Edward Livingston.

Introductory report to the Code of prison discipline: explanatory of the principles on which the code is founded. Being part of the System of penal law, prepared for the state of Louisiana online

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UNIVERSITY OF CALIFORNIA
AT LOS ANGELES




INTRODUCTORY REPORT



TO THE



CODE OF PRISON DISCIPLINE:



EXPLANATORY OF THE PRINCIPLES ON WHICH
THE CODE IS FOUNDED.



BEING PART OF THE



SYSTEM OF PENAL LAW,



PREPARED FOR THE



^TATE OF LOUISIANA.



BY EDWARD LIVINGSTON.



r\ r^ ^^ ^



PHILADELPHIA:

CAREY, LEA & CAREY— CHESNUT STREET.

• '6CJJ> iN iTEW -XPRK, BT! G. &'& CARVOO.. ■ , , '

. . 1SP.7.



* J J J



* i i i

-■ J 3



ERRATA.

Page 1. line 25. for legislature, read legislator.

9. '< 6. for invasion, read invasions.

ib. •' 14 & 16. for disease, read desire.

10. " 14. for /)/an, read place.

ib. " 27. for incapable of being, read cannof always be.

ib. " 5. for was, read were.

12. " 6. for resumes its, read resume their.

18. " 2. after as, dele f/je.

19. " 19. for tliat, read the former.

28. " 3. for io England, read ?o extend.

33. Strike out in the note the words, " a much greater disproportion ex-

ists between the commitments and conversions in Great Britain,

but.''



• . •

• *



...



PREFATORY NOTE

BY THE EDITORS.



The following pages form the introduction to the Code of
Prison Discipline, being the concluding part of a system
of penal law, prepared by Mr. Livingston, for the State of
Louisiana, in pursuance of a law of that state; under which he
was appointed to the novel and highly honourable task which
he has just concluded for the second time; after having, about
two years ago, lost by an accidental fire, his first manuscript
and all his notes.

The whole system, (consisting of a Code of crimes and pun-
ishments, a Code of procedure, a book of Definitions, and a
Code of Prison Discipline,) has been presented for the consi-
deration of the Legislature, and copies have been distributed
by the author, with the laudable view of obtaining suggestions
for the impiovement of his plan. But this circulation being
necessarily very limited; the Editors have been induced, with-
out any view to profit, to offer this edition to the public, from
a persuasion, that the views developed in the introduction,
contained matter that deserved the serious attention of their
fellow citizens, more particularly as the review of the Penal
Code of this State, will occupy the attention of the Legisla-
ture at the next session.

Should this introduction receive the public patronage, they
will publish the Code of Prison Discipline, as the part that in-
volves the deepest interest, and on the Efficacy of which the
whole system seems to rest. The introductory report to the
whole systen', and the other codes of which it is composed,
have excited some attention in different parts of Europe; where
several Eoi lions in different languages have been published ;
but as the worh is of considerable magnitude, the Editors can-
not yet pledge, tliemselves to offer an Edition of it to the public.
Fhiladelphia, July 7, 18,37.



INTRODUCTORY REPORT

TO THE CODE OP

llEFORM AND PRISON DISCIPLINE,



In offering to the Legislature a system of penal law, the
principal sanction of which is imprisonment, it is scarcely ne-
cessary to remark, that its whole efficacy must depend on the
manner in which confinement is to be inflicted as a punish-
ment, or used as a means of detention ; in other words, on the
wisdom of the code of prison discipline. In preparing the
plan now submitted, I kept in view, as the great objects to be
attained — restraint, example, and reformation. To discover
what species of seclusion would best produce these ends, ri-
gidly to direct every privation necessary to attain them,^ but
to inflict no evil greater than was required to produce these
consequences, would seem at first view a comparatively easy
task ; but the selection of proper means, and the details re-
quired for their application, presented difliculties in the execu-
tion only to be overcome by the closest attention to facts, and
the most cautious calculation of consequences. A statement of
these facts, and an exposition of the consequences drawn from
them, will enable the House better to understand and decide
on the plan which I have the honour to propose.

