How Benthamic Was the Criminal Law Commission?

MICHAEL LOBBAN

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." 1 It is worth asking therefore how far the commissioners were informed by Benthamic ideas and what they understood their task to be.	1
To answer these questions, we need to look a little more closely at the origins and workings of the commission. Though set up and sustained by Brougham—only half a Benthamite—it was not initially his brainchild. Instead, the initiative came largely from Henry Bellenden Ker and John Austin. 2 Austin's interest in codification at this time was heavily influenced by his mentor, Bentham, and he remained the most radical of the commissioners, before quitting in frustration in 1836. 3 By contrast, Ker's interest had come from his concerns about the quality of statutes and the difficulty of drafting new legislation. A conveyancer, he was as keen to digest and consolidate real property law as criminal law. Just as Ker's interests went beyond the criminal law, so the commissioners' mandate was not limited to crime. For instance, in 1834 Melbourne asked them to report on how far it might be expedient to consolidate other branches of the statute law, and a report on statute law consolidation was published in the following year. 4	2
Ker's perspective is an important one, for with Thomas Starkie he was the main drafter of the substantive reports of the commission of 1833-45, and he remained a key participant in later commissions. Ker was a more cautious reformer than Austin. His initial aim was to consolidate all existing statute law into a digest, to make "a skeleton to which may be added the Common Law, to be ascertained, and defined." In his view, a code should only be drawn up subsequently, when "the whole field might be viewed at once," since "it will not be till that time that the necessary alterations can be well judged of." 5 He was persuaded by Austin, however, that the digest of common law would have to be done at the same time as that of statute. 6 It was this approach that alarmed many opponents of codification. Thus, when the First Report was published, the proposal to unite common and statute law into one body was attacked, largely because it was feared that "uniformity could not be obtained without altering the language and unsettling the construction of most of the enactments to be compressed." 7 In this context, S. M. Phillipps, under-secretary at the Home Office, wrote to the commissioners in 1835 to instruct them only to digest the statute law, telling Amos in private "that they wanted to steer clear of codification." 8	3
Faced with this hostility, Ker (who had wanted to write a separate report on the practicability of codification) said that "the principle of the Codification we recommend ... has never yet been understood." 9 One problem was (as Farmer points out) that the terms "Digest" and "Code" were at this stage being used interchangeably. In fact, Ker's understanding was much more cautious than his opponents feared. This was reflected in the comments at the start of the Fourth Report that the commission's authority did not extend to the construction of a new criminal code. 10 Ker reiterated in later years the limited nature of their mandate and pointed out, after the second commission was appointed with power to make alterations in the criminal law, that this was a task of much greater difficulty. 11	4
The relative caution of the first commissioners can be seen in their use of those troublesome terms "code" and "digest." Both Ker and Brougham talked of "codes" in a sense far from Bentham's pannomion. Thus, Ker stated that "Sugden's Trustees acts and Peel's acts were essentially codes, as far as they go," 12 while Brougham told Sir James Graham in May 1843 that "my Digesting Commission is the consummation of all [Peel's] Reforms of the Criminal Law." 13 By the 1840s, Ker was warning Brougham not to use the word "Code," which connoted "a new substantive law on one uniform system with one uniform language." 14 Moreover, in 1843, presenting the commission's work, he stated that his plans to digest the law aimed at "nothing more than an authenticated exposition of the actual law, with the discrepancies & doubts removed or reconciled, and the omissions supplied whereas a new Code would lead to endless difficulties and would take 50 years before it would be worked clean." 15 This view, which was restated in the Seventh Report, 16 was clearly aimed against the kind of codification associated with Bentham and his acolytes. 17	5
If it is true that the commissioners were making a significant advance on earlier attempts to reform the criminal law, they revealed the limits of Benthamic influence on them when they stressed that they were not seeking to change the language or the working of the law. As Farmer points out, though Bentham admired much in the substance of the common law, he abhorred the manner of its expression. What would he have made of a commission that sought to preserve "well-known technical forms of expression" because of their continued use and familiarity? 18 Moreover, the commissioners, in attempting to persuade the judiciary of the advantages of the change, sought to portray it as a sensible and pragmatic one that would not affect the judicial role. 19 Discussing the principles of the digest with a sceptical Tindal CJ, who doubted the wisdom of adopting abstract definitions for crimes, Ker pointed out that the definitions used were taken from the same textbooks consulted by judges, who would benefit by having to use only one, rather than eight or ten. As to the objection that the flexibility of the common law would be affected, Ker commented that "the common law will remain as it is & the principles of construction remain as regards omitted cases or analogous cases," adding pointedly, "is more flexibility than this an advantage to a judge?" 20 Tindal reflected on this and later admitted "that he had without perhaps quite knowing it, to a certain extent confounded Codification with Digest." 21	6
