had anything to do with it, tell me, so that | tion, comprising civil and criminal proceedI may share your thoughts as well as your ings of many kinds, was the result. At the destiny.' His response was a laugh so hearty end of a nine or ten years' contest, he sucas to dispel in an instant from her mind any shadow of fear that he was really implicated in the mysterious enterprise."

It was hard to be forced into an unequal conflict in this fashion with the commanderin-chief on a question of liberty and reputation; but it was harder still to be brought to the verge of ruin by a controversy with the president, who, instead of leaving the matter in dispute to the uncontrolled decision of the courts of justice, exerted all his official and personal influence to bear his adversary and intended victim to the ground. Here, again, we shall have to mark a course of proceeding on the part of the executive of the model republic, for which there has been no parallel under the English monarchy since the worst days of the Stuarts.

ceeded in establishing his title and confound

ing his opponents, but the loss of time and the waste of intellectual energy were irrecoverable.

The English invasion of Louisiana, and the assault of New Orleans in 1815, brought out Livingston in an entirely new and highly favorable light. He organized meetings to encourage the citizens to resistance; he drew up animating addresses; with the rank of colonel, he acted as aide-de-camp to General Jackson; and he was deemed one of the most effective of the military council and staff. Mr. Hunt dwells with pardonable complacency on the military services of his hero; and if we are compelled to pass them over, it is from no patriotic wish to deprive him of any part of the glory obtained in great meas

The Batture Controversy, to which a chap-ure through British mismanagement or mister of fifty pages is devoted in this biography, hap. may take rank with the most striking of the We now come to the culminating point logical or literary duels to which we are of Livingston's reputation,-his "System of wont to refer long after their local or tem- Penal Law, or Criminal Codes."* In 1796, porary interest has died away, as specimens when he first took his seat in Congress, his of learning, acuteness, raillery, or wit. Liv- attention had been drawn to the subject, ingston's answers to Jefferson are little infe- and he procured first one committee and rior in their way to Bentley's reply to Boyle, then a second (of both of which he was Porson's Letters to Travis, or the best of chairman) to report on the Penal Laws of Paul Louis Courier's pamphlets; and they the United States. No report was made, and moreover involve principles of jurisprudence his labors in this walk did not recommence in of universal application. What in a double earnest till 1820, when he drew up and insense might be called the battle-ground was troduced an act authorizing the preparation a part of the delta of the Mississippi at New of a Criminal Code for Louisiana. In FebOrleans, then in a transitional state between ruary, 1821, he was elected by joint ballot of land and shore, serving sometimes as an an- the General Assembly of that State to revise chorage and sometimes as a quay, according its entire system of criminal law. The exto the height of the river. Although the ad-isting system was a compound of French, jacent proprietor had laid early claim to it, Spanish, and English laws or customs,-conno exclusive right was attempted to be set up fused, uncertain, and occasionally revolting till he became a client of Livingston's, who from severity or absurdity. Thus the sensaw its future value at a glance. "This ru-tence of infamy was passed indiscriminately ral bank must soon give place to urban wharfs like those of New York. Ah, here was a mine to be worked, and opportunity to escape from bankruptcy at a single bound, instead of trudging only the tedious road of careful industry." He bought a portion of the property and began enclosing it. Then awoke the popular tumult, and then began the official oppression. Both people and government persevered in treating him as an intruder, and a long course of harassing litiga

*The whole of his labors under this head are collected in an octavo volume (now before us) of seven hundred and forty-five closely-printed pages, entitled "A System of Penal Law for the State of Louisiana : : consisting of A Code of Crimes and Punishments: A Code of Procedure: A Code of Evidence: A Code of Reform and Prison Discipline: A Book of Definitions. Prepared under the authority of a law of the said State, by Edward Livingston. To which are prefixed a Preliminary Report on the plan of a Penal Code, and Introductory Reports to the several Codes embraced in the System of Penal Law. Published by James Kay, Jun., and Company, Philadelphia, 1833."

