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be offences, may be justified or excused; to the repetition of offences; to the situation of different persons participating in the same offence, as principals, accomplices, or accessaries.
The enunciation of these general provisio.is, it is supposed, will greatly tend, not only to e cidate, but abridge the work ; by throwing them nto a single chapter, memory is assisted, order is better preserved, and repetition very much avoided. Among those which relate to the exercise of legislative power, are some that ought particularly to fix the attention of the general assembly; such is one for the exclusion of that class of offences which figures in the English, and most other penal codes, under the vague description of offences against the laws of morality, of nature, and of religion.' The will of the legislature is established as the only rule; and the crude and varying opinions of judges, as to the extent of this uncertain code of good morals, is no longer to usurp the authority of law. Connected with this, is the provision which prohibits the punishment of any act not expressly forbidden by the letter of the law, under the pretence, that it comes within its spirit.
By the criminal laws which now govern us, most offences are described in the technical words of the English jurisprudence, and we are referred to it for their explanation; hence 'our judges have deemed themselves bound to adopt those definitions which have been given by the English courts, and the whole train of constructive offences has been brought into our law. The institution of the trial
by jury, the rare infliction of torture; and in latter times, the law of habeas corpus, gave a decided superiority to the penal law of England over that of its neighbours. The nation, unfortunately, mistook this superiority for perfection; and while they proudly looked down on the rest of Europe, and reproached them with their tortures, their inquisitions and secret tribunals, they shut their eyes to the imperfections of their own code. Prisoners were denied the assistance of counsel ; men were executed because they could not read ; those who refused to answer were condemned to die under the most cruel torture. Executions for some crimes were attended with butchery that would disgust a savage. The life and honour of the accused, were made to depend on the uncertain issue of a judicial combat. A wretched sophistry introduced the doctrine of corrupted blood. Heretics and witches were committed to the flames. No proportion was preserved between crimes and punishments. The cutting of a twig and the assassination of a parent ; breaking a fish-pond and poisoning a whole family, or murdering them in their sleep, all incurred the same penalties; and two hundred different actions, many not deserving the name of offences, were punishable by death. This dreadful list was en , creased by the legislation of the judges, who declared acts which were not criminal under the letter of the law, to be punishable by virtue of its spirit. The statute gave the text, and the tribunals wrote the commentary in letters of blood; and ex. tended its penalties by the creation of constructive
offences. The vague, and sometimes unintelligible language, employed in the penal statutes; and the discordant opinions of elementary writers, gave a colour of necessity to this assumption of power; and the English nation have submitted to the legislation of its courts, and seen their fellow subjects hanged for constructive felonies ; : quartered for constructive treasons; and roasted alive for constructive heresies, with a patience that would be astonishing, even if their written laws had sanctioned the butchery. The first constructive extension of a penal statute beyond its Jetter is an ex post facto law, as regards the offence to which it is applied ; and is an illegal assumption of legislative power, so far as it establishes a rule for future decisions. : In our republic, where the different departments of government are constitutionally forbidden to interfere with each others functions, the exercise of this power would be particularly dangerous ; it was, therefore, thought proper to forbid it by an express prohibition. Some actions, injurious to society, may by this means be permitted for a time, but it was deemed infinitely better to submit to this temporary inconvenience, than to allow the exercise of a power, so much at war with the principles of our government. It
proper to observe, that the fear of these consequences is not ideal, and that the decisions of all tribunals, under the common law, justify the belief, that without some legislative restraint, our courts would not be more scrupulous than those of other countries, in sanctioning this dangerous abuse. In another part of the code, it
is intended to insert a provision, to bring before the legislature, at stated periods, all those cases, in which the operation of the law is supposed to fall short of, or to extend beyond the intention of those who framed it; the defects, if really such, will then be cured by the power legally authorized to apply the remedy ; the harmony of our constitutional distribution of powers will be undisturbed ; and the ends of public justice attained with greater regularity and better effect, Our constitution, containing a very imperfect declaration of rights, leaves the legislative power entirely uncontrolled in some points, where restraint has, in most free governments, been deemed essential; a majority may establish their religion, as that of the state ; non-conformity may be punished as heresy ;; and even the toleration of other creeds may be refused; without violating any express constitutional law. Corruption of blood may be established, and it is even somewhat doubtful, whether, strictly speaking, it does not, under the general terms in which the rules of the common law are adopted, pow exist. No legislative act can apply an effectual remedy to these and other constitutional defects; but their existence has called for a longer enunciation of general principles in the code, than would otherwise have been necessary. Our successors will not be bound to observe them, but we shall evince our own conviction of their truth; and by impressing them on the minds of our constituențș, render any attempt to underinine or destroy them, more difficult and more odious. Acknow
ledged truths in politics, and jurisprudence, can never be too often repeated. When the true principles of legislation are impressed on the minds of the people; when they see the reasons of the laws by which they are governed, they will obey them with cheerfulness, if just, and know how to change them, if oppressive, The reporter, therefore, has thought it an essential part of his duty, to fortify the precepts of the projected code, by assigning the reasons on which they are founded; thus to open the arcaņa of penal legislation, and to shew that the mystery in which it has hitherto been involved, was not inherent in the sụbject, but must disappear, whenever its true principles are developed,
Among the general provisions, is also found one, asserting the right to publish, without restraint, the account of all proceedings in criminal courts, and freely to discuss the conduct of judges, and other officers employed in administering justice. That this may be done more effectually, it is provided, that the judge shall, at the requeșt either of the accused or of the prosecutor, state, and record his decisions, with the reasons on which they are founded. In a subsequent part of the work, it will be made the duty of a particular officer, to publish accurate accounts of all trials, remarkable either for the atrocity of the offence, or the importance of the principles decided in the course of the proceeding, Publicity is an object of such importance in free governments, that it not only ought to be permitted, but must be secured by a species of compulsion. The people must be forced to know