discretionary fine a penalty too light to be felt; and in which his poverty might change the lowest into utter ruin. To avoid as much as possible these inconveniences, the fine, in most cases, is accompanied by a discretion to commute it into simple imprisonment, which may be inflicted on those whose circumstances would enable them to despise a fine; and on the other hand, to avoid the oppression and ruin of the poor, it is provided that no fine shall ever exceed one-fourth of the clear property of the delinquent; and still further to secure the indigent from ruin, and at the same time to provide for his punishment; where there is no property, the fine is to be commuted into imprisonment, calculating one day for every two dollars(a) of the fine, limiting it, however, so that whatever may be the amount of the fine, the imprisonment shall not exceed ninety days. Fines are also rendered more equal, when inflicted for a breach of official duty, by apportioning them to the amount of official emolument. There are also general rules, intended to impress on the mind of the judge the principles by which he ought to be guided, in the exercise of the discretion vested in him by the law. These will be found in the Code of Procedure, and the reasons for those directions in the Introductory Report to that Code.

The collection of fines is regulated by the same rules which govern executions in civil cases; giving to the state no preference over other creditors, but from the time of registering the order imposing the fine. Considering fine as a personal punishment, the death of the offender operates as a discharge at any time before it is paid. Any other arrangement would make it operate as a partial forfeiture upon his heirs.

Forfeiture and suspension of certain civil and political rights are also punishments inflicted by the code. They are applied chiefly to misdemeanours in office, and to such offences as show the want of the proper qualities to perform the duties which are required by them. These are sparingly inflicted, because, if too frequent, it would create a body of men in the community discontented with their situation and ready to promote any violent change.

Among the civil rights, however, which are forfeitable, is not found that of testifying. The reasons of making this change, are set forth at some length in the Introductory Report to the Code of Evidence. Here it will be sufficient to remark, that such a disqualification would be a most serious punishment to persons whose property, reputation, or life, might depend on the testimony of the person disqualified, but could be none to him.

In apportioning punishments to different modifications of the same offence, a mode has been adopted which appeared simple and easily understood. It is that of directing the increase or diminution of the punishment for the simple offence to be made by a fractional proportion; for instance, the punishment for assisting at an unlawful assembly, is fine from fifty to three hundred dollars, and imprisonment from three to twelve months; but as this offence is more reprehensible in a magistrate, or other officer, it is provided, that if any such are guilty of it, the penalty shall be doubled. The same effect might be produced by

(a) This valuation of a day's imprisonment may seem high, but a just regard for personal liberty induced a belief that double the standard of daily wages would not be deemed excessive.

enacting in the article relating to such modification of the offences, that the punishment should be fine from one hundred to six hundred dollars, and imprisonment not less than six nor more than twelve months. But the contrary course was adopted; because, being equally intelligible, it avoided repetition, which, as all the conciseness consistent with perspicuity was studied in framing the code, made it an object of some importance; and because the precise proportion being enounced in declaring the penalty, the aggravation or diminution of the guilt was more readily impressed on the mind. A reference to the rules for making these apportionments will enable the general assembly to judge of the expediency of the provision. It is one, however, of mere convenience; does not touch any of the essential features in the code, and if disapproved, the same end may be produced by a labour nearly mechanical, of inserting the augmentation and diminution at length in each of the cases where it is directed to be proportionably increased or diminished. The only very material objection to this change would be increasing, without necessity, the bulk of the work, and destroying the association of ideas which it was intended to preserve.

Before entering into the examination which it is proposed to make of the classification and definition of the several offences, one or two of the general and peculiar features of the code must be adverted to.. The first is, the enunciation of the general principles on which it is founded. In the first arrangement of the work, this idea occurred as one of the highest utility: and although it was perfectly unprecedented, I was not deterred from the execution by its novelty. The advantages are recited in the chapter itself, and need scarcely any elucidation(a). If it be conceded, that the people ought to know, not only what their agents have done, but their reasons for doing it; that any work, and particularly that of legislation, will be better done when the object is clearly defined, and the means and rules for attaining it have been attentively considered; that uniformity is necessary, and that it will be better preserved by having a record of the grounds upon which former laws were made;if any of these things be conceded, then is that part of the code a valuable improvement, provided it contains the true principles of penal legislation such as cannot change, and which, if good now, will remain so for ever. These, once observed, once acknowledged to be the rule; every future law will be measured by their standard. Then, no more discordant provisions; no more vacillating legislation; no more accumulation of statutes, upon the same matter; none of those evils, in short, which are contrary to these principles. They will perform the office of a constitutional rule, not, indeed, avoiding those laws which are made contrary to it, but preventing their very existence. I rely more on the importance and utility of this part of the work, because it is that which, both in its form and substance, has received the most decided approbation of all those who, both in Europe and America, have made it the subject of examination or criticism.