It may thus be doubted how much the commissioners acted under the sway of Bentham's ideas, especially after Austin's frustrated departure. Farmer rightly suggests that they were aware of the Benthamic analytical distinction between civil and penal law. How far did it inform the nature of their project? The distinction between substantive and adjectival law was first mentioned in their report of 1835 on the consolidation of statute law, 22 where the commissioners outlined their view of a systematic arrangement of all statutes. The commissioners, at this point considering both the consolidation of statute law in general and the digesting of the criminal law, were faced with a practical problem of arrangement, and their comments may in fact reflect practical as much as analytical concerns. Hence, they pointed out in the Seventh Report that the criminality of many acts depended on questions of civil or procedural law. As an example, they noted that the question of whether a homicide was a murder might turn on whether an officer had acted under lawful authority; yet it was impracticable in a digest of criminal law to include all the details that might determine criminality. 23 Practical concerns about explaining the arrangement chosen probably impelled the commissioners to include these comments. But they were, at the same time, a plea for "the improvement of the civil branch of Law," without which the criminal law would never be perfect, 24 from commissioners who were despondent that their report on the statute law had fallen on entirely deaf ears. 25	7
Farmer argues that, although no code was enacted, the commission was a success in that it put legislation at the center of the modern understanding of criminal law. However, it may be useful to distinguish between the centrality of legislation in the mid-nineteenth century and the hostility to a broader project of codification. In the aftermath of 1832, the centrality of legislation was a political fact. Indeed, mid-nineteenth-century jurists showed themselves very keen to recast complex statutes and rules of court into what they called "codes" that would make the law more accessible and comprehensible. 26 Moreover, the criminal law was widely regarded as the most suitable subject for codification, even by those who opposed codification elsewhere. 27 For instance, it was the arch-conservative Lord Chancellor St. Leonards who in 1853 introduced the bills drafted by the criminal law commissioners that were later taken up by Cranworth seeking his Code Victoria. 28 However, if the prospects for a criminal code looked optimistic in 1853, they were fatally undermined by the judges' opposition in 1854, 29 which ensured that the recasting of the criminal law would be limited to the Consolidation Acts of 1861. The judges' hostility was specifically to codification and to the repeal of the common law. It stemmed from their understanding of the sources of law and thus illustrates the very "Englishness" of the failure. Any codification project was bound to present problems for the common law mind. Unlike continental states used to a civilian academic tradition working with a corpus of learned laws, England was only slowly beginning from the late eighteenth century to develop a body of legal treatises and an academic tradition. 30 Lacking the intellectual context of a system of learned laws, English judges viewed a code not as a modern, national equivalent of the corpus iuris civilis, but as a large statute, to be read and interpreted like any other. Given the experimental and haphazard nature of much nineteenth-century legislation (particularly in areas pertaining to law reform), it is scarcely surprising that the judges resisted the repeal of their common law.	8
Farmer is no doubt correct to state that in the nineteenth century the state's approach to crime and penal policy was transformed. 31 Moreover, it cannot be denied that the commissioners played a key role in developing a modern criminal jurisprudence, providing a key discussion of doctrine and policy to which later commentators would refer. 32 However, whether their understanding of the task of codification transformed broader thinking about penal policy is another question.	9
Michael Lobban is a Reader in the department of law at Brunel University. Notes       1. Lindsay Farmer, "Reconstructing the English Codification Debate," Law and History Review 18 (2000): 403.
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 K. J. M. Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957 [Oxford: Clarendon Press, 1998], 136), 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 J. W. Smith in Legal Observer 32 (1846): 364. 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, A. W. B. Simpson, "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), 273-320; Michael Lobban, "The English Legal Treatise and English Law in the Eighteenth Century," Iuris Scripta Historica 13 (1997): 69-88; Christopher W. Brooks and Michael Lobban, "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. Jonathan A. Bush and Alain Wijffels (London: Hambledon Press, 1999), 353-82.
31. See, for instance, Martin Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830-1914 (Cambridge: Cambridge University Press, 1990).
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.

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