existing Law of England, as well written as unwritten, concerning crimes. 34
The distinction was thus drawn between the mechanical consolidation of the statute law, a code as the construction of something entirely new, and the production of a digest of the existing law in the form of legislation that would preserve the identity and character of the English law. While this disavowal of codification may in part have been an attempt to head off the inevitable political opposition, we should not allow this to blind us to the extent to which the proposed digest was a radical departure from previous attempts to reform the law. 35
The extent of this departure is revealed if we consider it in the light of the distinction drawn by Lieberman between the Benthamite "science of legislation" and the older "Baconian" tradition of legislative reform. 36 Lieberman argues that the Baconian tradition addressed the question of the consolidation and improvement of legislation in terms of the uncertainty that arose from the haphazard accumulation and amendment of laws and the failure to repeal obsolete laws or moderate excessive penalties. This project recognized two important constraints: there could be no change in legal policy or the substantive law; and the reform of the common law was expressly excluded. 37 Statute law was regarded as an encroachment on the territory of the common law. Thus, it had to be limited, its successful enactment and administration depending on its conformity with the values of the ancient customary law. It might perfect the common law, but it could not replace it. Bentham's science of legislation, by contrast, made a decisive break from this tradition. It began from the premise that the failures of the law were not due to badly drafted and piecemeal legislation but could be directly attributed to the form of the common law. 38 In other words, the defects were not due solely to the flawed substance or enactment of legislation, but principally to the manner of its expression. Common law was not law, and could not be law, because it did not emanate from the sovereign. At the same time, as we shall see below, it is a misunderstanding of Bentham to think that codification required the replacement of the substance of the law.	18
It is clear that the early attempts to reform and consolidate the "Bloody Code" by reordering the statute book fell squarely within the older tradition of common law reformism. The commissioners, however, identified the production of a digest with the Benthamite project of constructing a system of penal legislation that would be internally consistent, the expression of which would mirror the simplicity and coherence of its principles, and that would replace the common law by restating it. 39 Thus, the Seventh Report concluded: "It is not for want of general principles, and a body of authorities, that the Criminal Law is defective, but for want of a systematic expression by way of general rules.... " 40 The proposed reenactment of common and statute law in the form of a combined digest was therefore an important and radical departure.	19
This movement of legislation to the center of the law had two further consequences that we should note here. First, it was linked to a change in the understanding of sovereignty. Legislative science was freed from its particularistic roots in the practices of common law adjudication and became a matter of "the detailed and continuous regulation of the human condition." 41 Law was not conceived of as developing organically through the existing institutions of government. Instead, it was imposed from outside, according to certain empirical criteria, that would also shape those institutions. 42 Although it might respect the existing common law in terms of its content or arrangement (the path that the commissioners chose to follow), this was a matter of legislative policy. In principle, the sovereign legislator could make law as they chose. Second, the law was to be seen as a series of interrelated substantive rules that could be expressed independently of—and included—the forms of procedure. 43 In other words, the law achieved a certain conceptual autonomy that required that its principles be formulated in advance. Where previously the categories of law were given, dependent on the forms of action, these were now open to question. 44 Moreover, questions of the administration of criminal justice—the procedures themselves—were brought within the sphere of law reform. I devote the rest of this article to the working out of this conceptual freedom and filling in the details of this new legislative science.	20
Accessibility and Efficiency
A dominant motif of the reports is the need to escape the excessive technicality of the existing law. This was stated clearly in the Seventh Report: "We have ... endeavoured to express the law so reduced, by a series of rules, so as to bring the whole into one compact body, accessible to all." 45 It is not then surprising that the First Report should have addressed the common law of theft, precisely that area of the law that was seen as over-burdened by technicality—most notoriously in the formulations of the doctrine of constructive possession that had produced a morass of inconsistent and incoherent rules. 46 The prescription was to remove archaisms and technicalities, making the law better able to meet the more complex social relations of modern society. Accessibility and clarity, however, were not to be valued for their own sake. They were important only to the extent that they aided in the pursuit of the further ends of the law. 47 The technicality of the law meant that it was ill suited to administration by magistrates who were not legally trained and who were dealing with an ever greater number of criminal cases. 48 However, in recognizing the need to improve the expediency of the law, the commissioners were making a more general argument about the science of criminal legislation. If the "great object" of criminal law was to deter men from violating the law, then certain secondary objects followed: that the penal law should recognize and inculcate moral distinctions; that it should provide for public safety by the restraint of offenders; and that crimes and punishments should be defined with reasonable certainty. 49	21
