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Home , Cesare Lombroso, Edward Livingston

Journal of Criminal Law and Volume 54 Article 4 Issue 3 September

Fall 1963 Pioneers in Criminology: Edward Livingston (1764-1836) Joseph C. Mouledous

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Commons

Recommended Citation Joseph C. Mouledous, Pioneers in Criminology: Edward Livingston (1764-1836), 54 J. Crim. L. Criminology & Police Sci. 288 (1963)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. PIONEERS IN CRIMINOLOGY: EDWARD LIVINGSTON (1764-1836)*

JOSEPH C. MOULEDOUS

The author is a graduate student in the Department of Sociology of the University of Kentucky. He has previously served as a Classification Officer at the State Penitentiary, as well as Assistant Director of Probation and Parole for the State of Louisiana. Observing that criminological literature has largely neglected and sometimes misinterpreted the work of Edward Livingston, Mr. Mouledous in this article reviews the contributions of Livingston to both nineteenth and twentieth century criminology. The author views Livingston as a product of the Enlightenment, but one who reached a degree of sophistication in his views on criminology and penol- ogy surprising for his time. Mr. Mouledous presents both an exposition of Livingston's theories and an evaluation of their present day applicability.-EDIToR.

In the literature of criminology, such names as Sir Henry Maine and William Tallack, such con- (1738-1794), Jeremy Bentham temporaries as , 5 DeBeaumont (1748-1832), Alexander Maconochie (1787-1860), and DeToqueville 6 recognized his abilities and V. John Haviland (1792-1852), Cesare Lombroso praised his production. Throughout the years (1835-1909), (1843-1904), Raffaele scholars have maintained an interest in him. Garofalo (1852-1934), and Enrico Ferri (1856- 7 and Eugene Smith published 1929)' are familiar. In contrast, Edward Livingston articles on him at the turn of the century; Charles (1764-1836) has been largely ignored or misrepre- and Mary Beard9 made favorable reference to him sented. Called by William Tallack America's in the 1920's. Finally the height of academic and greatest penologist, - and considered the first legal professional interest was shown in 1936 when an of modern times by Sir Henry Maine,3 this Edward Livingston Centennial was held in New son of parents who participated in the American Orleans, October 27-30, 1936, featuring lectures Revolution grew up to write a system of criminal by Dean Roscoe Pound, and a series of articles jurisprudence for the State of Louisiana and subse- were published in honor of Livingston in the quently served as Secretary of State and Minister Tula= Law Review1° and other journals." Yet in 4 to under . spite of this widespread interest and extensive The exclusion of Livingston from most con- literature, a review of contemporary works in the temporary criminological literature gains interest field of criminology and shows that only when we understand that he is neither an obscure two studies make reference to him. In the earlier nor an insignificant figure in the history of Ameri- study he is correctly judged as an opposer of the can criminal jurisprudence. From the beginning he death penalty, a supporter of received widespread recognition. In addition to without flogging or other forms of brutality, an * This paper is a chapter from the writer's unpub- 5 TEETERS & SHEARER, op. cit. supra note 3, at 25. lished master's thesis, Sociological Perspectives on a 6 DEBEAUMONT & DETOQUEVILLE, ON THE PENI- Social System (Louisiana State University, TENTIARY SYSTEM IN E UNITED STATES AND ITS APPLICATION FRANCE 1962). 7 IN p. xii (1833). 1 MANNHEIM (ed.), PIONEERS IN CRIMNOLOGY Hunt, Life and Services of Edward Livingston, (1960). This volume contains articles on 17 pioneers; 12 Am. LAWYER 154 (1904). Also, Hunt, Edward Edward Livingston is not included. Livingston and the , 7 LAW NoTEs 88 2TALLACK, PENOLOGICAL AND PREVENTIVE PRIN- (1903). cIPLES 117 (London: 1889). 8 Eugene Smith, Edward Livingston and His Crimni- ' This phrase is attributed to Sir Henry Maine. See nal Code, 39 J. SOcIAL SCIENCE 27-28 (1901). Also, HUNT, LIFE OF EDWARD LIVINGsToN 278 n. 31 (1864). Smith, Edward Livingston and the Louisiana Codes, Also, Franklin, Concerning the Historical Importance 2 CoLUM. L. REV. 24 (1902). of Edward Livingston, 11 Tu.. L. REv. 212 (1937); 9 CHARLES & MARY BEARD, THE RISE op AmmxR- TEETERS & SHEARER, THE PRISON AT PHILADELPHIA: ICAN CIVILIZATION 561 (1949). CHERRY HILL 24 (1957). 