consequences, if taken literally, and mocks us by a reference to an inaccessible source for an explanation of its obscurities."

What could a candid man say to this reply? Every such man must acknowledge the justice of the reproach, and confess that such laws are a disgrace to the jurisprudence of his country. But this is not all. How shall we characterize the legislation that confounds, under the same denomination of crime(a), intentional and negligent homicide; and permits the judge to punish the same offence by the fine of a cent, or imprisonment at hard labour during a term equivalent to the usual duration of human life; while, for premeditated homicide, under any circumstances, according to the explanation given of it to a majority of the inhabitants, the uniform punishment is death.

ΟΙ

A few months after the passage of this law, the same legislature attempted to amend it, by enacting that all murder by persons lying. in wait, or any other kind of deliberate and premeditated killing,' which shall be committed in the perpetration of certain enumerated crimes, "shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree." Here all murder by premeditated killing forms one degree; but premeditation is the only characteristic given by the former statute, and an essential one given by the common law, in the definition of all kinds of murder. What, therefore, is left for murder in the second degree?

The fifth section of this act is a curious specimen of legislative indifference. It provides that a prior offender shall be punished as is directed by this act, or by the act to which it is a supplement, that is, by imprisonment or by death; but whether the alternative is given to the choice of the culprit, to the direction of the court, or to chance, the law mantains a most dignified silence. This statute has been repealed, but it was not until the year 1818 that its absurdity forced itself upon the notice of the legislature. A similar instance may be found in a law passed the 25th March 1813, against carrying concealed weapons. By the second section of which it was enacted, that if any one should "stab or shoot, or in any way disable another by such concealed weapons, or should take the life of any person, he should suffer death, or such other punishment as in the opinion of the jury should be just." I quote the words of this statute as an instance of the style of legislation which put it in the power of the jury to select any species of punishment, from simple fine or reprimand, up to mutilation, torture and death; and that too for giving a slight wound, or in any manner whatever taking the life of a person, even in self defence, for there is no exception in the law. Yet this section was suffered to disgrace our penal law for five years. It was repealed in the year 1818. But the first section is still in force; by which any one who suspects I have a knife in my pocket, may obtain a warrant to take me before a justice, who is authorized to have me searched, and should the knife be found, he is obliged to make me pay at least ten dollars to the person who gives the important information, and as much to the state; and this sum may at his discretion be more than doubled.

The following provisions, taken without much selection, will suffice to show the want of proportion between punishments and offences that

(a) See the different divisions of manslaughter by the English law-into that by sudden provocation, se defendendo, and fortuitously in the performance of an unlawful act.

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now reigns in our laws. To break the iron collar(a) of a slave must be punished by a fine of at least two hundred dollars and imprisonment for at least six months. While the court may punish him who kidnaps a free person with a fine of ten cents(b); and even for a second conviction for this odious crime there is no maximum, and the imprisonment may be only for a day.

By another statute now in force, "if a woman shall be delivered of any issue of her body, and shall endeavour privately, by drowning or secret burying thereof, or in any other way," "so to conceal the death thereof that it may not come to light whether it be born alive or not," she and those who aid, &c. shall be imprisoned not less than five nor more than fourteen years. This is a refinement upon the reprobated statute of James 1st, which is not more objectionable from the severity of its penalty than the want of principle which made the concealment of the birth such evidence of the murder as to throw the contrary proof on the accused. But even that statute permitted the unfortunate mother to exonerate herself by showing that the child was born dead. Ours, on the contrary, inflicts the penalty for the offence of concealment, or the private burial of a monstrous or abortive birth. That statute confines its provisions to the case of a child which, if born alive, would have been a bastard. Ours, indiscriminate in its provisions, makes no such distinction; neither the unfortunate victim of seduction nor her nearest relations are permitted to avail themselves of the accident or the dispensation of providence, which may offer for the concealment of her weakness; and the modest respectable matron must expose to the world-But enough, the disgust due to the law would be excited by the work which details its consequences, were the subject to be pursued further. It cannot escape remark that the same punishment is incurred for the crime of drowning, which, if I understand the language, can only be applied to a living infant, that is denounced for interring a dead one.

A legislation equally vacillating and inconsistent with true principles, is that on the subject of unsuccessful attempts to commit homicide. It began by the law of the 7th June 1806. By that law, to administer poison, to stab, or to shoot, with intent to murder, is punishable, with death. But by a prior law, to which I have before referred, one species of murder was punishable only by imprisonment. A strong inducement was here offered the offender if he dreaded death more than labour, to adopt the ferocious motto of the highland chieftain, by making sure work.

