necessity, which is so much insisted on, and so little understood. There is a necessity that courts should have the power of removing interruptions to their proceedings, because, unless they can perform their functions, they cannot exist, but there is none that they should have the power to punish those interruptions; the laws must do that, by the instrumentality of the courts, but in the form prescribed by law.

If the argument has been as clearly expressed as its force is felt, it must be convincing to show-that all those offences, distinguished by the name of contempts, ought to be banished from our penal law, which they disfigure by the grossest departure from principle; that courts ought to be empowered to remove all obstructions to their proceedings; that all such acts, as well as those tending to interrupt the course of judicial proceeding, to taint its purity, or even to bring it into disrepute, should be punished only by the due course of law; and that proper punishments, inflicted by the regular operation of law, will deter from these acts much more effectually than the irregular agency of the offended party, who sometimes, from delicacy, will abstain from enforcing the penalty of the law-sometimes, from the indulgence of passion, will exceed it.

It is on these principles that this part of the code has been framed. It vests ample powers of repression in the court. They may remove every interruption to their proceedings; they may enforce prompt obedience to their orders; they may, if simple removal is not found sufficient, restrain by imprisonment; and, after this, a regular trial and punishment follows for the offence. Here is no angry altercation. All is done with the composure necessary to the dignity of justice. The judge is not the accuser; the accuser is not the judge. All that class of offences, too, which consist in insulting expressions, are provided for. But here again an impartial jury decide, as well on the nature of the words, as on the intent with which they were used. The judge cannot improperly indulge his feelings, or restrain them, to the injury of public justice; and the offender against laws for preserving the order and dignity of the judiciary, is liable to the same penalties, entitled to the same rights, and judged by the same laws, that apply to

other offenders.

This chapter, then, far from derogating from the respect due to the judiciary, is calculated, in all its provisions, to enforce it; and the insinuation, that its author could be actuated by any hostility to that department, is not only groundless, but absurd. If, indeed, it is hostility to a department of government, to desire that none but its proper powers should be vested in it by law, or still less, should be exercised without law; if it be hostility to the judiciary to divest them of the odious accumulation of the offices of judge, party, legislator, and accuser, in the same person; to protect their functions in their exercise, and punish all attempts to interrupt them; then is this chapter dictated by a spirit of the most determined hostility.

The next class of offences are those which affect the public tranquillity; and they form the subject of the sixth title. The first chapter comprises two offences of this nature-unlawful assemblies and riots. The first being a preparatory step to the second offence. They are both so clearly defined as not to be easily confounded; and although both are taken, in their general features, from the English law, there are several modifications introduced, which, it is hoped, will be con

sidered as improvements. If the object of the one or the other offence be in opposition to the collection of taxes, or to a sentence of a court, or for the purpose of effecting a rescue, a definite increase of punishment is ordained, instead of leaving this entirely to the discretion of the court, which would have induced the necessity of an enlargement of that discretion in fixing the original punishment, so as to embrace the two cases. To encourage obedience to the law, it is provided, that if any one, either voluntary or in obedience to the admonition of a magistrate, shall leave an unlawful assembly, without any intent to return, before a riot has been committed, that he shall avoid the punishment due to his assisting in the first offence. An increase of punishment

is also directed against those who shall appear armed at such unlawful assembly or riot; and to avoid all equivocation, the term is one of those that are designated as being used in the sense described in the Book of Definitions.

A proceeding, analogous to that of reading the riot act in England, is directed to be had by the magistrate, to disperse an unlawful assembly, or put an end to a riot; but it is one that, it is thought, is better calculated to strike the attention, while its purport is equally or more intelligible to such an assemblage; and it consists in the display of a flag, accompanied by a short proclamation; the effect of disobedience to which is pointed out; and in the correspondent chapter of the Code of Procedure all the forms are given, as well as the mode pointed out for calling out and employing the military, in aid of the civil power, when the first is insufficient to restore order.

An article in this chapter imposes a penalty on those exhibitions of pugilism which disgrace any society in which they are suffered.

Public disturbance is a minor species of this general offence, and it is made punishable by a slighter penalty, and may be repressed by the summary interference of the magistrate.

Articles containing negative provisions prevent any interference with legal meetings.