10 See, e.g., Brosman, Edward Livingston and Spousal 4 HATCHER, EDWARD LIVINGSTON: JEFFERSONIAN Testimony in Louisiana, 11 TUL. L. REv. 243 (1937); REPUBLICAN AND JACKSONIAN DEmOcRAT (1940). Franklin, supra note 3; Harris, The Edward Livingston Also Hall, Edward Livingston and his Louisiana Penal Centennial, 11 Tu.. L. REv. 1 (1936). Code, 22 A.B.A.J. 191 (1936). 11E.g., Hall, supra note 4. PIONEERS IN CRIMINOLOGY: EDWARD LIVINGSTON advocate of productive work for due pay for prison while Mannheim places Bentham in the Positivist inmates, and a supporter of separating those im- school of Lombroso and Ferri. The disagreement prisoned before trial from those already found indicates more than a misinterpretation of either guilty.'2 In the later study, he is simply and mis- Beccaria or Bentham or of the composition of takenly referred to as a follower of the phrenologist the Classical and Positive schools; it reveals the Combe." construction of a false dichotomy between con- Livingston deserves greater recognition and un- sistent ideas. derstanding on the part of criminologists. His It is axiomatic that these writers were in the influence on the origin and early development of main tradition of the Enlightenment. Beccaria's the penitentiary system in Louisiana suggests it, indebtedness to the French philosophers, especially and the quality of his ideas, considering his place Montesquieu and Rousseau, is so great that his in history, requires it. book has often been claimed as their spiritual Historically Livingston's life span most closely property.19 Bentham in turn admits a direct debt coincided with Cesare Beccaria and Jeremy to Beccaria, for one, in the development of his Bentham. Beccaria was a much admired intellec- principle of utility; "Before it was mine," he wrote, tual progenitor. Bentham was a contemporary "it was M. Beccaria's."'2o As inheritors of the En- and the two engaged in correspondence. lightenment, Beccaria and Bentham expressed, As would be expected, Livingston has been respectively the two main spirits of that age: the compared with these thinkers. Jerome Hall has "rational" and the "positive" spirits. And while it correctly noted that in Livingston's writings there iscorrect to state that each placed greater em- is a shift from Beccaria's reliance on abstract phasis on one, it is incorrect to imply-by the principles and a marked tendency to use empirical separation of these spirits into "schools"--that methods. 14 Eugene Smith 5 and later Paul Bros- the mind of the Enlightenment ever considered man16 have acknowledged that while Livingston these two "spirits" in conflict. In fact, as Cassirer was indebted to Jeremy Bentham, he reached a points out, a major goal of the Enlightenment was broader and higher plane of thought. The impor- to create a systhesis of the two "spirits." "One tance of these comparisons is not that they show should not seek order, law, and reason as a rule Livingston's intellectual debts but that they bring that may be grasped and expressed prior to the us, through Livingston, to the heart of an issue phenomena, as there a priori; one should rather of the Enlightenment which is very much alive discover such regularity in the phenomena them- today; namely, the respective merits of the "ra- selves, as the form of their immanent connection."'' tional" and "positive" orientations. Thus universals remain the proper goal of inquiry, It is generally agreed that Beccaria is a member but a significant methodological shift has occurred of the "Classical" school of penology. Even Mann- in that a priori universals have changed into uni- heim, who questions the validity of classifying versals grounded in human experience." thinkers into schools, places Beccaria-but only The writers who compose the movement referred Beccaria-in the Classical school.'7 Bentham on to as "The American Enlightenment ' ' also in- the other hand has received contradictory treat- herited this synthesis of the "rational" and "posi- ment. Clarence Ray Jeffery combines Bentham tive" spirits and expressed them in their writings. with Beccaria to construct the Classical school, 8 Jefferson-as a single example-believed that 12TEETERS & SHEARER, op. cit. supra note 3, at every man was born with a moral sense or instinct. 24-25. This instinct did not provide men with immediate 13 KORN & MCCORKLE, CRIMINOLOGY AND PENOL- OGY 213 (1949). or intuitive knowledge of good or evil, rather it 14Hall, supra note 4, at 195. allowed men to judge acts correctly in relation to 15 Smith, Edward Livingston and the Louisiana Codes, supra note 8, at 35. 19 MANNHEim, op. cit. supra note 1, at 5. See also 16 Brosman, supra note 10, at 256. Monachesi, Cesare Beccaria, in MANNnxmI, at 39. 