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official influence, and the privilege of arguing without reply. For these reasons the judge is forbidden to express any opinion on the facts which are alleged in evidence, much less to address any argument to the jury, but his functions are confined to expounding the law, and stating the points of evidence on which the recollection of the members of the jury may differ.
I pass over other alterations of less importance, and proceed to the consideration of the fifth book.
This, as we have seen in the plan, is devoted to the rules of evidence as applicable to criminal law, In the execution of this part of the work, general principles will be first laid down, applicable to all cases of criminal inquiry from its incipient, to its final stage; they will be such only as have received the sanction of the learned and the wise, or such as can be supported by the clearest demonstration of their utility and truth. The evidence necessary to justify commitments, indietments, and convictions for each offence specified in the third book, as well as that which may be admitted in the defence, will be detailed under separate heads, and such an arrangement will be studied as to make this part of the work easily comprehended, and remembered without difficulty.
It is obvious, from the nature of this division of the subject, that illustrations of the rules it contains cannot be given without greatly exceeding the limits of an ordinary report. It may be proper, however, under this head, to notice, that an attempt is made
to enforce the sanction and add to the solemnity of oaths. From the careless and often unintelligible manner in which they are administered, it seems an idle ceremony rather than a sacred promise, accompanied by a renunciation of the blessings of the Deity in case it should be broken.
Rules are framed on this subject, which, it is supposed, may, in some measure, correct the evil, and make witnesses more cautious and circumspect in their testimony, by impressing upon the mind a proper sense of the serious consequences of its violation. If this impression should be insufficient to prevent deliberate perjury, it will, at least, restrain the more prevalent evil of those aberrations from truth which are caused by exaggeration, carelessness, or passion.
The sixth and last division of the work is, to contain rules for the establishment and government of the public prisons ; comprehending those intended for detention previous to trial; for simple confinement, and for correctional imprisonment at hard labour, or in solitude.
Upon these rules, and the proper execution of them, depend the success of the whole system. But it will be useless to make rules, because impossible to execute them, unless the edifice to be prepared for this purpose be on a scale sufficiently extensive to permit the proper classification, the separate employment and proper seclusion, of the different offenders. Without these, we can neither produce reformation, nor hope for any effect from example. And yet, because it produces neither,
we find fault with the system, when we should arraign only our want of attention to its principle. Vice is more infectious than disease; many maladies of the body are not communicated even by contact, but there is no vice that affects the mind, which is not imparted by constant association; and it would be more reasonable to put a man in a pest-house to cure him of a head-ache, than to confine a young offender in a penitentiary, organized on the ordinary plan, in order to effect his reformation. Considering this interior arrangement as essential to the success of the whole plan, it was deemed improper to leave it to the discretion of the governors or warden; but by means of precise and somewhat minute regulations, to place the discipline of the prison on a basis that should not vary according to the different theories of those who are to enforce it, taking care, however, to allow a reasonable discretion in cases where considerations of humanity require it.
In order to frame these regulations to advantage, it would be very advisable to obtain more information than we now possess, of the practical operation of those which have been tried in the other states.
For this purpose, I intend, if possible, to devote a few months of the summer to a personal examination of the different institutions of the kind in the Atlantic states, but if my circumstances should not permit me to execute this plan, I shall renew the efforts I have already made to procure the information which the different returns and reports can give.
Every system having reformation for its principal, or even incidental object, is imperfect, if it do not contain a regular and permanent provision for giving education to the young offenders, and moral and religious instruction to all.
Lessons of this nature, inculcated by men of piety and benevolence; enforced by a life of temperance and labour, and not counteracted by any evil associations, I firmly believe will make many a discharged convict, a more worthy member of society tban some who have never committed any offence of sufficient magnitude to incur the same discipline. But reformation is not enough; although sincere, it will not be lasting, if the distrust of society shall drive the repentant sinner from its bosoin ; deny him the means of subsistence, and force him to seek it in a new association with his former companion in guilt. To avoid this consequence, means must be found to test by a proper interval of probation, the sincerity of his reformation; to give him an opportunity of regaining confidence by acts of gradual intercourse with the public, and after repeated trials, if it be found that he can withstand temptation, to assign him a place in society, which will enable him to subsist without reproach.
This part of the plan will be difficult of execution, but it is not deemed impracticable, and it will be facilitated and enforced by increased severity for a repetition of offences, as well in the duration of punishment as in the increase of privations while it lasts. Should the regulations which I suggest for this purpose be adopted, and be found efficient, it
will complete the system which substitutes amendatory to vindictive punishments. A reformation in penal jurisprudence which reflects higher honour on modern times, than the greatest discoveries they have produced in arts, literature, or science.
This is the plan of the work, and these are the principles on which it is founded ; if after examining them, it should be perceived that they are in consistent with the views of the legislature, or that the execution falls short of their expectations, the evil is still within the reach of such remedy as their wisdom may suggest.
From such parts of the code as are in the state of greatest forwardness, I have selected the second book; and the last chapter of the fourth, as specimens of the execution. The one being chiefly an enunciation of general principles, and the other necessarily confined to matters of practical detail, the general assembly can the better judge, whether a proper attention to sound theory, has been combined with efficient practical details ; and whether the great object I have had in view, of rendering every rule intelligible, although concise, has, in a reasonable degree been attained.
Some parts of the third book are prepared, but the whole of this division is still in an unfinished state. The fourth is nearly complete. The fifth cannot, without great inconvenience, be put into form until the crimes to which the evidence is to apply are defined and definitively classed; this book must, therefore, necessarily be unfinished until the completion of the third ; and the want of that