Offences against the right of suffrage form the important subject of the seventh title. Bribery, violence, undue influence, are endeavoured to be guarded against by enactments, sufficiently explicit to be understood without commentary, and by penalties proportioned and analogous to the several offences.

The eighth title would require much elucidation, if the subject of it had not already been submitted to the legislature, and if its provisions had not received their sanction and produced some strictures; but being founded in true principles, the more closely it has been examined the more clearly has its utility appeared; and if a novelty, it is not one of those that can be characterised as dangerous or useless. While we all profess a respect almost amounting to adoration for the liberty of the press, we may be permitted to wonder that it has, as yet, been protected by no penal enactments, while every code abounds with laws to guard against its abuse, and frequently, too, under that pretext, to destroy it. Our state has been more particular than most of the others, in guarding this precious privilege, by its constitution; but the constitution could, of course, contain no penalty for a breach; that care was left to the legislature. We cannot too often recur to the very words of our fundamental law on that subject; full of foresight and wisdom, they are calculated to defeat every attack that might be made

by open violence or insidious attempts upon this safeguard of our liberties: "Printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government, and no law shall ever be made to restrain the right thereof "(a). But if such a law should be made; if a wicked and corrupt legislature should try to repress any discussion of their proceedings by heavy penalties; and if a subserving judiciary should be found to execute their unconstitutional statutes-where is the remedy? Should there be none? Why should disobedience to this constitutional law go unpunished? Surely the immorality of the act, and most surely its injurious tendency, are sufficiently apparent to call for and to justify repression and punishment. Surely the legislature, which provides a sanction for this wise and highly important law, are performing a sacred duty.

Again this was a favourite theme with the framers of our constitution. They seem loth to quit it while any thing remains to be said, that could show the high regard they had for this privilege. They add: "The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty." But if that freedom, thus intended to be secured, is endeavoured to be shackled by threats, by actual violence, by the illegal exercise of judicial power, under pretence of an alleged abuse? Are not laws, tending to restrain these abuses, worthy of the attention of the legislature when it is forming a system of penal law? Either the privilege was not worth all the care and attention which has been given to it in the constitution, or it is worth that of the legislature to protect it. Without some law of this kind, the constitutional provision can have no efficient operation. But with the aid of the penal law, it receives the force and effect which its importance merits.

A very superficial attention to one of the articles, has produced an objection that seems to have had some weight, but which is entitled to very little. The article imposes a penalty on any judicial or other officer who, under pretence of any law which contravenes the constitution, in this respect, shall restrain or prevent the exercise of the liberty of discussion secured by the constitution. Now, it is said, if a legislature be found wicked enough to pass such an unconstitutional law, they will also, to secure its execution, repeal that part of your code, and your penalty then goes with it. This objection was anticipated in the first report, and it was answered, that attacks upon the privileges of the people are, for the most part, insidiously made under pretence of public good, and clothed, at least, with a specious. regard for constitutional forms; and that a repeal of this part of the code would take off the mask and put the friends of the people on their guard, and therefore it would not be attempted; or, if it were, that the repeal of this part of the code, like the attack of an outpost, would put the main body on their guard. Another reason may now be added, that a law infringing that important part of the constitution might be passed, not from any direct hostility to the liberty of the press in general, but for the purpose of some party advantage or other temporary motive, in troublesome times; and in such case, it would not be

(a) Constitution of Louisiana, art. vi. sect. 21.

accompanied by the repeal of the code. Again-the existence of this article in the code, at least, forms an additional security, for members might be found to concur, from interest or passion, in abridging the liberty of the press, who might not go the length of repealing the article; and every additional security, which is attended with no inconvenience, and none can be even supposed here, is of the highest importance. And finally, admit that it may be rendered nugatory by a repeal; yet if it should be of use until that repeal takes place; if it should defeat one unprincipled attempt to destroy this sacred privilege; if it should only give time for its friends to rally in its defence-it would be of inestimable value.

As expression, also, of legislative opinion, its importance is not small; and the vigilance which it testifies in the guarding of constitutional rights, will not only reflect honour on those who pass it, but teach the people how to appreciate those rights which they see thus carefully enclosed with penalties.