An introductory notice contains the explanation of certain provisions intended, chiefly, to avoid circumlocution and repetition, in the course of the work. The disgusting tautology of the English statutes, from which our own are not entirely free, is by this means avoided. The strictness with which their judges adhered, at times, to the letter of the

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(a) Preamble to the Penal Code.

statute, induced the necessity of ringing all the chances which number, gender, and time required, to bring within the words of the statute, every possible case which they could govern, and the inconvenience has been so much felt, that a bill has lately passed, containing in substance(a), the same enactments for avoiding it, that are contained in the third chapter of the code I now present.

One article of this chapter relates to another feature in the system that is entirely new, but it is thought a very important improvement. I mean, the definition of all the technical words or phrases used in the work. The utility of this must be acknowledged by those whose objection to the introduction of the new code is, that it will unsettle the signification that has been affixed, by judicial decisions, to words most commonly used in statutes. Now if this certainty be, as it unquestionably is, an advantage of the first consequence; then its benefit must be in proportion to the degree of certainty which is given; but judicial decisions cannot, from their nature, give this certainty in as great a degree as positive law; the book of definitions therefore will be positive law, and in order to know the sense in which any word is used in the code, it will be only necessary to turn to its definition, instead of poring over a countless number of volumes, and endeavouring, from their incomplete or contradictory statements, to find the sense in which it has, at times, been employed in different cases. But it must be observed, that although the endeavour has been to preserve as much as possible

(a) The following extract from Mr Peel's speech, introductory to this bill, will show, that this part of the plan has been deemned worthy of adoption in Great Britain.—“ I certainly have set the example to the house of drawing up such bills for the future, in an intelligible manner. Not being myself a lawyer, and possessing, of course no technical knowledge, I do confess, sir, that there is no task which I contemplate with so much distaste; as the reading through an ordinary act of parliament. In the first place, the long recapitulations, the tedious references, the constant repetitions, the providing or designating offences as punishments for the specific case of men, women and children, and for every degree and relation in society, and the necessity of indicating these several personages, and matters by as many appropriate relations and designations-then the confusion resulting from the attempt to describe, and constantly referring to many different descriptions of property. Really, sir, all these various repetitions, recapitulations, and references are so tedious and so perplexing, that I for one, almost invariably find myself completely puzzled before I get to the end of a single clause. The mode I have adopted in this bill to obviate all this confusion and uncertainty, does seem to me, I speak it with submission, much more eligible and precise than the usual phraseology, adopted in these acts, and might, I cannot help thinking, be pursued with advantage in bills which may be brought in hereafter. I will give you an example. It is enacted in my bill, that if any person be convicted of entering into and stealing in any house, room, &c. he shall be liable to a certain penalty; and in the conclusion of the act, that there may be no doubt arising from want of specification of sex or the identity of the offender, there is a clause to this effect: And in order to remove all doubt as to the meaning and intention of certain words in this act, be it hereby further enacted, that whenever the words person, party, offender,' and so forth occur, they shall each and all of them be deemed to intend and demonstrate any number of persons or parties; and of any sex, being the offender or offenders under this act.' If any person, therefore, commit an offence contemplated by that act, he will, under the general description, be liable to the penalty affixed to such offence. My bill, therefore, will include every person, male, or female, and of every rank or condition of offending under its enactments. Owing to the various lights in which I have considered this provision and the extent which I have thus given to the bill, I am afraid it will be impossible to frame one more comprehensive."

the same words that are used in common parlance, to express the same ideas, yet, whenever there was any uncertainty, the signification has been fixed according to the sense in which the expression is used in the code; and that philological science has always been sacrificed to certainty and precision. The Book of Definitions, therefore, must not be consulted as a dictionary of the language of the country, but of that of the Code, whenever the uncertainty of the former created the necessity of declaring in what sense the term is employed.