upon whole classes, without the smallest ments, under the name of poorhouses, work

reference to personal innocence or guilt, the houses, and brideweils, are known not only bare fact of their coming within the descrip- in England and the States which derive their jurisprudence from that country, but in diftion being enough: children of illegal mar- ferent parts of Europe; but they are there riages; suitors or advocates incurring rebuke, distinct institutions, and want that unity of just or unjust, from a judge; widows mar- plan from which it is thought their princirying before the expiration of a year's mourn al utility will arise. This requires elucidaing, and their new husbands; procurers, tion. If the duty of supporting its members comedians, slanderers, usurers, gamblers, be once acknowledged to be one incumbent and buffons. It was also a crime, punish-gumed, and if the classification I have made on society to the extent that has been asable by banishment and confiscation of all is correct, the necessity becomes apparent of property, for an advocate to betray the se- distinguishing in what degree the different crets of his client; for any person to say mass applicants are entitled to relief; but that without ordination; to change a name for system would be obviously imperfect that one more honorable; or for a woman to feign was confined to making this distinction, and maternity and produce a counterfeit heir. granting relief only to the one class without making any disposition of the others. Every long to one or the other of those classes; and applicant, if my premises be true, must bethe same magistrate who hears his demand of support, or before whom he is brought, on an accusation of illegally obtaining it, is enabled at once to assign him his place. Is he able and willing to work, but cannot obtain it? Here is employment suited to his strength, but idle, intemperate, or vicious? His habto his age, his capacity. Is he able to work, its must be corrected by seclusion, sobriety, instruction, and labor. Is he utterly unable to provide for his support? The great social duty of religion and humanity must be performed. One investigation on this plan puts an end to the inquiry. Every one applying for alms, or convicted of illegal idleness and vice, necessarily belongs to one or the other class, and immediately finds his place; he no longer remains a burden on individuals, and society is at once relieved from vagrancy and pauperism."

None of the popular objections to codification could consequently arise in this instance; and Livingston's eventual failure to satisfy the pressing and practical wants of his employers was owing to the vastness of his conceptions and the comprehensive philanthropy of his views. He was far in advance of the most advanced legislative or representative assembly then existing in either hemisphere; and he assumed as the groundwork of his system doctrines or principles which are still disputed by the majority of enlightened jurists. He insisted on the abolition of capital punishment as imperatively required by reason, justice, and humanity; whilst the grand aim of his system of secondary punishments was the reform and gradual restoration of the offender to society. For this purpose, he proposed to bring under one central direction, crime, vagrancy, mendicity and all forms of pauperism; to combine in single establishments the whole machinery of poorhouse, workhouse, bridewell, and penitentiary. Society, he lays down, is formed of two divisions, those who by their industry or property provide subsistence for themselves and their families, and those who do not. The latter may be subdivided into three classes, those who can labor and are willing to labor, but cannot find employment; those who can labor, but are idle from inclination, not for want of employment; those who are anable to support themselves by their labor from infancy, old age, or inferiority of body or mind. He then proceeds to justify his projected establishment :—

"This establishment enters most essentially into the plan I propose. Its different depart

The primary object of this part of his system is to prevent the idle or unemployed from becoming lawbreakers. He deals with actual criminals by carefully classifying them, and subjecting them to imprisonment varying in time, place, and circumstance with their respective degrees of guilt. Seclusion and labor afford him the means of increasing punishment to the utmost point of severity admitted by his code. The article relating to murderers runs thus :

"Art. 167. No murderers, in any degree, shall have any communication with other and visitors; they are considered dead to the persons out of the prison than the inspectors

rest of the world.