17MANNHm, op. cit. supra note 1, at 8, states: 20 BAUMGARDT, BENTHAM AND THE ETmcs OF "In the over-simplified terminology of the Schools we TODAY 37 (1952). might say our volume shows the progress from the 21 CASSIRER, THE PHLOSOPHY OF THE ENLIGHTEN- Classical School of Beccaria to the Positivist School mENT 8-9 (1951). of Lombroso and Ferri and from there to the Socio- 22Id. ch. 5. logical School of Tarde and Durkheim." 23Including, for example, , 1I Jeffery, Pioneers in Criminology: The Historical Thomas Jefferson, Thomas Paine, and Benjamin Development of Criminology, 50 J. CRsm. L., C. & Rush. See BLAU, MAN AND MOvEMENTs IN AMERICAN P.S. 3-4 (1959). PHmosoPRY (1952). JOSEPH C. MOULEDOUS [Vol. 54 the specific conditions of the environment. "Men," commissioned. 35 Furthermore, at its completion he wrote, "living in different countries under differ- the original draft of this work, along with most of ent circumstances, different habits and regimens his notes, was destroyed in a fire, and Livingston may have different utilities; the same act, there- was required to rewrite his entire work, mainly fore, may be useful, and consequently virtuous in from memory and a few remaining notes.36 one country which is injurious and vicious in Within the limitations of this single work Living- another differently circumstanced."' Obviously the ston articulates a theory of man and society which, underlying assumption is that man is inherently in spite of obvious identities with prevailing En- reasonable and basically good. Defects in human lightenment theories, shows a degree of sophistica- beings, evils and perversions, are capable of being tion and awareness not expressed in criminological corrected through education and the use of rea- literature until Durkheim and Tarde, in the 1880's, son. Yet in its specific expressions virtue can vary, published attacks on the Lombrosian theory. a7 can be determined by the conditions of its environ- Livingston, first, rejects all prevailing theories of 2 5 ment. "social ." He does not accept the Hob- Edward Livingston is a direct descendant of the besian state of nature composed of selfish men great movements of European and American En- continually warring with one another.Ns Similarly lightenment. Within the confines of his immediate he rejects the peaceful state of nature theory as ex- family, he came into contact with those ideas of pressed by Grotius (1583-1645), Locke (1632- social contract and the rights of man that played 1704), and subsequently drawn in idyllic terms by such an important part in developing the Ameri- Rousseau (1712-1778). Livingston considers the can Revolution. His grandfather was an extreme argument meaningless. Man, he argues, has always advocate of an American Revolution and predicted lived in a state of society. Societies are found that it would occur within the grandchildren's life- wherever men are found and must have come into 2 n time. Edward's brother, Robert Livingston, existence as soon as the number of the species was served with Jefferson, Franklin, Sherman, and sufficiently multiplied to produce them.39 Thus Adams as the committee selected by Congress to society is a natural and inevitable product of prepare the Declaration of Independence.n Later, human existence. And, logically, the main func- in 1782, Robert Livingston along with George tion of society is the preservation of the life of its Washington and Robert Morris arranged for members. 40 This is in no way an original statement. Thomas Paine to "receive a salary of eight hundred The similar doctrine of inalienable rights was a dollars a year, no trivial sum in those days, to major theme of the French philosophers of the En- ' write in the cause of liberty." 8 35Acts of the General Assembly of Louisiana, Febru- From the European movement of the Enlighten- ary 10, 1820, and March 21, 1822, authorized a code ment, Edward Livingston acknowledged, in addi- of criminal law for Louisiana. See 1 LIVINGSTON, 2 9 30 op. cit. supra note 29, at 1-4. There was strong oppo- tion to Beccaria and Bentham, intellectual sition to Livingston's proposals, and his codes were debts to ,3 the encyclopaedists never enacted. Subsequently, Livingston's work was ,3s Condorcet,n3 and Diderot.N He un- published in two volumes, the first composed of intro- ductory remarks to the codes, and the second con- doubtedly was familiar with Edmund Burke, taining Livingston's proposed codes. It is to these Thomas Hobbes, Grotius, Rousseau, and others, volumes that this article has reference. 36 HATCHER, but the quality and extent of their influence is op. cit. supra note 4, at 263. 37 Vine, Gabriel Tarde, in MA mHEhi,op. cit. supra difficult to determine, mainly because Livingston's note 1, at 228; Lunden, Emile Durkheitn, in MANN- ideas are expressed in a single work, which was xmi, at 301. 2 as On this point, Livingston takes an important step 4 Id. at 48. 