I will not attempt to conceal from the general assembly, the extreme difficulty of this part of my labour; more than any other, it exercised my closest and intensest attention, and I think it has not been exercised in vain. I think so, not only from the satisfaction of my own mind, but from the approbation of men who have had the kindness to employ high intellect, enforced by official duty, to the task of close thinking on legal subjects, in trying to detect the errors of that part of the work: and who have given me leave to say, that they have found none. These venerable names, with the opinions they have given, will be found in the appendix. But whatever weight is due to this authority, I disavow any design of sheltering myself or any thing I have done, behind it. It is the duty of the general assembly to judge for themselves, and for the people to whom they are accountable. To their judgment I submit. Another advantage of this feature in the system is this; that however imperfect it may be at present, the law for giving effect to the code contains enactments for its amendment and progression towards that improvement, which all your penal laws, by this arrangement, must gradually acquire.

The other articles of this chapter need no comment.

We come now to the Code itself. The first chapter of the first book contains General Provisions. Most of them are in exact conformity with what is generally supposed to be the present laws, but so expressed as to leave no room for doubt or cavil; some of them, however, deserve particular notice. The evil already pointed out, attending the passage of successive penal laws on the same subject, without repealing the first, is one so likely to recur, that some general rules were thought necessary to regulate the effect of such legislation. Reasoning from what ought to be, rather than from what is, it might be supposed that when a new penalty was created without repealing a former law that had, also, imposed one, the legislature intended to preserve both, and such has hitherto been the construction; but, in fact, it is the very reverse; the new penalty is, nine times in ten, intended as a substitute, and the old law is suffered to stand merely through haste or negligence. An article. provides for this, and declares that in such case, unless the contrary is expressed, the former penalty shall be abrogated.

A more important disposition is that which declares that there shall be but one mode of construing penal laws, according to the plain import of the words they employ, and expressly abolishes what are called favourable and strict constructions; in other words, permitting the court sometimes to say that the law means more, sometimes less, than the legislature intended. Common sense acknowledges but the one mode, when the language is clear and explicit. When the law is ambiguous, another article provides the remedy. Such a law, if it purport to impose a penalty, is void; and he who is accused of contravening it, must. be acquitted. In the fear, however, that such general terms may some

times be used as may include an act which the legislature could not have intended to forbid, an article has been added since the code was printed, specially providing, that in such cases, the defendant must be acquitted, and the case reported to the legislature; who may then, more explicitly declare their will to govern future cases. A perusal of the statute against concealed weapons, will exemplify the necessity of this provision. There, a knife is expressly called a weapon, and the "wearing it in the coat, or any place about the wearer, so that it do not appear in full view," makes him liable to a penalty, and subjects him to search; wearing a penknife in a man's waistcoat pocket, is an offence within the plain meaning of the words of the statute, employed in their usual sense; and yet, it evidently could not be the intent of the legislature to make this an offence. Other cases of the like kind may occur, and the law should provide against inaccuracy, as well as grosser faults.

Another article expressly forbids all convictions, for constructive offences; that is, offences that are created by courts, and not by the legislature. The latter alone are the proper organ for declaring what acts or omissions shall be punished, and the text forbids the judiciary, for reasons which it assigns, from interfering in their functions. Whether our courts have extended any offences, by construction, is not known, nor can it be until some means are taken to report and publish their decisions in criminal cases; but it is certain that they adopt the constructive larcenies and forgeries of the English law(a), and there is every reason to suppose that the same causes will produce the same effects. Those which we have seen in another country, where the state of society and manners are similar to our own, we may expect here. It will not be denied, that England has suffered the most cruel evils by this exercise of judicial power. The restriction, then, in the text was necessary. We may, hereafter, have a judge who may exercise his constructive ingenuity upon murders or burglary, or other offences, as Jefferies did upon treasons. Wise laws must look beyond the present day; and it is their office to foresee and counteract the effects of propensities which tend to disturb or corrupt the order of society. The second chapter of this book contains provisions which, relating solely to prosecutions and trials, are enlarged on in the text of the code of procedure, and will be elucidated in the introductory report to that code. One only of these will be mentioned here, that relating to the trial by jury, and this only for the purpose of referring to what has been said on that subject in the first report, to which I need add nothing, and from which all my subsequent reflections have suggested nothing to retrench.

The third chapter contains the general provisions which relate to persons amenable to the penal laws. Most of them have no novelty to call for any explanation-some, however, do. Citizens and inhabitants of the state may be punished, as well for acts done out of the state as

(a) If one lends a horse to another, who rides away with him, Blackstone declares it is no larceny in 1779; and in 1786, by a construction never before heard of, it was declared to be a larceny. Forgery was originally confined to making the deed of another. It has been since extended to a very different offence, making a deed in the true name, the offender representing himself to be another person.