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performed, long after the law has been made, by judges who had no agency in making it, cannot deny that it may be better done at the time of giving the law, by the legislator from whom it emanates, who may reasonably be supposed best to know his own intentions. If after having expressed his will in general terms, he should find, on reflection, that the words he has employed will admit of several constructions, one of which only he intends to enforce; if he should find that after settling the direct application of the law, deductions may be made from it, which he did not intend to allow; if, from certain false reasonings which have prevailed, or which circumstances induce him to fear may prevail, he is inclined to apprehend that his law will not be applied to the cases he intended; or, lastly, although he intends that his law shall apply generally, if he should find there are certain cases which he desires to except from its operation, what, under such circumstances, is it the part of a wise legislator to do? To devolve upon the judiciary the task of expressing his real intent, of making his deductions, stating his exceptions, and giving to his law all the extension and restriction which it was his object to effect? Or to perform, as far as may be practicable, his own duty? The only reasonable answer that can be given to this inquiry would justify the course that has been taken. It is scarcely necessary to reply to the objection, that after all the elucidation that can be made, the law may be obscure; after all the care that can be taken, it may be imperfect; after all the cases that can be foreseen, others will be found to have been omitted. No duty of society, moral or religious, would be performed, if we were deterred by such arguments. Yet, strange as it may appear, this fallacy has its effect, and we submit, particularly in jurisprudence, to oppressive absurdities, because no remedy can be proposed for removing them, that does not bear the mark of all human institutions, that of having some defect or inconvenience attached to it. But, although new in the simplicity of its form, this feature of the code is not entirely so in substance. It takes the place, advantageously it is hoped, of the loose preambles formerly used, and in some instances retained in our legislation; of the provisions exempting particular subjects from general enactments; and in a great measure supersedes the class of statutes whose titles, an act to explain, an act entitled, an act to amend, an act in addition to, an act to repeal, an act, &c., were a puzzle, and the references of which, from one statute to another, were as difficult to trace as the most involved table of descents.

The Introductory Reports to the several Codes of crimes and punishments, of procedure, of evidence, and of reform and prison discipline, which compose this system, will be found to contain a notice of the changes in our present law, on those subjects respectively which are proposed, and the reasons at large for introducing them. They will be longer and more argumentative, as this has been, than would have been necessary, if, still a member of your honourable body, I could meet objections as they are raised, and make the corrections which your superior wisdom would suggest. Having offered nothing without reflection, I have reasons for all I have proposed. Many of them, probably, will be found insufficient to support my conclusions, but those conclusions are honestly if not wisely drawn, and the system which they support is submitted in the full confidence that it will receive a air, a full, and a deliberate consideration. Fair, without prejudice

against the reporter for the opinions he may entertain on other subjects, or against his doctrines for their novelty; full, after a consideration of the whole system and the bearing of its different parts on each other; deliberate, without rejecting any one provision, until the reasons for proposing it have been maturely weighed and its probable effects calculated. A decision thus made must be wise, and will doubtless prove satisfactory to your constituents, and honourable to your country and yourselves.

INTRODUCTORY REPORT

TO THE

CODE OF CRIMES AND PUNISHMENTS. ·

AFTER noticing and accounting for some variations in the arrangement of the work from the original plan, and giving a slight reference to some of its leading principles, it is proposed in this report to review the CODE OF CRIMES AND PUNISHMENTS, examine the principal changes it purports to make, and offer the reasons on which they are founded.

By the Report on the Plan of a Penal Code(a) made in 1822 it was proposed to comprise the whole system of penal law in one code, giving a separate book to each of the four divisions-crimes and punishments, procedure, evidence, and reform and prison discipline, and to appropriate another to the definition of the technical terms used in the body of the work. It was, however, soon discovered, that, by this arrangement, the subdivisions of titles, chapters, sections, and articles, would not be sufficiently numerous for preserving order in the distribution of each of the several great divisions; by throwing them into distinct codes, an additional great division was gained, and an easier mode of reference procured. Each of those great divisions, therefore, in the system now presented forms a separate code, and the book of definitions is a kind of appendix to all, and preserves the form originally given to it. This is merely a change of form. But there is also a material addition in point of substance: two institutions are provided for in the code of prison discipline, under the titles of the School for Reform and the House of Detention, which were only incidentally referred to in the original report; the necessity for which is fully explained in the introductory report to that code. With this variation and these additions, the plan contained in the report, which received the sanction of the legislature, has been strictly pursued.

Most of the reflections which would find their place in a general view of the system, have been either anticipated in the report, or will so readily occur to the members of the General Assembly, that it would be abusing their indulgence even to advert to them here. There are some, however, of such importance that they cannot be totally omitted; but in discussing them, all arguments formerly used will either be carefully avoided, or referred to no further than is deemed necessary (a) Report on the Plan of a Penal Code, p. 6.

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for the understanding of any new course of reasoning, or the application of any new facts, that may be introduced.

