Obrazy na stronie

to man, and leaves the unfortunate wretch, who has himself been guilty of no offence, to decide between a life of infamy and self-reproach, or a death of dishonour. Dreadful as this picture is, the original is found in the law of accessaries after the fact. If the father commit treason, the son must abandon, or deliver him up to the executioner. If the son be guilty of a crime, the stern dictates of our law require, that his parent; that the very mother who bore him; that his sisters and brothers, the companions of his infancy, should expel nature from their hearts, and humanity from their feelings ; that they should barbarously discover his retreat, or with inhuman apathy, abandon him to his fate. The husband is even required to betray his wife, the mother of his children ; every tie of nature or affection is to be broken, and men are required to be faithless, treacherous, unnatural and cruel, in order to prove that they are good citizens, and worthy members of society. This is one instance, and we shall see others, of the danger of indiscreetly adopting, as a divine precept applicable to all nations, those rules which were laid down for a particular people, in a remote and barbarous age. The provisions now under consideration, evidently have their origin in the Jewish law; that, however, went somewhat further: it required the person connusant of a crime committed by a relation, not only to perform the part of informer, but executioner also. “ If thy brother, the son of thy mother ; or thy son, or thy daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee se

cretly, saying, let us go and serve other gods, thou shalt not consent.... Neither shall thine eye pity him ;.... neither shalt thou conceal himn;. .thou shalt surely kill him ; .... thou shalt stone him with stones.” Almighty power might counteract, for its own purposes, the feelings of humanity, but a mortał legislator should not presume to do it; and in modern times, such laws are too repugnant to our feelings, to be frequently executed ; but that they may never be enforced, they should be expunged from every code which they disgrace. The project presented to you, does this, with respect to ours. To put an end to that strife, which such provisions create in the minds of jurors, between their best feelings and their duty, their humanity and their oath ; no relation to the principal offender, in the ascending or descending line, or in the collateral, as far as the first degree ; no person united to him by marriage, or owing obedience to him as a servant, can be punished as an accessary. Cases of other parțicular ties of gratitude or friendship cannot be distinguished by law; they must be left for the consideration of the pardoning power,

I proceed to the plan of the third book, the most important in the woik: it enumerates, classes, and defines, all offences.

All contraventions of penal law are denominated by the general term, offences. Some division was necessary to distinguish between those of a greater ‘and others of a less degree of guilt. No scale could be found for this measure, so proper as the injury done to society by any given act; and as the punish

ment is intended to be proportioned to the injury, the nature of the punishment was fixed on, as the boundary between smaller offences, which are designated as misdemeanors, and those of a more serious' nature, which are called crimes. The last being such as are punished by hard labour, seclusion, or privation of civil rights, in addition to imprisonment. All other offences are called misdemeanors. In the progress of the work, I have felt some want of another denomination, to distinguish the lighter offences, which are punishable by pecuniary fines only, from those which are called in the English law, by the vague appellation of high misdemeanors ; and which are punished, as well by bodily restraint, as by fine. It is possible, that in the end, something like the “contraventionsof the French law may be adopted ; but I am at present inclined to think, that the single division I have mentioned, will be sufficient,

This first division can be of no utility in the definition of offences, and therefore will find no place in that part of the work; it is adopted, principally, from the necessity of such a distinction in the general provisions, and will also be found of use in common parlance, and for the purpose of reference.

Offences, including both crimes and misdemeanors, are next classed in relation to the object affected by them, into public and private.

Here again, the law which divides the two classes, must, in some measure, be arbitrary, for scarcely any public offence can be committed that

does not injure an individual; and most of the outrages offered to individuals, in some sort, affect the public tranquillity; but the order of the work requires the division, and it is made with as close a view as could be given to the nature of the different offences, as follows:-

I. Under the head of public offences are ranked:

Those which affect the sovereignty of the state, in its legislative, executive, or judiciary power.

The public tranquillity.—The revenue of the state.—The right of suffrage. The public records. -The current coin.--The commerce, manufactures, and trade of the country. The freedom of the press.—The public health.—The public property. The public roads, levees, bridges, navigable waters, and other property held by the sovereign power, for the common use of the people.—Those which prevent or restrain the free exercise of religion, or which corrupt the morals of the people.

II. Private offences are those which affect individuals and injure them

In their reputation. Their persons. Their political privileges.—Their civil rights.—Their profession, or trade.-Their property, or the means of acquiring or preserving it.

Under one or other of these heads, it is believed, that all such acts or omissions can be arranged, as it may be proper to constitute offences; unless, indeed, those which relate to societies or corporate þodies, may be found, when they come to be de

fined, not properly assignable to any one of these divisions; in which case, a separate class will be created for them and other miscellaneous offences. It is obvious, that the classification cannot be complete until all the offences are enumerated and defined, and therefore, this sketch is submitted more to give a general idea of the method, than as a complete plan.

Melancholy, misfortune and despair, sometimes urge the unhappy to an act, which, by most criminal codes, is considered as an offence of the .deepest die; and which, being directed principally against the offender himself, would have required a separate division, if it had been admitted in this code. It has not ; because its insertion would be contrary to some of the fundamental principles which have been laid down for framing it.

Suicide can never be punished but by making the -penalty (whether it be forfeiture or disgrace) fall exclusively upon the innocent. The English mangle the remains of the dead. The inanimate body feels neither the ignominy nor the pain. The mind of the innocent survivor alone, is lacerated by this useless and savage butchery, and the disgrace of the .execution is felt exclusively by him, although it ought to fall on the laws which inflict it. The father by a rash act of self-destrụction, deprives his family of the support he ought to afford them; and the law completes the work of ruin, by harrowing up their feelings; covering them with disgrace; and depriving them, by forfeiture, of their means of subsistence.

« PoprzedniaDalej »