Codifiers of the Criminal Law: Wechsler's Predecessors

Abstract

A word, first, about Bentham.Though in a sense the greatest codifier of all, he was, in the end, a codifier manqug.While he wrote far and wide to obtain a codification commission-to the English Home Secretary, 2 to President Madison (twice),3 to the Governor of Pennsylvania, 4 to all the American governors 5 and to the Russian Emperor 6---he never obtained one; nor did he ever produce a completed code, penal or otherwise (which might have been just as well, to judge from the specimen of part of a penal code he did leave behind).7 What he did contribute to the movement for codification, however, was nothing less than its intellectual energy and content.He devoted much of his life to writing detailed plans for a variety of codes in the course of which he opened new fields of philosophical, moral, and legal inquiry.Moreover, he created a distinctive style of codification-codes drafted by learned "philosophes," removed from the political process, proceeding systematically from basic principle to practical corollary to the construction of an internally harmonious and philosophically grounded system-and left a deposit of thought that made him the intellectual father of codification generally and of penal codification in particular. 8Still, since it is not Bentham but his code-writing epigone who are the subject of this essay, the force and content of his thinking may be more appropriately noted in the course of reviewing their work. I. EDWARD LIVINGSTONEdward Livingston, the draftsman of the proposed Louisiana Penal Code, was nearest in time and spirit to the Benthamite revolution in thought.A lawyer learned enough to meet the Benthamite standard-he was versed