At our entrance on the subject we are met by the difficulty of discovering the true theory of penal law. Philosophy must point it out, for it depends on a deep investigation of the faculties of the human mind, and of their usual employment; and wise legislation must adapt it to the use of mankind. At no preceding period has the science of jurisprudence, and more particularly penal jurisprudence, attracted such close attention as at present. At no period has the progression I have referred to, from theoretic truth to practical utility, been more apparent, or promised more important and beneficial results. Learned and good men are directing their time and talents to the subject; and in the intellectual conflict which this interesting discussion has produced, it is highly gratifying to observe, that the principles which you have sanctioned have been confirmed by the best opinions, and supported by the most conclusive arguments. Even those who disagree on other points, unite in approving the general doctrines on which you have directed your code to be prepared; although, as might be expected, they differ in the conclusions that may be drawn from them, and refer their authority to different sources. Thus, while all agree that the true end of penal jurisprudence is to prevent crimes, and that the doctrine of vindictive law is in the highest degree absurd and unjust, some insist that crimes are to be repressed only by the example of punishments; others, that reformation is the only lawful object. Some refer the right to punish to an implied contract between society and its members; others, to the principle of utility alone; and there are those again who admit of no other standard than abstract justice. Each of these has its partisans in the conflict. Without entering into the abstract reasoning to which they lead, we may content ourselves with this important result :-that whether the right to punish be founded on contract, or utility, or justice; whether the object be to punish or reform; whatever be the true doctrine on either of these subjects, we have the satisfaction to know, that by a singular felicity, if either theory be right, the practical results we have drawn from our reasoning cannot be wrong, for all the provisions of our system coincide with abstract justice, with general utility, and with the terms of any supposable original contract; and whether reformation, or punishment, be the true means of preventing crimes, our plan of prison discipline will effect the end, for it embraces both.

If upon a critical examination of the system proposed to you, it should be found to have this extraordinary adaptation to principles that have been considered as discordant, it will certainly go far to prove that the theoretic disputes have turned more upon terms, than on any real difference between them. For instance, if the supposed social contract ever existed, the foundation of it must have been the preservation of the natural rights of its members. And this makes it, in all its effects, the same as the theory which adopts abstract justice as the basis of the right to punish; which, properly defined, is only that which secures to every one his right; and if utility, the remaining source to which this power is referred, be found to be so closely united with justice, as in penal jurisprudence to be inseparable, it will follow that any system founded on one of these principles, must be supported by the other.

In the same manner, as to the means for attaining the object common

to all, the prevention of crime, if the most efficacious punishment is that which also best produces reform, then the several theories are reconciled in practice, however they may differ in the arguments they

use.

It has therefore been thought more proper to abstain from entering the lists of controversy with either of the disputants, and to adopt, implicitly, the tenets of neither school; but to be content with uniting, if we can, the suffrage of all in the practical results we shall establish. There is, however, one of these results, which, although clearly deducible from the first principles established by all, is not yet generally admitted in practice; that feature which so honourably distinguishes from the existing laws of any other nation, the plan your predecessors unanimously approved, and which has been one exciting cause of the attention which the European world is now giving to the subject: you may easily imagine that I mean the abolition of the punishment of death. Seldom has any doctrine made such rapid strides as this has in public opinion. Although opposed by inveterate prejudices, long habits, mistaken religious opinions, and the general indefinite fear of innovation; yet its proselytes are becoming every day more numerous; the example of our state is every where quoted; the future measures of its legislature are expected with the greatest interest; and the final abolition of a punishment, repugnant to our natures, is expected from you with confidence, not unmixed with anxiety, by the whole civilized world. An enlightened citizen of Geneva (a) has published proposals for a prize

(a) Mr Sellon, member of the sovereign representative council of Geneva, as early as 1816, proposed to the Council to abolish the punishment of death; and in 1826 he offered the prize referred to in the text. In his proposals, after citing the opinions of Beccaria and Bentham, he adds-"I finish these observations by producing a document the most recent and the most conclusive in favour of my proposition. It is the accession of the general assembly of Louisiana to the principles laid down by Mr Livingston in his report. My fellow citizens will there see a republic adopting dispositions, of which the principal one is, the absolute suppression of the punishment of death." He then gives a copy of our law of 1820, the certificate of my appointment, all that part of the report relating to the punishment of death, and the resolution approving of the report. In a note on the law, he says,"Having no other object in this writing than to convince my fellow citizens that the abolition of the punishment of death would be a measure both useful and honourable for my country, I have thought that this end could not be better attained than by making them acquainted with the report of Mr Livingston, made to the general assembly of Louisiana. Louisiana is a republic. It is a component part of an illustrious union, as we form part of the Swiss confederation; and the constitution of the United States, as well as our federal act, permits the members to provide for themselves the best laws, even when they differ from those of the other states. We owe to Mr Taillandier the translation of this report," &c. And he concludes his programme by citing the examples of modern nations, in which this abolition has been carried into effect. 1. Russia, under Elizabeth. 2. Tuscany, under Leopold. 3. "Louisiana, in America, which, on the report of Mr Livingston, by a solemn resolution of the sovereign assembly, has decreed the absolute suppression of this punishment. This report, in which it will be seen that the author has collected all the experience of the past and present times*, appears to me to be a document of the greatest interest for Geneva, whose position, population, and constitution, have a great resemblance to those of

* He who can accuse me of vanity in making this and similar citations, is incapable of comprehending how utterly this miserable boyish feeling is incompatible with the frame of mind necessary for the consideration of subjects on which the happiness of a nation may depend. Feeling myself superior to such suspicions, I shall not sacrifice any thing that I think may promote the great object, to the fear of incurring them.

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