law abridging or restraining the liberty of the press, contrary to the privilege secured by the constitution. It may be said that this is nugatory, because, the same authority which makes the code may repeal it, and that the legislature which could so far forget their duty as to violate the constitution, would certainly abrogate the law by which it was made punishable. To this I answer, that the consequence does not follow. Attacks on constitutional rights are seldom openly or directly made; the repeal of this part of the code, would be an acknowledgment on the part of those who procured it, that they were hostile to the right secured by the constitution. This in a popular government, no representative would dare to avow; and however desirous a faction might be to get rid of this formidable censor of their principles, operations, and plans, they would never dare openly to declare their fears. But by means of these provisions in your code, all those insidious attempts by which valuable privileges are generally destroyed 'will be prevented; the people will be put on their guard against them; and the judiciary will be armed with legal authority for their punishment and suppression.

I wish to have it distinctly understood, that the preceding division and classification of offences, is introduced to give a method to the work, which will aid the memory; render reference more easy; enable the student to comprehend the whole plan, and future legislators to apply amendments and ameliorations with greater effect. But that they are not intended, in any manner, to have a con

structive operation. Each offence is to be construed by the definition which is given of it, not by the division, or class in which it is placed. The mixed nature of many offences, and the impossibility of making any precise line of demarcation, even between the two great divisions, render this remark necessary.

After the prohibitory and mandatory part of the penal law, we naturally come to consider its sanction, or the means of securing obedience to its provisions.

The first of these are the precautionary measures to prevent the commission of apprehended offences, or to arrest the completion of those which are begun. These are provided for, in the fourth book, and do not, very essentially, differ from those which are known to the English law.

In considering this important branch of the subject, we must refer to the principles established in the preliminary chapter. If those are right, the law punishes, not to avenge, but to prevent crimes; it effects this, first, by deterring others by the example of its inflictions on the offender; secondly, by its effects on the delinquent himself; taking away, by restraint, his power; and by reformation, his desire of repeating the offence. No punishments, greater than are necessary to effect this work of prevention, let us remember, ought to be inflicted; and that those which produce it, by uniting refor mation with example, are the best adapted to the end. It would be disgusting and unnecessary, to pass in review all the modes of punishment which

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have, even in modern times, been used; rather it would seem to gratify vengeance, than to lessen the number of offences. A spirit of enlightened legislation, taught by Montesquieu, Beccaria, Eden, and others; names dear to humanity! has banished some of the most atrocious from the codes of Europe. But it has happened, in this branch of jurisprudence, as it has in most other departments of science, that long after the great principles are generally ac knowledged, a diversity of opinion exists on their application to particular subjects. Thus, although the dislocation of the joints is no longer considered as the best mode of ascertaining innocence or discovering guilt; although offences against the Deity are no longer expiated by the burning faggot; or those against the majesty of kings, avenged by the hot pincers, and the rack, and the wheel; still many other modes of punishment have their advocates, which, if not equally cruel, are quite as inconsistent with the true maxims of penal law; it may, therefore, be proper to pass some of them in review.

. They may be reduced to these: Banishment. Deportation. Simple imprisonment.-Imprisonment in chains. Confiscation of property. Exposure to public derision.-Labour on public works. Mutilation, and other indelible marks of disgrace. Stripes, or the infliction of other bodily pain.→→ Death.

Banishment, even if it were an efficient remedy, 'can hardly, I think, be thought consistent with the duties which one nation owes to another. The con

vict who is forced from one country, must take re fuge in another; and wherever he goes, he carries with him his disposition to break the laws and cor rupt the morals of the country. The same crimes which make him unfit to reside in his own, render him mischievous to that which he chooses for his retreat. Every nation then would have a right to complain of laws that made their territories the retreat of banditti, and other malefactors of their neighbours, Each, at least, would have a right to refuse their entrance. If all do it, then the punishment cannot be inflicted; or must be commuted into that which is denounced against those who return. If no laws are made to expel them, or guard against their entrance, the favour must be reciprocal, and each nation would be bound to receive from its neighbour, a number of foreign rogues, equal to that of the domestic villains they send out. The Romans, who commanded the civilized world, might employ this punishment with effect. In modern times, it is only used (and that rarely) for state offences, and then it is generally dangerous; because, the man banished for political crimes, has frequently the power of doing more extensive mischief abroad than at home. It is also a very inefficient remedy; to many, it would have no terrors, and those upon whose love of country it might operate as a punishment, could find many means of evading it by an undiscovered return.

Deportation, or rather relegation, is more effi'cient, because, return is more difficult than from simple banishment. It also operates favourably

sometimes, by producing reformation, and while enforced, effectually prevents a repetition of the offence; at least, on the society where it was first committed. But its effect, as an example, is nearly lost, because the culprit himself scarcely thinks it a punishment; and because, the distance causes both him and his crime to be forgotten, as completely as if he were removed by death; and its practical operation in England, where it has been long tried under various forms, does not warrant the conclusion, that it ought to be adopted here.* :

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The legislature of Pennsylvania have received, very favourably, a plan presented by Dr. Mease, recommending this mode of punishment; he has sent me a copy of his papers, which are at the disposal of the general assembly: they are written with ingenuity, but under the circumstances in which this state is placed, I cannot propose his scheme as either a practicable or an advisable mode of disposing of convicts.

Simple imprisonment has obvious defects; as a corrective, it is nearly the worst that could be applied. If solitary, it is, for most offences, too severe. If it be not solitary, it becomes a school for vice and every kind of corruption. The want

* A very respectable witness, examined before the house of commons, says, as to transportation, I, with deference, think, it ought not to be adopted, except for incorrigible offenders, and then it ought to be for life; if it is for seven years, the novelty of the thing, and the prospect of returning to their friends and associates, reconcile offenders to it, so that, in fact, they consider it no punishment, and when this sentence is passed on men, they frequently say, 'thank you, my lord."