James Madison Papers

James Madison to Edward Livingston, 27 December 1825

Montpellier Decr. 27. 1825

Dear Sir

Your favor of Mar. 13. came duly to hand, with a copy of the executed part of your penal Code for Louisiana. With every disposition to comply with your request in the full extent of it, the reflection could not escape me, that I ought not to obtrude suggestions affecting the essentials of your work, if any such occur; and that a critical examination of its details and definitions was a task belonging to others of your friends, having a greater surplus of time, and better qualified also by their professional Studies and experience.

Of the great object of your undertaking, that of simplifying and humanizing the penal Code, so much in need of both, I could not express more praise than is due: and however great the merit of the portion now brought into view, it will but fulfil the expectations authorized by the ability shewn in the "Introductory Report".

It can not be doubted, I think, that a legal Code may be digested & reduced to writing with the great advantages of ascertaining the law where doubtful; of explaining it where obscure; of reforming it where wrong in its principles; and of rendering it at once more systematic & more concise. But I can not overcome the doubts expressed, in a former letter, of the practicability, however desirable, of written enumerations & definitions so full & so precise, as to supersede altogether a resort to the explanatory aids of unwritten or traditional law. And I am still impressed, for the reasons there given, with the hazard of substituting, for compound technical terms, new ones whatever be the skill in chusing them.

None of these doubts however can restrain me from joining not only in the tribute due to your enlightened and philanthropic labours, but in the sincere wish that the result of them may receive the sanction & the experiment for which it is prepared. As a whole, it must be an incalculable improvement of the existing system. And if any of the innovations, so pleasing in theory, should prove exceptionable in practice, the inconvenience must be limited in its space, and may be made so in its duration.

From the tenor of some of the above remarks, you will probably concur with me in thinking, that a publication of them would not avail the purpose for which you seemed to desire it.

I sympathized very sincerely with the loss of your papers by the accident of fire. Besides the difficulty of recalling to mind their exact contents, there is a nausea in the efforts well understood by all who have had occasion to make them.

I must offer an apology for the long delay in making my acknowledgments for your polite & friendly communication. For a considerable time, it was not known where a letter would find you. And since your arrival at Washington, particular engagements have engrossed my attention, to which I might add, that I have been at no time unaware of the little importance of what must be the purport of a letter. With this explanation, I pray you to accept assurances of my high esteem & my best wishes

James Madison

RC (NjP: Edward Livingston Papers); draft (DLC).

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