Legislation, it was argued, was not just a rule of science, for the function of the criminal law was to establish a rule of civil conduct for every individual. 50 It was crucial that the law should be intelligible to all and not merely to legislators and judges. The need to promulgate the law, indeed, was more important to the penal than any other branch of the law—for it was said that the enforcement of all other laws depended on it. 51 Judicial legislation, and in particular the constructive extension of the law, was condemned not because it usurped the function of the legislator, but because it carried the meaning of technical terms ever further from popular understandings, leading to a degree of uncertainty unacceptable in penal law. 52 The use of technical terms was "manifestly improper in declaring to all classes of society the rules which they are bound to obey at the peril of punishment." 53 It was accordingly recognized that by avoiding technical terms the law would fulfil a broader educative function, giving publicity to moral distinctions. This was linked to the control of discretion in the area of punishment. Criminal law reformers had long argued that uncertainty had arisen from allowing punishment to depend on the individual discretion of the judge, and this issue was developed further by the commissioners. 54 They reasoned that it was necessary to confine discretion in sentencing within the narrowest practicable limits in order to demarcate the boundaries of criminal liability and distinguish between the different degrees of crime for the purposes of deterrence. This not only required that distinct punishments be attached to the particular degrees of crime, but also that aggravations be better specified in the definition of particular crimes. 55	22
Criminal procedure was the final area in which technicality was seen as obstructing the efficient operation of the law. Existing procedures rendered "laws already indefinite still more indefinite" as formal particularity was taken for certainty. 56 Formal rules were largely honored in the breach, giving rise to complex technical evasions. The strict legal requirements had become increasingly cumbersome as, for example, multiple charges were framed to prevent the defeat of justice by technical objection. 57 By contrast it was argued that it would be sufficient to have a single charge framed in more general terms, relaxing formal requirements in order to allow a more general proof of facts. 58 This proposal, part of a reshaping of the trial and the criminal process that was occurring in the early nineteenth century, aimed at creating a more impersonal process where justice could be seen to be done. 59 It is clear that this shows the attempt to formulate principles of criminal procedure that were independent of either specific crimes or established common law forms. The various parts of the process were thus gradually being pulled into line behind the "great object" of the law—though it is important to note that the concern with the rights of the accused was merely secondary to the aim of expediting the criminal process and thereby restoring respect for criminal law. 60	23
It is worth noting that the discussion of the idea of responsibility was an element in this attack on the overly technical nature of criminal law and procedure. The commissioners did not attempt to reformulate the law around an idea of individual responsibility, as is sometimes claimed, but to facilitate the operation of the law by shifting the relation between law and fact. The question of intention was addressed largely within the context of the law of homicide and the criticism of the felony-murder rule where there had been a constructive stretching of legal definitions in order to avoid the formal confines of the old definition of murder. 61 The view of the commissioners was that many "very important rules on this subject necessarily belong to the law of evidence." 62 It was for them essential to preserve the matter of legal definition as a distinct question and "to distinguish what degree of wilfulness or culpability of mind is in fact essential to criminality." 63 The great object of the deterrence of crime could better be served by distinguishing the appropriate degree of blame—something they viewed as essentially a factual question—to which a particular class of punishment could be attached. 64 This serves to underline the point made earlier that the commissioners' approach to the question of intention has been taken badly out of context and that they were not guided by the Enlightenment ideal of codifying the law around the idea of the juridical individual.	24
System and Classification
We have already had cause to observe that expediency necessitated viewing the law as a system such that all the parts were made to serve a single object. Yet such an approach depended also on the proper identification and classification of the various elements of the criminal law. A central principle of the compilation of the Digest was thus "marking the principal divisions of offences," 65 and much discussion was devoted to this question. The problem was stated directly in the Second Report:	25
The scarcity of distinctions defining the gradations of guilt, and annexing commensurate penalties, constitutes a remarkable characteristic of the Criminal Law of this country. Crimes bearing little moral resemblance to each other, are, by sweeping definitions, frequently classed together without discrimination as to penal consequences. 66
This had two aspects: first, to see the substantive criminal law as a whole, deducing elementary rules from general principles and ordering the law in terms of the protection of certain interests; 67 and second, to clarify the connections between procedure, penalty, and substantive provisions. 68 Rationality was to be put to the service of classifying uncertainty and defining the internal distinctions and limits of liability.
