James Madison Papers

From James Madison to Edward Livingston, 10 July 1822

To Edward Livingston

Montpellier July 10. 1822.

Dear 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.

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

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

I can not deny at the same time, that I have been accustomed to doubt the practicability of giving the desired simplicity to so complex a subject, without involving a discretion, inadmissable in free govt; to those who are to expound and apply the law. The rules & usages which make 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 would 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. Where 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 synonime [sic], if a precise one could be found. But where the technical terms & phrases have a complex import, not otherwise to be reduced to clearness and certainty than by practical applications of them, it might be unsafe to introduce new terms & phrases, though aided by brief explanations. The whole law expressed by single terms, such as “Trial, jury, evidence & &c.” fill volumes when unfolded into the details which enter into their meaning.

I hope it will not be thought that 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 should not reward your labours, 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 which will furnish useful examples to other members of the Union. Among the advantages distinguishing our Compound Government, it is not the least, that it affords so many opportunities & 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 point with me: and it was not with my approbation, that the deviation from it took place in Congress when they appointed Chaplains to be paid from the national Treasury. It would have been a much better proof to their Constituents of their pious feelings, 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 Constitution, the maxim of the law, de minimis non curat.1

There has been another deviation from the strict principle, in the Executive Proclamations of fasts and 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.2 In this sense, I presume, you reserve to the Government a right to appoint particular days for religious worship throughout the State; without any particular3 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 and even unpopular Sect in the U. S., would rally, as they did in Virginia, when religious liberty was a Legislative topic, to its broadest principle.

Notwithstanding the general progress made within the two last Centuries in favor of this branch of liberty, and 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 Government & 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 can not be too carefully guarded against. And in a Government of opinion, like ours, the only effectual guard must be found in the soundness & stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical & 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 all others; 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 and 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 can not speak particularly of any of the cases excepting that of Virginia, where it is impossible to deny that Religion prevails with more zeal, and a more exemplary priesthood, than it ever did when established and patronized by Public authority. We are teaching the World the great truth, that Governments 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 Government.

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 & good wishes.

James Madison

RC (NjP: Edward Livingston Papers); draft (DLC). Beneath his initials on the draft, JM drafted a letter to John R. Livingston, dated 11 July 1822: “J.M. presents his respects to Mr. Livingston and requests the favor of him to forward the above enclosed letter to N. Orleans or to retain it as his brother may or not be expected at N. York.” Minor differences between the copies have not been noted.

1De minimis non curat lex: “the law does not concern itself with trifles” (Black’s Law Dictionary [9th ed.], 496).

2During his presidency, JM issued proclamations declaring particular days of public prayer on 9 July 1812, 23 July 1813, 16 Nov. 1814, and 4 Mar. 1815: each was in response to a congressional request (PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (7 vols. to date; Charlottesville, Va., 1984–). description ends 4:581–82, 6:458–59; Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 13th Cong., 3d sess., 1828–29; Daily National Intelligencer, 6 Mar. 1815). For a similar warning against religious proclamations by the executive branch, see JM’s “Detatched Memoranda,” ca. 31 Jan. 1820, PJM-RS description begins David B. Mattern et al., eds., The Papers of James Madison: Retirement Series (2 vols. to date; Charlottesville, Va., 2009–). description ends 1:615–17.

3In draft, JM wrote “penal.”

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