IN THE GENERAL ASSEMBLY OF LOUISIANA. 13 FEBRUARY 1821. WE, the undersigned, secretary of the senate and clerk of the house of representatives of the state of Louisiana, do hereby certify, that on the thirteenth of February in the year of our lord one thousand eight hundred and twenty-one, EDWARD LIVINGSTON, Esq. was elected and appointed by the joint ballot of the general assembly of said state, to draw and prepare a criminal code. In testimony whereof, we have hereunto set our hands. J. CHABAUD, CANONGE, Clerk of the House of Representatives. New-Orleans, March 28, 1822. RESOLUTIONS OF THE GENERAL ASSEMBLY OF LOUISIANA. 21 MARCH 1832. RESOLVED by the senate and house of representatives in general assembly convened, that the general assembly do approve of the plan proposed by Edward Livingston, Esq., in his report, made in pursuance of the act entitled "an act relative to the criminal laws of this state," and earnestly solicit Mr Livingston to prosecute this work, according to said report; that two thousand copies of the same, together with the part of the projected code thereto annexed, be printed in pamphlet form; one thousand of which shall be printed in French and one thousand in English, under the direction of the said Edward Livingston, Esq., of which five copies be delivered to each member of the present general assembly, fifty copies to the governor, one copy to each of the judges of the supreme court, the district judges, the judge of the criminal court, the attorney-general and district attorneys, the parish judges, two hundred copies to the said Edward Livingston, Esq.; and that the balance shall be for the use of the state, of which one half shall be deposited in the hands of the secretary of the senate and clerk of the house of representatives, and the other half in the office of the secretary of the state. And be it further resolved, that the governor be requested, and it is hereby made his duty to contract for the printing of said work, and to pay for the same out of the contingent fund. And be it further resolved, that a sum of one thousand dollars be paid to Edward Livingston, Esq., on his warrant, out of the treasury of the state, to be on account of the compensation to him allowed, when his work shall be completed. A. BEAUVAIS, Speaker of the House of Representatives. Approved, March 21, 1822, J. POYDRAS, President of the Senate. T. B. ROBERTSON, Governor of the State of Louisiana. REPORT MADE BY EDWARD LIVINGSTON TO THE HONOURABLE THE SENATE AND HOUSE OF REPRESENTATIVES OF THE STATE OF LOUISIANA IN GENERAL ASSEMBLY CONVENED. IN PURSUANCE OF THE ACT ENTITLED "AN ACT RELATIVE TO THE CRIMINAL LAWS OF THAT STATE." HAVING been honoured by an appointment at the last session, to perform the duties required by "an act relative to the criminal laws of the state," I have thought it necessary to report to the general assembly, the progress that has been made in the work, and the reasons which have prevented its completion. In undertaking those duties, I relied much on the aid which I expected to derive from the other states; for, although none of them has framed a code on so comprehensive a plan as that contemplated by our law, yet most of them have established the penitentiary system, which is intended to form the basis of our legislation on this subject. Before I could avail myself of the advantage which those experiments afforded, it was necessary to know, with precision, their results. This information could only be obtained by collecting the returns and official reports of the different establishments, and inducing men of eminence and abilities to communicate their observations on the subject. Knowing also the advantage to be derived from a comparison of the opinions of eminent jurists and statesmen on other leading principles, which must be embodied in the system, I addressed several copies of the annexed circular letter to the governors of each state, with the request, that they might be put into the hands of men, from whom the desired information might be expected: these, as well as a number of similar applications, I did hope, would have procured a body of information useful not only to me in framing the work, but to the legislature in judging of it. This hope has, however, as yet been but partially realized. I have received returns of the state of the penitentiary only from Massachusets. Governor Wollcott and Judge Swift of Connecticut, Chancellor Kent of New York, Judge Holman of Ohio, Mr Rawle of Pennsylvania, Mr Bowen of Rhode Island, Mr Brice of Maryland, and Colonel Johnson of Kentucky, have communicated to me some useful information; with these exceptions, the gentlemen to whom my letters were addressed, have been too much occupied in their own states to attend to the affairs of ours. Our minister in England has had the goodness to send to me the reports of the committees of the house of commons, appointed to inquire into the propriety of a revision of their penal laws; documents of great utility, to show the operation of the law we have partially adopted, in that country from which we have borrowed it. It appears that these reports are not easily procured, and that Mr Rush was indebted for them to Mr Jeremy Bentham, whose writings have thrown so much light on the subject of criminal legislation, and who, in a note addressed to Mr Rush, on our undertaking, has made a suggestion which he will find has not been disregarded. I certainly lost some time in waiting for answers to my letters, but I cannot, in candour, state this, (even with the necessary attention to my professional business) to have been the only cause why the task I have undertaken is not yet fully