The first step in this process of illuminating England's rich store of legal learning and presenting it in an "authorised systematic form" 69 was necessarily the identification of the general principles of the law from which the specific rules could be deduced, for:	26
[i]t is submitted, that a few simple enactments, which should settle the boundaries of offences according to their real character, and without the aid of any technical constructions, would tend, in a material degree, to render the criminal law more uniform, more compendious, and more intelligible. 70
This was reflected in the finished form of the Digest. Each class of offenses was preceded by a set of "Prefatory Remarks" that discussed the general principles and the particular problem areas. 71 The Digest itself was then presented in a liberally annotated form, to incorporate the preceding discussion and point to the sources of particular rules. By this process the commissioners aimed to illuminate the law, not only by identifying the particular general principles, but also by grouping together offenses governed by the same principle. 72
This process can best be illustrated by considering the law of theft and other criminal violations of the right to property, where the piecemeal development of the law was considered to have obscured principled distinctions. 73 In seeking to restore these the commissioners began by separating those offenses involving fraudulent appropriation of property from those consisting in the malicious destruction of or injury to property. The former class was then further divided into offenses involving taking or appropriation and those involving the conversion of property already in possession, so to establish the boundary between the offenses of theft and embezzlement. This led to a further distinction between fraudulently obtaining possession and fraudulently obtaining the entire interest in the property: the former being a species of theft, the latter the offense of fraud. This process produced five different classes of offenses around which the Digest could be structured. 74 The aim was to clarify the distinctions and distribute offenses more appropriately between the different classes. 75	27
The finished Digest was presented in the form of a draft Act of Crimes and Punishments comprising twenty-four chapters. 76 A notable feature of the Digest was that those rules that were of general application were brought into a separate, preliminary chapter—though this was extremely limited by contemporary standards, covering only capacity, intention, and agency and participation—as were the provisions on punishment. Yet the attempt to isolate even these general rules demonstrates the difficulties that the commissioners faced. One problem was that apparently general principles were frequently mixed up with purely technical considerations. There was a rule, for example, that a wife acting in concert with her husband in the commission of a felony was accorded impunity. This apparently derived from a principle of the law of marriage. On closer inspection, however, the justification for this was found to be based solely on the circumstance that while the husband could be admitted to benefit of clergy (and hence avoid capital punishment), the wife could not. Accordingly, the practice of allowing immunity had arisen. 77 The commissioners proposed redefining such rules to put them on a more rational and accessible basis. A second related problem was that the definition of certain offenses often depended on technical terms that themselves remained undefined. 78 Again, the common law of theft provides a striking example of this. The criminality of the act was made to depend on whether or not the taking was felonious—though this was a term that was nowhere defined and depended on the mode of trial and punishment rather than any quality of the act itself. 79 This points to a third problem, the survival of certain distinctions that were regarded as fundamental—principally those between treason, felony, and misdemeanor—and that were particularly relevant to the trial and punishment of offenders. In practice, these were obscure and difficult to specify, with the result that the law was oppressive, unequal, and inconsistent. 80	28
While the commissioners were open in their criticism of this distinction insofar as it affected the definition of criminal wrongs and procedure, they eventually recommended its retention—though subject to a radically altered justification. They argued that the term felony was used in the law in three different senses: as descriptive of a class of crimes to which confiscation of property was incident upon conviction; as descriptive of those crimes to which certain forms of procedure applied; or as comprehending a class of crimes between treasons and misdemeanors upon which the definition of other offenses could depend. 81 They argued that the term should only be used in the last of these senses to denote a particular class of aggravated offenses and that this class should in turn be defined in terms of the amount of punishment, a test both more simple and natural. They accordingly recommended that felonies should be those crimes that could be punished by transportation. This would allow the grouping of crimes of equal criminality as well as greatly simplifying the process of trial. This rested, of course, on the construction of a scale of punishments capable of marking different degrees of criminality, a task that the commissioners found was not without its own difficulties. The principal one was that of finding a balance between the too broad definition of the crime and the too narrow definition of the penal consequences. In their initial attempt to address this question the commissioners suggested that four classes of penalty would be required; by the Fourth Report they argued that some fifteen classes were necessary; by the Seventh Report no less than forty-five different classes of penalty were felt to be appropriate in order to deal with the copiously defined aggravations of crimes and to restrict judicial discretion. 82 As Radzinowicz and Hood have commented, the commissioners were inescapably driven to this conclusion by their starting premise that the degrees of gravity of crime and shades of moral guilt should be fixed in both definition and punishment. Their flawed scheme of penalties was thus "the inevitable consequence ... of a classical approach pursued to its logical conclusion." 83 Yet to conclude in these terms only ignores the truly radical element of the Digest, consigning the project once more to an unavoidable failure. If instead we place the discussion in the context of the overall approach to the digesting of the law, we can see that this is more than just a question of producing a workable system of penalties. The crucial point is that in recognizing the unity of the criminal justice system for the first time, it was also recognized that this unity rested on a series of divisions or classifications. And as the urge to classify was elevated to the level of principle, one distinction, in its turn, was regarded as fundamental, for it established the proper limits of the criminal law.	29