In 1813, stabbing or shooting with any intent, if done with a concealed weapon, was death. In 1818 this law was repealed, and the act of 1806 remained unmodified until 6th of March 1819. It was made punishable with death to shoot, stab or thrust any one with a dangerous weapon, with intent to murder, if done by lying in wait or in the attempt to commit any arson, rape, robbery or burglary; and by the second section, shooting, stabbing, thrusting with a dangerous weapon with intent to commit murder, under any other circumstances, is punishable by hard labour only from one to twenty-one years, a wide field for the exercise of judicial discretion.

This act creates a serious ambiguity in each of its sections. What (b) Ib. section 6.

(a) Law 6th March 1819, section 5.

is a dangerous weapon? A cambric needle thrust into the spine is as dangerous as a sword. Yet it can scarcely be called a weapon.

Again, a thrust with the fist of an athletic man without any weapon at all may be as dangerous as any offensive weapon. This result then may follow; if in the perpetration of robbery, the offender attempt to murder a defenceless man or a child by thrusts with his fists, or to commit a rape and murder his victim by endeavouring to smother her with a blanket, although he is prevented from the accomplishment of his crime only by the rescue of the sufferer, he escapes the penalty of the law; but if in attempting the same crimes he should be attacked and make an effectual thrust with a sword in the heat of a scuffle, with intent to kill (for all killing in the perpetration of the robbery would be murder), he would suffer death, although the attempt should be abandoned as soon as it was made, or although it was only made to defend himself from arrest.

Again, there is no positive repeal of the first section of the law of the 7th June 1806. But the second section of the one we are considering provides, that to shoot, stab, or thrust with a dangerous weapon, and with intent to murder, shall in all other cases but those provided for by the first section, be punished by hard labour only. This last enactment, therefore, is not so broad as that of 1806, which does not contain the qualification of a dangerous weapon; therefore, as the law now stands, a stab with an instrument that could not come within the description of a weapon, would now under the first act be punished with death, while the more heinous case of a stab with the same intent with a dangerous weapon, might be punished with imprisonment for one year only.

Önce more let me respectfully ask whether this part of our jurisprudence does not want revision? But this is only one head; the same or greater defects may be found in all. The same enacting, explaining, implied repealing and accumulation of provisions on the same subject, until in the short period of twenty years, our legislation has become so confused that the people, and (the truth is so evident that I shall not offend them when I add) their representatives too, are incapable of discovering what the law requires or forbids. The following instances may justify my assertion.

By the act of 19th March 1818, the punishment of accessaries after the fact (a) to any crime, of course including murder, are to be punished by fine and imprisonment, at the discretion of the court; and that discretion(b) is limited in all cases to fine of one thousand dollars and imprisonment for two years. On the very next day a law is passed punishing the accessaries after the fact of burglary (c) by solitary confinement for one year and imprisonment at hard labour for five years. So that you may aid the escape of a murderer, by our laws, at infinitely less risk than you incur by performing the like service to one who has, at night, only lifted the latch of a sugar-house(d) and stolen a pint of molasses.

(a) Act 19th March 1819, section 9. (c) Act 20th March 1818, section 6.

(b) Ib. section 12.

(d) By the 5th section of the act 20th March 1818, breaking into a sugar-house at night, with intent to steal, is made burglary.

Larceny (a) is punished by imprisonment at hard labour for any term not exceeding two years; while the lesser offence, of obtaining property on false pretences, incurs the corporal punishment of whipping and imprisonment for one year(b); and by this law, such fraud is somewhat strangely declared to be an offence against the public peace. By the act of 6th March 1819, the aiding(c) a slave to run away is punishable by imprisonment at hard labour, not less than two or more than twenty years; while kidnapping a freeman(d) incurs only fine, not to exceed one thousand dollars, and imprisonment not to exceed fourteen years. The judge must punish the first crime at least by two years imprisonment, but may suffer the greater offender to escape with a nominal punishment.