"Art. 168. The cells of murderers (in any degree) shall be painted black within and without, and on the outside thereof shall be

tence :

inscribed, in large letters, the following sen- I have been lost on the scaffold, in her civil broils? Would her lovely and calumniated "In this cell is confined, to pass his life queen, the virtuous Malsherbes, the learned in solitude and sorrow, A. B., convicted of Condorcet,-would religion, personified in the the murder of C. D. [by assassination, parri- pious ministers of the altar,-courage and cide, etc., describing the offence, if of an ag- honor, in the host of high-minded nobles, gravated kind]; his food is bread of the coars- and science, in its worthy representative Laest kind; his drink is water, mingled with voisier,—would the daily hecatomb of loyalty his tears; he is dead to the world; this cell and worth,-would all have been immolated is his grave; his existence is prolonged, that by the stroke of the guillotine; or Russel and he may remember his crime, and repent it, Sidney, and the long succession of victims of and that the continuance of his punishment party and tyranny, by the axe? The fires of may deter others from the indulgence of Smithfield would not have blazed; nor, after hatred, avarice, sensuality, and the passions the lapse of ages, should we yet shudder at which lead to the crime he has committed. the name of St. Bartholomew, if the ordinary When the Almighty, in his due time, shall ecclesiastical law had not usurped the attriexercise toward him that dispensation which butes of divine vengeance, and by the sacrihe himself arrogantly and wickedly usurped legious and absurd doctrine that offences toward another, his body is to be dissected, against the Deity were to be punished with and his soul will abide that judgment which death, given a pretext to these atrocities. divine justice shall decree.' Nor, in the awful and mysterious scene on Mount Calvary, would that agory have been inflicted, if by the daily sight of the cross, as an instrument of justice, the Jews had not been prepared to make it one of their sacrilegious rage. But there is no end of the examples which crowd upon the memory, to show the length to which the exercise of this power, by the law, has carried the dreadful abuse of it, under the semblance of justice. Every nation has wept over the graves of patriots, heroes, and martyrs, sacrificed by its own fury. Every age has had its annals

"Art. 169. The same inscription, changing only the words this cell for the words solitary cell in this prison,' shall be made on the outside of the prison wall, in large white letters on a black ground. The inscriptions shall be removed on the death of the convicts to which they relate."

Treating voluntary labor as a mitigation and a resource, he denies it to the worst class of criminals; and one strong objection to his substitute for capital punishment is that it frequently produces insanity. His main reasons for sparing life, however, are not of a sentimental character; nor does he shrink from the infliction of necessary pain. He dwells most emphatically on the demoralizing character of executions, and on the danger of placing unjust judgments beyond recall. The passages in which he enforces these topics are as good specimens as could be produced of the rich, varied, and sustained language of his reports:

"History presents to us the magic glass on which, by looking at past, we may discern future, events. It is folly not to read; it is perversity not to follow its lessons. If the hemlock had not been brewed for felons in Athens, would the fatal cup have been drained by Socrates? If the people had not been familiarized to scenes of judicial homicide, would France or England have been disgraced by the useless murder of Louis or of Charles? If the punishment of death had not been sanctioned by the ordinary laws of those kingdoms, would the one have been deluged with the blood of innocence, of worth, of patriotism, and science, in her revolution? Would the best and noblest lives of the other

of blood."

The following is his picture of the innocent convict about to suffer death :-

"Slow in its approach, uncertain in its stroke, its victim feels, not only the sickness

of the heart that arises from the alternation of hope and fear, until his doom is pronounced, but when that becomes inevitable; alone, the tenant of a dungeon during every moment that the cruel lenity of the law prolongs his life, he is made to feel all those anticipations, worse than a thousand deaths. The consciousness of innocence, that which is our support under other miseries, is here converted into a source of bitter anguish, when it is found to be no protection from infamy and death; and when the ties which connected him to his country, his friends, his family, are torn asunder, no consoling reflection mitigates the misery of that moment. He leaves unmerited infamy to his children, a name stamped with dishonor to their surviving parent, and bows down the gray heads of his own with sorrow to the grave. As he walks from his dungeon, he sees the thousands who have come to gaze on his last agony; he mounts the fatal tree, and a life of innocence is closed by a death of dishonor. This is no

