Edward Livingston and His Louisiana Penal Code
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Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1936 Edward Livingston and His Louisiana Penal Code Jerome Hall Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Criminal Law Commons, Criminal Procedure Commons, and the State and Local Government Law Commons Recommended Citation Hall, Jerome, "Edward Livingston and His Louisiana Penal Code" (1936). Articles by Maurer Faculty. 1370. https://www.repository.law.indiana.edu/facpub/1370 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. EDWARD LIVINGSTON AND His LOUISIANA PENAL CODE 191 should be as much concerned to exonerate a lawyer fession but of the public as well. In any stage of and prevent undeserved injury to his reputation as the investigation when the lawyer is found to be to eliminate an undesirable lawyer from the ranks blameless, the representatives of his profession owe of the profession. The procedure of investigation it to themselves and to him to make an earnest at- should take full cognizance of the fact that, from tempt to convince those who suspect him of mis- the mere fact that a complaint has been made, a conduct that he was blameless. If it becomes gen- lawyer is likely to be injured somewhat if that fact erally known that a lawyer has been charged with is known. Consequently, initial investigations misdeeds, findings which exonerate him should be should be conducted with as much secrecy as pos- given publicity with a view to preventing injury as sible. Reasonable ground to believe in the truth of much as possible. There will of course be some the charges having been discovered, the matter small injury to lawyers complained against, even should be pursued with promptness, thoroughness when exonerated, in spite of all that can be done, and fearlessness by representatives of the Bar. but this is the price that the individual lawyer must Adequate discovery of the facts, however, requires contribute to a campaign which contemplates both the power to subpoena witnesses and administer the elimination of undesirables and stopping that oaths. When misconduct is found which is indica- undeserved injury to lawyers which results from tive of lack of character, the situation should be honest but erroneous conclusions of clients. The dealt with courageously. In such cases elimination campaign is one in which every honest and well of the lawyer is not only in the interest of the pro- meaning lawyer can enthusiastically enlist. EDWARD LIVINGSTON AND HIS LOUISIANA PENAL CODE Remarkable Career of Livingston-Resigns New York Mayoralty and District Attorneyship to Enter Practice in New Orleans-The Louisiana of His Day-His Sympathetic Attitude to- wards the Local Views-Legislature Passes Act for Preparation of Criminal Code to Be Founded on the One Principle of the Prevention of Crime-Livingston Re- ceives Appointment for Task-His Exceptional Qualifications for It-Mod- ernity of Some of His Proposals-Code never Adopted, etc. By JEROME HALL Professor of Criminal Law and Criminology, Louisiana State University Law School $44,000. With the hope of achieving quick financial epic. From its beginning on his ancestral estates HE life' of Edward Livingston is an American success in New Orleans, he resigns the New York in New York to its close one hundred years ago mayoralty and district attorneyship, and, aged 39; he next May 23rd, it unfolds with sustained interest, dra- goes in 1803 to Louisiana-to rise to eminence at the matic and deeply inspiring. The boy spends his child- Bar and in public life and to immortality in the world hood in distinguished pre-revolutionary society, nur- of legal scholarship. tured by fearless scholars who led the way to inde- To understand the man and his work, and the qual- pendence under banners proclaiming the rights of man, ity of genius that uniquely fitted him for his abundant the innate worth of human beings and their freedom contribution, it is necessary to know the Louisiana of from governmental oppression. He hears, learns from, his day. Long before any settlement on the Atlantic knows the great. On to Princeton; then the study of coast, the Spaniards had explored Florida, founded law both common and civil, and in company with future St. Augustine, and penetrated the Southwest far into leaders of the Bar. To New York and eminence in Mexico. Years later, in the last quarter of the seven- practice. Soon he is elected to the United States Con- teenth century, Marquette and Joliet cut a perilous gress. Then he is appointed United States District route down the Father of the Waters until they came Attorney for New York, and simultaneously is elected to the border of the