Front Page Titles (by Subject) Edward Livingston to Bentham. - The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index)
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Edward Livingston to Bentham. - 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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Edward Livingston to Bentham.
“Montgomery Place, (New York,)
I thank you sincerely for the valuable books with which you have enriched my library, and the kind and instructive letter by which they were accompanied. These favours would have been sooner acknowledged, if they had not arrived just before the closing of the Session of the Congress, when all the business, which the procrastination, prevalent I believe in most legislative bodies, had put off from day to day, is pressed forward, and renders a week or two before the adjournment a very laborious period for those who wish to do their duty. Escaped, at length, from the bustle of public life to a retreat I have on the banks of the Hudson, I devote my first leisure to the cultivation of a correspondence from which I expect to derive as much profit and pleasure in its sequel, as I have already derived instruction from its commencement. Not having kept a copy of my letter to you, I did not perfectly recollect its contents; and my only fear, on hearing that you had published it, was, that it should have imperfectly expressed how much my work is indebted to yours for those parts of my attempts to reform the laws of my State, which have found favour from the public. From the printed copy you have sent me, I find this apprehension was well-founded; and therefore take pleasure in acknowledging, that although strongly impressed with the defects of our actual system of penal law, yet the perusal of your works first gave method to my ideas, and taught me to consider legislation as a science governed by certain principles applicable to all its different branches, instead of an occasional exercise of powers called forth only on particular occasions, without relation to, or connexion with, each other. I have lately observed, with great pleasure, the just homage that has been paid to your talents and services in the British House of Commons, rendered more valuable by its coming from a statesman and lawyer of the first eminence in the kingdom. It must be a matter of the highest gratification to you to witness, not only the prevalence of your doctrines, but to hear their truth acknowledged by those whose professional prejudices they so severely attack, and whose pecuniary interest they tend to destroy. I think I understand the outline of your plan for the gradual amelioration of a written code, without the aid of judicial decisions, and thus obviating one of the strongest objections that is made to a system of written law; but I should wish exceedingly to see the outline filled up, for I feel some pride in having made a similar proposal in relation to our Civil Code in the year 1823, and I wish to see whether your details can be applied to the general proposition I then made: you will find it from page 8 to the end of a short report which I enclose. It supersedes the necessity for that which one of our most celebrated jurists (Mr Duponceau) calls the malléabilité that is found in the common law; that is to say, the permission it gives to judges to make ex post facto laws. The plan traced in this report was not pursued. The gentlemen joined with me in the commission, were unfortunately too impatient for the completion of this task to enable them to do the work in the manner we had proposed. I was overruled; and the Civil Code was reported and sanctioned in the form you will now see in the copy sent to you. Yet, imperfect as it is, it has been a great blessing to the State; but not greater, I think, than the rejection of the common law procedure in civil suits. A simple system was substituted, based upon the plan of requiring each party to state, in intelligible language, the cause of complaint, and the grounds of defence. I comprised it in a single law of a few pages; and although, from its novelty, many questions may be naturally supposed to arise under it, before the court and suitors become accustomed to its provisions; yet our books of Reports, from 1808 to 1823, contain fewer cases depending on disputed points of practice, than occurred in a single year, 1803, in New York, where they proceed according to the English law, which has been in a train of settlements by adjudication so many hundred years. An anecdote to exemplify this may not be unacceptable to you. When I was pursuing my profession at New Orleans, a young gentleman, from one of the common-law States, came there. He had been admitted to the bar in his own State, and was, of course, entitled to admission in ours, if found by examination sufficiently versed in our laws: he had studied them, and was ready to undergo the examination, but expressed to me his regret that a long time must elapse before he could make himself master of the routine of practice, with which on our system he was entirely unacquainted; and, asking to be admitted into my office until that could be effected, requested me, with much solicitude, to tell in what period I thought he might, with great diligence, be enabled to understand the rules of practice, so difficult to be acquired according to the common law. I answered, that it was not very easy to calculate to an hour, but as he was engaged to dine with me the next day, at four, I thought I could initiate him in all the mysteries of the practice before we sat down to dinner: nor was there any exaggeration in the statement. What will your articled clerks, tied for seven years to an attorney’s desk, say to this? I have hitherto been too busily employed in extracting the good from your works to think of making any objections to any part of the doctrines they contain; and, indeed, it has happened so frequently, that on the second persual, my assent has been given to positions which I thought unsound on the first, that I always hesitate long before I venture to deviate from them in any of the provisions of my Code. I have in some instances done so; and although I cannot immediately comply with your request of stating the reasons of my dissent from you in those points, yet it shall hereafter be done, and, as you desire, fully and frankly.
“I knew before the receipt of your letter, that I was under great obligations to Mr John Smith; but was not aware, till you apprized me, of those I owe to Dr Southwood Smith, to whom I shall soon write to express my acknowledgments. To Mr John Smith I sent, by Mr M‘Lane, a copy of my projected Code, and had written to him twice before.
“You will naturally inquire whether my system has been adopted by the States which commissioned me to prepare it. I am sorry to say that they have not yet taken it into consideration. A joint committee of the Senate and the House of Representatives, was appointed last year to examine it during the recess, and report upon it at the succeeding session; but the prevalence of the yellow fever, and other circumstances, prevented them meeting: the next winter, I hope, will find them disposed to pass upon it.
“In the other States, advances are making to free themselves from the reproach of being governed by unwritten, and therefore, unknown laws: none have, however, progressed so far as to form a general system: methodizing their statutes, and giving the force of law to some of the judicial constructions of them, is the present extent of their daring.
“If cheap editions of some of your works could be struck off, it would aid the great cause; but our lawyers are all politicians, and our politicians are all party-men, and party-men in all countries are alike. To you I need not describe their characteristics, or point out those causes which render them indifferent to anything unconnected with their prevailing passion. The mass of the people, therefore, must be first enlightened by a knowledge of your principles, before their representatives can be persuaded to act upon, or even to examine them.
“I send with this letter a copy of the Civil Code of Louisiana; a number of the papers printed by order of the Senate, or House of Representatives, some of which may prove interesting to you; together with a number of other pamphlets relating to the civil and criminal statistics and institutions of the several states. My Code of Evidence is printed, but I will not submit it to your inspection until the introductory report, which is nearly finished, can accompany it.—With sentiments of the highest respect and esteem, I am, Sir, your most obedient servant.”
An invitation to General Santander gives an amusing description of the quò eundum, in order to reach Bentham’s abode.