At the time when the penal law of Great Britain (still liable
to the reproach of unnecessary severity in its enactments, and
barbarity in its executions,) had received none of those im-
provements which the true principles of jurisprudence have
since produced, the benevolent heart and enlightened mind of
the Legislature of Pennsylvania, suggested the substitution of
solitary imprisonment and labour for the punishment of death.
The beneficial effects of tliis change were felt until they were



4 INTKODUCTION.

counteracted by the intolerant and sanguinary system of the
common law of England, enforced by the paramount authority
of the mother country. But no sooner did independence con-
fer the power of consulting the public good, than the People
of Pennsylvania made the reformation of the penal code a con-
stitutional obligation on their representatives ; and, amidst the
confusion produced by foreign invasion and civil discord in
the Revolutionary war, a society worthy of the city of " bro-
therly love" was formed /or the relief of distressed prisoners.
With persevering benevolence, they not only relieved the vic-
tims of the inhuman system that then prevailed, but, by un-
ceasing appeals to true principles, induced the Legislature of
that State to begin the great reform. In all but two or three
cases, the punishment of death was abolished : labour was sub-
stituted for loss of life and stripes ; but, contrary to the opin-
ion early expressed by the society in favour of solitary labour,
that on the public works was adopted. The error was a radical
one : debasement, corruption, and an immediate repetition of
crime, were the consequences ; and the failure of this experi-
ment with any but a v^^ise and reflecting people, might have
been fatal to the system. But, happily for Pennsylvania, and
perhaps for the world, she had enlightened men to frame her
penal laws ; and happier still, she had a class of citizens ad-
mirably calculated to execute them with the zeal of enthusi-
asm. The founder of that State, and his first associates, belong-
ed to a sect which fitted them, by its principles, and by the
habits, and pursuits, which it created and prescribed, to be the
ao'cnts of a reform in jurisprudence similar to that which they
adopted, and, perhaps, carried, to excess, in religion. Their
descendants, with less of that enthusiasm which, in their an-
cestors, was exalted by persecution, had all the active benevo-
lence and Christian charity necessary to prompt,' and the per-
severance and unwearied industry to support their exertions.
Abstracted by their tenets from the pleasures which occupy so
large a portion of life among other sects ; equally excluded
from other pursuits in which so many find occupation ; freed
from the vexations of mutual litigation, by submitting every
diffrrencc to the umpirage of the elders, and from the tyranny



IXTRODUCTIO>-. O

of fashion by an independent contempt for its rules ; ihe mod-
ern quakers devote all that time which others waste in dissipa-
tion, or employ in intriguing for public employment, to the
direction of charitable institutions, and that surplus wealth
which others dissipate in frivolous pursuits, to the cause of hu-
manity. In every society for promoting education, for in-
structing or supporting the poor, for relieving the distresses of
prisoners, for suppressing vice and immorality, they are active
and zealous members ; and they indemnify themselves for the
loss of the honours and pleasures of the world by the highest
of all honours, the purest of all pleasures, that of doing good.
To these men, and others who participated in their princi-
ples, was committed the task of uniting reformation and pun-
ishment, when seclusion was substituted for the public labour
to which the convicts had before been exposed. The most
encouraging results justified the change in the law, and the se-
lection of persons to whom its execution was committed ; and
from the year 1790, when it took place, until 1793, we have
the official attestation of one of the inspectors,-^ that, out of
two hundred convicts who had been pardoned, only four were
returned on a second conviction ; that only two cases of burgla-
ry, and not one of privately stealing from the person, had oc-
curred ; that the streets and roads vvere freed from robbers,
and that in all the prisons for the populous city and county of
Philadelphia, immediately before the sitting of the Court, only
four persons were in custody for trial. This last is a striking
fact. The city and county of Philadelphia, at that time, con-
tained upwards of sixty thousand inhabitants, and, prior to
that time, more than thirty had been condemnecJ at a Session,
a number which supposes at least fifty comn^itments ; so that,
in the short space of two years, the effect of the system was
the entire suppression of some crimes, and the reduction of
others in the projDortion of ten to one, in the place where the
example might be supposed to have had the greatest eflect.



* A member of Uie Society of Friends, who lias rendered the name of
Lowndes as celebrated for active, enlightened benevolence, as a late lament-
ed statesman has sine done for eloquenre. patriotism, and inte^ity.



