Edward Livingston.

The complete works of Edward Livingston on criminal jurisprudence : consisting of systems of penal law for the state of Louisiana and for the United States of America : with the introductory reports to the same : to which is prefixed an introduction online

. (page 1 of 49)
Online LibraryEdward LivingstonThe complete works of Edward Livingston on criminal jurisprudence : consisting of systems of penal law for the state of Louisiana and for the United States of America : with the introductory reports to the same : to which is prefixed an introduction → online text (page 1 of 49)
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THE COMPLETE



WORKS OF EDWARD LIVINGSTON

7

ON

CRIMINAL JURISPRUDENCE;



CONSISTING OF



SYSTEMS OF PENAL LAW FOR THE STATE OF LOUISIANA
AND FOR THE UNITED STATES OF AMERICA;

fflfrfb ifce Intoltaiorj Deports ia tty *nm.



TO WHICH IS PREFIXED AN INTRODUCTION

BY

SALMON P. CHASE,

CHIEF JUSTICE OF THE UNITED STATES.



IN TWO VOLUMES.



VOL. II.



PUBLISHED BY THE NATIONAL PRISON ASSOCIATION OF
THE UNITED STATES OP AMERICA,

194, BROADWAY, NEW YORK.
1873.



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TABLE OF CONTENTS.



VOLUME IJ.
A SYSTEM OF PENAL LAW.

IirrfcoDUCTOBY Title 3

A CODE OF CRIMES AND PUNISHMENTS.

Introductory Titlb 13

Book I. General Provisions 14

Book II. Of Offences and Punishments .29

Title 1. Genera! divisions and descriptions of

offences and punishments . . .29
Title 2. Of offences against the sovereign power

of the state 37

Title 8. Of offences against the legislative power . 89
Title 4. Of offences against the executive power . 40
Title 5. Of offences against the judiciary power . 44
Title 6. Of offences against public tranquillity . 60
Title 7. Of offences against the right of suffrage . 65
Title 8. Of offences against the liberty of the press 69
Title 9. Of offences against public records . .71
Title 10. Of offences against the current coin and

public securities 73

Title 11. Of offences against the public revenue . 75
Title 12. Of offences which affect commerce and

manufactures 78

Title 13. Of offences affecting public property 91

Title 14. Of offences affecting the public roads, Ac. 91
Title 15. Of offences injurious to public health . 93
Title 16. Of offences against morals . . .95
Title 17. Of offences which affect persons in the

exercise of their religion . . .99
Title 18. Of offences affecting reputation . .100



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IV



CONTENTS.



Book II.

Title 19. Of offences affecting the persons of

individuals Ill

Title 20. Of offences affecting individuals in their

profession or trade . .154

Title 21. Of offences against civil and political

rights and conditions .... 155
Title 22. Of offences affecting persons in their

profession or trade . . . .158
Title 23. Of offences against private property . 159



189
189
202



225



A CODE OP PROCEDURE.

Introductory Title 185

Book I. Of the means of preventing offences; of suppressing
those which are continuous; and of employ-
ing the military in aid of the civil power
Title 1. Of preventing offences ....
Title 2. Of suppressing permanent offences .
Title 3. Of the manner of calling for and employing
the military force of the state in aid
of the civil power ....
Book II. Of the mode of prosecuting offences . . 228

Title 1. Of arrest and bail 228

Title 2. Of the proceedings subsequent to the

commitment or bail .... 246
Title 3. Of the mode of procedure in certain
cases not immediately connected with

prosecutions 318

Book III. Containing the forms to be used in all the
judicial proceedings prescribed or authorized

by this code 329

Title 1. Of the forms to be used in the proceedings

authorized for the prevention of offences 329
Title 2. Of the forms to be used in the proceedings
authorized for suppressing permanent

offences 336

Title 3. Of the form to be used in the proceedings
authorized for calling for and employing

military force 350

Title 4, Of the forms to be used in the proceedings

authorized for prosecuting offences . 352



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CONTENTS.

A CODE OP EVIDENCE.

Introductory Title

Book I. Of the nature of evidence and of its several kinds
Title 1. General principles and definitions
Title 2. Distribution of the subject
Book II. Of the rules applicable to the several kinds of
evidence ....



Title 1.

Title 2.
Title 3.
Title 4.
Title 5.
Title 6.
Title 7.



Of the evidence offered to a

his own knowledge
Of testimonial evidence
Of scriptory evidence
Of substantive evidence
Of presumptive evidence
Of direct evidence .
Of conclusive evidence



judge from



457

460
461

463

463
464
479
512
513
515
516



A CODE OP REFORM AND PRISON DISCIPLINE.

