Front Page Titles (by Subject) Bentham to Edward Livingston. * (Extracts.) - The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index)
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Bentham to Edward Livingston. * (Extracts.) - Jeremy Bentham, The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 11.
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Bentham to Edward Livingston.*
“Queen’s Square Place, Westminster,London, 23d Feb., 1830.
The honour done me by the communication you have been pleased to make to me of the proposed codes, and the papers relative to them, has called forth my sincere gratitude. At the same time, it is my misfortune to be obliged to say, and it is with no small regret that I do so, that the circumstances in which I am placed do not admit of my complying with the wish expressed in the obliging letter by which they are introduced. I feel myself beyond all hope of being able to spin out the thread of my own ideas, on the subjects in question, and others intimately connected and intertwined with them; and that thread once broken, it is regarded as being in no small degree questionable whether there be any other hand by which it could be gathered up and carried on exactly in the same line. What depends upon me towards rendering the honour which is so justly due to you, shall, however, not be neglected: it will be not the least pleasant of my cares to look out for and place these papers in such as appear to me to be the most competent hands to which they can be confided, for the purpose of rendering some account of them, and laying before the public any such useful observations as it may have happened to them to have elicited.
“This enormous delay has had for its cause my desire to give you definitive information of the steps that have been taken for the giving publicity to your Penal Code in this its latest form. An article on it will appear in The Jurist,—a periodical designed to be quarterly, in imitation of the so-called Quarterly, Edinburgh, and Westminster reviews, but not very regular as to time. It has Law Reform and Improvement for its object, and pursues that object with the best intentions, and distinguished talent. The article will be written by Dr Southwood Smith, by profession a physician; but a man of genius, philanthropical affections, and eminently-extensive knowledge. Here a natural question is,—Why and whence this physician? Answer.—You know, or do not know, that your code, in its first state, has been republished here in London; the act of publication was a spontaneous act of philanthropy on the part of this physician. He was, and is, far from rich; he has no patrimony, no source of subsistence but his professional practice, which is not by any means adequate to his merits. This act of self-sacrifice found its way to the ears of John Smith, Member of Parliament, president or chairman (I forget which they call it) of the Company of London Bankers; one of four brothers, three of whom are in the House of Commons, and the other raised to the peerage, with the title of Lord Carrington, by Pitt the Second,—besides two nephews of the same name, also in that same House. John Smith took the expense out of the hands of his namesake. I say the expense; for under this our aristocracy-ridden and lawyer-ridden constitution, (in royal and ministerial language, yclept, ‘matchless constitution,’) expense of editing works of this nature stands no chance for reimbursement. On the present occasion I wrote to Southwood Smith, and he has consented to write: I made application to the editors of the Jurist, and they have consented to accept and publish: the Jurist, I am told, pays no money for the articles it accepts and inserts.
“It is matter of no small satisfaction to me to learn, from Mr M‘Lane, that the Senate of Congress is about to receive the benefit of your services. I look forward with pleasure to the chance of seeing (small as at my age the best chance of seeing it can be) some proof that, under your auspices, the Cacoethes Codificandi, to speak in the language of the adversary, is become contagious.
“By reputation at any rate, if not personally, Mr Lawrence, late Chargé d’Affaires at this Court, can hardly, I think, be altogether unknown to you. I have the honour and pleasure of a considerable degree of intimacy with him. He looked eventually to a seat in the House of Representatives: should that prospect be realized, Codification, I dare venture to hope, will receive in him a powerful support.
“Another friend I had the good fortune to make among your diplomatic functionaries, was Mr Wheaton, with whose function at New York you cannot be unacquainted, and who, on his way to his mission to the Court of Copenhagen, passed some months in this metropolis.
“An objection that is constantly made, and strongly insisted upon by the adversaries of Codification, is, that when your Code, even supposing it to be an all-comprehensive one, is prepared, whatever good was expected from it, would ere long be extinguished by its being clouded and covered over by an overgrowth of judge-made law. In proof of this position, reference is made to Buonaparte’s Code, which, by its deficiency, has certainly given rise to more of this matter than could be wished; but were this really-existing law ever so much more imperfect than it is, the rule of action composed of it will never be nearly so inadequate and unapt as that is, which is composed of the imaginary sort of law distilled from decisions made in particular cases by judges; and you or I having Buonaparte’s Code before us—and if he is a giant, and we dwarfs, being accordingly mounted upon his shoulders,—might reasonably be expected, in the ordinary course of things, either of us, to make a Code less imperfect than his. But a method has occurred to me, which will render to all really-existing law the same sort of service as that which by copper-sheathing is rendered to ships, and make it as impossible for judges and commentators to defile the work of the legislator by their deductions, as it is for—the barnacles, I think they call the sea-worms in question,—to fasten their progeny upon the hulks so protected by the smooth metal. Of the principle of this contrivance of mine, some conception may be formed from Section 29, Members’ Motions, in Ch. vi. Legislature.* In Ch. xii. Judiciary Collectively, Sections 19, 20, 21, and 22, you will see the same principle applied to the decrees of judges. I give to judges the power and the duty to frame amendments in terminis to the Code, when once made, wherever they see reason,—whether for the purpose of interpretation, correction, addition, or defalcation: these I require to be certified and transmitted to the legislation minister, of whose duties a description is given in the Section designated by his name, Ch. xi. Ministers collectively. The details are explained at length in those several sections of those several chapters: but I stake whatever little reputation may be my lot upon my fulfilment of this assurance, and I flatter myself that this account, short and inadequate as it cannot but be, will not be found an altogether unintelligible one.”
[* ] Then Senator for the State of Louisiana, at the Congress of the United States, afterwards American Minister at the French Court.
[* ] See the Table to the Constitutional Code, vol. ix. of the Works.