(J INTRODUCTION.

The operation of the system in the whole of the State, was
nearly as encouraging. Although its population was increasing
in a very rapid ratio, yet conviction decreased from one hun-
dred and twenty-five, in the year 1789, to the respective num-
bers of one hundred and nine, seventy, sixty-three, forty -five,*
in the four succeeding years. Thus we find that, although the
population of the State was increasing in a ratio of four and a
half per cent, a year, offencest had decreased in the propor-
tion of forty-five to one hundred and twenty-five, or nearly
two thirds less ; and in the last year I have mentioned, there
were no convictions for one half of the crimes that had figured
on the preceding calendars. So remarkable a diminution of
crime in a regular decreasing series, is a fact worthy our most
profound attention, when we are considering the efiect of this
species of punishment. Nothing can develop the true princi-
ples of legislation on this subject more clearly than the history
of the reform in Pennsylvania in all its stages. In 1786, we
find that the vicious system of labour in the public works was
established. Under it, in the three years of its operation, and
the first year after its appeal, but before the effects of the sys-
tem could cease, the average number of convictions in each
year was one hundred and nine ; in 1791, it decreased under
the new system to seventy-six ; in 1792, to sixty-three ; and in
1793, to forty-five: all this while the population of the State,
and (what is more worthy to be noted) of the city was rapidly
increasing. This was the lowest point of depression : from
that time the increase has been in a more rapid ratio than the
diminution : for the first four years afterwards, the average was
one hundred and nineteen, and it has gradually progressed
until the average of the last twelve years is three hundred and
eleven ; that is, within a fraction of eight times as many as it
was in 1793 ; but the population of the State in that time had
very little more than doubled, f so that crime has increased
in proportion to the population nearly as eight is to two. Most

* Vaux's Notices. | Seybert's Sutistics.

t Four hundred and ninety-five thousand one hundred and eighty-five, in 1793.
One million forty-nine thousand four hundred and fifty-eight, in, 1820.



INTRODUCTION- 7

fortunately for the cause of truth, humanity, and wise legisla-
tion, the cause of this ebb and flow of crime is not difficult to
discover ; and when pointed out, it will be more persuasive to
show that there is a check that may be effectually applied to
the increase of offences than the most ingenious argument that
could be suggested.

In the three years previous to the year 1790, when Phila-
delphia prison was first used for the purpose of inflicting pun-
ishment by solitary confinement, three hundred and twenty-
eight convicts had been confined. Of these, about two-thirds
were committed for short terms, and others were discharged
by pardon ; so that at the commencement of the year 1790,
not more than about two hundred remained. The accommo-
dations of the prison afforded the means of separation for this
small number, and the humane zeal of the inspectors, quicken-
ed by the natural desire to give efficacy to the plan which they
had themselves formed, urged on the labour and superintended
the instruction of the convicts. In that year, the first of the
experiment, but before its result could be known, one hun-
dred and nine convictions took place. In the next, its benefi-
cent effects began to be felt; the convictions were reduced to
seventy-eight, and in the two successive years, to sixty-three
and forty-five. But in the meantime * the prison began to be
crowded, solitary labour was necessarily abandoned, even
classification became impossible ; the same prison serving for
vagrants, fugitive apprentices,! and those committed for trial ;
a relaxation of discipline was the natural consequence of the
indiscriminate association, and the increase of convictions, in
every succeeding term of four years bears an exact proportion
to the increased numbers in the prison. This double result of
a rapid and before unheard-of decrease while the convicts were
separated and employed, and an increase almost in the same
ratio when they were suffered to associate, seems to solve the
great problem of penal jurisprudence, and points to seclusion
and labour as an effectual remedy for the prevention of crime :

* No provision had been made for the increased number of prisoners, which,
of all descriptions, amounted in 1793 to the average number 450,
+ Petition of the Society for Public Prisons. 1801—1.903.



s i.N'i'lioDUC'riox.