2 away from Beccaria. Beccaria's entire system is predi- 5Id. at 48-49. cated on the Hobbesian theory of social contract. To 26HUNT, op. cit. supra note 3, at 20-21. 27 Beccaria is a result of man's inherent nature, Id. at 20. which is self-seeking and which therefore leads him 28 BIAU, op. cit. supra note 23, at 55. into conflict with society. Punishment functions to 291 LIVINGSTON, THx CosirLnTE WoRKs op ED- control this self-seeking nature and thereby to pre- WARD LIVINGSTON ON CRUI NAL JURISPRUDENcE 31 serve society. See Monachesi, supra note 19, at 36-50. (1873). 39 1 LIVINGSTON, op. cit. supra note 29, at 192-93. 30Id. at 155. While Livingston, because of other interests, failed to 31 Id. at 116. make the next logical step from this premise, he has 2Ibid. still brought us to the threshold; namely, that societies 33 Id. at 207. will4 0vary according to the size of their populations. 4Id. at 116. Id. at 533. PIONEERS IN CRIMINOLOGY: EDWARD LIVINGSTON lightenment.A And as Cassirer points out, John as to be incapable of elevation, and so bad as to 4 Locke's theory of social contract held that: make any amelioration impossible." ' "All such contractual ties are rather preceded Rejecting the theory that defective humans are by original ties which can neither be created by the source of criminality, Livingston turns his a contract nor entirely annulled by it. There attention to the existing legal system. Again in the are natural rights of man which existed before spirit of Voltaire and Diderot, he blames much all foundations of social and political organiza- criminal conduct upon inhuman laws, and upon tion; and in view of these the real function and the jurist who would make use of such laws for purpose of the state consists in admitting such his own ends.4 6 To Livingston laws generally have rights into its order and in preserving and guar- been oppressive and have supported "class" in- anteeing them thereby. Locke counts the right terests. He writes: "Everywhere, with but few of personal freedom and the right of property exceptions, the interest of the many has, from among these fundamental rights."4 the earliest ages, been sacrificed to the power of the But in Livingston we find a more extreme posi- few. Everywhere penal laws have been formed to tion, for Livingston, completely unhindered by the support this power."" Livingston is especially contract theory, is free virtually to drop the theme bitter about the role law has played under the of preservation and right of property and focus on English common-law system. The English had the preservation and rights of man. This position is "seen their fellow subjects hanged for constructive unquestionably consistent with the more "radical" felonies; quartered for constructive ; and '4 American Enlightenment. As Thomas Jefferson roasted alive for constructive heresies." ' wrote, "The freedom and happiness of man are the From this criticism of legal systems Livingston sole objects of all legitimate governments. And God moves to an analysis of criminal behavior as be- forbid that we should ever be twenty years without havior learned by the individual during maturation a revolution." 4' In Livingston the theme of human from a defective family environment and through rights and the preservation of life becomes a thread association. Here Livingston steps right out of that unites such uncommon items as his opposi- nineteenth century criminological thinking directly tion to the death penalty and his insistence that into a main tenet of twentieth century crimino- society is responsible for its beggars, paupers, logical theory; namely, that crime is normal 4 vagrants, and criminals. learned behavior. ' Beccaria, tied to his Hobbesian If Livingston sees man as potentially reasonable social contract theory, couldn't approach it. and inherently good and virtuous, how then does Bentham, it is said, flirted continuously with the he explain the not infrequent acts of evil? That idea, but never really came to grips with it.' How- 5 some men differ from the majority so significantly ever, Lombroso, it is argued, expressed the germ as to comprise a different class of being-the view of the normal learned behavior theory in defining of Lombroso, to whom criminals were of atavistic his third category of "occasional criminals," which or degenerative origin-is completely excluded by he called "habitual criminals"; these criminals, he Livingston's acceptance of Hobbes' theory of maintained, were the product of defective educa- human equality.4' To Livingston, criminals-no tion and training, which evoked primitive tend- matter how depraved and degraded-are still 41 1 LIVINGSTON, op. cit. supra note 29, at 563. 