picture of the imagination. Would to God | must be told and ought to be felt: that, cirit were ! Would to God that, if death must cumstanced as you are, should you shrink be inflicted, some sure means might be dis- from the performance of these duties, to you covered of making it fall upon the guilty. will be attributed the future depredations of These things have happened. These legal every offender who escapes punishment from murders have been committed! and who the ambiguity of your laws; the vexations of were the primary causes of the crime? Who all who suffer by their uncertainty; the genauthorized a punishment, which, once in- eral alarm caused by the existence of your flicted, could never be remitted to the inno- unknown and unrepealed statutes; the decent? Who tied the cord, or let fall the axe pravity of those who are corrupted by the upon the guiltless head? Not the execution- associations into which they are forced by er, the vile instrument who is hired to do the your prison discipline; the unnecessary and work of death; not the jury who convict, or violent death of the guilty; and, worse than the judge who condemns; not the law which all this, legislators! the judicial murder of sanctions these errors, but the legislators who the innocent who may perish under the opmade the law; those who, having the power, eration of your sanguinary laws. All this, did not repeal it. These are the persons re- and more, will be laid to your charge, if you sponsible to their country, their consciences, do not embrace the opportunity that is afforded and their God." to reform them; for the continuance of every is equivalent to its enactment.” bad law, which we have the power to repeal,

His "Code of Reform and Prison Discipline" comprises the minutest instructions for the treatment of every class of prisoner; and its But whatever opinion may be formed of efficiency in practice would obviously depend the practicability of Livingston's system taken in a great degree on the zeal and intelligence as a whole or estimated by its distinctive of the administrators. In fact, Livingston, qualities, no doubt can exist of the vast like many other eminent philanthropists, was amount of thought, knowledge, intellectual prone to consider society as a parent watching grasp, originality of conception, and powers over a family of children and accurately ac- of expression displayed in its development. quainted with the disposition and tendencies

of each.

His scheme, as might have been anticipated, was respectfully declined, despite the almost impassioned appeal to the Legislature of Louisiana with which he pressed its adoption in the Introductory Report,-an appeal which might be appropriately addressed to almost any halting or hesitating body of legislators:

no escape.

The volume already mentioned is a perfect treasure-house of juridical and legislative schemes and suggestions, doctrines and contrivances; and its indirect influence has been immense. That a collection of codes and reports so large, so comprehensive, so systematically shaped and so logically connected, should have been produced in less than five years, would sound incredible, did we not remember that he drew upon stores that had been accumulating for thirty; and wonderful to relate, it would have been produced in three years, but for an accident under which a mind of less energy must have been crushed. The misfortune was thus announced to M. du Ponceau, from whom he had borrowed a volume of Bacon:

"Legislative functions are in the most ordinary times attended with high responsibility. Yours, from the duty which your predecessors have imposed upon you, are peculiarly so. From the performance of this duty there is The defects of your penal laws are arrayed before your eyes. Former legislative acts have declared that they exist, and they have established principles and laid down rules by which laws are to be framed for their "The night before last, I wrote you an removal. Those laws are now submitted for apologetic letter, accounting for not having your consideration. You cannot avoid act- before that time thanked you for your letter ing. It is impossible to say that the evils are and your book. My excuse lay before me, in imaginary. You must, then, either declare four Codes of Crimes and Punishments, of that the principles for correcting them, here- Criminal Procedure, of Frison Discipline, tofore unanimously established by the repre- and of Evidence. This was about one o'clock; sentatives of the people are erroneous, or that I retired to rest, and in about three hours the plan prepared is not drawn in conformity It had broken with them. In either alternative the duty out in my writing-room, and before it was of correcting the principles or reforming the discovered, not a vestige of my work remained, work is one that must be performed. For, except about fifty or sixty pages which were disguise it as we may, it is a truth which at the printer's, and a few very imperfect