The Limits of the Criminal Law
It is not surprising that the commissioners were concerned to impose limits on the scope of the Digest and, consequently, on the criminal law. What is striking, however, is that they should choose to do so in terms of an analytical distinction between civil and penal law rather than, say, the sovereignty of the individual or even the state. 84 This was expressed in simple terms: all wrongs are violations of rights and penal law was thus limited to violations of "such rights and obligations as are presumed to be already defined in another department of the law." 85 Thus, the criminal law should not attempt to impose any substantive obligations for it was adjectival and not substantive law:	30
In general, definitions of rights and obligations are foreign to the principles essential to the construction of a system of crimes and punishments, which is properly confined to the specifying, not those rights and obligations, but such violations of them as ought to be punished. 86
The distinction was necessary to every system of municipal law, arising not because of a difference in the degree of culpability between civil and criminal wrongs, but as the consequence of an analytical problem relating to the system of legislation as a whole. 87 Although this was a technical distinction, without it "the administration of the law itself must be rendered uncertain and precarious." 88
To our ears these terms seem strange and the conclusion overstated: it is puzzling that this distinction should be elevated to a position of such apparent importance, and it is difficult to see how it could damage the administration of justice. On the face of it, the distinction would not appear to differ greatly from Blackstone's negative definition of a wrong as the "privation of a right" and public wrongs (crimes) as those that breach public rights and duties and affect the community as a community. 89 However, in this section I want to suggest that a possible way of reconstructing the significance of this distinction for the commissioners is to see it as an important element of their science of legislation. This makes it clear that there is a significant break from Blackstone's account, since the distinction is founded neither in a natural (or customary) division between public and private, nor in the community as it is represented through common law processes of adjudication. The distinction is purely technical and is intrinsic to the understanding of legislation. In these terms it can be seen as the key to understanding the commissioners' redrawing of the map of the law. In this, once again, there is an affinity with the Benthamite science of legislation, and so, in clarifying the importance of the distinction, it is helpful to take a detour through the work of Bentham. 90	31
The greater part of Bentham's early work was devoted to constructing a complete code of laws or pannomion. Proceeding in typically systematic manner he found that he could not readily complete this task without addressing a number of preliminary matters concerning the nature of a code and the nature of a law. Codification for Bentham required that the very foundations of the science of legislation be laid bare to allow the construction of a complete body of laws grounded on natural and universal principles. This task was first addressed in An Introduction to the Principles of Morals and Legislation, a work completed in 1780 though not actually published until 1789, and originally conceived of as the introduction to a penal code. 91 Bentham continued it in more systematic form in the work known as Of Laws in General, completed in 1782 though unpublished in his lifetime. The latter volume stands as a tribute not only to Bentham's analytical, but also to his digressive, powers. The work develops his analytical system in response to one small difficulty identified in a footnote in the final chapter of the first volume. There he had been drawn to the conclusion that the proper limits of the penal code could not be distinguished without addressing the question of the distinction between civil and penal law. 92 This, he argued, raised the question of the individuation of law, 93 which lay at the heart of the relationship between the individual law and the complete code:	32
The wonder will cease when it comes to be perceived that the idea of a law, meaning one single but entire law, is in a manner inseparably connected with that of a complete body of laws: so that what is a law and what are the contents of a complete body of the laws are questions of which neither can be answered without the other. 94
The science of legislation was founded on the elaboration of this insight. 95
For Bentham civil law was primarily expository or "circumstantiative," while penal law was a matter of sanctions or was "comminative." In more familiar terms, the civil law was distributive and constitutive of social life, and the penal law regulative or corrective. 96 In the language of the commissioners, the civil law was substantive and the criminal law merely adjectival: wrongs defined in the criminal law were dependent on rights defined elsewhere, for the primary task of law was seen as the defining of social and political relationships. 97 The civil and penal elements of a law were thus different in nature, although as a matter of logical necessity every single law contained a part that was of a penal nature—that is to say that every law depended on the mandatory element or command. 98 However, difficulties arose in the expression of these diverse elements. The logical imperative could not be expressed in the law, for to attempt to set down all the elements of each individual law would be both laborious and unwieldy, since every individual law would have to contain a full account of all the rights, duties, exceptions, penalties, procedures, and so on pertaining to itself. 99 In practice, then, as a matter of typographical arrangement the elements were separated out, according to the nature of the rules, and expressed in separate and complementary codes of civil and criminal law. 100 The natural distinction was, thus, overlaid by a positive one; as Bentham pointed out, while all laws must terminate in an offense, not all laws were crimes. 101 As a result, however, the distinction depended on its expression in particular systems of law since no categorical line could be drawn. 102	33