Introductory Title 537

Book I. Places of confinement ; of their construction and

officers 540

Title 1. Of places of confinement . . . 540

Title 2. Of the officers and attendants of the
several places of confinement, and their

several duties 544

Book II. Of the treatment of the prisoners in the several

places of confinement 562

Title 1. Of the prisoners confined in the house of

detention 562

Title 2. Of the treatment of the prisoners in the

penitentiary 565

Title 3. Of the school of reform . .577

Title 4. Of the pecuniary concerns of the several

places of confinement .... 590
Title 5. Of the discharge of the convicts . 594

Title 6. How the property of persons condemned

for crime shall be disposed of . 595
Book III. Of the house of refuge and industry . . 598
Title 1. Of the design of this establishment . . 598
Title 2. Of the different departments of the house
of refuge and industry, and of the de-
scription of persons admitted to, and
confined in each 599



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VI



Book III.

Title 3.

Title 4.



Title 5.
Title 6.



Title 7.



contents.

Of the officers of the house of refuge and
industry, and of their duties . 600

Of the admission into the house of refuge,
and of the employment of the persons
admitted 601

Of the police of the house of refuge . . 602

Of the house of industry, its police, and
the employment of the persons confined
therein 604

Of the pecuniary concerns of the house
of refuge and industry . 605



EXTRACTS FROM THE SYSTEM OF PENAL LAW FOR
THE UNITED STATES.
Title 1. Of offences against the sovereign power

of the United States . . . .609
Title 7. Of offences against the laws of nations. 615

A BOOK OF DEFINITIONS.

Title 1. General provisions 641

Title 2. Definitions 641

Additional Definitions 657



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A SYSTEM OF PENAL LAW.



INTRODUCTORY TITLE.



VOL. II.



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INTRODUCTORY TITLE.

CHAPTER I.

Preamble.

No act of legislation can be or ought to be immutable.
Changes are required by the alteration of circumstances ;
amendments, by the imperfection of all human institu-
tions ; but laws ought never to be changed without great
deliberation, and a due consideration as well of the
reasons on which they were founded, as of the circum-
stances under which they were enacted. It is therefore
proper, in the formation of new laws, to state clearly the
motives for making them, and the principles by which
the framers were governed in their enactment Without
a knowledge of these, future legislatures cannot perform
the task of amendment, and there can be neither con
sistency in legislation, nor uniformity in the interpretation
of laws.

For these reasons, the general assembly of the state of
Louisiana declare that their objects in establishing the
following code, are —

To remove doubts relative to the authority of any parts
of the penal law of the different nations by which this
state, before its independence, was governed.

To embody into one law, and to arrange into system,
such of the various prohibitions enacted by different
statutes as are proper to be retained in the penal code.

To include in the class of offences, acts injurious to
the state and its inhabitants, which are not now forbidden
by law.



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4 SYSTEM OF PENAL LAW.

To abrogate the reference, which now exists, to a
foreign law, for the definition of offences and the mode
of prosecuting them.

To organize a connected system for the prevention as
well as for the prosecution and punishment of offences.

To collect into written codes, and to express in plain
language, all the rules which it may be necessary to
establish for the protection of the government of the
country, and the person, property, condition and repu-
tation of individuals ; the penalties and punishments
attached to a breach of those rules ; the legal means of
preventing offences, and the forms of prosecuting them
when committed ; the rules of evidence, by which the
truth of accusations are to be tested ; and the duties of
executive and judicial officers, jurors, and individuals, in
preventing, prosecuting, and punishing offences : to the
end that no one need be ignorant of any branch of
criminal jurisprudence, which it c ^cerns all to know.

And to change the present penal laws, in all those
points in which they contravene the following principles,
which the general assembly consider as fundamental
truths, and which they have made the basis of their
legislation on this subject, to wit :

Vengeance is unknown to the law. The only object
of punishment is to prevent the commission of offences :
it should be calculated to operate —

First, on the delinquent, so as by seclusion to deprive
him of the present means, and, by haWts of industry
and temperance, of any future desire, to repeat the
offence.

Secondly, on the rest of the community, so as to deter
them, by the example, from a like contravention of the
laws. No punishments, greater than are necessary to
effect these ends, ought to be inflicted.

No acts or omissions should be declared to be offences,
but such as are injurious to the state, to societies per-
mitted by the laws, or to individuals.

But penal laws should not be multiplied without evi-
dent necessity ; therefore acts, although injurious to indi-



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SYSTEM OF PENAL LAW. 5

victuals or societies, should not be made liable to public
prosecution, when they may be sufficiently repressed by
private suit.

From the imperfection of all human institutions, and
the inevitable errors of those who manage them, it
sometimes happens that the innocent are condemned to
suffer the punishment due to the guilty. Punishments
should, therefore, be of such a nature that they may be
remitted, and as far as possible compensated, in cases
where the injustice of the sentence becomes apparent.

