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Vengeance, we have said, is unknown to our law; it cannot, therefore, pursue the living offender, much less, with impotent rage should it pounce, like a vulture, on the body of the dead, to avenge a crime which the offender can never repeat, and which certainly holds out no lure for imitation : the innocent, we have assumed, should never be involved in the punishment inflicted on the guilty, But here, not only the innocent, but those most injured by the crime, are exclusively the sufferers by the punishment. We have established as a maxim, thạt the sole end of punishment is to prevent the commission of crimes : the only means of effecting this, in the present case, must be by the force of example; but what punishment can be devised to deter him, whose very crime consists in the infliction upon himself of the greatest penalty your law can denounce ? Unless, therefore, you use the hold which natural affection gives you on bis feelings, and restrain him by the fear of the disgrace and rụiņ with which you threaten his family, your law bas no effective sanction ; but humanity forbids this; the legislator that threatens it, is guilty of the most refined tyranny. If he carry it into execution, he is a savage. It is either a vain threat, and therefore cannot operate, or if executed, with an ill-directed rage, strikes the innocent because the guilty is beyond its reach.
Another species of offence is also omitted, though it figures in every code, from the Mosaic downward, to those of our days, and generally with capital punishments denounced against its commission; yet I have not polluted the pages of the law, which
I am preparing for you, by mentioning it; for several reasons.
First. Because, although it certainly prevailed among most of the ancient nations, and is said to be frequently committed in some of the modern, yet, I think, in all these cases, it may be traced to causes and institutions peculiar to the people where it has been known, but which cannot operate here; and that the repugnance, disgust, and even horror, which the very idea inspires, will be a sufficient security that it can never become a prevalent one in our country.
Secondly. Because, as every crime must be defined, the details of such a definition would inflict a lasting wound on the morals of the people. Your criminal code is no longer to be the study of a select few ; it is not the design of the framers that it should be exclusively the study even of our own sex ; and it is particularly desirable, that it should become a branch of early education for our
youth. The shock which such a chapter must give .. to
to their pudicity ; the familiarity their minds must acquire with the most disgusting images, would, it is firinly believed, be most injurious in its effects ; and if there were no other objection, ought to make us pause before we submitted such details to public inspection.
Thirdly. It is an offence necessarily difficult of proof, and must generally be established by the evidence of those who are sufficiently base and corrupt to have participated in the offence. Hence, persons shameless and depraved enough to incur
this disgrace, have made it the engine of extortion against the innocent, by threatening them with a denunciation for this crime, and they were generally successful; because, against such an accusation, it was known that the infamy of the accuser furnished no sure defence..
My last reason for the omission was, that as all our criminal proceedings must be public, a single trial of this nature would do more injury to the morals of the people than the secret, and therefore always uncertain, commission of the offence. I was not a little influenced also, by reflecting on the probability, that the innocent might suffer, either by. malicious combinations of perjured witnesses, in a case so difficult of defence, or by the ready credit that would be given to circumstantial evidence, where direct proof is not easily procured, and where, from the nature of the crime, a prejudice is created by the very accusation.
In designating the acts which should be declared offences, I could not confine the selection to such as were already prevalent in the country; this would have required, in future, too frequent a recurrence to the work of amendment; nor could I, with propriety, include all the long list of offences which have been enumerated in the codes of other countries. A middle course has been pursued, embracing such prohibitions only as apply to acts which the present, and probable future state of society, in our country, may require to be repressed.
The penal laws of most countries have an ample department allotted to offences against religion, be
cause nyost countries have an established religion which must be supported in its superiority by the penalties of temporal laws. Here, where no preéminence is acknowledged, but such as is acquired by persuasion and conviction of the truth ; where all modes of faith, all forms of worship are equal in the eye of the law; and it is left to that of Omniscience, to discover which is the one most pleasing in its sight; here, the task of legislation, on this head, is simple, and easily performed. It consists in a few provisions for scrupulously preserving this equality, and for purrishing every species of disturbance to the exercise of all religious rites, while they do not interfere with public tranquillity ; these are accordingly all that will be found in the code.
After thus accounting for the omissions, I have remarked, it may be proper to notice a new class inserted in the enumeration of public offences, under the head of offences against the freedom of the press; this is new in the legislation of those governments where the liberty of the press is best established and most prized. It has generally been thought a sufficient protection to declare, that no punishinent should be inflicted on those who legally exercise the right of publishing ; but hitherto no penalties have been denounced against those who illegally abridge this liberty. Constitutional pro visions are, in our republics, universally introduced, to assert the right, but no sanction is given to the law. Yet do not the soundest principles require it? If the liberty of publishing be a right, is it sufficient
to say, that no one shall be punished for exercising it? I have a right to possess my property, yệt the law does not confine itself to a declaration that I shall not be punished for using it ; something more is done, and it is fenced round with penalties, imposed on those who deprive me of its enjoyment.
Why should there be this difference in the protection which the law affords to those different rights ? Not certainly because the one in question is considered as of small moment: every bill of rights since the art of printing has been known, testifies how highly it has been prized. This ánomaly may, in states governed by the common law, be accounted for by the reflection, that every breach of à constitutional privilege, might there be considered as a misdemeanor and punished as such, although no penalty were contained in the law. But here, where nothing is an offence but that which is plainly and especially declared to be such by the letter of the law, where we have banished all constructivé offences, here our code would be incomplete without the insertion of this class.
All violence or menace of violence, or any other of the means which are enumerated in the code ; all exercise of official influence or authority which may abridge this valuable privilege, is declared to be an offence. Nay, the project which will be presented to you, goes further. And, considering the constitutional provision as paramount to any act of ordinary legislation, and consequently, that all laws in derogation of it are void; it declares all those guilty of an offence who shall execute any