46 Id. at 115-18. men, men capable (in our modern terms) of re- 47 Id. at 528-35. This statement and others lead habilitation to the point of successful function in Mitchell Franklin to view Livingston as anticipating society. Livingston writes that the "error... lies Marx. He states: "Edward Livingston's ideological in considering them as being of a nature so inferior conceptions are definitely historical conceptions reflecting the bourgeois social bases that then existed. 41 CASSIRER, op. cit. supra note 21, at 250. Livingston, however, represented the material con- 4 Id. at 249-50. ditions of several advanced liberal countries, in such a 4 1 BLAU, op. cit. supra note 23, at 49. way that he was enabled to create an ideology different 41 Hobbes wrote: "Nature hath made men so equal from any that actually prevailed; and perhaps he in the faculties of the body and mind; as that though almost reached the threshold of socialism." Franklin, there be found one man sometimes manifestly stronger supra note 3, at 172. in body, or of quicker mind than another; yet when 48 1 LnVqNGSTON, op. cit. supra note 29, at 13. all is reckoned together, the difference between man, " VoLD, THEORETIcAL CR IOLOGY (1958). and man, is not so considerable, as that one man can 0 Geis, Jeremy Bentham, in MANHImHI, op. cit. thereupon claim to himself any benefit, to which supra note 1, at 57. another may not pretend." HOBBES, LEviAxrAN 80 51Wolfgang, Cesare Lomlbroso, in MANNa I~, (Oakesbott ed., Oxford 1946). op. cit. supra note 1, at 189. JOSEPH1 C. MOULEDOUS [Vol. 54

encies. They were, he observed, drawn into crime ment of the formation period, but arise out of the mainly through associations. wants and needs created by a defective adult Livingston quite clearly states the main ideas of social environment. Livingston unequivocally the "crime as normal learned behavior" theory, states that such conditions as idleness, unemploy- arguing that deviant behavior among children is ment, pauperism, etc., create needs which send the produced by defective rearing in which the child is greatest numbers to our .55 improperly taught. He writes: Of even greater interest than his analysis of "The moral sense is, in childhood, produced causation is Livingston's refusal to leave his by instruction only, and the force of example, analysis at that level. He recognized that explana- and that with the children who are generally the tions of motives of criminal behavior do not tell objects of criminal procedure, instruction has how the methods of criminal behavior are ac- either been totally wanting, or both that and quired, and he knew that such methods are example have been of a nature to pervert, not normally learned through association with the form, a sense of right.... Either they have criminally sophisticated. Hatcher states that in parents who entirely neglect the task, or abuse Livingston's view, "the criminal ranks drew their the power given to them by nature, and con- recruits from those who were unable to secure em- firmed by the laws of society.' '52 ployment or who were able to work but refused to These children, devoid of true family relations "are do so." 56 The following is an example of Living- thrown friendless and unprotected into the most ston's observations in this regard: contaminating associations, where morality, re- "The Bridewell of a large city is the place in ligion and temperance are spoken of only to be which those representatives of human nature, in derided, and the restraints of law are studied only its most degraded shape, are assembled; brought to be evaded."- Thus a defective environment dur- into close contact, so that no art of fraud, no ing the formative period combined with subsequent means of depreciation, no shifts to avoid detec- associations whose standards of behavior differ tion, known to one, may be hid from the other; grossly from those of society are the natural condi- where those who have escaped received the tions that breed criminal behavior. applause due to their dexterity, and he who has In considering the conditions underlying adult suffered, glories in the consistence with which he criminal behavior, Livingston develops the impor- has endured his punishment, and resisted the tant social dimension of the "dispossessed"; these attempts to reform him. Here, he who can com- are the unemployed, the paupers, the mendicants, mit the oldest crime the newest sort of way, is the idle in general. Mitchell Franklin claims that hailed as a genius of superior order, and having "from the relatively advanced methods of produc- no interest to secure the exclusive use of the dis- tion in and America he [Livingston] covery he freely imparts it to his less instructed found the free working class and other dispossessed companions." 