Though Bentham suggests a number of principles that might assist in the drawing of this distinction, 103 the key point concerns why it should have been regarded as being of such importance. This was not simply for reasons of analytical clarity, or even because of the importance of the idea of "command" to Bentham's jurisprudence. It was central to an understanding of codification as not merely the distribution or control of sovereign power, but as the distribution and definition of law. The task of distinguishing the type of acts that should attract criminal liability was intimately related to that of distinguishing between particular criminal acts as an element of the proper promulgation of the law. This theme was further elaborated in the final chapter of Of Laws in General—helpfully entitled "Uses of the Eighteen Preceding Chapters." 104 Although the civil and penal branches of the law shared much in common, it was essential that they be distinguished from each other for the purposes of "intellection and enunciation." 105 The distinction underpinned the conception of a natural and universal system of laws, the form of legislative expression, the exhibition of a plan for digesting customary law into statute, the justification for promulgation, and finally the facilitation of the communication and improvement of the science of legislation through the establishment of a school to teach "the art of legislation for the benefit of empires." 106	34
If we can thus understand better why the commissioners attached such weight to this distinction, it is also necessary to dwell for a moment on the manner of its application in their Digest, for this reveals a little more about their understanding of the criminal law. In fact, their approach is somewhat confusing. On the one hand, they defended the importance of the distinction as an exclusionary principle: it could establish the conventional distinction between "real" crime and lesser offenses, for the Digest was to include only those acts of a higher and more general nature. 107 On the other hand, in their discussion of the definition of particular crimes they seemed to run roughshod over it—in a way that suggests that, like Bentham, they viewed it as being of greater analytical than practical significance. Their review of criminal violations of the right to property in the Fourth Report began by defending the simplicity of the criminal as opposed to the civil law. 108 In addition, they retained technical usages and distinctions that were unique to the criminal law where they felt these to be material. 109 From their argument that the nature and constitution of the civil right were seldom material to the crime, it is clear that they gave priority to the question of clarity. Continuity was more important than the production of completely new rules.	35
In the final analysis, the distinction was only properly sustained at the more abstract level of classifying the general species of civil right that were worthy of protection (person, property, reputation, executive power, and so forth), as a means of organizing and classifying the law for the purposes of legislation. 110 This is nonetheless significant, for it confirms that the approach of the commissioners was to carry forward the substance of the criminal law, while altering its form. Though they argued for the retention of much of the substance of the existing law in the Digest, this was only a matter of legislative convenience—for the general rights themselves were not seen as customary, but deriving from the will of the legislator. These rights gave rise to a body of principles that could organize the law into a unitary and internally consistent body of rules. Though promulgated by the legislator, the criminal law was not established as an independent body of public rights. This approach to codification, in effect, established the criminal law as an adjunct of private law.	36
III. Codification and the Modern Criminal Law
On a map of the law executed upon such a plan there are no terrae incognitae, no blank spaces: nothing is at least omitted, nothing unprovided for: the vast and hitherto shapeless expanse of jurisprudence is collected and condensed into a compact sphere which the eye at a moment's warning can traverse in all imaginable directions. 111
The resemblance between Bentham's vision of the science of legislation and his plan for the construction of a panopticon is not accidental, though it has remained unremarked upon. 112 The legislator, placed at the center of the network of rules that govern the social, corresponds in location and symbolically to the gaze that animates his "simple idea in Architecture." 113 This alone would be sufficient to alert us to the wider significance of the new science of legislation and puts us in a position to reassess the impact of the commissioners' work. It can be argued that they were occupying the theoretical space, created by Bentham, that corresponds to the new social space of the institutions of police and discipline. The systematic approach that they adopted was founded on the command of the legislator and attempted to formulate the law as a system of rules based on the fundamental distinction between civil (substantive) and criminal (adjectival). At the same time it marks a distinct moment in the transition to a modern law founded on legislation rather than common law adjudication. It is not crucial that in its content the Digest reproduced much of the existing law. The central point concerns the manner in which the issue of codification was approached.	37
The first point that must be made is to reiterate that this account of codification does not fit easily into either the narratives of political and legal emancipation or those that emphasize the unifying force of national law over disparate local jurisdictions. 114 It is the failure to grasp this point that has hitherto obscured the significance of the commissioners' work and the meaning of codification in England. It is a striking feature of the English proposals for the codification of the criminal law and the reform of punishment that they did not explicitly raise the question of the limits of state power. Indeed, the issue of the restraint of political power was conspicuously absent from the commissioners' discussion of the merits of systematizing the law, though they repeatedly showed themselves to be aware of the contemporaneous debates in continental Europe. This is not simply to be attributed to a peculiarly English reticence about the discussion of matters of delicacy, but is a reflection of the different way in which the entire question was understood.	38
The English codification movement had not acquired support from the middle classes as a means of restraining political power but because of a concern with the efficacy of existing governmental institutions. This is exemplified by the treatment of the distinction between civil and criminal law, which was made not to clarify the nature of public right, but to distinguish certain civil rights that they might be more effectively protected. The reform of punishment and the criminal law reveals the explicit reformulation and extension of state power rather than its retrenchment. 115 The English approach was in a certain sense more technical than its continental counterparts, but no less far-reaching in its implications. The primary success, then, of the commissioners was that they succeeded in putting the new science of legislation at the center of the modern understanding of the criminal law. It is not merely that legislation becomes the primary medium for the expression of the law, but that there is a new codifying of knowledge, building a new economy of truth around a new scientific principle of human behavior. 116 In this way, although it was never enacted, the principles of the Digest furnish the assumptions that have governed much of the subsequent thinking about criminal law and policy.	39