Spaniards' southern domain, when, to and fills the office of Mayor of New York City. deterred by fear of enslavement or assassination, they Yellow fever lays low the population, and he ministers turned back and brought their wonder-rousing reports unceasingly to the stricken folk. Weakened by his ex- to their compatriots in Canada. In 1682 the undaunted ertions, he falls, himself, victim to the epidemic. While chevalier de La Salle led a party to the very mouth thus confined, a clerk absconds with $100,000--money of the Mississippi, making no settlement but planting due the United States. With no intimation of blame the flag of his king on the vast domain he called or liability, Livingston assumes the indebtedness, sells Louisiana. In 1699 three of the Le Moyne brothers his entire belongings, assigns the proceeds to the United left their Canadian estates, established successful settle- States and acknowledges a deficiency of approximately ments in Louisiana, and became the first governors. From then until Spain took possession, construc- 1. Charles H. Hunt, Life of Edwrd Livingston (1864). tively in 1762, actually in 1769, French law governed. 192 AMERICAN BAR ASSOCIATION JOURNAL In 1769 O'Reilly proclaimed Spanish laws and planted law, as well. Two intensive years of unremitting labor Spanish judicial and political institutions in the teeth led to completion of the project. Then, at the very end of strenuous but, for the time being, inadequate resist- of his task, his manuscript was totally destroyed by ance. In 1800 the Little Corporal forced Spain to sur- fire. Unhappy, but indefatigable, and with unshaken render the American dominion; and in 1803 Living- faith in the need for his code, Livingston immediately ston's older brother, Robert, and Monroe negotiated started afresh and produced the voluminous works that the Louisiana Purchase for fifteen million dollars. we possess. His code was never adopted. But, if the The vast Louisiana Purchase included at least the judgment of gifted contemporaries be valid criterion, present states of Louisiana, Arkansas, Missouri, Iowa, the work that roused the unbounded praise and enthusi- Oklahoma, Nebraska, North and South Dakota, Mon- asm of Bentham, Hugo, Kent, Story and Marshall tana, Colorado, Wyoming, and part of Minnesota. must have been of the rarest quality, indeed. When Livingston arrived in New Orleans in 1804 he His System of Penal Law has five divisions: A found a town of about 8,000 inhabitants, half of whom Code of Crimes and Punishments, A Code of Procedure, were white persons, chiefly of French descent. In A Code of Evidence, A Code of Reform and Discipline, 1806 the territory had a population of about 53,000 per- and A Book of Definitions. At the outset, and fre- sons of whom 23,500 were slaves, 3,500 free colored, quently later, he declared that "no act of legislation and 26,000 whites, of whom more than half were natives can or ought to be immutable." So, too, if we wish of Louisiana, mostly French. 2 to understand his work we must strive to read it in In Louisiana Livingston found men of learning light of the problems of over a century ago, as well and ability, devoted to French culture, and resentful of as against the background of the then-prevalent phil- attempts to substitute an alien language and alien laws. osophies. His sympathetic grasp of the situation is an object The most remarkable feature of the Code of Crimes lesson in the resolution of culture conflicts. He en- and Punishments is the "total abolition of capital pun- ' 4 deared himself by his distinguished services in support ishment." Fully aware of universal opposition (all the of the civil law. In the second year of his residence he states were then retaining the capital penalty) he sum- simplified the civil practice and procedure, and saw his moned his greatest powers of analysis and persuasion, recommendations enacted April 10, 1805. Twenty and presented an argument that has never been sur- years later, he collaborated with Lislet and Derbigny passed. Brilliantly he endeavored to establish the in- in the drafting of both the Code of Practice of 1825 effectiveness of capital punishment as a deterrent of and the Civil Code. crimes of strong passion; the greater effects of life On May 4, 1805 the Territory passed a compre- imprisonment; its. destruction of the public sensibilities; hensive act naming, but not defining, practically all of the avoidance of the prescription by jurors and wit- the important common law crimes, and adopting the nesses; and the unfortunate experience of communities English common law system, both substantive and pro- that inflicted the penalty in comparison with two or cedural, as regards the designated offenses.