7 groups, and thus discovered unemployment."5 An immediate impression gained from Living- The motives for criminal behavior for this class ston's observation on the Bridewell is of its em- need not have originated in the defective environ- pirical quality. This "positivist spirit" runs as a 52 1 LiviNosTON, op. cit. supra note 29, at 572. recognizable theme throughout his study. Jerome 51Id. at 573. Here Livingston's emphasis on asso- Hall notes that in collecting notes and preparing ciation clearly antedates the focus that led to Suther- his study Livingston sent out circular letters or land's formulation of the "" theory. Livingston's views that human character is questionnaires, developed statistical tables, and formed in early childhood mainly by the conditions constructed "partial mortality tables showing the of the environment were antedated by the writings of Robert Owen. Owen's experiences as an owner-manager number of persons committed for trial, tried, con- of a Scottish textile mill allowed him to become in- victed, discharged or acquitted." ' s Also, "he pro- timately acquainted with the effects of a brutalizing factory environment on children. In 1813 he published posed to engage in field work by devoting a few A New View of Society, in which he argued that the months of the summer to a personal examination antisocial child behaves as he does due to physical of the different institutions of the kind (penal) in hardships and emotional disturbances. Owen's posi- tion was that these delinquents had to be helped, not 1 1 LIVINGSTON, op. cit. supra note 29, at 528. punished; society owes that obligation to itself as well 56HATCHER, op. cit. supra note 4, at 277. See also as the individual. See BRONOwSKI & MAZUSH, THE 1 LIvNOsTON, op. cit. supra note 29, at 528-40. W -sTERN INTELLEcTuAL TRADITIoN 450-71 (1960). 5 1 LIvIiNGSTON, op. cit. supra note 29, at 538. mFranklin, supra note 3, at 173. 58Hall, supra note 4, at 195. 19631 PIONEERS IN CRIMINOLOGY: EDWARD LIVINGSTON

the Atlantic states." 59 Furthermore, he made use to the public, and in his own case, he submitted of case history materials, of which the following his code to men not familiar with legal terminology, are examples: and had them to mark each word not completely "D.B.L. Aged fifteen years, born in , understood. "The words so marked were, in the committed from the police on suspicion of having body of the work, always printed in a peculiar stolen a shawl. He was brought up in the vicinity character, to show that they were the subject of of Bancker Street, and for some months played explanation in a separate place, the Book of Defini- the tambourine in those receptacles of vice and tions; and each word thus marked received all misery, the dancing-houses of Corlears Hook. necessary attention in that book."64 "L.S. Age about sixteen, born in Ireland; his He was a strong advocate of the jury system, parents emigrated to this country about eight suggested legislation that would make trial by years ago. His father has since died. His educa- jury mandatory, and recommended that judges be tion was entirely neglected by his parents, and restricted to the law, and the statement of evi- the choice of his companions left exclusively to dence only when requested by the jury. 5 Living- himself. He has worked at several mechanical ston supported his stand with the statement that branches of business, to none of which his restless "by our constitution the right of trial by jury is disposition could attach itself. He was committed secured to the accused, but it is not exclusively to the Refuge in March, 1825, from the police established. This, however, may be done by law, 60 office for stealing a copper kettle." and there are many strong reasons in its favour, Livingston's analysis of crime and criminal that it has been thought proper to insert in the behavior was unsystematic and incompletely ex- code, a precise declaration, that in all criminal pressed; but it was subservient to his more am- prosecutions, the trial by jury is a privilege which 66 bitious goal of providing a "plan of jurisprudence, cannot be renounced." combining the prevention of crime with the refor- For those individuals who either violated laws, or mation of the criminal... on such a scale as would for whom a high probability for criminal behavior embrace all the different stages and departments existed (paupers, mendicants, etc.), Livingston of criminal procedure."'" In achieving these ends proposed a complex machinery that contained a Livingston proposed a wide range of reforms. house of detention, a penitentiary, a house of To correct injustices originating from vague, refuge and industry, and a school of reform all outmoded, and inhumane laws administered by under the