The key to the new science of legislation was the combination in method of completeness and unity: the English code was based not on the legal individual, but on the individuation of laws. This was a logical claim about the completeness of the order of legislation, which was linked to the elaboration of principles of classification that would allow the positive expression of this unity. It was founded, however, on the further claim that the science of legislation based on natural and universal principles should, in principle, extend over the entire realm of social life. 117 A complete catalog of offenses would lead to a complete understanding of everything that could be done by law. The corollary of this was also held to be true: that crime and punishment were positive, not moral, institutions, subject to social laws. 118 Crime became a social problem to be solved through the development of a penal policy. The code was not a rational body of norms that preexisted the social, but was part of the institutional means by which the modern idea of the social was itself constituted. There was thus established an intimate relationship between the internal order of the code and the external order that was to be governed. The reconstructed province of legislation was coextensive with the emerging field of the social, thus transforming the role of law within the process of government. In Bentham's words, there are no terrae incognitae beyond the eye of the legislator.	40
The systematization of the law has had one further consequence. Logically, the criminal law is seen as the key to the completeness of the law, but in practice (at the level of signs) it is recognized always to be incomplete. Due to both the limitations of language and the changing nature of the social, the positive law will never succeed in establishing a closed, universally valid, system of rules. Thus, the need for reform is introduced as a constitutive feature of the law, constituting a new rationality of reform through the foundational recognition of the imperfection of the law. 119 A key point about the commissioners' project in particular, and the English codification project in general, is that it does not depend on success or failure at the level of enactment because success is impossible from the start. The success of the science of legislation is not to be sought in the construction of the perfect and complete code, but in the constitution of a set of relationships or a dynamic—between the now separate fields of substantive law, procedure, and policy—that determines the boundaries within which modern criminal law and justice can be understood. Rationality on this view is not an end, but a means—and therein lies the very Englishness of the project. 120	41
There are no easy lessons to be drawn from this history, only the difficult conclusion that we have failed to reflect adequately on either the meaning of codification or its impact on the form of the modern law. To conclude by returning to the remarks of Sir Henry Maine with which we began, it would appear that no one, not even theorists of the criminal law, has cared enough about the criminal code.	42
Lindsay Farmer is professor of law in the University of Glasgow. Of the many people who have advised and commented on the various early drafts of this article, he would like to thank in particular Niki Lacey, Sean Smith, Roger Berkowitz, David Lieberman, and the anonymous reviewers of this journal. He would also like to express his thanks to the Center for the Study of Law and Society, University of California at Berkeley, for their hospitality during the period of the final drafting of the article. Notes       1. Ian Dennis "The Critical Condition of Criminal Law," Current Legal Problems (1997): 213-49; Andrew Ashworth "Towards a Theory of Criminal Legislation," Criminal Law Forum 1 (1989): 41-63.
2. The term was coined by Andrew Amos, professor of law at University College, London, and a former law commissioner, to describe the failure of the English legislator to grasp the nettle of codification. Ruins of Time, exemplified in Sir Matthew Hale's Pleas of the Crown (London: Stevens and Norton, 1859), xvii.
3. Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Technique (Oxford: Blackwell, 1986), 24, for example, defines codification in terms of rupture or break from the past, something that is thereby completely antithetical to a common law tradition founded on the idea of continuity.
4. Barbara Shapiro, "Codification of the Laws in Seventeenth-Century England," Wisconsin Law Review 1974: 428-65 at 428-31.
5. Max Weber, Economy and Society (Berkeley: University of California Press, 1978), 839-59.
6. W. T. Murphy, The Oldest Social Science? Configurations of Law and Modernity (Oxford: Oxford University Press, 1997), chap. 2.
7. For a discussion of this, see Pierre Lascoumes, Pierre Lenoël, and Pierrette Poncela, Au nom de l'ordre. Une histoire politique du code pénal (Paris: Hachette, 1989).
8. D. A. Thomas, "Form and Function in the Criminal Law," in Reshaping the Criminal Law, ed. P. R. Glazebrook (London: Stevens and Sons, 1978), 23, praises their "functional analysis" and points to its possible contemporary significance. Rupert Cross, "The Reports of the Criminal Law Commissioners (1833-49) and the Abortive Bills of 1853," in Reshaping the Criminal Law, 20, warns of the perils to the modern lawyer of neglecting their work.
9. By narrowing the focus of legal culpability and restricting the role of the jury. See A. W. Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (London: Weidenfeld and Nicolson, 1993), 78-80 and chap. 2. Jeremy Horder, "Two Histories and Four Hidden Principles of Mens Rea," Law Quarterly Review 113 (1997): 95-119 at 109, makes a similar point, as does John Hostettler, The Politics of Criminal Law Reform in the Nineteenth Century (Chichester: Barry Rose, 1992), chap. 7. Martin Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830-1914 (Cambridge: Cambridge University Press, 1990), 63-64, cautions against this interpretation.
10. It follows from this that rather than treating the Reports in a strictly chronological order, I am claiming that there is a basic consistency in their argument that means that they can be cited more or less interchangeably.
11. See An Introduction to the Principles and Morals of Legislation (London: Athlone Press, 1970) and Of Laws in General (London: Athlone Press, 1970). The extent of Bentham's direct influence is difficult to establish here. Of Laws in General, though written in 1782, was not published in any form until 1945, and there is no direct evidence that any of the commissioners had read it, though there were strong links with the Bentham circle.
12. Compare C. J. W. Allen, The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997), which seeks to establish the precise extent of Bentham's influence on the nineteenth-century law of evidence.