Where guilt is ascertained, the punishment should be
speedily inflicted.

Penal laws should be written in plain language, clearly
and unequivocally expressed, that they may neither be
misunderstood nor perverted ; they should be so concise
as to be remembered with ease ; and all technical
phrases, or words they contain, should be clearly de-
fined. They should be promulgated in such a manner
as to force a knowledge of their provisions upon the
people ; to this end, they should not only be published,
but taught in the schools, and publicly read on stated
occasions.

The law should never command more than it can
enforce. Therefore, whenever, from public opinion, or
any other cause, a penal law cannot be carried into exe-
cution, it should be repealed.

The accused, in all cases, should be entitled to a public
trial, conducted by known rules, before impartial judges
and an unbiassed jury ; to a copy of the act of accusa-
tion against him ; to the delay necessary to prepare for
his trial ; to process to enforce the attendance of his own
witnesses ; and to an opportunity of seeing, hearing and
examining those who are produced against him ; to the
assistance of counsel for his defence ; to free communi-
cation with such counsel, if in confinement ; and to be
bailed in all cases, except those particularly specified by
law. No presumption of guilt, however violent, can
justify the infliction of any punishment before conviction,
or of any bodily restraint greater than is necessary to



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6 SYSTEM OF PENAL LAW.

prevent escape ; and the nature and extent of this
restraint should be determined by law.

Perfect liberty should be secured of hearing and pub-
lishing a true account of the proceedings of criminal
courts, limited only by such restrictions as morality and
decency require ; and no restraint whatsoever should be
imposed on the free discussion of the official conduct of
the judges and other ministers of justice, in this branch
of government

Such a system of procedure, in criminal cases, should
be established as to be understood without long study ;
it should neither suffer the guilty to escape by formal
objections, nor involve the innocent in difficulties, by
errors in pleading.

For this purpose, amendments should be permitted in
all cases, where neither the accused nor the public prose-
cutor can be surprised.

Those penal laws counteract their own effect, which,
through a mistaken lenity, give greater comforts to a
convict than those which he would probably have enjoyed
while at liberty.

The power of pardoning should be only exercised in
cases of innocence discovered, or of certain and unequi-
vocal reformation.

Provision should be made for preventing the execution
of intended offences, whenever the design to commit them
is sufficiently apparent.

The remote means of preventing offences, do not form
the subject of penal laws. The general assembly will
provide them in their proper place. They are, the dif-
fusion of knowledge, by the means of public education,
and the promotion of industry, and consequently of ea#e
and happiness among the people.

Religion is a source of happiness here, and the foun-
dation of our hopes of it hereafter ; but its observance
can never, without the worst of oppression, form the
subject of a penal code. All modes of belief, and
all forms of worship, are equal in the eye of the
law ; when they interfere with no private or public



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SYSTEM OF PENAL LAW. 7

rights, all are entitled to equal protection in their
exercise.

Whatever may be the majority of the professors of
one religion or sect in the state, it is a persecution to
force any one to conform to any ceremonies, or to
observe any festival or day, appropriated to worship by
the members of a particular religious persuasion : this
does not exclude a general law, establishing civil festivals
or periodical cessations from labour for civil purposes
unconnected with religious worship, or the appointment
of particular days on which citizens of all persuasions
should join, each according to the rites of his own
religion, in rendering thanks to God for any signal
blessing, or imploring his assistance in any public
calamity.

The innocent should never be made to participate in
the punishment inflicted on the guilty ; therefore, no such
effects should follow cojiviction as to prevent the heir
from claiming an inheritance through or from the person
convicted. Still less should the feelings of nature be
converted into instruments of torture, by denouncing
punishment against the children, to secure the good con-
duct of the parent.

Laws intended to suppress a temporary evil should
be limited to the probable time of its duration, or care-
fully repealed after the reason for enacting them has
ceased



CHAPTER II.

Plan and division of the system of penal law.

Art. 1. This system comprises four distinct codes, and
a Book of Definitions. The first, called the Code of
Crimes and Punishments, is divided into two books,
containing : — General Principles ; and the description of



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8 SYSTEM OF PENAL LAW.

all acts or omissions that are declared to be offences;
with the punishment assigned to each.

Art. 2. The second is called the Code of Criminal
Procedure. It is divided into two books. It contains
the means provided for preventing offences that are
apprehended, and for repressing those that exist ; and
it directs the mode of proceeding for bringing offenders to
justice.

Art. 3. The" third k is the whole law of evidence, ap-
plicable as well to civil as to penal cases, and is called
the Code of Evidence.