centralized supervision of five inspec- self-seeking judges, Livingston turns to and asserts tors.Y The school of reform was a juvenile training great confidence in the general public, when this school for all youths under the age of eighteen and public is properly informed and educated. To over the age of six who were sentenced to any term Livingston, "publicity is an object of such impor- less than life imprisonment. All youthful vagrants, tance in free government, that it not only ought to beggars, etc., within these age limits would also be permitted, but must be secured by a species of be placed in the school of reform for instruction compulsion. The people must be forced to know and training. what their servants are doing or they will, like Livingston conceived that the major function other masters, submit to imposition rather than of the school of reform was to teach youths essen- take the trouble of inquiring into the state of their tial skills so that they could successfully seek and 6 affairs." 2 Equally, for education, Livingston held meet the conditions of employment following their that "religious, moral, and scientific instruction release. To achieve these ends he proposed that must not only be provided but enforced, in order fully qualified teachers be placed in charge of the to stamp on the minds of the people that character, apprenticeship program. He also introduced a that public feeling, and those manners, without type of indeterminate sentence, in that youths which laws are but vain restraints."6n would be discharged after they had successfully He, therefore, made such specific suggestions as completed their apprenticeship even though they that laws be written in a language comprehensible had not yet served out their full sentence. 63 But he 51Id. at 195. 14HuNT, op. cit. supra note 3, at 264. 6601 1 LrvniGsrox, op. cit. supra note 29, at 579. 65Hall, supra note 4, at 196. Id.at 525. 66 1 LiviNGsToN, op. cit. supra note 29, at 15-16. 62 67 Id.at 15. HATCHER, op. cit. supra note 4, at 278. 13Id. at 587. '8Alexander Maconochie (1787-1860), who was JOSEPH C. MOULEDOUS [Vol. 54 felt that a minimum of two years was required for The penitentiary itself was the subject of Living- a successful apprenticeship and, therefore, speci- ston's most intense interest and study. As previ- fied that no apprentice could be discharged before ously stated, he approached his task in a highly that time. Judgment of whether a youth had empirical manner, making studies and securing achieved a successful apprenticeship was made by statistics and information from other states and the warden and required final approval by the five from . He was particularly interested in the 69 man board of inspectors. penitentiary systems of Massachusetts, New York, For those with a high probability of turning to and Pennsylvania.73 He concluded from his study criminal acts (ex-convicts newly released, va- of the Pennsylvania "experiment" that "while the grants, beggars, unemployed), Livingston devised numbers were not too great to admit seclusion, the house of refuge and industry, for he believed offenses diminished; and when it was no longer that society owed to the discharged convict and practicable, they increased."74 This and other con- the dispossessed in general the opportunity to siderations led him to hold that seclusion with utilize skills necessary for their support.70 In the labor would successfully diminish offenses. But house of refuge and industry, Livingston writes, Livingston adds qualifications to his system which "the discharged convict may find employment and prevent his being classified as a simple proponent substance, and receive such wages as will enable of solitary confinement. him to remove from the scenes of his past , In viewing the penitentiary as a system of refor- place him above temptation, confirm him in his mation as well as punishment, Livingston pro- newly-acquired habits of industry, and cause him posed that education and employment training be safely to pass the dangerous and trying point be- made available to inmates so that they could de- tween the acquisition of his liberty and restoration velop skills which would allow them, through the to the confidence of society."'7 Likewise, the unem- aid of the houses of refuge and industry, to make ployed, vagrants, beggars and other dispossessed, a successful readjustment to society. But he did would he placed in houses of industry and refuge not propose to make education and training avail- where they would be given employment. Obviously, able to all inmates; those with life sentences would Livingston strongly felt that society had a be denied these privileges, and those who showed basic obligation to its members, and providing