for these eflects were produced without any change in the stale
of society at the two periods, that could be favourable to such
results ; on the contrary, an increase of population while crimes
were decreasing, and the same increase, but only of one half,
in the numbers of the people during the other period, when
crimes increased fourfold. This practical result, so decisive
of the truth of the theory, founded on a consideration of hu-
man nature, with other corroborating facts, has confirmed me
in the design not only of persevering in my first recommenda-
tion of imprisonment, solitude, and labour, in different de-
grees, and under different modificaiions, as the principal sanc-
tions of the code, but it has become the basis of my whole
system of prison discipline ; and from the well attested fact
that a plan, by no means perfect, persevered in for only four
years, banished some crimes, and rapidly reduced the number
of others nearly two-thirds, I draw the cheering conclusion
that, by giving to the system the improvements of which it is
susceptible, the sum of human happiness may be increased by
the repression of crimes and of the evils which result both
from their commission and punishment.

My position is, that imprisonment, with seclusion and la-
bour, as a punishment, will diminish the offences for which it
is inflicted ; but that imprisonment without seclusion will in-
crease them. What will be the effect of solitary confinement
without labour, remains to be tried. The Pennsylvania expe-
riment proves conclusivelj'^, that while the numbers were not
too great to admit of seclusion, offences diminished ; and when
it was no longer practicable, they increased. In all the other
States a similar result has been observed, during the first years.
When there was room for classification, the most sanguine
hopes of humanity were surpassed by the effect* But with
the promiscuous intercourse of the convicts, offences increased
both in number and atrocity. This great truth, then, is sup-
ported in both its parts by experiment, the most conclusive of
all proof, when it has been so often repeated, under different

* See report to ther Senate of 2\e\y York, and the reports of aU the State pri-
sons in the different States.



INTRODUCTIOIf.



circumstances, as to show that the uniform result is produced
by the same cause, and when it confirms a theory to which no
abstract objection can be conclusively urged. But here tho,
theory is emphatically one of that kind. Of all the crimes in
the catalogue of human depravity, four-fifths are, in different
forms, invasion of private property ; and the motive for com-
mitting them is the desire of obtaining, without labour, the
enjoyments which property brings. The natural corrective is
to deprive the offender of the gratifications he expects, and to
convince him that they can be acquired by the exertions of
industry. The remaining proportion of offences are such as
arise from the indulgence of the bad passions, and for those
also solitude and employment are the best correctives. But
whatever corrects the disease or the passion that prompts the
offence, acts, in the double capacity, first of punishment, until
the disease is repressed, and afterwards, when that is effected,
of reformation. As an example, too, it is infinitely more effi-
cacious than any other penalty. When it is seen that offences
which were committed to avoid labour and to increase the en-
joyments of society, lead only to solitude and labour, and that
the passions which caused the more serious crimes, are to be
kept under the rigid restraint of abstinence and reflection, in
the fearful loneliness of a cell ; when these examples are per-
manent, and by a rigid administration of justice believed to be
inevitable, who that studies human nature can doubt the effect?
Therefore, the experiments of Pennsylvania and of the other
States, in the first years of their operation, as well as their
subsequent failure, have but confirmed a theory true, because
it was drawn from the workings of the human mind. They
succeeded at first exactly in the proportion to the strictness of
the seclusion ; they failed precisely in. the ratio of its relaxa-
tion.

Solitude and Labour, then, are the two great remedies.
How are they to be employed ? Is the confinement to be a
rigid, unbroken solitude, or only a sechision from the corrup-
tion of evil counsel and example.' Is it to be permanent for
the whole term of the sentence, or to be mitigated by proofs
of industry and amendment? Is the labour to he forced oi



10 IVrR01>UCTIQA.

voluntary, and is its principal object pecuniary prolit to tiae
State or the means of honest support to the convict? These
are the great questions to be decided before we enter on the
consideration of a multitude of subordinate details.