Art. 4. The fourth contains a system of prison
discipline, in all the stages in which imprisonment is
used, either as the means of detention or punishment.
It is designated as the Code of Reform and Prison
Discipline.

Art. 5. The concluding division of the system is a
Book of Definitions, which defines all the technical
words or phrases that are used in the several codes.



CHAPTER III.

Introductory notice.

Art. 6. Whenever the office, trust, state, or relation
of tutor, ward, administrator, executor, ancestor, heir,
parent, child, ascendant, descendant, minor, infant,
master, or servant, and the relative pronouns, he or they,
as referring to them, are used, they are intended to mean
as well females as males, standing in those relations, or
exercising the same offices, trusts, or duties, unless the
contrary be expressed.

Art. 7. The general terms — whoever; any person;
any one ; and the relative pronouns — he or they, when
they refer to them, are intended to include females as



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SYSTEM OF PENAL LAW. 9

well as males, unless there is some expression to the con-
trary. The word man is used in this system, not as a
generical term, but to express a person of the male sex,
of whatever age. The term woman includes females of
every age.

Ait. 8. Whenever anything is forbidden or directed,
by using the general terms — any one ; one ; any person ;
whoever ; or the relative pronoun — he ; referring to any
such general term, the same prohibition or direction (if
the contrary be not expressed) is extended to more per-
sons than one, doing or omitting the same act.

Art. 9. Whenever anything is directed or forbidden
with respect to one object or thing, the same direction or
prohibition extends to more than one of the same objects
or things, and a direction or prohibition as to more
objects than one, includes the same prohibition as to a
single one of the same objects.

Art. 10. All words printed in small capitals, are
defined and explained in the Book of Definitions ; and
in all other parts of the system are used in no other
sense than that given to them by such definition or
explanation.

Art. 11. Every word or phrase, other than those so
printed, is to be taken and construed in the sense in
which it is used in common parlance, taken in connexion
with the context, and the subject relative to which it is
employed.

Art. 12. It is not intended that each article should
contain in itself a complete expression of legislative will,
on the subject of which it treats, independent of the
other articles of the same section ; the whole are to be
considered together ; to avoid repetition, a provision in
one article sometimes relates to something expressed in
another; an example of which is found in the article im-
mediately preceding this, where the words " so printed "
relate to printing in " small capitals," provided for in the
section preceding it.

Art. 13. Whenever the degrees of relationship between
persons are referred to, the degrees by affinity, as well



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10 SYSTEM OP PENAL LAW.

as consanguinity, are intended, unless the contrary be
expressed.

Art. 14. Whenever anything is forbidden or com-
manded for the protection of property or interest, and
the general term " person," or any other general term/ is
used, to designate the party whose property or interest
it is intended to protect by such prohibition or command;
in all such cases, the state, and all public and private
bodies corporate are included.



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A CODE OF CRIMES AND PUNISHMENTS.



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INTRODUCTORY TITLE.



This code is divided into two books, and each book into
titles, chapters, sections and articles, numbered through-
out the whole code.

The first book contains general provisions, applicable
to prosecutions and trials ; to the persons who are amen-
able to the penal laws of the state ; to the circumstances
under which all acts that would otherwise be offences
may be justified or excused ; to the repetition of offences ;
and to the case of different persons participating in
the same offence, as principals, accomplices and acces-
saries.

The second book defines offences, and designates their
punishments.



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BOOK L



CONTAINING GENERAL PROVISIONS.



CHAPTER I.

Containing general provisions relative to the operation of
the penal laws of this state.

Art. 1. No act or omission done or made before the
promulgation of the law which forbids it, can be punished
as an offence.

Art. 2. If an act or omission be created an offence by
one law, and the penalty be altered by another, no breach
of the first law, committed before the promulgation of the
second, can be punished by inflicting the penalty of the
latter.

Art. 3. After a penal law is repealed, no person can be
arrested, imprisoned, tried or condemned, for a breach of
it while it was in force, unless the repealing law has an
express provision to that effect

Art. 4. The distinction between a favourable and un-
favourable construction of laws is abolished. All penal
laws whatever are to be construed according to the plain
import of their words, taken in their usual sense, in con-
nexion with the context, and with reference to the matter
of which they treat.

Art 5. When a second penal law shall direct a new
penalty, the penalty of the first law shall be deemed to
be abolished, unless the contrary be expressed.



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CODE OP CRIMES AND PUNI8HMENTS. 15

Art. 6. A law which simply commands or forbids an
act to be done, but which contains no denunciation of a



Online LibraryEdward LivingstonThe complete works of Edward Livingston on criminal jurisprudence : consisting of systems of penal law for the state of Louisiana and for the United States of America : with the introductory reports to the same : to which is prefixed an introduction → online text (page 1 of 49)