no interest in "reforming" would not only be them with the basic necessities of life was one of denied these privileges but would also be required the foremost. to exist under the extreme deprivations of solitary 75 Livingston conceived the house of detention as confinement. holding all those with short sentences who did not For those who manifested a desire to reform, require penal incarceration, those arrested and Livingston planned such bonuses as a better diet, awaiting trial, and even those needed as witnesses partial relief from solitude, and the right to visitors who might not freely present themselves. In order at stated intervals. When the manifested to avoid "vicious associations" Livingston pro- his interest in reforming by good conduct and par- posed that these houses be divided into separate ticipation in limited programs, for a period of time departments for those held for investigation, those usually covering six months or longer, he could then charged with crimes, and those serving sentences. commence employment training. Then, after a He considered a further subdivision between those relatively long period of probation, he might be awaiting trial for misdemeanor crimes and those 72 permitted to work outside the penitentiary. On dis- awaiting felony trial. charge he would receive a portion of the proceeds superintendent of the British penal colony, Norfolk of his labours and a certificate of good conduct, Island, from 1840 to 1844, is considered the originator of the movement that led to the indeterminate sen- industry, and skill in the trade learned or practiced tence. Maconochie, who published his articles on penal reform after his recall from Norfolk Island in 1844, 73Hall, supra note 4 at 195; HATcHER, op. cit. supra expressed many ideas that are almost identical with note 4, at 279-80. Livingston's. See Barry, Alexander Maaonochie, in 741 LIVINGSTON, op. cit. supra note 29, at 512-13. 75 MANNHEIM, op. cit. supra note 1, at 68-90. It is of interest to note that in recent articles 69 2 LIVINOSTON, op. Cit. supra note 29, at 576-84. Erving Goffman analyzes "total institutions" as 701 id. at 564-66. See also HATCHER, op. cit. supra privilege-deprivational systems. See the two articles note 4, at 281. by Goffman in THE PISON; STUDIES IN INSTITUTIONAL 711 LivinGSTON, op. cit. supra note 29, at 565. ORGANIZATION AND CHANGE 15-67, 68-106 (Cressey 7 Id. at 541-43. ed. 1961). PIONEERS IN CRIMINOLOGY: EDWARD LIVINGSTON while in prison. All privileges would be suspended towards him that dispensation which he arro- for misbehavior.76 gantly and wickedly usurped towards another, Livingston opposed the death penalty, but for his body is to be dissected, and his soul will abide those convicted of the normally capital offenses he that judgement which Divine Justice shall did not offer privileges; nor did he conceive that decree."" they should ever return to society. Instead, he felt Recognizing this function of punishment, Living- their punishment should provide an example to ston antedates Durkheim's position that a wrong- the public. Hunt wrote that "Livingston recom- doer is punished so that the act will be judged as mended imprisonment for life in a solitary cell, to abhorrent in the minds of all men, thus maintaining be painted black without and within, and bearing the moral ideals of the society.7 9 a conspicuous outer inscription, in distinct white Livingston's comprehensive code was never made letters, setting forth the culprit's name and his law, and he subsequently left Louisiana to reenter offense, with its circumstances."' This inscription national politics. Still his influence on the Louisiana would be: penitentiary system can be seen. Louisiana did "His food is bread of the coarsest kind; his drink build an urban-industrial penitentiary which in- is water mingled with his tears; he is dead to the corporated the ideas prevalent in existing Northern world; this cell is his grave; his existence is pro- systems, and to supervise the system it appointed longed that he may remember his crime, and a five man Board of Control, whose statements on repent it, and that the continuance of his punish- penal philosophy frequently echoed the ideas of ment may deter others from the indulgence of Livingston. The subsequent development of hatred, avarice, sensuality, and the passions Louisiana's penal system grossly violated Living- ston's philosophy, but this constitutes the subject which lead to the crime he has committed. When of further study. the Almighty, in His due time, shall exercise 18 2 LivmosToN, op. cit. supra note 29, at 573, art. 7G1 LivixGsToN, op. cit. supra note 29, at 526-28. 168. 77 HuNT, op. cit. supra note 3, at 266. 79 Lunden, supra note 37, at 306-07.