Not to burthen this report with a longer enumeration of these discrepancies, I have thrown into a tabular form an account of all the statute offences with their present and former punishments. A few other instances of incorrect legislation in our present penal law will enforce the necessity of reform. One embarrassing defect arises from the numerous dissimilar provisions in relation to the same subject in successive statutes which contain no repealing clauses; leaving it in many instances very difficult to determine whether the penalty was intended to be changed or commuted. Slave stealers, by the act of 1805, are to be publicly whipped and imprisoned at hard labour not less than seven nor more than fourteen years. By the act of 6th March 1819, they are to be imprisoned not less than two nor more than twenty years. Was the intent of the latter statute to take away the whipping, or only to extend the limits of judicial discretion as to the term of imprisonment(e) ?

Nearly the same difficulty occurs as to larceny. By the first law, whipping and imprisonment in the alternative of not restoring the goods stolen, is the punishment. The subsequent act only declares that it shall be punished by imprisonment.

Stealing or robbery of bonds, hills or notes, is not larceny at common law. It is made so by statute in England; and as lacerny was to be defined by the common law, not by statute, they are enumerated in the act of 1805; and it is declared that the stealing of them shall be punished in the same manner, both as to principal and accessary, as robbery or larceny of goods and chattels. Does this relate to the punishment prescribed by that act? or is it prospective, so as to adapt itself to any other punishment that may afterwards be provided for larceny? If it is not, stealing of bonds and notes, since the passage of the last statute, is punished differently from other larceny.

In all these instances, and they might be multiplied, there is no express repeal of the prior statutes; and as there is nothing incompatible between the punishments of whipping and imprisonment, the strongest, perhaps the only good foundation for an implied repeal is taken away. Yet the degrading punishment inflicted by the first law is so repugnant to the feelings of freemen, and I may add, in a country like ours, so

(a) Act 19th March 1818, section 1. (c) Ib. section 3.

(d) Ib. section 6.

(b) Act 3d July 1805, section 2.

(e) I have an impression that the learned judge of the criminal court of New-Orleans expressed a leaning towards the latter alternative. If I am not mistaken in this, the doubt is supported by very high authority.

dangerous to its peace, that the rules of construction have been disregarded, and a new instance afforded in which the duty of the legislature has been transferred to the judiciary. They have hitherto exercised it with discretion; but these doubtful laws may hereafter be made engines of oppression as well as of favour.

Another evil in our present legislation is the loose manner in which offences are defined. I will not here repeat the objections arising from the references to the foreign law, although they press upon the mind in every view that is taken of the subject; but there are cases in which even the obscure light of the common law is denied us. The statute of 22d February 1817 enacts, "that every person who shall commit the abominable crime of incest shall suffer imprisonment at hard labour for life." Here our guide entirely fails us. Incest was a crime unknown to the common law. During the rule of the Puritans in England, that, and every species of incontinence, were made capital crimes. The statute, we are told, was not renewed at the restoration, With us, if and I am ignorant what definition it gave to the crime. the Spanish laws are repealed, the law must be a dead letter, or the judges must make a law explaining the term. If the Spanish laws are not repealed, we must look to them for the definition; and if they But what will in either case be the serious conseare, we may. quences? In the definition of this crime by that law we have seen that incest means a carnal connexion between parties related, either by affinity or consanguinity, to the fourth degree; and as the degrees are counted by the canon law, it would bring within the penalties of this law not only the children but the grandchildren of brothers; and even if we look to the English law of matrimony, as well as to the Spanish statute, the sister of a wife is included in the prohibition. After the death of the wife it is not uncommon for the husband to marry her sister. Suppose such a connexion to be lawfully made in New York, and the parties remove to New Orleans where they continue to cohabit. By adopting either of these definitions this is the abominable crime(a) intended by the statute, for which both of them must be consigned to the penitentiary for life. What rule shall we resort to in order to give efficacy to this highly penal statute? The law gives no guide; and it would be monstrous to suppose the unconstitutional intent, that it should be framed or adopted by the judges.

By the act of the 7th June 1806, any judge, justice of the peace, sheriff or other civil officer, who shall be guilty of any misdemeanor in the execution of their respective offices, shall suffer fine or imprisonment, or both. Now, without repeating the argument formerly used, that the reference to the law of England does not extend to offences under this law, let us ask what is misdemeanor? Christian, in his notes to Blackstone, says, "in the English law, misdemeanor is generally used in contradistinction to felony; and misdemeanors comprehend all indictable offences which do not amount to felony." But, by our law, there can be no indictable offence but those created by statute; but every statute that has created an offence with us has also prescribed the punishment. What therefore has this law to operate upon? Nothing, if it relate only to offences that were indictable before; but if it mean something else, and is intended to create a new

(a) Vide 7 Part. tit. 18, 1. 1.