13. Letter of Commission. Parliamentary Papers [hereinafter PP].1834.XXVI.117.
14. The original members were Andrew Amos, Henry Bellenden Ker, Thomas Starkie, William Wightman, and John Austin. Austin resigned after the production of the Second Report and was replaced by David Jardine. On the background and membership of the commission, see Leon Radzinowicz and Roger Hood, A History of English Criminal Law and Its Administration, vol. 5, The Emergence of Penal Policy in Victorian and Edwardian England (London: Stevens and Sons, 1985), chap. 22; Michael Lobban, The Common Law and English Jurisprudence, 1760-1850 (Oxford: Clarendon Press, 1991), chap. 7; Cross, "Reports." Hostettler, The Politics of Criminal Law Reform, reviews their work in the context of nineteenth-century law reform.
15. First Report PP. 1834.XXVI.117 (On common law of theft); Second Report PP. 1836.XXXVI.183 (On prisoner's counsel and the death penalty); Third Report PP. 1837.XXXI.1 (On trial of juveniles); Fourth Report PP. 1839.XIX.235 (On crimes against person and property); Fifth Report PP. 1840.XXI.1 (On crimes against the public peace); Sixth Report PP. 1841 Session 1.X.1 (On treason, religion, and public revenue); Seventh Report PP. 1843.XIX.1 (Digest of the criminal law); Eighth Report PP. 1845.XIV.161 (Digest of criminal procedure).
16. Leading eventually to Prisoner's Counsel Act, 6 & 7 Wm. 4, c. 114 (1836). For a review of this report and the background to this issue, see J. M. Beattie, "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 (1991): 221-67. See also now D. J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800-1865 (Oxford: Clarendon Press, 1998), chap. 4.
17. Radzinowicz and Hood, Emergence of Penal Policy, chap. 22, is the best account of the fate of the commissioners' work, though concentrating mainly on their proposals for sentencing reform. See also Cross, "Reports," especially 8-13; A. H. Manchester, "Simplifying the Sources of the Law: An Essay in Law Reform," Anglo-American Law Review (1973): 395-413.
18. Lord Chancellor's Letter to the Judges etc. PP. 1854.LIII.389. See C. S. Greaves, The Criminal Law Consolidation and Amendment Acts of 24 & 25 Vict., 2d ed. (London: V & R Stevens, Sons & Haynes, 1862) for a contemporary account, written by the drafter of these statutes, of the political opposition to codification.
19. Greaves, Criminal Law Consolidation and Amendment Acts, vii. 24 & 25 Vict., cc. 94-100, covering aiders and abettors, larceny, malicious injuries to property, forgery and offenses against the coin, and offenses against the person.
20. Cross "Reports," 5, describes it as "the largest and most abortive codification enterprise yet seen in this country," while for Radzinowicz and Hood, Emergence of Penal Policy, 737, it was a "drawn out and fruitless movement." See also Dennis, "Critical Condition," 213-14.
21. See, in particular, David Lieberman, "Introduction," The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989).
22. On discontent with common law procedure, see Lobban, Common Law and English Jurisprudence, chap. 7; Wiener, Reconstructing the Criminal, chap. 2, discusses the intellectual and social context of law reform.
23. There is an extensive literature on this point. The best statement is still Douglas Hay, "Property, Authority and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975), ed. Douglas Hay et al., 17-63. J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986) is a substantial and important review of the use of the criminal law in the eighteenth century.
24. See, e.g., Randall McGowen, "The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England," Buffalo Law Review 32 (1983): 89-126, on the centrality of law reform and changing conceptions of the criminal trial. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 1, The Road to Reform (London: Stevens and Sons, 1948) presents a magnificent and exhaustive summary of the contemporary debates. V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770-1868 (Oxford: Oxford University Press, 1994), provides a valuable corrective to the narrative of increasing humanitarianism.
25. William Blackstone, Commentaries on the Law of England (Oxford: Clarendon Press, 1765; reprint, Chicago: University of Chicago Press, 1966), 4: 1-5, 237-40.
26. These involved moving greater numbers of offenses into the jurisdiction of the Quarter and Petty Sessions and providing financial assistance to private prosecutors. See Radzinowicz, The Road to Reform, 573. See also Greaves, Criminal Law Consolidation and Amendment Acts, v-vii.
27. 7 & 8 Geo. 4, c. 29 (on larceny and allied offenses); 7 & 8 Geo. 4, c. 30 (on malicious injuries to property); 9 Geo. 4, c. 31 (on offenses against the person); 11 Geo. 4 and 1 Will. 4, c. 66 (on forgery). Radzinowicz, The Road to Reform, assesses their value in negative terms: "If the value of these Acts is measured by what they replaced, they certainly constituted a very material improvement." Gatrell, Hanging Tree, chap. 21, is damning in his assessment of Peel's status as a reformer.
28. 2 & 3 Will. 4, c. 34 (for offenses against the coin); 2 & 3 Will. 4, c. 62 (restricting capital punishment for larceny); 2 & 3 Will. 4, c. 123 (for forgery); 3 & 4 Will. 4, c. 44 (further restrictions for larceny and capital offenses).