When imprisonment and labour was substituted for corporal
punishment, the evils of promiscuous association became appa-
rent. The separation most obviously required was that of the
sexes, and this seems to have been universally introduced.
But it required little observation or knowledge of human na-
ture to discover that somethmg more was necessary ; that, as
a place of punishment, a penitentiary would soon lose its ter-
rors, if the depraved inhabitants were suffered to enjoy the so-
ciety within, which they had always preferred when at large ;
and that, instead of a plan of reformation, it must become the
best institution that could be devised for instruction in all the
mysteries of vice and crime, if the professors of guilt are suf-
fered to make disciples of those who may be comparatively
ignorant. To remedy this evil, what is called classification was
resorted to ; first the young were separated from the old, then
the analosrous division was made between the novice and the
practised offender; further subdivisions were found indispens-
able, in proportion as it was discovered that in each of these
classes would be found individuals of different degrees of de-
pravity, and, of course, corrupters, and those ready to receive
their lessons. Accordingly, classes were multiplied, until, in
some prisons in England we find them amounting to fifteen or
more. But, all this while, the evident truths seemed not to
have had proper force : first, that moral guilt is incapable of
being discovered, and, if discovered, so nicely appreciated as
to assign to each one infected with it, his comparative place in
the scale ; and that if it could be so discovered it would be
found that no two would be found contaminated in the same
degree. Secondly, that if these difficulties could be surmount-
ed, and a class could be formed of individuals who had advan-
ced exactly to the same point, not only of offence, but of mo-
ral depravity, still their association would produce a further
progress in both, just as sparks produce a flame when brought
together, which, separated, would be extinguished and die.



INTRODUCTION. 11

It is not in huinan nature for the mind to 'ae stationary ; it
must progress in virtue or in vice: nothing promotes this jjro-
gress so much as the emulation created by society ; and from
the nature of the society will it receive its direction. Every
association of convicts, then, that can be formed, will in a
greater or less degree pervert, but will never reform, those o "
which it is composed : and we are brought to the irresistible
conclusion that classification once admitted to be useful, it is so
in an inverse proportion to the numbers of which each class is
composed; and is not perfect until we come to the point a'
which it loses its name and nature, in the complete separation
of individuals. We come, then, to the conclusion that each
convict is to be separated from his fellows. But is lie to b.:
debarred from all other society? In discussing this question
we must always have before our eyes the ends we propose lo
attain by the discipline we inflict — punishment and reforma-
tion. So much punishment as is necessary to deter others
from committing the crime, and the offender from repeating
it ; every alleviation, not inconsistent with those oijjects, that
will cause the culprit gradually to prefer a life of Iionest indus-
try, not from the fear of punishment, but .from a conviction of
its utility. That system of prison discipline will make the
nearest approach to perfection that shall best attain these ob-
jects. In order to judge in what degree the plan I propose is
entitled to this distinction, it will be necessary to examine
other systems, and a discussion of their defects will enable
us to discover how far that which is proposed as a substitute
avoids them.

Imprisonment and labour have been adopted as a punishment
in fourteen of the twenty-four States. In none of these has
there been, until very lately, any individual seclusion, except
for breaches of prison discipline, and, during different periods,
for the more atrocious offences: the consequences of t]:is radi-
cal fault were such as might have been expected — an increase
z'ather than a diminution of crime; and the prodigal, indis-
creet, and ruinous exercise of the pardoning power, combinc^i
to render abortive the best experiment ever made lor the suji^
prcssion of vicr. The people who were taxed far the snppor'



of these mstiLuliotiij, saw in tliem only the nurseries of crime,
and were naturally desirous of throwing off the burthen ; and
it was made, in one important State, a serious question whe-
ther they should not resort to sanguinary and infamous pun-
ishments. The calm reasoning and spirit of investigation,
which sooner or later resumes its place in the councils of our
republics, soon discovered that the experiment had not been
fairly tried ; the cause of its failure became apparent ; and all
agreed that imprisonment without separation would never serve
cither for punishment or reform. Two diffei'ent systems were
proposed to remedy the evil ; one is in the course of experi-
ment ; the other has not yet been examined, but preparations
are nearly completed for carrying it into effect on a most ex-
tensive scale, and in a degree that must completely test its uti-
lity. In New York there are two penitentiaries, and a third
is now constructing : one of them, in the city, is, from its con-
struction, and the numbers confined in it, necessarily conduct-
ed on the old vicious plan, which is to be abandoned as soon as
the third prison is finished ; the other at Auburn, a village in


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Online LibraryEdward LivingstonIntroductory report to the Code of prison discipline: explanatory of the principles on which the code is founded. Being part of the System of penal law, prepared for the state of Louisiana → online text (page 1 of 8)