One more reflection and I dismiss the subject, with a simple reference to the chapter, which contains nothing that needs an explanation to elucidate any further the several offences and their punishment. That reflection is this, that there is no one possible inconvenience attending the execution of any of the enactments of this chapter. No penalty can fall on any person who does not openly and wilfully violate one of the most important parts of his country's constitution; no ambiguity in the definition of the offences; no undue severity in the punishment. It is new! This is the "very head and front of its offending;" but it is not dangerous. It is believed to be necessary and highly useful.

The ninth title relates to offences affecting public records; on which subject we have now three provisions in the 19th and 20th sections of the act of May 1805, and the 8th section of the act of 19th March 1818. By the first it is forbidden feloniously to steal, take away, alter, falsify, or otherwise avoid any record, writ, process, or any proceeding in any of the courts, under the penalty of fine to three thousand dollars, and imprisonment at hard labour not exceeding two years.

The second provides, that those who shall deface, alter, or embezzle any record, or enrolment, or matter, or instrument recorded, or registry thereof, with intent to defraud, shall pay a fine to one thousand dollars, be imprisoned at hard labour to two years, and be rendered incapable of holding any office.

By the third, if any person shall forge, or counterfeit, any public record or attestation of a public officer, where such attestation is legal proof, he shall be punished by solitary imprisonment to one, and at hard labour not less than two nor more than fourteen years.

Thus, taking these sections together, we find, first, that to steal or alter the record of a court may be punished by a fine of one cent, and imprisonment for one hour, but that the fine cannot exceed three thousand dollars, nor the imprisonment two years; whereas the minimum punishment, for forging a record of enrolment, is exactly the maximum that is inflicted for stealing or forging the record of a court; unless the general expression, record, in the third act, should be construed also to include court records; in which case there would be the difference I have stated, between the punishments for stealing and for forging the same record.

Secondly, that there is a difference in the punishments of the two

offences, designated in the first two sections respectively, that does not seem to be warranted by any distinction between them, in moral guilt, or public or private injury.

Thirdly, that in a fair construction of the words employed, all three of the sections include the same offence, to wit, forging the record of a court. The first designates, as one of the acts it forbids, to alter, falsify, or otherwise avoid any record, or other proceeding in any court. The second, to deface, or alter, or embezzle any record, enrolment, or matter of record, &c. The third, to forge, or counterfeit any public record. All of these have different penalties. Are they all to be inflicted? The reasoning of the court(a), above quoted, would seem to decide the affirmative of this question, for none of them contain a repealing clause, and two of them are in the same act. Yet, if they are, what confusion must ensue. This evil is remedied by the code; these, and all other offences of the same nature, are clearly described; all the words used in the description are defined; and the distinction, between the guilt and mischief, where an officer, who has the custody of the records, betrays his trust, by falsifying or destroying them; and the same crime committed by any other individual, is marked by an increase of punishment. In this, as well as in a subsequent title, the law is simplified by using a general description of the records intended to be protected against falsification and other injury, rather than by an enumeration, which is generally made imperfect in a few years by other instruments coming in use, which it is also necessary to protect. False certificates of recording officers, personifications to execute, or acknowledge, or prove authentic instruments, are provided against; and a section, describing what shall be deemed a fraudulent use of a forged record, will, it is believed, clear up doubts that have heretofore existed on that subject.

The title of offences against the current coin of the state, is so drawn as to embrace every offence of this nature. There is, among others, a section making it penal to possess counterfeited coin with the intent to pass it as true, either in the state, which is the provision of the present law, or to send it, for that purpose, into any other of the states, or into a foreign country. This is new in penal legislation, but it was thought honourable to the state to prevent its being made a den, in which coiners might carry on their fraudulent manufactory to the injury of other countries, whether enemies or friends; and as one step towards the application of that golden rule, "to do as we would be done by," to nations as well as to individuals. These advances need only be begun; they will be reciprocated; each will promote its interest as well as its honour, by making or meeting these advances, and from the most trifling beginnings, consequences most important to human happiness may result.

The great evil to the revenues of the state, arising from a misapplication of public moneys by those entrusted to receive them, was seriously considered, and a preventive remedy is proposed, which, it is thought, will in a great measure take away the temptation to the offence. A forced deposite of all moneys, by leaving no large sums in the possession of the party, will leave him little inducement to incur the penalty; and the measures described in the code, are such as cannot fail

(a) 10 Martin.