:

was waked by the cry of fire.

notes in another place. You may imagine, as temporarily impaired by the shock. Acfor you are an author, my dismay on perceiv- cording to him, rumor or malice has exing the evidence of this calamity; for circum- aggerated both the loss and its consequences. stanced as I am, it is a real one. My habits Livingston's misfortune, therefore, may be for some years past, however, have fortunately inured me to labor, and my whole life has to regarded as the most trying of the kind disappointment and distress. I therefore recorded in the annals of intellectual labor; bear it with more fortitude than I otherwise and the manner in which he bore up under should, and instead of repining, work all it does the highest honor to his energy, night and correct the proof all day, to repair patience, capacity, fertility, readiness, and the loss and get the work ready by the time self-command. I had promised it to the Legislature."

A few days later he wrote,

оссира

He had his reward in the praises and congratulations of the most distinguished of his “I thank you most sincerely for your kind of durable fame. Jeremy Bentham proposed contemporaries, as well as in the certainty participation in my calamity; for although I put the best face upon it, I cannot help feel- that the English Parliament should cause the ing it as such. I have always found entire work to be printed for the use of the tion the best remedy for distress of every nation. M. Villemain declared the "Syskind. The great difficulty I have found on tem " to be a work without example from the those occasions was to rally the energies of hand of any one hand. Victor Hugo wrote, the mind, so as to bring them to undertake. You will be numbered among the men of it. Here, exertion was necessary, not only to enable me to bear the misfortune, but to repair it; and I therefore did not lose an hour. The very night after the accident I sat up until three o'clock, with a determination to keep pace with my printer; hitherto I have succeeded, and he has, with what is already printed, copy for a hundred pages of the penal code."

"The part I shall find most difficult to replace is the preliminary discourse, of which I have not a single note, and with which (I may confide it to your friendly ear) I was satisfied. A composition of that kind depends so much upon the feeling of the moment in which it is written, the disposition that suggests not only the idea but the precise word that is proper to express it is so evanescent (mine at least are), that it will, I fear, be utterly impossible for me to regain it."

When Porson's manuscript copy of the "Codex Galeanus," a masterpiece of calligraphy, was accidentally destroyed by fire, he set about and completed a fresh one. But this was a merely mechanical task; there were no thoughts to reclothe in chosen language; no studied trains of reasonings, or spontaneous bursts of eloquence, to reproduce in their original freshness. "Oh, Diamond, Diamond, you little know what mischief you have done!"—is the temperate expression of regret which the popular legend has placed in the mouth of Newton, when his little dog upset the candle amongst his papers. But Sir David Brewster rejects the legend, and equally discredits that version of the incident which represents the brain of the philosopher

this age who have deserved most and best of mankind." He received autograph letters on the subject from the Emperor (Nicholas) of Russia and the King of Sweden; a gold medal with a laudatory inscription was presented to him by the King of the Netherlands; and he was elected Foreign Associate to the Institute of France.

The lapse of time has deepened and strengthened the foundations of his fame. No longer ago than 1856, Dr. Maine, formerly Professor of Civil Law in the University of Cambridge, and now a member of Council at Calcutta, spoke of Livingston as "the first legal genius of modern times." But the recognition of his success of which he had most reason to be proud was a letter from his old adversary (we might almost say enemy) Jefferson, who concludes : Wishing anxiously that your great work may obtain complete success, and become an example for the imitation and improvement of other States, I pray you to be assured of my unabated friendship and respect.' Another letter from Jefferson, in 1822, contains this striking passage, referring to a question of government :

66

"But age has weaned me from questions of this kind. My delight is now in the passive occupation of reading; and it is with great reluctance I permit my mind ever to encounter subjects of difficult investigation. You have many years yet to come of vigorous activity, and I confidently trust they will be employed in cherishing every measure which may foster our brotherly union, and perpet