29. PP. 1824.IV.39; PP. 1824.IV.349 (considering proposals drafted by A. Hammond).
30. This uncertainty has led Lobban, Common Law and English Jurisprudence, chap. 7, 196, and 202 following, to argue that since the commissioners did not attempt to construct a code composed of completely new laws, this was not a proper attempt at codification. It should also be noted that the term "code" was used in a much looser sense as a collective term referring to any body of laws. See, e.g., the references in L. J. Hume, Bentham and Bureaucracy (Cambridge: Cambridge University Press, 1981), 38.
31. See, e.g., First Report, 25 and 34-35. Their commission was clarified in a letter from Lord Melbourne dated 8 July 1834, quoted in Second Report, 1. See also Fourth Report, v.
32. Seventh Report, 1.
33. Fourth Report, viii. See also Fifth Report, 65-68, on forgery; Seventh Report, 2, complaining of the difficulty of digesting much of the statute law since there were no identifiable general principles. Compare Greaves, "Introduction," Criminal Law Consolidation and Amendment Acts, identifying the 1861 Acts with the process of consolidation initiated by Peel's Acts, where minor amendments could be made.
34. Fourth Report, v-vi. See also Seventh Report, 10. This point was anticipated in a review of the first two reports in the Edinburgh Review 65 (1837) cxxxii: 214, which pointed out that the aim was not the codification of the law: "The object of the Criminal Law Commission has frequently been misunderstood."
35. Compare Amos, "Preface," Ruins of Time, identifying the work of the commissioners as codification rather than consolidation.
36. Lieberman, Province of Legislation, "Introduction" and chap. 9; see also Lobban, Common Law and English Jurisprudence.
37. See Lieberman, Province of Legislation, 184.
38. Compare Fourth Report, viii, arguing that difficulties "of a very embarassing nature" were said to arise in the law of England due to the confusion and inapplicability of the common law, often exacerbated by the interventions of the legislature—although Peel's reforms were expressly excluded from censure.
39. Compare Bentham's view of codification in Of Laws in General, chap. 18. This is discussed at length in Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), especially chap. 12.
40. Seventh Report, 9.
41. J. H. Burns, The Fabric of Felicity: The Legislator and the Human Condition (London: U.C.L., 1967), 15. Hume, Bentham and Bureaucracy, chap. 2, discusses the origins of the idea of the sovereignty of the legislator. The commissioners (Seventh Report, 6-8) discuss the role of the legislator: the same general principles are common to all systems of criminal law, and hence their attention to comparison with other codes, but their particular expression is a matter for the discretion of the legislator.
42. See Lieberman, Province of Legislation, 209-15, arguing that the foundations of a legislative science based on moral and social theory were laid by Eden and Romilly under the influence of Beccaria, but that the early proposals to reform the criminal law did not follow through on this. Radzinowicz and Hood, Emergence of Penal Policy, chap. 22, also point to the influence of Beccaria, but largely in relation to sentencing.
43. See, generally, S. F. C Milsom, Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1981); Lobban, Common Law and English Jurisprudence, chaps. 1-3.
44. Compare Tom Hadden, "Contract, Tort and Crime: The Forms of Legal Thought," Law Quarterly Review 87 (1971): 240-60, who argues that the common law of crime retains its dependence on the forms of action.
45. Seventh Report, 1.
46. Theft had to be from the possession of the owner and the courts had extended the idea of possession to cover a variety of situations where the owner did not have actual possession of the property. First Report, 7-9 and 14-25. The best modern discussions of this are to be found in Jerome Hall, Theft, Law, and Society, 2d ed. (Indianapolis: Bobbs-Merrill, 1952), chaps. 1-4, and George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), chaps. 1-3.
47. Compare Codification of the Criminal Law. A Report to the Law Commission (Law Comm. No. 143), (London: HMSO, 1985), chap. 1. In establishing the aims of accessibility and comprehensibility the English codifiers were broadly following the American Law Institute's Model Penal Code. See also A Criminal Code for England and Wales, vol. 1, Report and Draft Criminal Code Bill (Law Comm. No. 177), (London: HMSO, 1989), part 2. See also Ashworth, "Towards a Theory," on representative labeling and procedural fairness.
48. See, e.g., First Report, 25-28. See also R. M. Jackson, "The Incidence of Jury Trial During the Past Century," Modern Law Review 1 (1937): 132-44; Richard Vogler, Reading the Riot Act: The Magistracy, the Police and the Army in Civil Disorder (Milton Keynes [England]: Open University Press, 1991); Norma Landau, Justices of the Peace, 1679-1760 (Berkeley: University of California Press, 1984).
49. Seventh Report, 92.
50. Ibid., 7. See also Fifth Report, 3: "To enable the great mass of society to obey the law, detailed practical rules are absolutely essential."
51. Seventh Report, 5. It was expressly stated (First Report, 25) that, while uncertainty in language or flexibility in definition might be acceptable in civil rights, this could not be the case in the criminal branch of the law. An incidental point was that the criminal law was seen as being less complex than the civil law and more susceptible to definition.
52. See, e.g., Sixth Report, 12-13, on the constructive extensions to the crime of treason. Note also that F