performed. I never so far overrated my own powers, as to suppose that the whole plan would be executed in the short interval between the two sessions, but I did think, that parts of it might be prepared, and submitted for the sanction of the present legislature, leaving the others to be acted upon at a future period. A closer view of the subject, however, convinced me of my error. In establishing the principles on which the work was to be framed, and tracing the plan of its different divisions, I found that its parts were so closely connected, and that continued references from the one to the other were so unavoidable, as to render it difficult fairly to judge of, or decide on any part without examining the whole. I therefore determined to report to the general assembly, the progress I had made, to develope the plan on which I proposed to execute the work, to give them some of the detached parts as specimens of the execution, and then to take their direction whether it should be completed or not. The introductory notice herewith submitted, gives the different divisions of the code, into books, chapters and sections; the whole is subdivided into articles, numbered progressively through each book, so that citations may be made by referring to the article and book only. A continued numeration of the articles, through the whole work, has been found, in other instances, inconvenient, and carrying the numbers through each chapter or section only, increases the difficulty of reference. In the same notice, will be found some general provisions, made to obviate the necessity of those repetitions, which increased the barbarism of our legal language; but the omission of which has sometimes counteracted the intent of the legislature. The instance of two statutes, which were made in England, to punish, the one the stealing of horses, and the other the stealing of a horse, is familiar to lawyers; and indeed it has been doubted by some, whether a third statute were not necessary, to include the female part of the species. One other article in this notice points to a method, which will also, it is supposed, tend to render the code both explicit and concise. Technical terms are never used in the work, where common expressions could be found to give the same idea. The employment of them, however, is, in many instances, unavoidable. In all such cases, and whenever a word, or a phrase, is either ambiguous, or employed in any other sense than that which is given to it in common parlance, it becomes necessary to explain the precise meaning which is attached to it in the code. To this end, whenever any such expressions occur in the course of the work, they are to be printed in a particular character, which will serve as a notice, that they are defined and explained. These definitions and explanations form the first book. This, though necessarily the first in numerical order, it is obvious, must be the last executed. The words requiring explanation are noted, and the definitions written, as the work progresses; when complete, it will be submitted to men unversed in the language of the law, and every word not fully understood by them, will be marked for explanation. The foregoing parts of the plan are believed to be new, and therefore require the stricter attention to the propriety of their enactment: they suggested themselves to me, as the means of making the work, at once concise, and easily comprehended by those who are most interested in understanding it. The second book begins with a preamble, which states the reasons that called for the enactment of a criminal code, and which sanctions, by a solemn legislative declaration, the principles on which its several provisions are founded. These principles once studied, and after proper discussion adopted, will serve as a standard to measure the propriety of every other part of the code: with these rules constantly before us, and duly impressed on our minds, we can proceed with confidence and comparative ease, to the task of penal legislation; and we may see at a glance, or determine by a single thought, whether any proposed provision is consonant to those maxims which we have adopted as the dictates of truth. The incongruities which have pervaded our system will disappear; every new enactment will be impressed with the character of the original body of laws; and our penal legislation will no longer be a piece of fretwork exhibiting the passions of its several authors, their fears, their caprices, or the carelessness and inattention with which legislators in all ages and in every country have, at times, endangered the lives, the liberties, and fortunes of the people, by inconsistent provisions, cruel or disproportioned punishments, and a legislation, weak and wavering, because guided by no principle, or by one that was continually changing, and therefore could seldom be right. This division of the code is deemed to be of the highest importance: all the other parts will derive their character from this; it is the foundation of the whole work, and, if well laid, the superstructure raised in conformity to it cannot be essentially faulty. It is the result of much reflection, guided by an anxiety to discover the truth, and to express it with precision. The remainder of the second book is devoted to the establishment of general dispositions, applicable to the exercise of legislative power in penal jurisprudence; to prosecutions and trials; to a designation of the persons who are amenable to the provisions of this code; to a statement of the circumstances under which acts, that would otherwise be offences, may be justified or excused; to the repetition of offences; to |