University of Virginia Library

TO EDWARD LIVINGSTON.

Dr. Sir, I was favored some days ago with your
letter of May 19, accompanied by a copy of your
Report to the Legislature of the State on the subject
of a penal Code.[35]

I should commit a tacit injustice if I did not say
that the Report does great honor to the talents and
sentiments of the Author. It abounds with ideas
of conspicuous value and presents them in a manner
not less elegant than persuasive.

The reduction of an entire code of criminal jurisprudence,
into statutory provisions, excluding a
recurrence to foreign or traditional codes, and substituting
for technical terms, more familiar ones
with or without explanatory notes, cannot but be
viewed as a very arduous task. I sincerely wish
your execution of it may fulfil every expectation.

I cannot deny, at the same time, that I have been
accustomed to doubt the practicability of giving
all the desired simplicity to so complex a subject,
without involving a discretion, inadmissible in free
Govt. to those who are to expound and apply the
law. The rules and usages which make a part of
the law, tho' to be found only in elementary treatises,

in respectable commentaries, and in adjudged cases,
seem to be too numerous & too various to be brought
within the requisite compass; even if there were
less risk of creating uncertainties by defective
abridgments, or by the change of phraseology.

This risk wd. seem to be particularly incident to a
substitution of new words & definitions for a technical
language, the meaning of which had been
settled by long use and authoritative expositions.
When a technical term may express a very simple
idea, there might be no inconveniency or rather an
advantage in exchanging it for a more familiar
synonyme, if a precise one could be found. But
where the technical terms & phrases have a complex
import, not otherwise to be reduced to clearness &
certainty, than by practical applications of them,
it might be unsafe to introduce new terms & phrases,
tho' aided by brief explanations. The whole law
expressed by single terms, such as "trial by jury,
evidence, &c, &c." fill volumes, when unfolded into
the details which enter into their meaning.

I hope it will not be thought by this intimation
of my doubts I wish to damp the enterprize from
which you have not shrunk. On the contrary I not
only wish that you may overcome all the difficulties
which occur to me; but am persuaded that if compleat
success shd. not reward your labors, there is
ample room for improvements in the criminal
jurisprudence of Louisiana as elsewhere which are
well worthy the exertion of your best powers, and
wh will furnish useful examples to other members

of the Union. Among the advantages distinguishing
our compound Govt. it is not the least that it
affords so many opportunities and chances in the
local Legislatures, for salutary innovations by some,
which may be adopted by others; or for important
experiments, which, if unsuccessful, will be of limited
injury, and may even prove salutary as beacons
to others. Our political system is found also to
have the happy merit of exciting a laudable emulation
among the States composing it, instead of the
enmity marking competitions among powers wholly
alien to each other.

I observe with particular pleasure the view you
have taken of the immunity of Religion from civil
jurisdiction, in every case where it does not trespass
on private rights or the public peace. This has
always been a favorite principle with me; and it was
not with my approbation, that the deviation from
it took place in Congs., when they appointed Chaplains,
to be paid from the Natl. Treasury. It would
have been a much better proof to their Constituents
of their pious feeling if the members had contributed
for the purpose, a pittance from their own pockets.
As the precedent is not likely to be rescinded, the
best that can now be done, may be to apply to the
Constn. the maxim of the law, de minimis non curat.

There has been another deviation from the strict
principle in the Executive Proclamations of fasts
& festivals, so far, at least, as they have spoken
the language of injunction, or have lost sight of the
equality of all religious sects in the eye of the Constitution.

Whilst I was honored with the Executive
Trust I found it necessary on more than one
occasion to follow the example of predecessors.
But I was always careful to make the Proclamations
absolutely indiscriminate, and merely recommendatory;
or rather mere designations of a day, on which
all who thought proper might unite in consecrating
it to religious purposes, according to their own faith
& forms. In this sense, I presume you reserve to
the Govt. a right to appoint particular days for
religious worship throughout the State, without
any penal sanction enforcing the worship. I know
not what may be the way of thinking on this subject
in Louisiana. I should suppose the Catholic
portion of the people, at least, as a small & even
unpopular sect in the U. S., would rally, as they did
in Virga. when religious liberty was a Legislative
topic, to its broadest principle. Notwithstanding
the general progress made within the two last centuries
in favour of this branch of liberty, & the full
establishment of it, in some parts of our Country,
there remains in others a strong bias towards the
old error, that without some sort of alliance or
coalition between Govt. & Religion neither can be
duly supported. Such indeed is the tendency to
such a coalition, and such its corrupting influence
on both the parties, that the danger cannot be too
carefully guarded agst. And in a Govt. of opinion,
like ours, the only effectual guard must be found
in the soundness and stability of the general opinion
on the subject. Every new & successful example
therefore of a perfect separation between ecclesiastical
and civil matters, is of importance. And
I have no doubt that every new example, will succeed,
as every past one has done, in shewing that
religion & Govt. will both exist in greater purity,
the less they are mixed together. It was the belief
of all sects at one time that the establishment of
Religion by law, was right & necessary; that the
true religion ought to be established in exclusion
of every other; And that the only question to be
decided was which was the true religion. The
example of Holland proved that a toleration of
sects, dissenting from the established sect, was safe
& even useful. The example of the Colonies, now
States, which rejected religious establishments altogether,
proved that all Sects might be safely &
advantageously put on a footing of equal & entire
freedom; and a continuance of their example since
the declaration of Independence, has shewn that
its success in Colonies was not to be ascribed to their
connection with the parent Country. If a further
confirmation of the truth could be wanted, it is to
be found in the examples furnished by the States,
which have abolished their religious establishments.
I cannot speak particularly of any of the cases excepting
that of Virga. where it is impossible to deny
that Religion prevails with more zeal, and a more
exemplary priesthood than it ever did when established
and patronised by Public authority. We
are teaching the world the great truth that Govts.
do better without Kings & Nobles than with them.
The merit will be doubled by the other lesson that
Religion flourishes in greater purity, without than
with the aid of Govt.

My pen I perceive has rambled into reflections
for which it was not taken up. I recall it to the
proper object of thanking you for your very interesting
pamphlet, and of tendering you my respects
and good wishes.

J. M. presents his respects to Mr. [Henry B(?)].
Livingston and requests the favor of him to forward
the above inclosed letter to N. Orleans or to retain
it as his brother may or may not be expected at
N. York.